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The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
My Lords, Members are encouraged to leave some distance between themselves and others and to wear a face covering when not speaking. If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Building Safety Bill
Thursday 24th February 2022
(2 years, 9 months ago)
Grand CommitteeRead Full debate Building Safety Act 2022 View all Building Safety Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 98-III Third marshalled list for Grand Committee - (24 Feb 2022)
Lord Blencathra
Lord Blencathra (Con)
My Lords, I rise to move Amendment 13 and to speak to Amendments 14 and 15 standing in my name. First, I declare a personal interest in that I am a leaseholder in a block of flats near here which qualifies for remediation work; we may have wooden balconies and other bits and pieces not technically covered.
Quite simply, I have tabled these amendments because I believe that the penalties for big building corporations are ridiculously light. I accept that for the single trader plumber, electrician or brickie, the magistrates’ court might suffice, but I say to my noble friend the Minister that it is preposterous to permit the Persimmon or Berkeley Homes of this world to be taken to a magistrates’ court for breaches of the law and fined a mere £200 per day that the breach continues. Theoretically, a magistrates’ court could impose an unlimited fine for breaches of the amounts imposed, but those amounts are trivial. Contrast that to the Health and Safety Executive, where last year the average fine was £140,000 and it fined the National Grid £4 million. Not a single person was killed in that incident, but the HSE believed that the National Grid’s records were inadequate and fined it £4 million.
In 2019, the Competition and Markets Authority fined three construction firms £25 million, £7 million and £4 million for indulging in a concrete pipe price-fixing ring. In 2021, another two firms were fined £15 million for fixing groundworks contracts—and these companies were not the large, mega housebuilding firms we all know and love. If the CMA can impose those levels of fines on small and medium-sized companies which have not compromised safety, why on earth should we even countenance four construction monoliths—which, in 2020, posted profits of £3.8 billion—getting a fine of £200 per day for breaching building regulations? That is why I believe we need to hit them hard, and the penalty in my amendment is the construction cost of the building they broke the law constructing, and that cost would double for each month that they fail to remedy it.
Let us emulate the CMA, which says:
“In calculating financial penalties … the CMA takes into account a number of factors including the seriousness and duration of the infringement, turnover in the relevant market, any mitigating and/or aggravating factors, deterrence and the proportionality of the penalty relative to each company’s individual circumstances.”
I simply suggest, in conclusion, that if that is the modus operandi of the CMA, it should be the modus operandi when we are tackling huge building firms which have breached building regulations. The big corporations need to be hit hard. Our penalties at the moment may be appropriate for the single plumber and electrician but not for the Berkeley Homes of this world, to name just one. I beg to move.
Lord Best (CB)
In the absence of others, I rise to speak to Amendments 94A, 94B and 97A, which seek to strengthen the hand of the new homes ombudsman. At Second Reading, I congratulated the Government on introducing this new dispute resolution service. I noted just how important it was for consumers to have an accessible and effective means of handling their numerous complaints against shoddy workmanship, building defects and appalling service in rectifying these problems, not least by the oligopoly of volume housebuilders.
My concern has been that the new homes ombudsman will not have sharp enough teeth to deal with these powerful players, and at Second Reading I posed a number of questions to the noble Lord the Minister accordingly. He was able to give me some reassurance on the independence of the new ombudsman from the industry. The housebuilders will be required to fund the ombudsman’s costs and will have a major say on the New Homes Quality Board, which will oversee the ombudsman service and agree the code of practice to be used, but the Minister assured me that the independence of the ombudsman will be preserved.
Subsequently, I have received a lengthy and extremely helpful briefing from the chair of the New Homes Quality Board, Natalie Elphicke MP. From that it is clear that considerable effort has gone into ensuring the genuine independence of the new arrangements from the influences of the housebuilding industry. I am grateful for those reassurances and for other details of the work that has been going on behind the scenes, which I hope will now receive the publicity it deserves.
Only Parliament in statute can endow the ombudsman with legal powers, and two of my amendments before the Committee today are intended to bolster the ombudsman’s jurisdiction to achieve better behaviour by the housebuilders. At present, the Bill makes provision for the ombudsman to make “make recommendations” about changes that developers and housebuilders should make to improve standards of conduct or standards of quality of work where,
“following the investigation of a complaint the ombudsman identifies widespread or regular unacceptable standards of conduct or standards of quality of work”.
This is good stuff, and making recommendations to this end is an admirable task for the ombudsman. However, making recommendations is not the same as placing requirements upon the builders to up their game. Amendments 94A and 94B add a power for the ombudsman to go further and place “improvement requirements” on the members of the scheme—that is on all the builders and developers selling homes, where widespread unacceptable standards of conduct or quality of work are found.
Amendment 97A seeks to strengthen the ombudsman’s hand in another way. At present, the remit of the ombudsman only covers any faults, defects, snagging problems and so on during the first two years after a new-build home is purchased. Certain defects that emerge after two years would be the subject of a claim under the 10-year warranty, which is a compulsory part of the sales process. The trouble with this cut-off of two years for the ombudsman is that the warranties thereafter do not cover all kinds of issues that may not be catastrophic defects but are, none the less, aggravating problems that can cause endless anxiety, annoyance and cost to the purchaser.
One example is that roofs are not covered when properties are converted into new homes. A more commonplace example might be a buyer trying to get a French window repaired or replaced who raises this with the builder within the first few months but does not take it to a formal complaint to the ombudsman until after the two-year time limit is up. Or the buyer has a plumbing problem that gets fixed but returns, gets worse and finally leads to an ombudsman complaint, only to discover that the issue is now too late to be considered.
Amendment 97A would enable the owner to take a complaint to the ombudsman up to six years after the property was first purchased, where the complaint cannot be dealt with under the warranty. It will not be possible to complain about the warranty to the Financial Ombudsman Service, which handles redress in relation to warranty providers, because these warranties do not cover snagging and minor defects. Most warranties are pretty tightly drawn and some are worse than others. There is a strong case for giving the ombudsman the power to insist upon all warranties satisfying proper quality standards.
But specifically in relation to the housebuilders, what the consumer needs is for their complaint about the multiplicity of things that the builder gets wrong to be handled by the new homes ombudsman without the buyer being told that they are out of time. The purchaser may simply have been giving the builder the benefit of the doubt, or the particular defect may not have emerged immediately, or the buyer was just not sure of their rights. Two years is simply not long enough. Six years matches the traditional time for liability in other circumstances, as in the Defective Premises Act. The Legal Ombudsman, for example, will investigate claims up to six years after a relevant incident is reported.
While not detracting from my congratulations to the Government on bringing forward the proposals that will create a much-needed new homes ombudsman service, I believe that these amendments—which would place requirements for better behaviour on all house- builders and support the consumer for six years, instead of two, after their purchase—would sharpen the ombudsman’s teeth and help ensure that the new arrangements can make a real difference to the performance and behaviour of this industry.
Baroness Pinnock (LD)
My Lords, we were waiting for the government Minister to introduce his amendments, so that we can then respond.
The Minister of State, Home Office and Department for Levelling Up, Housing & Communities (Lord Greenhalgh) (Con)
Sorry, my Lords, I am just learning as we go, as they say. I really admire this House because, obviously, this is the day following the night when Ukraine, a sovereign state, was invaded by Russia, and yet the serious business of government continues, as we consider this group of amendments. I always distil groups of amendments into three words or fewer, and I can do this one in two: these are “technical amendments”—it is not that hard really.
Before introducing the government amendments, let me start by saying that I have listened to speeches from two of my favourite speakers—everyone should have favourites. I have known the noble Lord, Lord Best, for some time; let us say that I was in my prime when we first met—a young man, with a future ahead of me—and we went off for a retreat in Windsor Castle, where Richard—the noble Lord—and I thought about big thoughts. I have a lot of sympathy for what the noble Lord said, but I shall read out my speech. However, the bottom line is that he has raised important points about how we can strengthen the new homes ombudsman—indeed, we need to make sure that the complaints process works across all types of housing and all type of tenures.
I should say to the noble Lord that we are probably going to look at this in a different way, so if I come across in any way negative, it is not because I do not agree with him, but we need to find the right vehicle to do this, which is probably, as I said before, through improved warranties. It is an absolute shocker that the warranty system for housing, which is the single biggest expenditure for an individual, is so poor—a point that the noble Lord, Lord Kennedy, has brought up on a number of occasions—and I have met with the warranty providers. We need to ensure that we extend the period of coverage that is available when you buy your own home. The period is slightly longer for public or social housing, where it is 12 years, but it is 10 years for private housing—and that in itself is odd, as these are still homes, whether they are social homes or private homes. So I thank the noble Lord, Lord Best, for his thinking.
My absolute favourite rhetorical speaker is my noble friend Lord Blencathra. To be honest, I always remember to declare my interests because he always starts off by declaring his interests, so I declare all my interests—residential and commercial property interests—as set out in the register. I follow my noble friend in doing that. Also, I love the passion with which he says that, actually, it is important that people who break the law are penalised. Effectively, he is saying that what they have done is a crime and they should pay a lot of money for it, and I completely agree with those sentiments. If I in any way seem to be resisting in my speech, he will know—he has been in government and understands these things—that I am with him in spirit.
I will now speak to my amendments, which are government Amendments 17, 18, 19, 20, 22, 27 and 29. These technical amendments make changes to Clause 41 and Schedule 5, to create an information sharing gateway between the regulatory authorities of the building control profession in England and Wales. The information sharing gateway also extends to a person to whom the regulatory authority has delegated registration functions under new Section 58Y.
Some registered building control approvers and building inspectors will operate in both England and Wales. These amendments will ensure that, if the regulatory authority in one nation identifies that a cross-border registered building control approver or building inspector has breached professional conduct or operational standards rules, it can share this information with the regulatory authority of the other nation, if appropriate. The regulatory authority of the other nation may then wish to take investigatory action to discern whether similar breaches are taking place by the same registered building control approver or building inspector in their jurisdiction. These amendments will therefore ensure that regulatory bodies can share information with one another to effectively regulate the building control profession.
Baroness Hayman of Ullock (Lab)
Could the Minister slow down a little? I do not know where I am any more. Could he start that group again? I am trying to make some notes on what he is saying.
Lord Greenhalgh (Con)
I am sorry; I will slow down. Amendment 23 is a drafting change to Clause 52 and should be read alongside Amendment 26, which amends the same section of the Building Act 1984. Amendment 26 is a tidying-up amendment and is consequential on the repeal of Section 16 of the Building Act 1984, provided for by paragraph 20 of Schedule 5.
Amendment 133, to Clause 135, relates to the requirement for a regular, independent review of the building and construction products regulatory system, which must cover the effectiveness of the building safety regulator. This minor amendment defines the regulator’s functions to be covered by this review, using the same definition of those functions as in Part 2 of the Bill.
I turn to government Amendments 21, 25, 30, 41, 42, 61, 138 and 146. They do three things. First, they extend the application of the Building Act and building regulations to work on Crown buildings and by Crown bodies. The Government believe that the ownership of a building should not determine whether the new building safety regime, or building regulations requirements, should apply. There should be a consistent approach in how building safety legislation operates across the whole life cycle of a building.
Parts 2 and 4 of the Building Safety Bill apply to the Crown by virtue of Clause 137. The arrangements during the design and construction stages are being implemented by way of changes to the Building Act and, in due course, through building regulations. To apply the requirements for gateways and the golden thread to Crown buildings, the Building Act and the building regulations will need to be applied to work on Crown buildings. This new clause does that.
There is an uncommenced provision in Section 44 of the Building Act which would allow the substantive requirements of building regulations to be applied to the Crown. The drafting of that section has limitations, however, so we consider it better to start afresh by repealing and replacing Section 44. There are also some necessary exclusions to reflect that the Crown cannot be subject to criminal sanctions.
Secondly, the amendments make provision about the application of the Building Act and building regulations to work on the Palace of Westminster and other buildings on the Parliamentary Estate. At Second Reading, the right reverend Prelate the Bishop of Winchester asked in his valedictory speech that the building regulations should apply to the restoration of the Palace of Westminster. This change to the Building Act will ensure that happens.
Finally, this new clause provides that if, in future, a building on the Parliamentary Estate came within scope of Part 4 of the Bill, that part would apply, subject to equivalent exclusions to those which affect how the Building Act and building regulations are being applied to the Crown and Parliament. These new sections of the Building Act and the Bill therefore ensure a consistent approach to building safety for Crown and parliamentary buildings.
Finally, I turn to government Amendments 90, 91, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 142 and 143, which relate to the new homes ombudsman provisions and expand them to Northern Ireland. These provisions have already been expanded to Scotland and Wales, so this ensures that new-build home buyers will have improved protection when things go wrong, no matter where they live in the UK.
Amendments 97 and 98 enable the provisions to work practically in Northern Ireland as a consequence of extending the scope of the provisions. Amendments 90, 91, 100, 103, 104, 105 and 106, include consultation requirements so that the Secretary of State must consult the relevant department in Northern Ireland designated by the First Minister or Deputy First Minister acting jointly before exercising powers concerning the scheme, or consult the Executive Office in Northern Ireland when a department has not been designated. The Secretary of State must consult the Northern Ireland Executive before making arrangements for the scheme, before making regulations requiring membership of the scheme, and arranging for that requirement to be enforced, and before a developers’ code of practice is issued, revised or replaced, either by the UK Government or by a third-party scheme provider with the Secretary of State’s approval.
Amendment 99 confers a power on the relevant national authority in Northern Ireland to add to the meaning of the term “developer” in the new homes ombudsman provisions in relation to homes in Northern Ireland, through regulations as appropriate, and following consultation with the other relevant national authorities. Amendments 95 and 96 include provision so that any externally run new homes ombudsman scheme involves the provision of information to the department in Northern Ireland designated by the First Minister and Deputy First Minister acting jointly.
I hope that your Lordships will be pleased that the government amendments in my name today will help to deliver the effective implementation of the new regulatory regime, as well as providing redress for homeowners across the union.
Baroness Pinnock (LD)
After that rapid run-through of about 40 amendments in this group, I shall respond to all of them as follows.
The first three amendments are in the name of the noble Lord, Lord Blencathra, and I have to say that I have a lot of sympathy with what he said. Too many times, when new homes are built in the ward where I live and which I represent—and I declare again my interest as a councillor in Kirklees—roads are not completed to adoptable standards, because that is a good way of saving money. You sell the homes and move on quickly, and it is then really hard for enforcement to be effective, especially when the fines imposed are paltry in relation to the costs of enforcement. So I have a lot of sympathy with what the noble Lord, Lord Blencathra, has said, and I hope that the Government could look again at that element of the building safety regime.
The next amendments referred to are those in the name of the noble Lord, Lord Best, Amendments 94A, 94B and 97A, about the new homes ombudsman. I agree completely with what the noble Lord, Lord Best, has said—and the Minister is nodding, so I assume that he does too, and will make changes at Report. That is excellent. It is especially about the issue in relation to Amendment 97A, about extending the time limit to six years. People buy a new home, starry-eyed, and move in—excited, obviously—then one or two snagging issues arise; they try to get them resolved, they fail to do so, time runs out, the two years has gone and they have nowhere to go. So it is an excellent move to extend that to six years.
In my capacity as a local councillor, I have had to try to help people, and I have to say that I have failed, because we did not have these powers in place at the time, to do with people for whom simple things like plumbing was not done adequately. Their kitchens were being flooded out, and nobody would take on the responsibility because their time had run out. So I totally endorse the views expressed, and the hope expressed by the noble Lord, Lord Best, that the timeframe for the new homes ombudsman should be six years.
I heard what the Minister said before he introduced his great long list of amendments: that the Government were considering extending the warranties for new homes from 10 years. The trouble with warranties, unless they are really tightly worded, is that developers can find a loophole. You end up with a new home owner on their own trying to get recompense from a powerful business—often a David and Goliath situation and, in this case, David often does not win. That is why I support the move of the noble Lord, Lord Best, to give the new homes ombudsman—him or her; would it not be good if it was a woman?—power to deal with defects in new homes.
That brings us to the many government amendments that the Minister introduced, which he called technical. I always worry when Ministers call amendments technical. It is like saying, “Don’t worry about these. We will rush them through, nobody will notice and you might regret what we have to say.” I am pleased that he was very clear that the building safety regime will apply equally—I hope this is what I heard—to all buildings, regardless of where they are in the UK, be they Crown buildings or, indeed, the Palace of Westminster. I would love to have a discussion about the impact that will have on the restoration project.
Extending the scope of the Bill to include the devolved Governments has been rather rushed over. I have here the Welsh Government’s legislative consent memorandum on the Bill, in which the Senedd says that its consent is required to Clause 126, to which the Government have an amendment, about remediation and redress. I seek from the Minister some explanation that the Government will not ride roughshod over the powers of the Senedd. We have devolved Governments in three parts of the UK, and we need to respect their powers and work with those Governments. I am sure they would work with the Government as long as they do not try to act quickly, not get their consent but try to rush over them. That is no way to work.
I have here a long paper, which I am sure the Minister has seen, which outlines exactly what the Senedd hopes the Government will do. I am sure his civil servants will be able to give him a form of words which will enable me to reassure those of my colleagues who are concerned about Welsh affairs that the Government do not intend to intrude on the powers of the Senedd. With those words, I look forward to the Minister’s response.
The Earl of Lytton (CB)
My Lords, I will just pick up on one or two things. Before I do so, hearing other people’s declarations of interests, particularly that of the noble Lord, Lord Blencathra, makes me realise that mine on Monday was perhaps a little light, although it is in the register. I am a co-owner of let residential and commercial property, but nothing of the nature of long-leasehold flats—they are all individual houses.
The noble Lord, Lord Blencathra, raises an absolutely crucial point: the magistrates’ court is too small a threat. It does not have the technical knowledge, and I do not believe it has the capacity either, to deal with it. This threat will simply be laughed at. It really has to have much more meat than that, whether it is through the court process—which I am always a little reluctant about—or through what is proposed in the third group of amendments later on, and in particular my amendments, which obviously take a different tack on how to establish liability. I very much support what he said there.
Lord Stunell (LD)
My Lords, it has been a very interesting debate so far. I do not intend to prolong it at all but, in relation to the technical amendments, I notice that the Bill is 244 pages long and the Government have published 37 pages of amendments. The Explanatory Notes for the Bill were 250 pages long, but there are none for those 37 pages. The explanation we had today, as I understand it, forms the explanatory notes for these provisions, so I appreciate the Minister jamming in all the information in his speech. It was short in time though obviously heavy in content. I just make the plea that we are doing some really hard stuff here, which has implications, but we have no impact assessment which covers the very substantial matters covered by the Government’s new clauses.
In later groups, I will want to raise some points about what seem consequential circumstances arising from the proposed changes to the legislation in the government amendments. I am just logging the fact that we are quite short of what the Government’s assessment is of the impact of the various changes, both technical and more substantial, which will come before us in our consideration of the remainder of the Bill.
I will comment briefly on the amendments of the noble Lord, Lord Best, which I strongly support. In fact, I would have put a longer limit than six years. I had a case in my last year as an MP of a terrace of three low-rise houses which burned down, and the fire brigade quickly determined that it was because there were no cavity barriers in those properties. That fire took place 10 years and one month after they had been handed over to the owners, so the company was actually out of its warranty period—never mind whether it could be appealed to any ombudsman or whoever. The Minister is looking at his watch; I agree that it should be longer than 10 years, but I am not proposing to speak for longer than 10 years.
Baroness Hayman of Ullock (Lab)
My Lords, this debate has been really interesting and slightly longer than I was expecting, so it is great to have had so many contributions. I agree with the noble Baroness, Lady Pinnock: we have a lot of sympathy with the amendments of the noble Lord, Lord Blencathra, and his introductory comments were excellent. As we know, non-compliance with building regulations has been a criminal offence under the Building Act for nearly 40 years now. The Bill heavily extends the scope of available power to enforce compliance and/or impose penalties for contraventions, placing much of that power in the hands of the Health and Safety Executive as it establishes the building safety regulator.
We would hope that the building safety regulator takes a more proactive stance to the broad scope of enforcement measures available to it under the Bill, as Dame Judith Hackitt’s public statements have suggested that it will. Perhaps the Minister can confirm that that will be the case. But it also has to have the resources and funding to be able to do so; otherwise, the new and extended measures may have a lot of bark but little actual bite. Again, that is why the comments of the noble Lord, Lord Blencathra, are so important. Furthermore, the key to ensuring building safety going forward will not rest just on sanctions and enforcement; as has been said in the previous debates and at Second Reading, we need a change of culture and attitude.
So, I think the noble Lord, Lord Blencathra, has brought about a really important discussion with his amendment on enforcement. I was particularly struck by his comments on the differentiation of fines for big corporations—I think he mentioned a fine of £140,000 for a breach—compared to that of millions for the National Grid on a breach that would not likely have had the impact on life that the breaches of the building corporations could have. To me, that really strikes at the heart of this. It is an extraordinary anomaly, and I hope the Minister will look at that, because we have a very different reaction to different kinds of breaches of law.
Again, the amendments in the name of the noble Lord, Lord Best, have had a lot of support in the debate today. I add our support too, because these are really important things to speak about, and he did so very eloquently at Second Reading when he talked about the need to confront housebuilders’ defective workmanship and the dreadful consumer or customer service we too often see when they are responding to entirely justified complaints by home buyers. So, along with him and others, we think it is good news that, with this Bill, the Government are bringing in an ombudsman to whom the home purchaser will be able to turn. That is long overdue.
However, the noble Lord, Lord Best, drew attention in his introduction and his amendments to the fact that there is no point having an ombudsman unless it is genuinely going to make a real difference. As he said in his introduction, customers and purchasers need an accessible means of redress. Too often it is too difficult to jump through all the different hoops you need to go through in order to get any kind of response or result from ombudsmen. We also agree with his concerns that the new ombudsman may not have enough teeth. I am particularly interested in what the Minister has to say on this area; it would be extremely helpful if he could give us reassurance on this, because we need to make sure that the ombudsman’s jurisdictions are going to make a proper difference to this.
I think it was the noble Lord, Lord Stunell, who referred to when he was a Member of Parliament. When I was a Member of Parliament, this kind of issue used to come up pretty regularly, unfortunately—and pretty regularly with certain developers, who I will not name in Committee today. For them to have had this kind of redress would have been hugely helpful.
Moving on to the government amendments, I first thank the Minister for agreeing to slow down, because an enormous number of government amendments landed in our laps after 10 February while we were in Recess. It is a lot to take in and get your head around in quite a short amount of time. I wanted to listen carefully to the Minister’s introduction on this because of that point, so I thank him for slowing down and taking that time.
I just wanted to make a few small points. We very much welcome the amendments around information sharing. It is really good news that it will be easier for people to share information about those who commit serious breaches in building safety. That is important.
Another matter relates to the different amendments on the devolved Administrations. To reiterate what the noble Baroness, Lady Pinnock, said, it is important that we respect and work closely with those Administrations when we bring forward legislation. It is therefore good to see those amendments and that the Government are doing so. It would be good for that to continue as we deal with other new amendments during the passage of the Bill. It was also interesting to get clarification on what is happening with the Crown Estate and to know that this building and all the repairs will be part of this new system.
However, as the Minister said in his introduction, these amendments are mainly technical and I appreciate his time in introducing them. I hope that he will be sympathetic to the points made regarding the amendments of the noble Lords, Lord Best and Blencathra.
Lord Thurlow (CB)
Forgive me butting in at the end but before the Minister responds, I thought that I should make a further point in connection with the amendments of the noble Lords, Lord Blencathra and Lord Best.
It is a reminder that the property development industry, when undertaking projects of blocks of flats or groups of houses—projects of medium size upwards—used to employ a clerk of the works. I am not sure whether it has been a mandatory appointment within the chain of building command, but the clerk of the works was defined as someone onsite who inspected workmanship, its quality, the safety of the work being done and, importantly, reported to senior managers and clients.
Inevitably, lack of mandatory appointment requirements and fewer and fewer clerks of works on projects led to shortcuts and poor workmanship. A clerk of the works might cost between £50,000 and £100,000 a year. For the employer, that could be significantly more, given all the on-costs. On many projects, that adds up to millions of pounds,. So of course those appointments became redundant in the eyes of the bean counters. That simply underlines the importance of the ombudsman’s role, its independence from the industry in absolute terms and the period of time limitations within which claims can be brought.
Lord Greenhalgh (Con)
My Lords, I had not thought that this debate would take quite so long, but it has been worth listening to every second of every minute. I thank the noble Lord, Lord Thurlow, for that late intervention because we have unlearned a lot of the practices that led to a higher quality of build. We would not be in the mess we were in if we had not unlearned some of the things that we did so well during the Victorian period, when there was a way of building using pattern books. Everything was essentially a process, which the Edwardians developed further. Somewhere along the line we have lost that desire to build quality. Just imagine if the Romans came back from the dead to look at what we were building over the past 30 years in the 90s, the noughties and the 10s. They would be absolutely appalled at the standard of build. They did not build their temples to last 10 or 15 years but centuries. We have got to learn that quality of our built environment matters. I thank noble Lords for raising some of their points.
One of the objectives of the Bill is not just to create a regulatory system that works but to raise the competence of an industry that has cut corners and, as the noble Earl, Lord Lytton, said, effectively gamed the system. We have to get back to the culture around quality, competence and professionalism. That will take not just legislation but an attitude of mind.
I start by responding directly to the noble Lord, Lord Stunell, around impact assessments. He is absolutely right. The government amendments came thick and fast. My entire weekends have been ruined since the beginning of the year, working at pace as we approved a plethora of amendments. It is fair to say that the sheer pace of this has meant that it has not been possible to look entirely at the impact. We just know that they are the right lines, and the impacts will be looked at in due course—my response says, “We are looking at the impact of the government amendments and will publish an assessment in due course.” We have been working very fast to get this right in the time we have, and we thought it was very important that we were ready to have these discussions in Committee of government amendments before we get to the even more serious business of Report.
I shall respond to the noble Baroness, Lady Pinnock, supported by the noble Baroness, Lady Hayman of Ullock, about Clause 126 and intruding on the powers of the Senedd. We have worked closely with the Welsh Government across all areas of the Bill to develop and agree measures that work for England and Wales. The Welsh Government have agreed the measures applying to Wales and we expect legislative consent in due course.
I have had a number of ministerial meetings with my counterparts in the devolved Administrations, and there are lessons to be learned from the Welsh approach to the building safety crisis—and, indeed, from my Scottish and Northern Ireland colleagues—on this issue. It affects all our nations in this great United Kingdom, and we have a constant dialogue as we grapple with it, but it is fair to say that the lion’s share of the problem lies in our big cities here in England. That is not to say that we are not learning from the Welsh and others, and of course we will not ride roughshod over them. I hope that gives the noble Baronesses, Lady Pinnock and Lady Hayman of Ullock, some reassurance.
I thank my noble friend Lord Blencathra for bringing forward his amendments, which are clearly aimed to impose greater punishment on those who breach building regulations. I thank the noble Baroness, Lady Hayman of Ullock, for mentioning a breach of the regulations, probably around the time when my noble friend Lord Young was the Housing Minister. I do not know whether he was responsible for the 1984 building regulations—he was. We have the living history in the Room, in the person who brought them forward. Do you know what I was doing in 1984? I was doing my A-levels, and here we have the Minister who brought forward the building regulations in 1984. That is the kind of place we have: people with decades of understanding of these issues.
It is a crime to breach building regulations. If you commit a crime in this country, there is no statute of limitations—I know that from being Deputy Mayor for Policing and Crime—so people can go after you after any period. I have huge sympathy for the intent behind there not being a short period of time, and it is important that we recognise that breaches of building regulations are criminal; that cannot be said often enough. I thank the noble Baroness for raising that again, and the Government have sympathy, but I fear we are unable to accept my noble friend’s proposals, as I intimated in my opening speech.
Looking first at Amendment 13, we consider that the changes are unnecessary for a couple of reasons. First, for some years now, the magistrates’ courts have had the power to impose unlimited fines—and fines are, of course, the principal punishment available in respect of corporate bodies, which are most likely to be in a position to commit the offence of breaching building regulations.
Secondly, it will not have escaped your Lordships’ notice that significant backlogs have developed in the Crown Court over the past two years as Covid protocols have been introduced. The costs to the courts service, the prosecution and the defence are also far higher in the Crown Court.
As was raised by the noble Baroness, Lady Hayman of Ullock, it is quite possible for the building regulations to be breached in a relatively minor way. In such cases, it would be entirely appropriate for the case to be dealt with by the magistrates. It is, of course, also possible for breaches to be extremely serious, which is why the Bill for the first time allows cases to be dealt with in the Crown Court, in the same way as crimes are dealt with: sometimes in the magistrates’ court, sometimes in the Crown Court. However, we do not consider that it would be sensible to require all breaches of the building regulations to be dealt with in the Crown Court.
Turning to Amendment 14, I say to my noble friend that I agree with increasing the daily rate of fine for ongoing offences. Indeed, the Bill already increases the daily rate from £50—where it has been since 1984, when I am sure it was set by my noble friend Lord Young, when £50 was a considerably greater sum of money than it is today—to £200, which is the current rate for a level 1 fine. However, we consider that increasing it further to £2,500, as my noble friend proposes, “would be disproportionate”—that is what it says here, anyway.
The principal aim of the prosecution must be to impose an initial fine commensurate to that particular offence; any further fine should merely encourage work to be put right, rather than imposing huge additional punishment. We consider the potential maximum of £5,600 for the month of February is likely to be significantly more proportionate on top of the fine imposed on conviction, rather than the £70,000 proposed by my noble friend.
On Amendment 15, imposing a sentence according to a mathematical formula raises a number of issues. First, the cost of the work done will not always be clear; there may be disputes about the cost in the invoice or the value of the work actually done, and resolving this would take up the court’s valuable time. Secondly, the court might consider that, in a particularly egregious case, a significantly higher fine is required than one that would be arrived at from the calculation. The amendment would preclude the court from imposing that higher fine. Finally, the provision in the amendment to enable the court to impose rapidly escalating further fines, if the breach remains unresolved, has the potential to lead to significant unfairness—as, for example, a £10,000 initial fine could total up to £70,000 if a breach remained unresolved for just two months after conviction.
As I said at the start of my remarks, while I am supportive of my noble friend’s amendments, I hope that with this explanation he will be content not to press them. I reiterate that I absolutely sympathise, and want to go with the nature of this—but that is the response to the amendments as tabled today. I thank my noble friend for laying the amendments for us to think them through and debate them extensively.
Before turning to the comments from the noble Lord, Lord Best, about strengthening the teeth of the new homes ombudsman, it is important to reflect that there has to be a little bit of work done to tidy up the whole approach to the ombudsman’s service for people in housing. I asked my colleagues behind me to list the number of people who provide a complaints service for people in different types of homes and tenures. We have the new homes ombudsman, which will be unleashed for new build, but we also, as the noble Lord, Lord Best, will know, have the Regulator of Social Housing and—my old colleague at City Hall, Rick Blakeway—the Housing Ombudsman Service, and we have the Local Government and Social Care Ombudsman. Homes are homes, and we need to think about how we get a complaints service that works for homes in the round. I know that we can categorise social housing as being over here, and people in private renting over there, but these are people’s homes. We need to recognise that, at the moment, it is a patchwork quilt of services that provide that whole ombudsman service, and that is not ideal. I wanted to put that forward—that, when discussing this subject, we are talking about new-build private homes and not housing in the round.
I turn to the amendments tabled by the noble Lord, Lord Best. I thank him for raising this important matter, but I am afraid that the Government will not be able to accept these amendments, as the intention can be achieved elsewhere. The Bill sets out requirements for the ombudsman scheme to include provision about what home buyers can complain to the ombudsman about in individual cases, and making improvement recommendations about scheme members’ quality of work and conduct in general. The developers’ code of practice allows the standards of conduct and standards of quality of work expected of members of the scheme to be set out.
The noble Lord’s amendments would provide the ombudsman with powers to make general requirements of the scheme’s members, duplicating provisions already in the Bill. It is unclear how they could be enforced or appealed against, and we must be careful that the ombudsman does not duplicate the role of regulators, the scheme provider or Parliament. The Bill includes provision for complaints to the ombudsman within two years of the first acquisition of the new-build property, which aligns with the developer liability period under most new-build warranties. I was shocked to find out that within a warranty it is for the first two years that developer liability is covered; the rest is covered through some form of warranty or insurance scheme to 10 years in private housing or 12 years in social or public housing. It is in this period that issues are much more likely to be raised in relation to snagging or the home-buying process. We believe that the proposal to extend this to six years would be unnecessary and would introduce a new unknown burden on members of the scheme. But I assure noble Lords that home buyers will retain their existing rights to seek redress in law and elsewhere in this Bill. With this reassurance, I hope that the noble Lord will be content not to press his amendments, and the Government will continue to consider how and where practices in this area could be improved.
I did say—if I may go a little bit further on that note —that we need to think about warranties, but we should also remember the Defective Premises Act, which has a statute of limitations of only six years. We are proposing to extend that prospectively to 15 years, hoping that there will be a culture change and a stronger regulatory environment, and 15 years is a reasonable timeframe to expect to seek redress—and then, retrospectively, 30 years. I am having those discussions and debates with my colleagues and the noble Lord, Lord Stunell, because I consider breaches of regulations, even going back 25 or 28 years, as a crime. It is a crime to breach building regulations, and there should be no statute of limitations for some of the crimes that we have seen, where we are putting flammable materials on the outside of the buildings, not having compartmentalisation, and having inadequate fire stopping, or fire doors that do not act as fire doors. All that I consider to be essentially breaches of building regulations, and we need to go after the perpetrators. But that is for another group of amendments—for the perpetrator pays or polluter pays—in due course.
Lord Blencathra (Con)
My Lords, as an aside, I was going to say that we are sitting in a bit of a chilly draught here, but then I reflected on what it is like for those people in blocks of flats which have had all the external cladding ripped off, leaving nothing between them and minus 5 degrees outside but a thin plasterboard wall. That is why it is important to get this Bill through and tackle that problem as soon as possible.
I am in complete agreement with my noble friend the Minister on the quality of Roman architecture. My favourite place to visit in the border country is the Housesteads military fort on Hadrian’s Wall, where the best-preserved part is the latrines in the bottom corner. To see that the Romans, 2,000 years ago, had running hot water in their toilets and latrines is an eye-opener—for many buildings in this country, we have still not caught up with hot running water in the toilet facilities.
I floated my amendments to suggest that corporate developers should in all cases be tried on indictment, with massive fines for infractions. We have all heard the expression “damned with faint praise”, but never in all my experience in Parliament have my amendments been damned with such lavish praise. My noble friend basically said, “Blencathra, you’re an absolute genius; your amendments are wise and right. We’re with you all the way; let’s hit them hard—but I still ain’t going to do it.”
I accept that there will be cases where the magistrates’ courts should have a say. I was putting in a more absolutist position. However, if the magistrates’ courts continue to have a role—as I accept—proper guidance must be issued to them through the judicial standards board, or whatever it is called. Massive fines should be imposed in those circumstances where they are deserved. As I have said, the HSE and the CMA seem to have managed to persuade courts to slap on big fines. Perhaps for local authorities it is a culture thing or, for the magistrates’ courts, breaching building regulations does not matter so much—there may be some cultural problems there, but we must cut through them and, if we keep the magistrates’ courts, make sure that guidance slaps on heavy fines.
My amendments are not as important as those from the noble Lord, Lord Best. I was impressed by his speech; I would accept my noble friend rejecting my amendments, but I think he is wrong to reject the noble Lord’s amendments, because what he asked for is eminently sensible and should not cause the Government any problems. What is the point of having a power to make recommendations if they can be ignored? Placing an obligation on builders to make improvement requirements is the only logical step. As he said, it must be beefed up—and if you beef something up, then it needs more teeth.
I also like his Amendment 97A. He made an impeccable case for it and I fail to see why the Government have rejected it—it just moves it from two to six years. Five years into my brand-new block of flats, I found a leak in the plumbing where the washbasin was. Eventually, I managed to separate the very posh fake marble frontage from it and found, in my inexpert experience, that a one-and-a-half-inch pipe had been stuck into a two-inch pipe and sealed with a bit of silica. I thought, “This ain’t right”. The developer said, “That is how we do it in the trade—nothing to worry about.” I thought, “I’m not having this”, so I hired at my own cost a plumbing expert consultant, who came in, looked at it, sucked his teeth and sent me a report saying that it should be a special reduction joint XYZ. I went back to the developer, served a notice that I would go to the county court with £200 of my own legal costs, and gave them the consultant’s report and the repair I wanted.
Because it was me, and I had the muscle and clout to do it, the developer coughed up immediately, refixed the whole thing and paid all the cost. But I have a unique position as a Member of this House, with the ability to make that threat. Most leaseholders cannot. That is why they go the ombudsman, who must have a longer period than two years to sort out these problems. I am not sure whether the noble Lord will bring it back on Report, but I say to my noble friend that there is no skin off the Government’s nose in conceding the noble Lord’s amendments.
However, returning to my Amendment 13, I will not go back to this on Report and beg leave to withdraw it.
Baroness Pinnock
“(4A) Conditions under subsection (4)(b) must specify standard qualifications and compulsory and regular training for registered building inspectors.”Member’s explanatory statement
This amendment makes provision for standard qualifications and compulsory and regular training for registered building inspectors.
Baroness Pinnock (LD)
My Lords, in his response just now the Minister talked about raising the competence of the construction industry and improving the quality of the built environment. This set of amendments, in my name and that of my noble friend Lord Stunell, does precisely that. The focus is on improving consideration of the independence, qualifications and training of those with the critical responsibility of certifying that construction is in compliance with both building regulations and the approved plans. You would think that concentrating on this element of reform of a failed system would be given importance but, unfortunately, in the clauses we have in the Bill it has not been given the prominence it deserves, which has resulted in the amendments I am speaking to now.
Amendment 16 seeks to finally end the changes made by the Building Act 1984 and the approved inspectors regulations. This Act established approved inspectors. Prior to the 1984 Act, all building inspectors were local authority employees. Of course, there were failings with that system; I am not here to say that having all building inspectors under the aegis of the local authority was perfect—it was not. What was introduced—although with good intention, I am sure—has developed into what can be an unhealthily cosy relationship between constructor and inspector. It permits development companies to appoint their own approved inspector, who has to notify the local authority initially and then submit a certification to the local authority when the building works are completed.
The removal of dangerous cladding has in some cases exposed serious defects in construction. Of course, these were because constructors failed to comply with building regulations and the approved plans. Nevertheless, building inspectors had certified these buildings as compliant when they were not. This Bill is the opportunity to make detailed changes to ensure that this situation, in which buildings are signed off as compliant when they are not, does not happen again.
The dual system of building inspectors that currently exists is a key issue. There is a lack of accountability for the decisions made by inspectors. This lack of direct accountability is the very issue that runs through the Hackitt report. At the moment, even if the local authority receives reports of problems associated with a construction site, local authority building inspectors are forbidden by law from investigating and providing an independent check. The simple fact that developers contract their own building inspectors provides a culture in which precise and exact compliance can be ignored.
Change is essential if this Bill is to achieve what it states are the aims, which we are all here to support—better building safety. The Minister has often talked about the tools in his toolbox. I want him to tell me that he will use one of the tools he constantly refers to: recovering the certification documents for the buildings where there have been breaches of building regulations at the time of construction. If he does, we will find out which building inspectors, or the companies to which they belong, have signed off as compliant buildings which painfully obviously were not. Building inspection companies have a liability in this building safety crisis, and they need to be held accountable as well as all the other elements of the construction business we are referring to.
Then there needs to be a radical change to the accountability of building inspectors, both public and private. Private inspections can no longer expect to be free of public oversight, and it will be helpful to hear from the Minister how the accountability of the building inspection regime is expected to operate and how effective it will be.
So, I have covered the duality of the building inspection control system as it currently is and how I hope it will be improved. The other amendments in my name and that of my noble friend Lord Stunell seek to have on the face of the Bill agreed and standard qualifications with consequent and regular compulsory training to ensure that all inspectors have knowledge of new building materials and how these operate in connection with other construction elements. Again, this issue of the relationship of materials in construction and retaining the integrity of the building has been cruelly exposed by the Grenfell tragedy.
Finally, building safety absolutely depends on a highly skilled workforce. Over the years, various Governments have reduced resources to organisations that are able to train and improve the skills of the construction workforce. I will give just one example: further education colleges have had funding slashed and, consequently, courses closed down. This is a short- term approach, so my Amendment 136 will require the Government of the day to publish regular assessments of the current state of the construction industry workforce in order that the aims of the Building Safety Bill can be achieved. With those comments, I beg to move Amendment 15A.
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
My Lords, the noble Baroness, Lady Brinton, is taking part remotely, so I invite her to speak now.
Baroness Brinton (LD) [V]
My Lords, I declare my interests as a vice-chair of the All-Party Parliamentary Fire Safety and Rescue Group and a vice-president of the Local Government Association. I support all the amendments in this group in the names of my noble friends Lady Pinnock and Lord Stunell.
In his response to the previous group and to some groups on the first day of Committee, the Minister rightly said how shocking some of the revelations have been to him, to us and to many others as more systemic failures have been uncovered, and how far too many people were able to refuse to take responsibility for their role in the problems.
Along with other parliamentarians, I heard Dame Judith Hackitt speaking on a number of occasions during and after her review, and I have also read her Independent Review of Building Regulations and Fire Safety—both the interim and the final reports. Her foreword to the final report published in 2018, which she describes as a personal view, is extremely powerful as a summary to the cultural and regulatory structures in the built environment sector and explains exactly why the amendments in this group are so necessary.
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
My Lords, we will also hear from the noble Baroness, Lady Harris of Richmond.
Baroness Harris of Richmond (LD) [V]
My Lords, I will be brief and I, too, wish to speak to the amendments in the names of my noble friends Lady Pinnock and Lord Stunell. I strongly support them.
At Second Reading, I commented on the large number of people who are going to be accountable for the safety of buildings when the new regime comes into force. My main concern was around the person described as the “principal accountable person” because I felt that that person had just about everything to do with the safety of buildings and that that responsibility would rest on that person’s shoulders. I was interested in the comments of the Royal Institution of Chartered Surveyors and the Chartered Institute of Building, which stated that the industry did not yet have qualified individuals who could undertake such incredibly important and probably statutory duties that the position would necessitate. Perhaps I may therefore ask the Minister what the Government are going to do to help the industry find those people and how they propose to go about training them with the necessary skills that will be required.
Lord Stunell (LD)
My Lords, I obviously support what my noble friend Lady Pinnock said in relation to the training and independence of building inspectors. That is perhaps the most obvious of the necessities which we now know exist, as far as plugging the gaps in the current regime is concerned.
I want to focus my remarks on Amendments 116 and 119A, where mine is the lead name and which deal with fire risk assessors. We have never had before, in capital letters, something called “Fire Risk Assessors”. There is no such profession and this will clearly be a significant gap, which has to be filled very quickly if we are to achieve the aims of the Bill. We know that, right across the industry, there are shortages of skills, qualifications and competence. Above all, there is a shortage of capacity. One problem that I know the Minister has had to confront is that it has been difficult to get effective surveys of high-risk buildings because the people have not been available to do them. There are no such people, or at least insufficient people, with the right competences, skills and so on to do so.
I do not know whether the Committee will have seen the reports of the fire risk assessment that was done in advance of the Grenfell fire. The housing association had a fire risk assessor and he made a fire risk assessment. It turned out that he was a firefighter but not qualified in fire risk assessment. In order to secure the job, he had manufactured a set of initials which were accepted by the housing association as proof of his skill and capacity to assess fire risks. This is reported in the public evidence sessions of the Grenfell inquiry. It was further revealed that he was commissioned not just to assess the Grenfell Tower; he was commissioned by the housing association to be its risk assessor for the whole of the housing stock of that organisation.
That is where the importance of having a register becomes immediately apparent. You need a register of qualified people for two reasons, which overlap: first, you are not allowed to practise as an assessor unless you are on that register; secondly, as a purchaser of the skills of fire assessment, for instance a housing association, you need to be sure that the person who offers you a cheap deal to do some quick fire assessment work is somebody who is qualified, prepared and competent to do so. Amendment 116 is trying to establish clearly in the Minister’s mind the need to make this process of regulation transparent, with a publicly published register. We are obviously probing at this point, but I hope the Minister can give us some satisfaction that, if not in the Bill then in parallel with it, these matters will be dealt with.
What I have said about fire assessors may be the most dramatic and acute of the problems, but the building control function was of course also exposed as woefully insufficient in the case of the Grenfell Tower. Bearing in mind that it was a local authority building control function being exercised, it is also true that the person who was the responsible officer did not once visit that tower to make an inspection. It was purely from a desk study of drawings which had been provided to him. There is clearly a tremendous gap. Even when somebody is appointed to do a job, they may not have either the skills or competences, or they may not have the attention span or the time, to give effective service to the cause of fire safety. I hope very much to hear from the Minister that he takes these matters to heart and has in mind finding a way of establishing how this can be put right.
Our Amendment 119A is about training of fire assessors on the same basis as the noble Baroness, Lady Pinnock, moved on the training of building inspectors. Every one of the professionals engaged in this fire safety regime needs to be a qualified and competent person. That is so obvious that it hardly needs to be said, but at the moment we are woefully short of the number of people we need. Indeed, it has already been referenced that the RICS and others have pointed out that, at the moment, there are not enough people with the competencies to step forward if the Bill comes into force as the Minister intends.
Baroness Fox of Buckley (Non-Afl)
My Lords, I am very sympathetic to this group of amendments, but I have a number of queries that perhaps the noble Baroness, Lady Pinnock, might address, just because I am not quite sure about them. One of the points just made is that a large number of people will be accountable —it seems to me to grow every time I look at the Bill. Although I understood what the noble Baroness, Lady Brinton, meant about the bonfire of bureaucracy, regulations and so on, there is always a danger that we are creating layer upon layer of bureaucracy and accountable people. I shall be moving some amendments later to this effect.
For now, it is obviously the case that we need qualified people involved in this, but, as has been described, there are so many new roles that the qualifications do not even exist. I am concerned about including in the Bill that you need to have the qualifications to do the role when the qualification does not exist. What does that mean? Will that hold up the process?
I am also concerned about saying that training is “compulsory”. I am concerned for the professional autonomy and integrity of those who are already involved in this area. I do not know whether legislation is the right way to go. However, it would be useful to understand from the Minister what he anticipates will happen. It cannot be, as it were, just any old Joe Bloggs given the role. Will attention be paid to talking to the professionals who already run practice qualifications in universities and further education? How will the Government manage the fact that they are creating all these new jobs with no attention, it seems, to how the qualifications will be awarded or who will give them? That is where I am very sympathetic to the noble Baroness, Lady Pinnock, in having a register, but I am not quite sure that the amendment does it.
I am nervous, perhaps because I used to be involved in education, about another government demand on education that ends up giving people a lot of work to do when there is no capacity to do it, so it will just be a shoddy box-ticking qualification that will not mean very much. That is my concern, while being sympathetic in general.
Lord Khan of Burnley (Lab)
My Lords, I speak in particular to the amendments in this group in the names of the noble Baroness, Lady Pinnock, and the noble Lord, Lord Stunell, who have made excellent contributions. I intend to be concise and brief, because the noble Baroness introduced them in an eloquent and comprehensive manner, which was followed up by subsequent speakers.
These amendments are much needed, and it is disappointing that these matters have not already been taken into account by the Government in the Bill. The new clause in Amendment 116 would require building owners and accountable persons, about whom I shall ask a question shortly, to verify the competencies of fire assessors before appointing them to conduct the fire safety assessments required by the Bill. The noble Baroness, Lady Pinnock, talked about the 1984 legislation and, prior to that, local authority employees. The cosy relationship between building constructors, developers and inspectors is really concerning. That needs to change.
These are serious concerns. Look at Grenfell, where numerous people lost their lives, and subsequent fires in high-rise and other buildings. The system is broken. Serious construction defects are there, and there have been failures in not detecting bad buildings. Building regulations have failed. That is criminal, as my noble friend Lady Hayman of Ullock pointed out on the previous group. We cannot have buildings signed off as safe when clearly they are not. Developers choosing building inspectors—a point the noble Baroness, Lady Pinnock, mentioned—cannot be a way forward. We have to all be singing from the same hymn sheet; that is what Amendment 116 talks about.
Baroness Scott of Bybrook (Con)
My Lords, I will first respond to the noble Lord, Lord Khan, and say that I agree with absolutely everything he said. This Bill is about not signing off unsafe building as has happened in the past. It is about having a toolbox filled with tools to fix the issues we have in the building sector at the moment, particularly with high-risk buildings.
I also agree with the point from the noble Baroness, Lady Brinton. I have heard my noble friend the Minister say this over and over again: it is about not just processes but cultural change within the whole system. With those opening remarks, to begin with I will just go through a few specifics before I get into my speaking notes, which I have just been given to do and which I have to do.
The noble Lord, Lord Stunell, and the noble Baronesses, Lady Harris and Lady Fox, asked, rightly, where the approved inspectors and fire risk assessors will come from. Those inspectors are an established professional group; there are many already operating in the sector—but obviously, as things change in that sector, they will have to be retrained and updated to work within the new system. With the fire risk assessors, we are working in the sector already to help to improve their capacity and competences, and contributing at this moment to two industry-led workstreams that are working on this issue.
The noble Baroness, Lady Pinnock, talked about where you can check about the completion of certificates. It is a muddled system—we know that—and that is why we aim for all documentation for buildings, including all completion certificates from construction to occupation, to be in a golden thread of information. We have legislated for this in the Bill, and further details on that will come out in secondary legislation.
The noble Baroness and the noble Lord, Lord Stunell, also brought up the issue of registers. Details of approved inspectors’ final certificates must be placed on registers held by local authorities, but we are also looking at a proposal for a national register of those inspectors, which will help the system no end. It is going to cost money; we are going to retrain people with different skills. There is money from government—nearly £700,000 in funding—to train more assessors, because we know that we will need them, but also to speed up that system for valuers and the EWS1 forms required. Training will provide competent professionals with the skills that they need for the up-and-coming changes, particularly those outlined in the Fire Safety Act 2021. So we are looking at capacity to do all these things.
I shall go through and respond to each amendment. First, on Amendments 15A and 16A, I think we are all looking for the same outcomes—it is about how we do that, and which tools we use. So there will be some decisions, but what is important in these debates is that we are all learning from each other about what might be the best solution, and we will continue as a Government to look at what has been said in these debates.
We are introducing a new framework for oversight of the performance of building control bodies, and a new professional framework for registered building control approvers and registered building inspectors, for their work on all buildings. This framework includes the registration of both building control approvers and building inspectors. We expect the building safety regulator will specify relevant skills, knowledge, experience and behaviours as part of registration, and require continual professional development to be undertaken, but we consider it important to give it the flexibility to choose how to incorporate these areas operationally, rather than be restricted by having a specific requirement for standard qualifications and compulsory training set out in primary legislation. We are also concerned that standard qualifications may be read as examinations, which may make it harder to recognise and value experimental learning. On this basis, I would ask that the noble Lord does not press his amendment.
On Amendment 16, tabled by the noble Baroness, Lady Pinnock, the Government are introducing a new framework for oversight of the performance of building control bodies and a new professional framework for all building control bodies, including registered building inspectors, for their work on all buildings. The building safety regulator will drive improvements in building safety by overseeing the performance of building inspectors and building control bodies through a robust professional and regulatory regime. This will include setting codes of conduct and competence, including for registered building inspectors, and operational standards rules defining the minimum performance standards that building control bodies, which will employ or use registered building inspectors, must meet.
To achieve this, the building safety regulator needs the flexibility to frame such codes and standards in the way it thinks best, and to adapt them over time as required. This would be hampered by specifying part of the content of the code in primary legislation, as this amendment suggests. However, we expect future codes of conduct to address conflicts of interest explicitly, just as the existing code for approved inspectors does already.
I turn to Amendment 116 in the names of the noble Baroness, Lady Pinnock, and the noble Lord, Lord Stunell. I thank them for shining a light on the important issue of the competency of fire risk assessors, as they did when the Fire Safety Bill was being debated. However, I am afraid the Government will not be able to accept the amendment.
The fire safety order 2005 requires any person who has control in premises to take reasonable steps to reduce the risk from fire and make sure people can safely escape if there is one. The order applies to virtually all premises and covers nearly every type of building, structure and open space. To give noble Lords a sense of scale, this includes approximately 1.7 million residential buildings and all offices, shops, hospitals, schools, pubs, restaurants, factories and warehouses in England and Wales.
Given the scope of the fire safety order, it is important that we retain the ability for the responsible person to carry out their own fire risk assessment, particularly in small or low-risk premises, using the guidance and support available so that they can make their premises safe from fire. In some circumstances, the responsible person will be best placed to identify the potential causes of fire, the people and the risks and to take action. They can take ownership and have the ability to take quick action.
I will give noble Lords an example: a small gift shop with a simple layout, such as one floor, and a limited risk in relation to fire. With a small number of employees and visitors to the premises, a responsible person could undertake the fire risk assessment themselves—this is because there is no sleeping accommodation, no hazardous processes taking place and no cooking processes—using the published guidance to address fire safety measures.
If we require fire risk assessments to be undertaken in every case by a registered fire risk assessor, we risk two very significant downsides. First, on capacity, we know that there is a limited number of competent fire safety professionals, as we have spoken about, and that demand for fire risk assessors outstrips supply. A register would risk creating a bottleneck, which could result in a delay in responsible persons undertaking or updating a fire risk assessment. This could mean that fire hazards would not be identified or mitigating action taken. It could also distract competent professionals away from premises of higher risk.
Secondly, on cost, in some low-risk premises it will be restrictive to require responsible persons either to appoint a fire risk assessor from the register or to ensure that they themselves are on the register. It could mean that fire safety outcomes are reduced, where they could meet the responsibility of the requirements of the fire safety order themselves without the requirement to register or appoint a registered assessor.
It is vital to ensure that those appointed to undertake fire risk assessments are competent. I assure noble Lords that the Government’s intention to enhance competence has been met in the Bill with the amendment to the fire safety order to require that the responsible person must not appoint a person to assist them with making or reviewing a fire risk assessment unless that person is competent. That amendment will also include—
Lord Stunell (LD)
I thank the Minister for giving way. I have understood her line of argument very clearly, but she seems to be saying that it would still be lawful for that housing association in Kensington to have appointed an unqualified person. Is that exactly what she is saying, or not—or will higher-risk buildings have a more stringent requirement for fire safety assessors?
Baroness Scott of Bybrook (Con)
No, what I am saying is that a higher-risk building, or any building which has certain issues, will need a qualified fire risk assessment. What I am also saying is that those people cannot subcontract or have anybody working with them who is not competent as well. In the case of Kensington and Chelsea, and Grenfell, they would no longer be able to have somebody who is not competent and does not have the relevant qualifications to do that fire risk assessment. I have seen with my own eyes where that has been done in the past. Does that make sense? I shall make sure that the noble Lord gets it in writing, so that he is clear, and I shall put it in the Library.
That amendment will also include a definition of the competence that is required—which I think also answers the noble Lord—and we will issue guidance to support responsible persons in identifying a competent fire risk assessor. Significant work has been done by the industry-led Competence Steering Group, the working group for fire risk assessors. Industry continues to lead and develop the work in relation to competence for the sector and has developed a centralised list of professionals where a responsible person can identify a competent fire risk assessor to assist them in undertaking a risk assessment. There is also further work taking place by the sector to develop a fire risk assessor industry competence standard. Again, I think that is very important.
I move on to Amendment 119A. We have had a lot of interest shown in the training and qualification of fire risk assessors. The fire safety order requires that the responsible person must make a suitable and sufficient assessment of the risks to which relevant persons are exposed for the purpose of identifying the general fire precautions they need to take. A responsible person can undertake that assessment themselves using guidance to help them do so if they have the requisite level of competence, and this is generally what happens in relation to buildings that are simple by design. When buildings are more complex—and I think that here we are probably getting to a better answer to the noble Lord’s question—responsible persons will often choose to appoint a fire risk assessor to undertake the assessment on their behalf. Fire risk assessors come from a range of professional backgrounds, and it is quite often the case that they themselves need to seek input from other professionals with specialist knowledge when undertaking a fire risk assessment on more complex buildings.
When a responsible person does appoint a fire risk assessor to complete the fire risk assessment, it is of course vital that they ensure that person has an appropriate level of competence. That is why we are introducing a requirement, through Clause 129 in the Bill, to the effect that the responsible person must not appoint a person to assist them in making or reviewing a fire risk assessment unless that person is competent. Clause 129 also includes a definition of the competence that is required, and we will issue guidance to support responsible persons in identifying competent fire risk assessors. We are also working closely with the professional bodies in the fire safety sector to consider capacity and capability issues in relation to fire risk assessors, and work is already being taken forward through the industry-led Competence Steering Group fire risk assessor sub-committee to develop a fire risk assessor competency standard.
I am clear that the initiatives I have set out represent the most effective approach to further professionalising the fire risk assessor sector at this time, and it is right that this work continues to be led by industry. I thank the noble Lord and the noble Baroness for raising these important issues, but I must ask them at this point not to press their amendments.
Finally, I thank the noble Baroness, Lady Pinnock, for her final amendment in this group, Amendment 136. I am happy to reassure her that the Government believe that this amendment duplicates many of the existing provisions in the Bill. Clause 10 requires the building safety regulator to establish the industry competence committee and provide support as necessary. The committee’s activities could include overseeing and monitoring the industry’s development of competence frameworks and training, undertaking analysis to understand areas that need improvement and working with industry to drive gap-filling. We expect the committee to provide reports of its work to the regulator periodically.
As a precursor to the statutory committee, the Health and Safety Executive has already established an interim industry competence committee, which is developing its strategy and work plan for supporting the industry’s work, including looking to understand its current competence landscape. It is for the industry to lead the work to improve competence, identify skills and capacity gaps and provide appropriate training to upskill its members for the new regime, and it has already started this work. Training and certification of competent professionals is not a function of government or the regulator under the Bill. We and the Health and Safety Executive will continue to monitor the industry’s progress and provide support where necessary.
Clause 135 legislates for the appointment of an independent person to carry out a periodic review of the system of regulation for building safety and standards and the system of regulation for construction products. The review will act to ensure the functioning of the systems and provide recommendations for improvement. The review must consider the building safety regulator and the system of regulation established by Parts 2 and 4 of the Bill and the Building Act 1984. However, the independent reviewer is not limited and may review connected matters at any time. An independent reviewer must be appointed at least once every five years, although the Secretary of State can appoint a reviewer more regularly if necessary. By ensuring that the report must be published, the Government have created a system of public accountability in building safety.
When defining “independent”, we have struck a balance that excludes those with a clear conflict of interest without overreaching and excluding everyone with relevant experience. This clause will help to protect the integrity of the system and ensure that it continues to create a safe built environment in future. Further reporting requirements risk duplication, complexity and additional bureaucracy, and I therefore ask the noble Baroness to withdraw her amendment.
Once again, in conclusion, I thank noble Lords for this interesting debate. I hope I have given the reassurances that will allow them happily not to press their amendments.
Baroness Pinnock (LD)
I thank the Minister for her very full response to the issues raised, particularly on Amendment 136 about workforce reporting. She has obviously had some support in going through all the clauses in the Bill to work out where the reviews and so on will take place. She spoke about competencies being reviewed regularly, and I will look again and read carefully what she said when it is reported in Hansard to see how that works. But on the face of it, it appears that this is covered in the Bill.
That brings me to the other issues that I raised. The first was about the building safety regulator overseeing the new roles of building control inspector and approved inspector. I understand that, but when I read the clauses, no details were given about what competencies and qualifications were required for those new roles. If we are determined to improve building safety, which we all are, some definition of what is expected of each inspector role should be in the Bill—not the detail; I totally accept that one would expect the building safety regulator to define those in detail. However, there should certainly be some indication of that, and it is not there. Hence, the amendments that I have tabled. Again, it may be that discussion with the Minister before the next stage could be of help in that regard.
I turn to the fire risk assessors. I remember the wonderful Fire Safety Bill. The issue of fire risk assessors came up at that stage and my noble friend Lord Stunell had amendments about them. He talked about a register, a lack of capacity, ill-defined qualifications and competencies, and we have not moved forward. That is the problem. We must move more quickly. The point is well made and I know that the noble Baroness has tried to explain and will put something in writing. We will look at it, but I must say that assessors and fire risk assessment is critical, particularly to some of these high-risk buildings.
Lastly, there is the issue of accountability, which was raised by the noble Baroness, Lady Fox. It is one of my themes that I come back to all the time. Quis custodiet ipsos custodes? Who guards the guardians? Who overlooks all this to make sure that people are accountable? Unless we do that, we get into the mess that we are in now, where so diverse is the golden thread of accountability that nobody understands who is going to take control. I am not sure that I totally accept the noble Baroness’s views on this part of the Bill, but I certainly do on the next part in terms of overseeing safety within already-constructed buildings. There is a good point to be made about it being so diverse and unclear who will be responsible for what that nobody will be responsible for anything and we will be in the same mess that we are now.
I thank the Minister again for a detailed response, which has been helpful. I shall read it carefully as we cannot take in all the detail—well I cannot, anyway. Perhaps in discussion with the Minister, we may make some progress before Report. With those comments, I shall withdraw or not move the amendments in my name. I beg leave to withdraw the amendment.
Lord Greenhalgh
Member’s explanatory statement
This amendment and the next amendment, which are consequential on the Minister’s amendment at page 56, line 22, provide that new section 58Z7A of the Building Act 1984 applies to a person to whom the regulator has delegated registration functions under new Part 2A of that Act as it applies to the regulator.
Member’s explanatory statement
This amendment is consequential on the previous amendment in the name of the Minister.
Member’s explanatory statement
This amendment is a drafting change, with the omitted reference (to section 91B of the Building Act 1984) being inserted by the second amendment in the name of the Minister at page 51, line 28.
( ) section 58Z7A (sharing of information between regulatory authorities);”Member’s explanatory statement
This amendment, which is consequential on the Minister’s amendment at page 56, line 22, provides that new section 58Z7A of the Building Act 1984 applies to a person to whom the Welsh Ministers have delegated registration functions under new Part 2A of that Act as it applies to the Welsh Ministers.
( ) section 91B (cooperation and sharing of information between Welsh Ministers and other authorities);( ) section 131A (application to the Crown).”Member’s explanatory statement
This amendment, which is consequential on the first new Clause in the name of the Minister after Clause 57, enables a person to whom the Welsh Ministers have delegated registration functions (under new Part 2A of the Building Act 1984) to apply to the High Court under new section 131A(5) for a declaration that an act or omission of the Crown is unlawful.
“Information sharing58Z7A Sharing of information between regulatory authorities(1) The regulator may disclose information held in connection with a function under this Part to the Welsh Ministers for the purposes of—(a) a function of the regulator under this Part, or(b) a function of the Welsh Ministers under this Part.(2) The Welsh Ministers may disclose information held in connection with a function under this Part to the regulator for the purposes of—(a) a function of the Welsh Ministers under this Part, or(b) a function of the regulator under this Part.(3) Except as provided by subsection (4), the disclosure of information under this section does not breach—(a) any obligation of confidence owed by the person making the disclosure, or(b) any other restriction on the disclosure of information (however imposed).(4) This section does not authorise a disclosure of information if the disclosure would contravene the data protection legislation (but in determining whether a disclosure would do so, take into account the powers conferred by this section).” Member’s explanatory statement
This amendment provides that regulatory authorities under new Part 2A of the Building Act 1984 (the regulator in relation to England and the Welsh Ministers in relation to Wales) can share information with each other for the purposes of their respective functions under that Part.
Lord Greenhalgh
Member’s explanatory statement
This amendment is a drafting change.
Lord Young of Cookham
“32A After section 36 insert—“36A Removal or alteration of offending work in contravention of Fire Safety Regulations(1) If any work contravenes any fire safety requirements in the building regulations, or breaches any fire safety duty in any relevant enactment, the appropriate national authority or building control authority, without prejudice to their right to take proceedings for a fine in respect of the contravention, may by notice require the person responsible for the work by a date specified in the notice to—(a) pull down and rebuild the work,(b) remove and replace the work, or(c) effect such alterations in it as may be necessary to make it comply with the applicable building regulations.(2) If a person to whom a notice has been given under subsection (1) above (called a “section 36A notice”) is unable to do the work specified in the notice because the person has no power to carry out the required work to the building and the building manager will not facilitate the required work within a reasonable period— (a) the appropriate national authority or the building control authority may order that person instead to pay to it the amount of the expenses reasonably to be incurred to perform the work specified in the notice;(b) the appropriate national authority or the building control authority shall hold the amount so received to be used by the building manager to carry out the work specified in the section 36A notice; or(c) the appropriate national authority or the building control authority shall serve a section 36A notice on the building manager and subsections (3), (5) and (6) of this section shall apply.(3) If a person to whom a section 36A notice has been given fails to comply with the notice before the expiration of the date specified in the notice the appropriate national authority or building control authority may—(a) pull down and rebuild the work,(b) remove and replace the work, or(c) effect such alterations in it as may be necessary to make it comply with the building regulations, and recover—(i) from the person responsible for the work the expenses reasonably incurred by the authority in doing so;(ii) from the Scheme in whole or in part, on an interim or final basis, the expenses reasonably incurred or to be incurred by the authority in doing so; or(iii) from the person responsible for the work any amount paid to the appropriate national authority or building control authority by the Scheme which if recovered shall be paid to the Scheme.(4) A section 36A notice shall not be given—(a) in respect of work completed before 1 June 1992 or such earlier date as the appropriate national authority may specify in regulations, or(b) in the case of work completed after the coming into force of this section, more than 10 years from the date of completion of the work in question.(5) Work specified in the section 36A notice shall be carried out so as to—(a) reduce, insofar as reasonably practicable, the risk of noise, cold, damp and other hazards to residents while the work is carried out; and(b) maintain, insofar as reasonably practicable, the design, character and amenity of the structure as it existed prior to the notice being issued.(6) Where the person responsible for the work has been taking reasonable steps to complete the work but is unable to do so before the expiry of the date specified in the section 36A notice that person may apply to the person who issued the notice to request an extension of time which is reasonable in the circumstances.(7) Where a section 36A notice has been issued the person responsible for the work shall—(a) be liable for the costs of interim mitigation or safety measures and reimbursement of or compensation for increases in insurance premiums, in either case as may be specified in regulations made by the relevant national authority; and(b) reimburse qualifying tenants for any such costs that they have been or are required to pay, the amount of such reimbursement if not agreed to be determined by the appropriate tribunal.(8) Where the person responsible for the work has not complied with the section 36A notice before the expiry of that notice, or before the expiry of the extension of that notice under subsection (6), the appropriate national authority or the building control authority may—(a) order that person to pay to it the amount of the expenses reasonably to be incurred to perform the work specified in the notice; and(b) require that person to pay a penalty in respect of that failure to comply.(9) Notice of a penalty under subsection (8) must be in writing and specify the date before which the penalty is required to be paid.(10) In fixing a penalty under subsection (8) the appropriate national authority or building control authority must have regard to the length of time that has elapsed since the person on whom the penalty is imposed has known that the work was in breach during which the person has not remediated the work, the seriousness of the infringement concerned, and the desirability of deterring both the person on whom the penalty is imposed and others from failing to comply with notices under section 36A, and—(a) no penalty fixed under this section may exceed 10% of the turnover of the person responsible for the work (determined in accordance with such provisions as may be specified in regulations made by the appropriate national authority);(b) any sums received by a national authority in relation to a penalty are to be paid into the Consolidated Fund;(c) any sums received by a building control authority are to be set off against any expenses paid by that authority under this section, with any remaining balance paid into the Consolidated Fund.(11) For the purposes of this section “the appropriate tribunal” is—(a) in respect of a long lease of premises in England, the First-tier Tribunal; and(b) in respect of a long lease of premises in Wales, a leasehold valuation tribunal.(12) Any person subject to a section 36A notice may not pass on to any qualifying tenant any expense, in whole or in part, arising from—(a) the costs of compliance with any such notice; or(b) the costs of any penalty for failing to comply with such a notice.(13) The prohibition in subsection (12) shall have effect regardless of any provision to the contrary in any agreement made before or after the coming into force of this section.(14) In this section—“building manager” means the responsible person in relation to the building in question, as defined in Regulation 3 of the Regulatory Reform (Fire Safety) Order 2005 (S.I. 2005/1541) or any such other person that has the power to carry out the required work;“fire safety requirements” means any requirement in Part B of Schedule 1 to the building regulations in force as at the date of the initial notice or full plans application;“initial notice” has the same meaning as in section 47 of this Act;“full plans application” means the date of any application under section 16 of this Act or an application for building control approval under paragraph 1B of Schedule 1 to this Act, as the case may be;“long lease” has the same meaning as in sections 76 and 77 of the Commonhold and Leasehold Reform Act 2002; “parent undertaking” has the same meaning as in section 1162 of the Companies Act 2006;“person responsible for the work” means a person responsible for or a person responsible for commissioning the construction, erection or refurbishment of the work and, where that person is a company, any parent undertaking of that person;“qualifying tenant” means any tenant under a long lease;“relevant enactment” means section 1 or section 2A of the Defective Premises Act 1972.36B Disputes over section 36A notices given by building control authorities(1) The appropriate national authority must make arrangements with a body to establish a committee called the Technical Committee which, if established in accordance with the arrangements, has the functions given by this section.(2) If a question arises between the target of a section 36A notice and a national authority or building control authority as to whether work contravenes the fire safety requirements of the building regulations in force at a particular time, the Technical Committee has jurisdiction to decide that question.(3) The Technical Committee’s decision is binding on the building control authority and any potential target of a section 36A notice who was given an opportunity to make representations, unless the matter is referred to arbitration under section 36C.(4) The Technical Committee does not have jurisdiction to decide a question that has already been decided by a court.(5) A certificate by the appropriate national authority that a specified committee has been established in accordance with arrangements under subsection (1) is conclusive evidence of that fact in relation to the period for which the certificate is in force.(6) Arrangements under subection (1) must, in particular, include—(a) a presumption that the proceedings of the Technical Committee will normally be held in public;(b) a requirement that the decisions of the Technical Committee are freely available to the public;(c) that members appointed to the Technical Committee have appropriate skills to assess issues raised by section 36A notices; and(d) that members of the Technical Committee are independent of—(i) any party involved in the reference to the Technical Committee; and(ii) any other member of the Technical Committee, or panel of the Technical Committee, hearing that particular reference.(7) Arrangements under subsection (1) may, in particular, include requirements about—(a) the composition of the Technical Committee or the appointment of its members;(b) the right of the Technical Committee to form separate panels to give decisions on its behalf;(c) the Technical Committee’s procedure or how its procedure is to be determined (including requirements for its procedures to be approved by the appropriate national authority); or(d) review by the Technical Committee of its own decisions, including by a panel constituted of different members. (8) The Technical Committee’s procedure may, in particular, include provision imposing time limits for making an application for a decision or the taking of other steps.36C Challenging decisions of the Technical Committee(1) If the Technical Committee has decided any question under section 36B(2), any person on whom the decision is binding may, if dissatisfied with the decision refer the question to arbitration.(2) But a person may not refer the question to arbitration until any review process has been exhausted.(3) Any arbitration under subsection (1)—(a) shall be commenced by the person seeking arbitration requesting the President of the Chartered Institute of Arbitrators to appoint a single arbitrator to hear the dispute;(b) shall be conducted in accordance with the rules of the Chartered Institute of Arbitrators; and(c) shall not have the power to award any costs against the Technical Committee.(4) The Technical Committee need not, but may if so advised, participate in any arbitration proceeding under this section.(5) The relevant national authority or relevant building control authority must be given notice of any arbitration proceedings under this section and must be joined as a party to the proceedings if it so requests.(6) Arbitrations under this section are statutory arbitrations in accordance with the terms of the Arbitration Act 1996.(7) The relevant national authority may amend the identity of the arbitral body named in subsection (3) by regulation.36D Notification by person with an interest in the building(1) Any person with a property interest in a building may give notice to the appropriate national authority or building control authority that that person has reason to believe that a building has been constructed in a manner that contravenes any fire safety requirements in the building regulations.(2) Where a notice under subsection (1) has been given the appropriate national authority or building control authority must, before the end of the period of 90 days beginning with the day on which it receives the notice, publish a response stating how it proposes to deal with the notice, and in particular—(a) whether it has decided to take any action, or to take no action, in response to the notice, and(b) if it has decided to take action, what action it proposes to take.(3) The appropriate national authority must make regulations regarding notices under this section, in particular regarding —(a) the manner of giving notice;(b) the calculation of time; and(c) the designation of a proper officer or proper officers to receive the notices;and any notice under subsection (1) given in accordance with regulations made under this section shall be deemed valid.(4) In this section, “property interest” means an estate in fee simple or a term of years absolute (whether legal or equitable).36E Duty to provide information(1) Where an appropriate national authority or building control authority has received a notice under section 36D, or acting on its own initiative has reason to believe that a building has been constructed in a manner that contravenes any fire safety requirements in the building regulations, the relevant authority may by notice—(a) require the person the relevant authority reasonably believes to be the person responsible for the work by a date specified in the notice to provide copies of all such plans, documents or other information as the authority may reasonably require at a time and place, and in a form and manner, and to a person specified in the notice;(b) require any person to attend at a time and place specified in the notice to give evidence to the relevant authority or a person nominated by the relevant authority for the purpose;(c) require any person to supply the relevant authority with such estimates, forecasts, returns or other information as may be specified or described in the notice and at a time and place, and in a form and manner, and to a person so specified.(2) A notice under this section shall include information about the possible consequences of not complying with the notice.(3) The person to whom any document is produced in accordance with a notice under this section may, for the purpose of this Part, copy the document so produced.(4) No person shall be required under this section—(a) to give any evidence or produce any documents which he or she could not be compelled to give or produce in civil proceedings before a court; or(b) to supply any information which he or she could not be compelled to supply in evidence in such proceedings.(5) In this section “court” means the High Court of England and Wales.36F Fees to be paid to relevant authority(1) The appropriate national authority may by regulations make provision for the payment of fees to the appropriate national authority or building control authority in respect of—(a) any notice given under section 36A; or(b) any decision by the Technical Committee under section 36B.(2) Regulations under this section may in particular—(a) make provision as to when a fee or charge payable under the regulations is to be paid;(b) make provision as to who is to pay a fee or charge payable under the regulations;(c) make provision as to how a fee or charge payable under the regulations is to be calculated (including who is to make the calculation);(d) prescribe circumstances in which a fee or charge payable under the regulations is to be remitted or refunded (wholly or in part);(e) prescribe circumstances in which no fee or charge is to be paid; or(f) make provision as to the effect of paying or failing to pay a fee or charge in accordance with the regulations.(3) Regulations under this section may—(a) contain incidental, supplementary, consequential, transitional and transitory provision and savings;(b) in the case of regulations made by virtue of subsection (2)(f) or subsection (3)(a), amend, repeal or revoke any provision made by or under this Act or by or under any other Act.(4) A relevant national authority or building control authority determining the amount of fees or charges in pursuance of provision made by regulations under subsection (1) must secure that, taking one financial year with another, the income from the fees or charges does not exceed the cost to the relevant authority of performing the function or doing the thing (as the case may be).(5) For the purposes of this section, a financial year is the period of 12 months beginning with 1 April.36G Penalties: failure to comply with information requirements(1) Where the appropriate national authority or building control authority considers that a person has, without reasonable excuse, failed to comply with a requirement imposed on the person under section 36E (Duty to provide information), it may impose a penalty of such amount as it considers appropriate.(2) The amount may be—(a) a fixed amount at level 5 on the standard scale,(b) an amount calculated by reference to a daily rate, or(c) any combination of a fixed amount and an amount calculated by reference to a daily rate.(3) In relation to a penalty imposed under subsection (1)—(a) in the case of an amount calculated by reference to a daily rate, the daily rate may not exceed level 4 on the standard scale;(b) in the case of a fixed amount and an amount calculated by reference to a daily rate, the aggregate amount may be at level 5 on the standard scale.(4) In imposing a penalty by reference to a daily rate—(a) no account is to be taken of any days before the service of the notice under section 36E, and(b) unless the authority determines an earlier date (whether before or after the penalty is imposed), the amount payable ceases to accumulate the day on which the requirement concerned is satisfied.36H Power to make fire safety remediation regulations(1) The appropriate national authority may, for any of the purposes of securing the health, safety, welfare and convenience of persons in or about buildings and of others who may be affected by buildings or matters connected with buildings, make regulations with respect to the matters mentioned in subsection (2) below.(2) Those matters are—(a) when a section 36A notice may be made only by either the appropriate national authority or a building control authority;(b) where there is more than one person responsible for the work, the designation of a lead person responsible and the contribution to be made by other responsible persons;(c) where money is paid under section 36A(2) to the relevant authority, the manner in which that authority shall hold that money and the conditions applied to it.(3) Regulations made under subsection (1) above are known as fire safety remediation regulations.(4) The power to make fire safety remediation regulations is exercisable by statutory instrument, which is subject to annulment in pursuance of a resolution of either House of Parliament.”Member’s explanatory statement
This probing amendment is consequential on the Building Indemnity Scheme, expanding and improving existing enforcement powers under the Building Act 1984.
Lord Young of Cookham (Con)
My Lords, in moving Amendment 24 in my name and that of my noble friend Lord Blencathra, I will also speak to Amendment 130 and touch on my noble friend’s amendments. I begin by welcoming the fact that he and Michael Gove have made substantial advance on the Government’s initial response to the cladding crisis. I am very grateful for that and for the role he has played.
For the leaseholders involved, this group of amendments is probably the most important in the whole Bill. The object of my amendments is to deliver the Government’s policy that, so far as historical defects are concerned, the polluter should pay and not the leaseholder. I begin by reminding the Committee of the explicit commitments given by the Secretary of State that underpin that policy. In his Statement on 10 January, he said:
“We will take action to end the scandal and protect leaseholders … We will make industry pay to fix all of the remaining problems and help to cover the range of costs facing leaseholders.”
When pressed by an opposition MP, the Secretary of State said in reply:
“She specifically requested that we provide amendments to the Building Safety Bill to ensure that there is statutory protection for leaseholders. That is our intention—we intend to bring forward those amendments—and I look forward to working with her and colleagues across the House to provide the most robust legal protection.”
Later he clarified what he meant by statutory protection:
“First, we will make sure that we provide leaseholders with statutory protection—that is what we aim to do and we will work with colleagues across the House to ensure that that statutory protection extends to all the work required to make buildings safe.”—[Official Report, Commons, 10/1/22; cols. 284-291]
Finally, in his evidence earlier this week to the Select Committee in another place, the Secretary of State said:
“The approach that we have put forward is one that provides them”—
that is, the leaseholders—
“with the maximum available level of protection.”
We need to build on the substantial advance that I mentioned earlier, because the amendments tabled by the Government so far do not deliver the policy I have just quoted: statutory protection that
“extends to all the work required to make buildings safe.”—[Official Report, Commons, 10/1/22; col. 291]
The amendments proposed are not “the most robust”, and nor do they provide
“the maximum … level of protection.”
Why is that? It is because not all relevant buildings, leaseholders and defects are covered. The object of my amendments and those of others is to deliver the policy, fill in the gaps and make the protection more robust.
I have one other objective. I believe that in cases where the Government are unable to persuade those responsible to do the work voluntarily—I suspect there will be many—remedial work should commence promptly, without waiting for the proceeds of the levy to come in or for people to be fined after protracted litigation. It is crucial to make the buildings safe sooner, to lift the blight on sales and to let people get on with their lives. Under the current government proposals, where the developer will not fund the work, nothing happens until all the money is in place, including the contributions that the Government expect leaseholders to pay, which many will not be able to afford. We cannot wait that long.
My amendments are designed to provide a speedy and efficient route to getting buildings remediated at the cost of the person responsible and, when that is not possible, by a levy on the industry. I claim no exclusivity as to how this is done. We may need to pick and mix with some of the other proposals in this group, particularly those in the name of my noble friend Lord Blencathra and the noble Earl, Lord Lytton, who brings to this issue the wealth of professional expertise. I am grateful to Sue Bright and Liam Spender, who have given me advice in a personal capacity, and to the Leasehold Knowledge Partnership, which services the all-party group on this subject.
My proposal would operate by inserting provisions into the Building Act 1984 and, as my noble friend reminded me, in an earlier incarnation I put that on the statute book. At some point, I hope that the statute of limitations will kick in and hold me not responsible for all the things I may have done in the past. That amendment, however, would enable an appropriate authority, either the Secretary of State or the building control authority, to serve a notice on those responsible for fire safety defects that are in breach of either building regulations or the “fit for human habitation” requirements in the Defective Premises Act 1972, which I did not put on the statute book. Leaseholders can also start that process and request a relevant authority to act. When the polluter no longer owns the building, the relevant authority can recover the money from the polluter and require the work to be done. If the polluter cannot or will not pay, the resources to do the work come from the building safety indemnity scheme established under Amendment 130.
The amendment also proposes an absolute prohibition on any of these costs being passed on to long leaseholders through variable service charges, filling in one of the gaps I referred to earlier. There are penalties on the polluter for noncompliance with a remediation notice; they are also liable to pay the costs of mitigating measures in the meantime. These provisions incentivise prompt action rather than protracted delay. In the event of a dispute as to whether the work contravenes building regulations, this will be decided by a technical committee, the decision of which will be binding. Any challenge to its decision can be referred to arbitration. I believe this is quicker and cheaper than the complex dispute process in government Amendment 108.
These changes to the Building Act will require money to pay for remedial works while the authorities step in, which brings me to Amendment 130. This would create a comprehensive levy scheme to be established. Contributors to the scheme would include all applicants for building control approval and suppliers of construction products. Leaseholders and a relevant authority, acting under Section 36A, would be able to apply for grants under the scheme. I cannot claim authorship of this part of the proposal; it simply mirrors the Government’s own idea of linking future building control approval to payments into the scheme. The amendment proposes that anyone who does not pay a levy when due cannot receive building control approval for any works.
Those are my proposals, and I turn now to the Government’s amendments, covering some 24 pages of legal text. The Government’s objective, although not spelt out in these terms, is to create what has been called a statutory waterfall. The waterfall is intended to work as follows: develops and cladding manufacturers are expected to pay first; for cladding remediation, government funding then kicks in through the building safety fund, then freeholders are expected to pay next. Finally come the leaseholders, who are expected to pay only a capped amount towards non-cladding costs.
Each layer of the waterfall has to be put in place before you get to the next one. Its aim is to ensure that any contributions from leaseholders become, legally, the last resort. This addresses the conflict of interest inherent in the current leasehold system. At the moment, landlords can spend leaseholders’ money without any effective control. The fact that freeholders will be on the hook to pay will concentrate their minds on the question of cost-benefit analysis. Are the works that they deemed necessary really necessary when they did not have to pay? Are they still necessary when they do?
The current Bill and the government amendments do not have adequate measures to ensure that the developer responsible for the defects must pay. With no voluntary settlement, the only route to recover would be through costly and risky litigation, with the leaseholders or freeholders responsible for pursuing a well-resourced developer through the courts, potentially delaying remediation for years and incurring higher insurance premiums and, in some cases, waking watches. Amendment 24 avoids this.
There are a number of other problems with the Government’s approach. I start with putting freeholders in the firing line. Where the developer is the freeholder, that is wholly understandable, but resident-owned buildings are excluded from the Government’s proposed protection by Amendment 63. That is because leaseholders in those buildings are also the freeholders—they have enfranchised. It is then up to the residents to sort out their claims against those responsible. When there is no one to claim against, this may mean that those residents must finance all the non-cladding remediation costs themselves. This is plainly wrong. Many leaseholders have used legislation—which, I confess, I put on the statute book—encouraging them to enfranchise and buy the freeholds. This is a welcome step away from the feudal system of leasehold, which the Government have pledged to abolish, and towards commonhold. However, those leaseholders who have enfranchised are every bit as innocent as those who have not, yet they are excluded from the support in the government amendments.
Other freeholders now find themselves in the line of fire. Freeholds are often owned by housing associations, charities, local authorities and pension funds, which have bought freeholds and their ground rents—in the case of pension funds, to match their liabilities on annuities. They have found themselves exposed to major costs, although they were not responsible for the defects. It is not clear why pension savers should pay if they did not pollute. These freeholders, like the leaseholders, bear no responsibility for causing building safety defects, and they should not bear the cost. In some cases, the costs of remediation will outweigh the balance sheet of the freeholder, threatening insolvency. Has this all been thought through? A solution would be for the Government to propose to meet any costs not met by the developer, including cladding repairs in particular.
Under the government amendments, a developer must pay only if it is still the landlord. If it has sold the building, it is off the hook, under Amendment 76. If the polluter is to pay, it is not clear why there should be these exclusions, and there must be a direct route to hold polluters responsible that does not depend on leaseholders bringing claims under the Defective Premises Act. Even if the developer is the landlord, it can recover costs from all leaseholders who are not capped by the capping provisions—another important deviation from the policy of protecting the leaseholder. This is the case even though the developer is responsible for the defect and has, for example, failed to install cavity barriers. That is likely to be a common scenario.
There are other important exclusions which breach the policy that the polluter, not the leaseholder, should pay. Where a building has non-cladding defects and is more than 11 metres tall, leaseholders have to pay up to £10,000 outside London and £15,000 in it. Under Amendment 92, these payments can be spread over five years, but that conflicts with the requirement for all funds to be in place before the work can commence. Who will fund the difference? There may be buildings where there are only non-cladding defects. If the bill for remediation is £10 million and there are 250 flats, leaseholders must pay £40,000 each. They are subject to a cap of £10,000, but where does the missing £30,000 come from—£7.5 million for the whole building? I see that I have already caused some consternation on the Front Bench.
A further important exclusion is for buildings under 11 metres. Leaseholders in those buildings, or buildings with fewer than five storeys, get no assistance for cladding or non-cladding remedial works and are exposed to unlimited costs. The Government’s view is that such buildings are not at sufficient risk to justify remediation, but this will be a bitter disappointment when leaseholders in those buildings who are not responsible for the defects face costs. It is incompatible with the principles I set out earlier.
Another exclusion is for those who have invested in buy to let who have more than one such property. The press release that the Government published on 14 February, along with the amendment, said:
“New clauses will also enshrine in law the commitment the Levelling Up Secretary made in the House of Commons last month that no leaseholder living in their own home, or sub-letting in a building over 11m, ever pays a penny for the removal of dangerous cladding.”
Amendment 64 contradicts that assurance for those buy-to-let landlords who own more than one such property, the majority of whom are individuals and not property barons. They bear no responsibility for the defects. I think that Amendment 65 addresses that issue in a later group.
The Deputy Chairman of Committees (Baroness Henig) (Lab)
My Lords, the noble Baroness, Lady Brinton, is taking part remotely, and I invite her to speak.
Baroness Brinton (LD) [V]
My Lords, I wish to speak briefly to the amendments in this group, particularly in relation to the issue of perpetrator pays for fire hazard remediation—work that must be carried out speedily to ensure the safety of the inhabitants of the building. Amendment 24 and others, introduced by the noble Lord, Lord Young of Cookham, sets out the removal or alteration of offending work that contravenes fire safety regulations. It is interesting to note that he joins a group of former Ministers who are now trying to remedy the problems that were around during their time as Ministers. I think we should thank them not just for their humility but for their acknowledgment, through their amendments, that change is needed even more urgently than ever.
The noble Lord is right that his and other non-government amendments in this group are critical to delivering what the Government want to achieve, despite their own proposals being inadequate. I echo his point that if the Government think that things can be done more effectively to achieve the objectives that he outlined, I suspect that the Grand Committee would want to hear them.
The Minister spoke earlier of his surprise about the mechanisms of current building work guarantees and the role of insurers and warranties. Insurers have, rightly, made it clear that they are not responsible for this crisis. Insurance is not eligible in the event of defective work, and insurers never sign off work; they rely on the assurances of the companies they are insuring that the work is safe. The practical problem is that too many companies have relied entirely on their insurers. In my former professional life as a Cambridge college senior bursar, I have been that client who has sat in the middle and watched arguments about who should pay for defective work on blocks of flats, including works on a fire hazard in a medium-rise building.
The problems we faced as a college, even though they were with student accommodation, were absolutely nothing compared to the problems that leaseholders and renters in blocks of flats face. Talk to any of the current leaseholders living in blocks known to be unsafe: even with waking watches overnight, families are constantly on edge, and too many face the threat of worthless homes that are unsaleable until the perpetrator pays principle is fully brought into effect. I think “perpetrator pays principle” will be one of the next speech therapist phrases that people have to articulate; it is quite difficult to get your mouth around. The current government proposals do not take into account too many leaseholders who, like those in high-rise cladding buildings, are also not responsible for the defective work done by others.
Amendment 118 makes it clear that those who should pay, in the event of a block of flats having fire hazards, are those who did the work itself. The Government’s current proposals do not go far enough and still leave too many loopholes for those living in unsafe flats. This is the moment that legislation can and should make it absolutely clear that the perpetrator is responsible and must effect the remediation work and pay for it. In the event of a gap between that work being necessary to be carried out and it being agreed that the perpetrator should pay, the Government should indeed step in to help out.
Lord Greenhalgh (Con)
My Lords, before I get my bearings, it is always good to have a few Latin phrases. “Quis custodiet ipsos custodes?”—well, I am just going to say, “Res ipsa loquitur”.
This is the “PP” group of amendments: “polluter pays” if you are my noble friend Lord Young, or “perpetrator pays” if you are the noble Earl, Lord Lytton. Although I will respond formally at the end— I am now speaking to the government amendments—I honestly agree with the sentiment of working with noble Lords and that a pick-and-mix approach is the right way forward. I am very keen to do that between now and Report. That is not in my speaking notes. The important thing is that we need a practical approach. We need one that works in law and in practice, and of course we want the polluter to pay.
I have taken noble Lords’ amendments and sought external counsel opinion, off my own bat, from a leading QC who deals with these issues in the courts to get their opinion. While I know my noble friend has tremendous ministerial experience, he perhaps has not always been in the courts when these things go into dispute. I know the noble Earl has considerable professional experience, but, again, this has to work in law as well as in practice. As the Committee will all appreciate, any scheme that requires government funding is not just a matter for this department; it is a matter for the Government and, in particular, needs Treasury approval.
I have always accepted that, in order for the polluter to pay, we have to have something that establishes liability at the building level. It is not an either/or. That is not to say that the Government’s approach is wrong; I think the Government’s approach is right. We have to have a waterfall effect that goes down the list of the polluters but recognises that not all freeholders are equal—some are “more equal than others”, to quote George Orwell—and that perhaps assignment of liability can be varied in regulation to reflect that. But all that detail is something that happens at later stages of the Bill, as my noble friend will know. Perhaps we will tease out some of those points in due course.
Clearly, if you are a developer like Ballymore that retains its freeholds, it is very easy. But if you are a developer like Berkeley, which often sells off its freeholds to a freehold investor, it becomes slightly more complex. But the intention of the Government is certainly not to let the Berkeley Group off the hook because it took another £20 million or £30 million by selling its freeholds off to another group to manage. It is still in the frame for the buildings that it built. I mention those developers just as examples, because we are obviously talking about a crisis that affects all the major housebuilders, as they freely acknowledge—not just the large ones but the medium and small ones, which have all contributed to a crisis that has brewed up over decades.
Let us move to the government amendments. Following my 11 January repeat of a Statement to this House, we have been clear on our expectations that developers should commit to self-remediate all unsafe high and medium-rise buildings for which they are responsible. They should agree contributions to fund the remediation of all cladding on buildings of 11 to 18 metres. The department has been in discussions with industry leaders on this matter and is making good progress towards a solution. I have had discussions with the medium-rise developers and have been alongside the Secretary of State in all those substantive discussions. However, should we need to take action against those unwilling to make these commitments, amendments tabled in my name will make it possible to impose a solution in law and make sure that developers and manufacturers take responsibility for rectifying building safety defects. I will now outline these important government amendments.
The first measure we are proposing as part of our package to ensure that the burden of paying for fixing historical building safety defects does not fall on leaseholders or taxpayers is a group of amendments to the building safety levy. They are an important part of the solution as they allow the building safety levy to be imposed in relation to building work going through the building control process on all residential buildings, not just buildings over 18 metres or seven storeys. This will enable the Government to raise funds to remediate cladding should the industry fail to step up and pay for the problems it has caused. It is our intention to set out in secondary legislation the levy rates and the details of who the levy applies to. By then negotiations with industry should have been concluded.
I now turn back to the package of government amendments and outline the further amendments that we are proposing to ensure that developers and manufacturers take responsibility for rectifying building safety defects. This package of amendments addresses many of the concerns highlighted today. They introduce measures to allow us to distinguish between companies that commit to shouldering their share of the blame and those companies that do not. The measures will incentivise industry actors to take responsibility in resolving issues with unsafe buildings, through firms committing to remediate buildings with which they are associated, and to contribute towards the funding of remediation of other unsafe buildings.
The first two amendments in this package would give the Secretary of State a power to establish a scheme or schemes for the building industry. This would act as a means of identifying which industry actors, including developers, and cladding and insulation manufacturers, have done the right thing and committed to act responsibly. Regulations will set out which persons in the building industry may be members of the scheme. In the first instance, the Government are minded to focus this measure on major developers of residential buildings and manufacturers of cladding and insulation. We are keeping this under review as talks with industry continue. Industry actors will be considered “responsible” if they meet published membership criteria for a scheme for which they are eligible. The membership criteria for a scheme will be set out and will include a commitment to rectifying building safety defects. The distinction between responsible actors and actors who have failed to do the right thing will be taken into account by the Government and regulators in their interactions with firms that are eligible for inclusion in a scheme.
The third amendment would give the Secretary of State a power to block developers that have failed to act responsibly from carrying out development for which planning permission has been granted, and to make sure that any breach of this block would be subject to enforcement action. The amendment would also allow the Secretary of State through regulations to require a developer to serve a notification of proposed development commencement and to prevent the grant of certification of lawful development for affected developers, should they seek it.
The fourth amendment would give the Secretary of State the power to prevent developers that have not committed to act responsibly, as set out in regulations, obtaining building control sign-off on their developments. This will make selling developments difficult for these developers, as building control approval is in most cases a prerequisite to occupancy and sale. The building control prohibitions will be imposed by regulations that will also set out details such as prescribed documents.
These new measures will help to make sure that while responsible industry actors can go about their business freely and with confidence, others will face significant legal, commercial and reputational consequences. They align with two of the principles set out by the Secretary of State: that the industry must pay for remediation and that the burden should not fall on leaseholders or the taxpayers. These measures will ensure that the burden is shared among the relevant industry actors while protecting leaseholders and the taxpayer. We cannot continue to allow those who are unwilling to commit to resolve the building safety crisis to have a role in building homes of the future. These amendments are being tabled to ensure that we have the legislative provision to help us to do this. I beg to move.
The Earl of Lytton (CB)
My Lords, as your Lordships will know, I have three amendments in my name in this group. I will speak first to Amendment 115 and then to Amendments 118 and 119, collectively now branded the “perpetrator pays” amendments. I was very pleased to hear the Minister’s prefatory comments, because he is absolutely right. The amendments in the name of the noble Lords, Lord Young of Cookham and Lord Blencathra, and mine come from fundamentally the same hymn sheet. I impress on the Minister: never mind the differences in approach, there are core, fundamental principles that lie behind them all and which, I would like to think, we hold in common. Those principles must be carried forward into the Bill. At the very least, the Minister must come back, not later than on Report, with a version that will hopefully attract some consensus.
I was very glad that we agreed on the earlier point that non-compliant construction is simply unlawful. It is just a real shame that this has been going on for 30 years. One of the problems is that building inspectors are not on site full-time but call to check at certain stages only, so nearly the entire process of receiving good, compliant construction is based on the trust placed in those who direct matters on the site, plan the work, procure materials and labour and oversee standards. I am so glad that my noble friend Lord Thurlow referred to clerks of works. I totally agree with him. The progressive decline in their use is part of a cost-cutting philosophy.
According to the fire chiefs’ council, whose representative was, I believe, giving formal evidence to a parliamentary committee in December, the failings are still ongoing, so the matter is urgent. It appears that many of the approved inspectors are in far too close association with those whose works they oversee.
The problem we have here is one of weak claimant and powerful defendant, and it is that fundamental imbalance that prevents things such as acting against defective workmanship that may amount to unlawful activity. That is why we have to do something to redress that.
My amendments were reworded with “the perpetrator pays” on the advice of the parliamentary clerks—I am very grateful to them for that, because it is a much snappier title than “polluter pays”. Amendment 115 inserts a new schedule, which outlines a remediation scheme. I use the word “outlines” advisedly, because my amendments do not seek to drill down into the administrative detail; that is a job of work for the department to take forward. The amendment tries to set certain principles.
Amendment 118 sets the principles of “the perpetrator pays”, and Amendment 119 is simply consequential. I am indebted to parliamentary counsel Daniel Greenberg for his unstinting efforts in drafting them. With respect to the Minister’s comment, I am indeed a chartered surveyor and no lawyer, but this has come not from my pen, as it were, but from that not only of Daniel Greenberg but of leading construction counsel. They have checked both the construction contractual arrangements and ECHR law and tried to proof the amendments against the risk of sequential legal action and, in particular, judicial review— all of which could effectively unseat the entire process and render anything that we might try to achieve of no effect simply because of the costs that would be faced by anybody trying to exercise it.
I also thank the huge number of leaseholders, who have been appallingly affected, for their patience and stoicism—but also those who have written to me, expressing their support for this group of amendments. I am especially glad that the noble Lord, Lord Blencathra, added his name to Amendment 118. I thank him for that, because this is not a partisan matter but a question of morality and justice, preventing contagion from irreparably damaging a market sector. That is the other piece of the equation at risk here. This is not anti-developer; my belief is that there are many conscientious developers, but a number of significant players have allowed standards to drop. It is those latter that I wish to single out and attach responsibility to, where it properly lies.
I say to all those responsible in that respect that, with all the plethora of information about cause and effect, the advice and case studies and their long experience and their own knowledge of the contracting world, what is it that they did not understand about all this? It really beggars belief that we have got to this stage. My purpose is to make the developer strictly liable for demonstrable failures to meet the regulatory standards at the time of works. I seek to deliver on the sentiments voiced across the House at Second Reading and expressed by Ministers in parliamentary proceedings and elsewhere that leaseholders should not pay the remediation costs arising from fundamental construction failings—and in connection to my amendment, that relates to fire safety. I am holding the Minister to that express promise.
Just to go into the amendments in a little more detail, noble Lords will of course note the salient characteristics set out in principle. I shall run through it as a summary. Leaseholders should not be responsible or liable for fire safety remediation costs, not even to the extent of Florrie’s law capping. It just is not appropriate. They have been led to believe that they would be relieved of paying for things for which they were wholly innocent—points consistently made by the noble Baroness, Lady Pinnock, and points still ringing in our ears from the passage of the Fire Safety Bill onwards. Secondly, the taxpayer should not foot the bill, other than as an extremely limited last resort—and I mean extremely limited—and for interim funding to get a remediation scheme in place, as bridging finance. The fallback under my amendments is not the taxpayer but the industry that allowed these practices, and what amounts to a gross breach of trust, to take root. The burden should fall on those with involvement in these practices, directly or indirectly, and not attach to wholly innocent and diligent operators. That is a matter of straightforward fairness.
The amendments are tightly focused on originating fire safety hazards in residential blocks—not any wider construction faults or building types. This is deliberate, because of the sudden, unplanned and catastrophic nature of building fires, especially when occupants are off-guard and possibly asleep, with the custody of minors and even with disabilities, and thus at their most vulnerable. It follows the thread set in place by Dame Judith Hackitt. Expanding beyond that focus would be unhelpful at this juncture.
The proposal covers residential buildings of all heights. As I observed at Second Reading, when a low-rise building in Worcester Park burned down in 2019, as was referred to last time, it could so easily have cost lives. Building height is not the sole determinant factor of high risk.
I intend to attach blame firmly to the perpetrator in a manner that is inescapable liability following the establishment of defect as fact. The perpetrators may be numerous, but the claim will be made against the developer or lead contractor on a joint and several basis, leaving them to pursue the wrongdoers in satellite litigation, if they choose, after making the payout or fixing the defect. These liabilities should not be a wider industry or societal collective responsibility; that is what bad people like to achieve—spreading their risk among the rest of us. I say no to that, and no to any amendment to this Bill that has that effect. I consider it also as a factor that leads to uncertainty and unconstrained risk response in insurance terms. In other words, it allows the contagion to spread where it should not.
The parties should be on even playing field, not one where there is trial by bank balance or a gravy train for litigators. A scheme has to be straightforward and transparent, not mired in complicated process, even less labyrinthine administrative hurdles. It should be operable by individuals or their agents on a per-building basis, and I was pleased that the Minister referred to the per-building approach. It should not discriminate between types of owners, for reasons we have already heard. It is indefensible that liability for defects should depend on the status of the injured party or the nature of their tenure, as if wrecking somebody’s pension pot or a social landlord’s finances is in some way acceptable, when for the homeowner it is not.
Landlords have moral obligations towards their tenants as well. There is that trickle-down effect of responsibility, so I say no, not even by reference to supposed wealth nor by dint of some anti-freeholder prejudice. You either subscribe to the rule of law for all or you deny credibility and confidence in government, and potentially an entire market sector, as well as evading the proper exercise of justice. I would make only one slight exception: my amendment would also protect housing associations which have purchased in good faith. The only situation where that might not pertain is where the housing association was itself the developer. However, I defer on any of that to my noble friend Lord Best, because I suspect that there are different structures within housing associations that deal with the development on the one hand and the housing association function as a quasi-charity on the other.
Just to make sure that everybody is focused on matters, the idea in these amendments is to propose a public register of determinations so that everybody knows what is going on. I hope that, going forward—this is critical—it should serve to eliminate the perverse incentives and poor culture in the race to the bottom on cost-cutting and safety, which the noble Baroness, Lady Brinton, referred to.
I think it will be found that the amendments are clear, written in plain English and perfectly understandable. As I say, they do not set in place detailed definitions or administrative schemes but seek to establish principles. I consider that they would greatly simplify what I and, I believe, other noble Lords and the Government are seeking to achieve. They would, I hope, minimise the administrative burden on government and the attendant risks of action on defects and their enforcement, but a clear statement of principles must come first.
I do not think I have ever received such a volume of correspondence on any matter in which I have been directly involved in this House as has happened here. This has come in personal emails from innumerable leaseholders and from residents’ groups, management groups, mortgage lenders, property consultants, professional bodies including the RICS and ARMA, and the British Property Federation. Even a former Australian state premier, Ted Baillieu, who now heads that state’s cladding taskforce, thinks this is a game-changer that it will look to as well. The eyes of many people in this country and elsewhere are on us.
In particular, I had an email yesterday from a Mr O’Connell, vice-chair of the Lancaster West Estate Residents’ Association—the estate that includes Grenfell Tower—in support of this. The Mayor of London has also indicated his support. I thank them all, and the social media have been absolutely buzzing. I hope the Minister will be able to repeat his previous support for the principle and that we can move on with this. I would like to make one or two comments on some of the other amendments in this group, if I may be given the time to do so.
Amendment 24, in the names of the noble Lords, Lord Young of Cookham and Lord Blencathra, is one that I would have contemplated tabling, because I felt it was so important for the debate. I am very glad that the two of them have tabled it. I understand that it was drafted by Professor Susan Bright and her husband. I have had the opportunity and the pleasure of meeting both of them virtually, at an online meeting. Professor Bright is an academic of absolutely unimpeachable principles and a stalwart campaigner for leaseholder justice, so nothing I say about this amendment or anything else should detract in any way from the high regard in which she is rightly held. I feel that both she and the noble Lords are very much on message about the necessity of freeholder redress. If there is a divergence, it is on methodology rather than on the principle, as I have said.
Lord Blencathra (Con)
My Lords, since it seems de rigueur to start with a quote, I suggest we start with Jean-Baptiste Alphonse Karr:
“Plus ça change, plus c’est la même chose”—
the more things change, the more they remain the same. However, we simply cannot have that quote for this Bill; we do not want things to remain the same. That is why I prefer the quote from Heraclitus the Obscure of Ephesus: “panta rhei, ouden menei”—all things change, nothing remains. That, I suggest to my noble friend, should be the strapline of this Bill, if he cannot put it into the Long Title.
As my noble friend Lord Young of Cookham said, this group contains probably the most important amendments in the whole Bill, along with government Amendment 114 on the cost schedule. That is why we will probably spend more time on it than any other. We have four major groups of amendments here, and we are all seeking to do the same thing. We have the Government’s amendments, my noble friend Lord Young’s amendments, those of the noble Earl, Lord Lytton, and mine. I am sorry that I have about half the amendments in this group. The sets from us Back-Benchers are all complementary. We are all in the same boat; we may have slightly different strokes, but we are all rowing in the same direction as we seek to toughen up the Government’s position, which is a very good start.
First, my noble friend the Minister said on Monday—when I was unable to be present—that he found my speeches priceless. I take exception to that. He is wrong; they are not priceless. If the Government accept my amendments, they will have a huge cost attached, starting at £15 billion. Every penny will be paid by the builders and developers, and that sum is just the excessive profits they have made in the last few years. They are not priceless—there is a good cost attached.
I am very pleased to be able to support my noble friend Lord Young of Cookham’s amendment and the excellent way he has introduced it today. I will not repeat his arguments, since I cannot improve on a single word of them. I also commend Amendment 115, in the name of the noble Earl, Lord Lytton. He is also an expert in these matters, as we heard just now. I particularly like his introduction to the amendment:
“The purpose of the FHRS must be to ensure that residential blocks of flats with fire hazards are made safe … speedily, efficiently, effectively and proportionately … without recourse to lengthy and expensive legal proceedings … without cost to leaseholders or occupiers, and … in accordance with the perpetrator pays principle.”
He replicates those principles in Amendment 118, which I am also pleased to support.
Now that your Lordships have heard from the experts, this enthusiastic amateur will attempt to explain his amendments in this group. Like my noble friend Lord Young of Cookham, I agree that my noble friend and the Minister, Michael Gove, have transformed the landscape of fire remediation works, and the government amendments to this Bill go a very long way to delivering on the pledge that no leaseholder will pay a penny and that the perpetrators will pay. But as my noble friend Lord Young of Cookham pointed out, not all relevant buildings are covered, not all leaseholders are covered and not all defects are covered. The object of my amendments—and of others—is to deliver the policy, fill in the gaps and make the protection more robust.
Two weeks ago, a noble Lord following a speech I made in the main Chamber said that I had, in my usual way, set out an absolutist position, but that I was nevertheless right to raise the issue, et cetera. So, like the noble Earl, Lord Lytton, I have attempted in my Amendment 148 to set out some key building safety objectives to which the Secretary of State and everyone else exercising functions under the Bill must have regard to when making regulations.
I do not like these EU or UN regulations which begin with dozens of meaningless “whereas this” and “whereas that”, et cetera, and our Office of the Parliamentary Counsel does not like declaratory objectives which do not actually make substantive law. Nevertheless, when I was chair of the Delegated Powers Committee, I and my committee heavily commended my noble friend’s boss, Michael Gove, on the Fisheries Act—which has now passed—because it began with a series of objectives, which we had never really had before in legislation. We said that it was a wonderful way to start the Act, and that got universal approval from all the countries of the union. My noble friend should go back to his boss and say that, if it was good enough for the committee and I to commend him then on setting objectives at the start of the Bill, he should adopt either the Lytton principles or the Blencathra objectives and put them at the start of this Bill, setting the scene for what we want to do in future. I invite colleagues to look at my Amendment 148, and I promise then that I will not read it out to them. I will read out my other amendments, however.
The concept behind my Amendment 34 is very important since it relates to Clause 57, one of the most important clauses in the Bill. But the clause has a weakness, in my view, in that it gives the Secretary of State various regulation-making powers to create a levy or levies but does not set a maximum limit on what the levy might be. From my experience in the Delegated Powers Committee and the legal advice we received, any general levy-making power in regulations is highly vulnerable to judicial review and challenge unless the Secretary of State is operating within maxima parameters. It does not matter what those maxima are so long as they are in the primary Act. That means that any levies set by the Secretary of State under that maximum cannot be challenged on the grounds that they are unreasonably high.
The big building companies have already promised— I think I read this in an article last week—to challenge Gove and throw millions at lawyers to sabotage the whole levy system and claim that regulations setting the fees are ultra vires. The levels I have set out in my amendment may seem excessive; I doubt that the Secretary of State would ever need to set a levy at that rate, but it legitimises any levy he sets under that maximum parameter.
My Amendment 39 simply states that
“‘person’ includes bodies corporate including a holding company or special purpose vehicle”.
In reading the Bill and the government amendments, I think that where the Government have used “person”, it includes bodies corporate, so I will not labour that point. I would just like an assurance that in every circumstance where the Bill talks about the obligations on a person or a levy on a person, it would include bodies corporate.
My Amendment 78 seeks to insert a new clause into the Bill setting out what I call the “Fire hazard remediation objectives”. As I said about my Amendment 148, these objectives may not be perfect, but I am adamant that the general concept of them is.
This very important Bill started as a bit of a dog’s breakfast, amending various Acts and introducing the idea of a regulator—not a coherent Bill in itself but one that amends this, that and the other. However, since the Bill left the Commons, the Government have rightly—I approve of it—hijacked their own Bill by introducing all these amendments, which give the Bill a whole new importance. But they are scattered around it, and there is no coherence. That is why I repeat my Second Reading plea that the Bill team and the Office of the Parliamentary Counsel reorder this Bill for Report and put all the new clauses relating to leaseholder protection measures and perpetrator pay measures into two new parts at the front of it. It would not just be window-dressing; it would make a statement to all the companies involved in building construction that we, the Government and this Parliament, are taking very seriously all aspects of making the perpetrators pay and protecting leaseholders. I suggest that it would also make the Bill a dashed sight easier to read.
The Lord Bishop of St Albans
My Lords, I shall speak to Amendment 35. I was expecting others to speak to it first, but I shall address it briefly. I declare my interest as a vice-president of the Local Government Association. I, too, am an enthusiastic amateur and rise with great hesitation. I also apologise for arriving fractionally late and going in and out, but I have amendments about to run on the Judicial Review and Courts Bill, so I have been trying to balance things in two places.
Whenever a new tax is applied to an industry or business, it is extremely rare that a given organisation simply chooses to absorb that additional cost. In the overwhelming majority of instances, the tax will be passed on to the consumer as a price rise. Businesses rarely undermine their own bottom line when there is little competitive advantage for doing so and where the cost can be simply passed on to the consumer without hurting the demand for their product.
The market is such that there is a massive, chronic shortage of supply of homes in the UK. This undersupply means that, in reality, developers know that demand will not greatly suffer as a result of the building safety levy. They will not absorb the tax. I fear it will simply be priced on top of the cost of new properties. After all, this is the free market, and we cannot escape the fact that that is likely to be the consequence of the levy.
I am not at all opposed to the levy in itself. The aim as outlined by the Government is to recoup money from the industry to part fund the hugely welcome grants that the Government have provided to fund cladding remediation. It is morally right that developers contribute via this charge for their past mistakes. What I am concerned about and object to, which is why I put my name to this amendment, is the idea that social housing providers will also have to shoulder the building safety levy, if I have understood it correctly.
As I said, taxes rarely get simply absorbed. The majority of social housing providers, as in housing associations, are non-profit, so the question is: where will they shift the cost to? As they do not make a profit, they are unlikely to tap into their capital reserves to subsidise the tax. Even those for-profit social housing providers are unlikely to allow it to eat up their presumably slimmer profits compared to those of private developers. So where will it go? As already alluded to by previous speakers, it could be passed on to tenants in the form of increased rents, which would somewhat undermine the purpose of social housing—to have an affordable place to live. Although that alone is a worrying prospect, what concerns me is the effect it could have on the supply of social housing. We already have a major social housing deficit. The homeless charity, Shelter, estimates that more than 1 million households are waiting for social homes. A building safety levy will leave social housing providers with the option of building fewer homes, due to the increased construction costs, or building out at the same rate with the same costs, but shifting the burden of the levy on to construction costs, the result being a lower quality of social housing.
Imposing this levy on councils means council tenants could, in effect, be subsiding the failure of private developers and paying the cost of remediating both council housing and private housing. We desperately need more social housing, and we need it now, which is why we ask the Government: what assessment have they made of the impact of this levy on social housing providers, the supply of social housing and the rental costs faced by social housing tenants?
Baroness Hayman of Ullock (Lab)
Does the noble Baroness, Lady Pinnock, want to speak next?
Baroness Pinnock (LD)
I am happy to do so. I was assuming that the noble Baroness, Lady Hayman, wanted to speak to the amendment which is in her name. I do not know what the protocol is on all that.
Baroness Hayman of Ullock (Lab)
Then I will speak to my amendment, as I stood up first. As noble Lords have said, this has been a really important group of amendments to debate. I will speak first to my Amendment 35 and I thank the noble Baroness, Lady Pinnock, and the right reverend Prelate the Bishop of St Albans for their support.
Clause 57 gives the Secretary of State powers to impose a new building safety levy in England that will contribute towards the Government’s costs for remediating historical building safety defects. This will apply to developers making an application to the building safety regulator for building control approval, which of course is the new gateway 2 process that we have debated throughout discussion on the Bill. The problem we have, which is why I tabled this amendment, is that it will also be imposed on councils—the social landlords. Councils of course already face additional financial pressures, due to the Covid-19 pandemic.
We should not forget that the key role of local government is to serve communities—the Minister will completely understand this—and provide essential services. They are not the same as developers, so the purpose of this amendment is to make social housing providers exempt from the additional financial burden of the Government's proposed levy, to prevent council and social housing tenants subsiding the failures of private developers and paying the cost of remediating both council housing and private housing. We are concerned about what may be the unintended consequences of the Bill as it stands, because if the levy is imposed on local authorities, it will increase the cost of building or refurbishing social housing, or increase rents, as the right reverend Prelate said. Yet the benefits to funds will not be available to the tenants, who would otherwise have benefited from lower rents or better housing.
The money to fund remediation must come from somewhere. Inevitably, it will be at the expense of another critical service, either in housing or through increased rents. To ask for that does not seem the right way forward. Does the Minister recognise the potential impact of the levy on social housing supply? Again, the right reverend Prelate the Bishop of St Albans talked about our desperate shortage of housing in this area. We do not want anything that will negatively impact that. It is important that we do not pit the objective of providing for those in housing need against the objective of making buildings safe, when both must be delivered.
I turn to the other amendments in this group, looking first at the amendments in the name of the noble Lord, Lord Young of Cookham, which he introduced clearly and comprehensively. To us, they seem eminently sensible and practical, and the right way forward. As he said, Amendment 130 proposes that the Government establish a comprehensive prospective levy scheme on all developers, the money from which would go towards remediating the defective buildings. As I understand it, his Amendment 24 is consequential on the establishment in Amendment 130 of the building safety indemnity scheme. That means that the removal of building work that contravenes fire safety regulations could be carried out, if his Amendment 130 were accepted.
What came through in both the noble Lord’s introduction and how other noble Lords introduced their amendments is the fundamental principle that it is right that the person who is responsible for breaches and poor building work should be made to put it right. This is a simple, basic principle that I think we all agree with. It should not be that difficult for the Government to accept it; to me, the Bill already accepts it. Why not work with noble Lords who have put forward such important amendments today, take them forward and give us much more robust statutory protection for leaseholders, extending it to all work, as the noble Lord said, that contravenes regulations? We would strongly support any amendment that makes buildings safer and protects tenants properly.
I was also struck that the noble Lord, Lord Young, referenced freeholders. They have not been talked about enough in debate on the Bill, so I thought it was very important that that reference was made and that they are not forgotten.
The noble Lord, Lord Blencathra, has a number of amendments looking to make protections more robust. We strongly support his zeal in what he is trying to achieve. His objectives are really important; as he said, they are not exactly perfect in every way, but we are not about perfection here. This is about putting forward the issues that need to be considered to improve the Bill. He has done that very clearly. His aim to pull the “perpetrator pays” and protections for leaseholders together is important, because it makes the objectives and the direction we need to go in really clear.
The noble Earl, Lord Lytton, was right when he said that his amendment and those from the noble Lords, Lord Blencathra and Lord Young, come from the same point of principle—an important principle that we support. He is right that this is quite simply a matter of justice. As the amendment says,
“responsibility for serious defects in the original construction or refurbishment”
rests squarely
“with those who designed, specified, constructed, or supervised the works or made false claims”—
and that is not the leaseholders. It is important that leaseholders feel that their position on this is fully understood and that we are moving forward in this way.
The principle that the perpetrator pays is also really important, but I should like to ask the Minister something, because I am getting a bit confused. What is the difference between a perpetrator and a polluter paying? It has got a bit confusing to have these two phrases.
The Earl of Lytton (CB)
I put this amendment forward originally to your Lordships’ wonderful team of parliamentary clerks, who did not like the term “polluter”. They felt that pollution as a term of art meant something different—if you like, involving a release or deposit of something, rather than sticking something together wrong. But they said that they would accept “perpetrator pays”, so I said, “Okay, all right, so be it.” But actually I think it is a better term, so I give them due credit for that. That is the origin of the phrase.
Baroness Hayman of Ullock (Lab)
Perhaps someone should table some amendments to change the word “polluter” in the Bill to “perpetrator”, so we can all be in the same place.
Very briefly, I turn to the government amendments in this group. At earlier stages of the Bill, it was disappointing that what it contained fell significantly short of the action that was needed to protect leaseholders, so I put on the record how warmly we have welcomed the new amendments that the Government have proposed to address a lot of the urgent issues raised through debates on the Bill so far. However, there are a number of key questions that I shall put to the Minister for clarification today on the amendments that we have debated. I shall not go into detail, because we have heard an awful lot of discussion around them today—so I shall be brief.
How strongly committed are the Government to using their proposed enforcement mechanisms to ensure that industry plays its part and pays the funds that it has been asked to? How will the Government continue to play their part and pay the funds needed to end the crisis while ensuring that funding for affordable housing supply is protected, regardless of the contribution of funds from industry? How can leaseholders who have already paid remediation costs recover those costs retrospectively? I do not think that that has been properly dealt with so far. How will the Government ensure that new funding responsibilities for social landlords will not undermine their role in providing housing supply? That references back to my amendment.
I am sure that we will revisit some of those questions later in debates on this Bill. I ask a brief question about the new clauses in Amendments 74 and 75, which give the Secretary of State power to make regulations that
“prohibit a person of a prescribed description from carrying out development of land in England”,
and/or imposing a building control prohibition in relation to persons of a prescribed description. Those powers would be for any purpose connected with building safety or building standards. I should like clarification, because it is unhelpful that a
“person of a prescribed description”
is not defined in the amendments, which simply state that it means “prescribed by the regulations” under the clause. This is what I am slightly confused about; does it apply to persons who have been found to be in breach of building safety, or is it the means by which government would prohibit those who do not contribute to the extra £4 billion fund? Some clarification on that point would be really helpful.
I hope that the Minister has listened very carefully to the important points that have been made by noble Lords in this debate, and I end by saying to him, in the spirit of what has been going on earlier, acta non verba.
Baroness Pinnock (LD)
I know we have a fuel crisis, but it is bracing in here; I should be used to it, coming from Yorkshire.
We have come a long, positive way since we debated these issues on the Fire Safety Bill. Moving from one or two voices across the House pushing the concerns of leaseholders to reaching a place where there is agreement that there must be a government-led solution to their trials is hugely welcome. I pay tribute to the cladding campaigners, who have never given up and have pushed us all into the position where we are debating this today.
I have a couple of process points first, before I comment on some of the issues raised. First, I agree with the plea from the noble Lord, Lord Blencathra, that on Report we perhaps have a new part to the Bill that puts all these amendments relating to the remediation of defects in one place. That would be hugely helpful, now but definitely in future, as the industry has to respond to whatever is decided. It would create clarity.
The second point to make is that we have again had welcome but last-minute amendments from the Government without a written Explanatory Memorandum. It would be really good to have something we can all have a look at before Report. An impact assessment would help as well. In particular, a very brave amendment is proposed by the Government about blocking developers, even when they have planning consent, if they do not pay up. That is a really radical proposal, and I should welcome an explanation of how it might work and an impact assessment.
The final process question is that we have had before us today three key proposals to try to tackle the question of who pays for the 30 years of fire safety defects and building safety defects. The series of amendments from the noble Lord, Lord Blencathra, tackle the same issue. There surely has to be a better way of trying to find a common, workable solution that we could agree to than debating it in a formal way. If we are all agreed that this is the direction of travel, let us work together to try to find it rather than have a formal debate. I leave it to others who know processes much better than I do to decide how that might be.
I want to make a few comments on what has been proposed. The noble Lord, Lord Young, reminded us that in January the Secretary of State finally made a dramatic change to the debate we have been having and said that leaseholders should not pay. I want to keep to that, as the noble Lord, Lord Young, was intent on doing. He pointed out that there are gaps in what is being proposed. As I have consistently said, the leaseholders are the wholly innocent victims of this debacle. On this side, we will back proposals that can guarantee that leaseholders do not have to contribute a penny piece to fire safety and building safety defect remediation.
I thank the noble Lord, Lord Young of Cookham, and the noble Earl, Lord Lytton, for their valiant attempts to seek a means of achieving the justice we are all looking for by providing alternative approaches. The very fact that the amendments have had to be tabled indicates that the Government’s attempt—though it is a huge step forward; I acknowledge that—does not succeed in achieving the aim that I espouse, which is that leaseholders pay nothing. That is going be my new phrase: leaseholders pay nothing. The noble Lord, Lord Young of Cookham, and the noble Earl, Lord Lytton, pointed out the gaps in the Government’s amendments, and we ought to listen very carefully to that because, as I say, we are all trying to get to the right place here.
The key question is: how do we extract the money from the people who have caused the problem? Unfortunately, we have no indication from the Government whether the levy system and the penalties for failing to pay will, first, raise sufficient funding to pay for it all. Secondly, we have no indication whether it will be watertight. We know that developers are already seeking legal advice as to how these levies and responsibilities can be circumvented, and material manufacturers are going down the same route, as will contractors and subcontractors. Litigation will ensue and the risk is that the work fails to be undertaken because no money is raised. That is unfortunately where this might lead if we are not careful.
I cannot remember if it was the noble Lord, Lord Young of Cookham, or the noble Earl, Lord Lytton, who said that time is of the essence for these folk. Some of them have already got cladding off and sheeting up in this awful weather, and the building replacement work has stopped because the funding and who will pay is not clear. Leaseholders have already suffered five years of their lives being on hold and their property having no value while those who caused the problems could well be left to fight it out in the courts. I thought the amendment in the name of noble Lord, Lord Young, dealt quite well with that. Maybe that is something the Government can pick up.
I accept that this is a very complicated issue to resolve, which is why, with my zero technical expertise, I have not tried to resolve it through detailed amendments to this Bill. I am full of admiration for those who have spent time trying to find a way to make perpetrators pay. In the end, I fear that the Government may have to step in, fund the remediation so that we get something done and then use their might to extract the funding from those who caused the problem. I look forward to what the Minister is going to say in response to these critical amendments. I want to hear from him on how the Government will ensure that remediation work will be completed within a tight timescale, whatever that is. “Shortly” is a key word that the Government use, and I always worry about it. “In due course” is another.
Baroness Pinnock (LD)
Yes. “Drectly” is what they say in Cornwall, which means “This year, next year, some time never”. I should like a bit of clarity. Timing is key. I should like to hear what the Minister is going to do about trying to get it done. How will we stop the developers and all those who we are going to try to get the money from through a levy wriggling out of their obligations? That is one of my fears in all this. Then there is the rate of the levy. Can we be given assurances that the rate will be of a sufficient level to pay for the remediation? That is key. I know that the Minister cannot give us a figure, but a broad brush assurance that the levy is going to do it would be good.
Retrospective compensation for those leaseholders who have already paid out should be considered. Some folk have gone bankrupt because of this. That is because it took time to get everyone together to deal with the problem. I know that retrospective compensation is hard to do, but we are putting back the clock 30 years in looking at these defects. If we can do that, we can look at retrospective compensation.
Leaseholders should pay nothing—that is where I am. We on this side support an amendment that gets there. As I say, I am full of admiration for people who, with their expertise, have tried to bring the Government to the place where they need to be. If the Minister is going to say yes to all these things, we will all leave happy.
Lord Greenhalgh (Con)
My Lords, this has been a very good debate. I have enjoyed listening to virtually every speech, including that of the noble Baroness, Lady Pinnock. I am not going to pick out any speech that I did not like, but the contributions were very good. I am reminded of when I met someone who worked for Senator Cory Booker when he was mayor of Newark, which is a deprived part of the United States. Apparently, at a Democratic National Convention he came out with a phrase that sticks with me. He said:
“If you want to go fast, go alone, but if you want to go far, go together.”
When it comes to making sure that we get the polluter to pay, this Government are not proud about picking the best ideas that people have put forward today and putting them into the toolbox to ensure that we do precisely that.
I think of my noble friends Lord Young and Lord Blencathra, to whom I will add the noble Earl, Lord Lytton, as the three wise men. I was Faith Minister, so that description is appropriate. I have to say that the prize for the wisest of the wise goes to my noble friend Lord Blencathra, who seems to have that intellectual agility to change his position based on circumstance. He is someone who was a distinguished chair of the Delegated Powers and Regulatory Reform Committee one week, and the next week says, “Well, that was last week and this is this week. Come on Secretary of State—think about these ‘just in case’ powers”. We will think about them, but I thank him for providing us with that breadth of thinking.
I also pay tribute to my noble friend Lord Blencathra for suggesting that we look at reordering the Bill or setting objectives, as the Fisheries Act does. He also gave some advice; I will read out a note about why there needs to be a maximum for the levy. These are all great tips. To the noble Baroness, Lady Pinnock, I say that we will look at whether we can produce a written Explanatory Memorandum and of course we need to do impact assessments. These are all jobs of work and we will see how quickly we can get those things done. This is all in the spirit of wanting to be helpful and to have a better Bill, so I take all those points on board.
Lord Young of Cookham (Con)
My Lords, I am grateful to all those who have contributed to this long and important debate. I notice that what was the awkward squad last time has now been transformed into three wise men, so we are obviously making progress. On a more serious note, this debate is of enormous interest to thousands of leaseholders, many of whom have bills they cannot afford to pay on the mantelpiece. We have thousands of leaseholders who would like to sell but cannot, because their property is blighted. We have all wanted to come up with a solution this afternoon; I think we are making progress, as I will come on to in a moment.
One issue the Government will have to face is that leaseholders do not read 24 pages of legalese amendments to a government Bill. They remember the soundbites that I mentioned right at the beginning—the polluter should pay, not the leaseholder; the leaseholders are innocent; we have statutory protection. There is a risk that the exclusions in the small print will erode the good will that the Government have generated so far in the progress they have made. We need to do a little more to address those exclusions, which stop us achieving the principle to which the Government are committed—the polluter should pay, not the leaseholder.
The other thing I take from this debate—I hope the Minister will agree with this—is a point that I, the noble Earl, Lord Lytton, and the noble Baroness, Lady Pinnock, made, which is that we have to make an early start. We simply cannot wait until the money has come in from the levy to do the work. I will come back to this in a moment, but there was a suggestion from both the noble Earl, Lord Lytton, and my noble friend Lord Blencathra that the Government should provide the bridging finance—I think that was the word the noble Earl used—in order to get the show on the road and make an early start, rather than wait for the money to come in after long and expensive litigation.
Lord Young of Cookham (Con)
I know that housing is ring-fenced; I introduced the housing revenue account.
Lord Young of Cookham (Con)
I think we had better move on from that.
My noble friend mentioned a group that we have so far not mentioned at all: shared owners. I think we need to bear that in mind.
My noble friend Lord Blencathra had a veiled threat that if there was not an agreed solution with the Government, there would be a conspiracy of either the wise men or the awkward squad. I think my noble friend the Minister needs to go back to his Secretary of State and say, “Look, everybody was really grateful for what we have done so far, but, Michael, I am afraid that it’s not going to take the trick. Either we can do a deal and take the credit for making the last step, or we don’t do a deal and we go down in flames”. I think my noble friend could put that proposition in more colourful language than I have used this evening.
Next time I speak, I hope that instead of saying we are nearly there, I can say that we are there, but it is down to my noble friend to enable me to say those words. In the meantime, and in the spirit of amity, I beg leave to withdraw my amendment.
Lord Greenhalgh
“38_ Omit sections 44 and 45 (and the heading before section 44).”Member’s explanatory statement
This amendment is consequential on the first new Clause after Clause 57 in the name of the Minister.
“47A_ In section 56(3) for the words from “, public body’s final certificates” to the end substitute “and public body’s final certificates.””Member’s explanatory statement
This amendment is consequential on the repeal of section 16 of the Building Act 1984 provided for by paragraph 20 of Schedule 5.
Member’s explanatory statement
This amendment removes the definition of “the data protection legislation” from new section 91B of the Building Act 1984 with a view to this being inserted into section 126 of that Act (see the Minister’s amendment at page 176, line 8).
“(ea) section 105C;”Member’s explanatory statement
See the statement relating to the first amendment to Clause 57 in the name of the Minister. This amendment provides that references in inserted section 105C of the Building Act 1984 to work include a material change of use and may include any other specified matter.
“““the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act);”;”Member’s explanatory statement
This amendment, which is consequential on the Minister’s amendment at page 56, line 22, inserts a definition of “the data protection legislation” into section 126 of the Building Act 1984 (general interpretation).
“89_(1) The Sustainable and Secure Buildings Act 2004 is amended as follows.(2) In section 3 omit subsections (8) and (9).(3) In section 4 omit subsection (4).”Member’s explanatory statement
This amendment is consequential on the amendment of paragraphs 38 and 39 of Schedule 5.
Lord Greenhalgh
Member’s explanatory statement
This amendment and other amendments of this clause extend the power to impose a levy to work other than higher-risk building work, if it relates to residential or mixed-use buildings, and to initial notices, amendment notices and public body’s notices (as well as applications for building control approval).
Member’s explanatory statement
See the statement relating to the first amendment to this clause in the name of the Minister.
Member’s explanatory statement
See the statement relating to the first amendment to this clause in the name of the Minister.
Lord Greenhalgh
(a) may not take a specified step in relation to the application or notice (for example, may not grant an application, accept a notice or give a specified certificate in relation to works connected with the application or notice), or(b) must take a specified step in relation to the application or notice (for example, must reject a notice).(5A) A notification under this section is a notification given by the Secretary of State or designated person—(a) that the levy payable in respect of the application or notice has been paid, or(b) that no levy is payable in respect of the application or notice.”Member’s explanatory statement
See the statement relating to the first amendment to this Clause in the name of the Minister.
“(7A) In this section “relevant application or notice” means—(a) an application for building control approval,(b) an initial notice,(c) an amendment notice, or(d) a public body’s notice,relating to a relevant building or proposed relevant building (including any such application or notice relating to work that causes a building to become a relevant building or causes a relevant building to cease to be such a building).”Member’s explanatory statement
See the statement relating to the first amendment to this Clause in the name of the Minister.
““amendment notice”, “initial notice” and “public body’s notice” have the same meaning as in Part 2 (see section 58);”Member’s explanatory statement
See the statement relating to the first amendment to this Clause in the name of the Minister.
Lord Greenhalgh
““relevant building” means a building in England consisting of or containing—(a) one or more dwellings, or(b) other accommodation,(and “accommodation” here includes temporary accommodation, for example in a hotel or hospital);”Member’s explanatory statement
See the statement relating to the first amendment to this Clause in the name of the Minister.
Lord Greenhalgh
“Crown application
In Part 5 of the Building Act 1984 before section 132 insert—“131A Crown application(1) The following provisions bind the Crown—(a) Part 1 except sections 35B to 37, 39A and 40;(b) Part 2;(c) Part 2A except sections 58I to 58K, 58U, 58V and 58Z4 to 58Z6;(d) Part 4 so far as it relates to a provision within any of the preceding paragraphs.(2) No contravention by the Crown of a provision within subsection (1)(a) to (d) makes the Crown criminally liable.(3) Subsection (2) does not affect the criminal liability of persons in the service of the Crown.(4) Subsection (5) applies where—(a) a contravention of a provision within subsection (1)(a) or (b), or of Part 4 so far as it relates to such a provision, occurs in relation to a building or proposed building for which a local authority is the building control authority, or(b) a contravention of a provision within subsection (1)(c), or of Part 4 so far as it relates to such a provision, occurs in relation to Wales,and the Crown would, but for subsection (2), be criminally liable under this Act in respect of the contravention.(5) The High Court may, on the application of—(a) the local authority (in a case within subsection (4)(a)), or(b) the Welsh Ministers (in a case within subsection (4)(b)),declare unlawful the act or omission constituting the contravention.(6) In this section a reference to a provision includes any instrument made under it.(7) For the application to the Crown of Part 3, and Part 4 so far as it relates to that Part, see section 87.”Member’s explanatory statement
This new Clause makes provision about the application of Parts 1 to 2A of the Building Act 1984, and Part 4 of that Act so far as relating to those Parts, to the Crown.
“Application to Parliament
(1) The Building Act 1984 is amended as follows.(2) In section 95 (power to enter premises) after subsection (4) insert—“(5) This section does not apply in relation to the Parliamentary Estate (as defined by section 131B).”(3) After section 131A (inserted by section (Crown application)) insert—“131B Parts 1 and 2 etc: application to Parliament(1) In their application in relation to the Parliamentary Estate, Parts 1 and 2, and Part 4 so far as it relates to those Parts, have effect with the following modifications—(a) sections 35B to 37, 39A and 40 (enforcement etc) do not apply;(b) any reference to the owner or occupier of a building or of any premises is be read as a reference to—(i) the Corporate Officer of the House of Lords,(ii) the Corporate Officer of the House of Commons, or (as the case may be)(iii) the Corporate Officers acting jointly.(2) In the following provisions—“Corporate Officer” means—(a) the Corporate Officer of the House of Lords,(b) the Corporate Officer of the House of Commons, or(c) the Corporate Officers acting jointly;“relevant provision” means—(a) any provision of, or of an instrument made under, Part 1 or 2, or(b) any provision of Part 4 or of an instrument made under Part 4, so far as the provision relates to Part 1 or 2.(3) No contravention by a Corporate Officer of a relevant provision makes the Corporate Officer criminally liable.(4) Subsection (3) does not affect the criminal liability of relevant members of the House of Lords staff or of the House of Commons staff (as defined by sections 194 and 195 of the Employment Rights Act 1996).(5) Where a contravention of a relevant provision occurs which, but for subsection (3), would result in a Corporate Officer being criminally liable, the High Court may, on the application of the local authority, declare unlawful the act or omission constituting the contravention.(6) In this section “the Parliamentary Estate” means any building or other premises occupied for the purposes of either House of Parliament.””Member’s explanatory statement
This new Clause makes provision about the application of the Building Act 1984 to Parliament.
House of Lords
(2 years, 9 months ago)
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Oaths and Affirmations
(2 years, 9 months ago)
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Royal Assent
Thursday 24th February 2022
(2 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 25 January 2022 - (25 Jan 2022)
Ukraine: NATO Membership
(2 years, 9 months ago)
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Lord Balfe
To ask Her Majesty’s Government what steps they are taking, if any, (1) to encourage Ukraine to apply for membership of the North Atlantic Treaty Organization (NATO), and (2) to build support among other members of NATO for any such application.
The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)
My Lords, the United Kingdom strongly condemns the appalling, unprovoked attack that President Putin has launched on the people of Ukraine. President Putin has chosen a path of bloodshed and destruction by launching this unprovoked attack on Ukraine. The United Kingdom remains firmly committed to Ukraine’s independence, sovereignty and territorial integrity within its internationally recognised borders. We fully support the partnership relationship between NATO and Ukraine, and we remain committed to the 2008 Bucharest Summit Declaration in which all NATO allies agreed that Ukraine will become a member of the alliance. In 2020, NATO welcomed Ukraine as an enhanced opportunity partner as a means of enhancing its interoperability and co-operation with the alliance in order to support Ukraine’s continuing programme of internal reform.
Lord Balfe (Con)
My Lords, those of us who have tried to help Russia through the Council of Europe, the Russia APPG et cetera, are bitterly disappointed that the categorical denials of any intention to invade Ukraine have been torn up, and we were not told the truth. I support the work of the Minister and ask whether, as a first step, he would consider recalling our ambassador in Moscow for consultations and suggesting that the Russian ambassador in London might also return to Moscow to find out why he was ordered to lie to us.
Lord Ahmad of Wimbledon (Con)
I thank my noble friend for his remarks, and I can share that, as I was coming to your Lordships’ House, the Foreign Secretary announced that she will summon the Russian ambassador to the Court of St James today. These are fast-moving events. I cannot comment on the specifics of what my noble friend raises, but we are working with key partners in NATO and our colleagues in the European Union. I have just this morning returned from the United Nations, and I think I speak for every single member of your Lordships’ House when I say that we unequivocally condemn the actions of the Russian state and of President Putin. Even at this juncture, it is time for him to withdraw. Peace over war is always a better option.
Lord Collins of Highbury (Lab)
My Lords, I am taking the unusual step of intervening straight away just to echo the comments of the Minister. He knows that the Opposition fully support the Government in all their actions to ensure that the democratic sovereignty of an independent nation is protected. We should do everything in our power to support Ukraine and to ensure that we work with all of our allies to bring this to an end. He knows that later today the Prime Minister will make a Statement, and I know that we will have an opportunity to consider that ourselves. So I am not going to pose a question to the Minister; I just wanted to express our support for the Government’s actions to ensure that Russia is defeated on this matter.
Lord Ahmad of Wimbledon (Con)
My Lords, I thank the noble Lord. He and I spoke earlier this morning, when I updated him on key parts of the situation as it unravels. He is of course correct; I believe that my right honourable friend the Prime Minister will be addressing the country as I speak. There will be further opportunities during the day to raise questions on elements of our response to this unwarranted, unnecessary and unprovoked aggression of the Russian state against Ukraine and the Ukrainian people.
Lord Hannay of Chiswick (CB)
My Lords, would the Minister not agree that this demonstrates what some of us have said all along: that the question of Ukraine’s NATO status has always been a smokescreen and a pretence by Russia, which is in fact determined to destabilise Ukraine and prevent it becoming a stable democratic country? If that is the case, I hope that we will hear tomorrow from him and other Ministers how we will respond to what is after all a war of choice and a war of aggression, and thus a war crime.
Lord Ahmad of Wimbledon (Con)
The noble Lord speaks with great insight and experience. I assure him—indeed, all in your Lordships’ House—that the whole purpose of my being at the United Nations yesterday as part of the General Assembly debate was, again, because of the brinkmanship that was being shown by President Putin. He went to the brink and has now stepped over the line. We will of course outline further action and further details during the course of today. I understand from my right honourable friend the Chief Whip that a debate on Ukraine is also scheduled for tomorrow, and I am sure that we will be discussing further details of statements that will be made during the course of today.
Baroness Smith of Newnham (LD)
My Lords, we on these Benches also support the Government in their reaction to the invasion of Ukraine, but we wonder whether it would be possible to go further; obviously, we will be discussing sanctions later. For example, one of the issues that has faced Ukraine for months is the attack on its cyber system. To what extent might NATO be able to give support from its Cyber Defence Centre of Excellence, which is based in Estonia?
Lord Ahmad of Wimbledon (Con)
My Lords, first, I thank the noble Baroness for her support. Again, it is important that there is a single unitary voice from your Lordships’ House and across both Houses of Parliament against this unprovoked Russian aggression against a sovereign state. On the issue of cyber, I was in Estonia about 10 days ago as part of our engagement on broader issues. I met our forces on the ground there and looked at our capabilities, including cyber. We are, not just through NATO but directly, offering the Ukrainian Government and Ukrainian people our full support. However, I would add that cyber is a challenge that is being met and felt not just by the Ukrainian people; we have felt it right here in the UK as well.
Lord Howell of Guildford (Con)
Will my noble friend keep reminding his colleagues that Russia is in some senses half an Asian nation as well as a European one, and that we need not only a united NATO, which I think we are moving towards, but the strong and full financial and commercial engagement of the great powers of Asia to establish the pariah status of Russia in Mr Putin’s mind?
Lord Ahmad of Wimbledon (Con)
My Lords, I agree with my noble friend and can assure him that, later today, I will host a meeting with the ambassadors of the UN Security Council members in the Court of St James. It is important that we see unity. Of course, we fully expect any resolution to be vetoed by Russia in the Security Council, but there will be further debates in the General Assembly in which we will look to show the maximum level of support across all nations.
The other thing that is often forgotten is the point made by my right honourable friend the Defence Secretary: around 1/16 of Russia’s border faces countries that are members of the NATO alliance. So we need to put this into context and perspective as well.
Lord Browne of Ladyton (Lab)
My Lords, I join the Minister and my noble friend Lord Collins in their condemnation of what is a crime against the peaceful people of Ukraine. It ought to be condemned at every turn. Suddenly in these circumstances we are talking about and debating the issue of NATO expansion, when it was not an issue at all. As the noble Lord, Lord Hannay, said, this plays exactly to Putin’s playbook. It is of advantage to him only because it distracts from urgent matters—namely, Russia’s problems, which are driving his criminal behaviour. President Biden, who, over the course of two decades of war in Iraq and Afghanistan, has grown sceptical about expanding US military commitments, has been open and honest with the Ukrainians about the unlikelihood of them meeting the current criteria for membership. Will the Minister do likewise and help to put this issue to bed now, so that we can concentrate on what is actually happening?
Lord Ahmad of Wimbledon (Con)
My Lords, I have already outlined the Government’s position on Ukraine’s NATO membership, as and whenever that might take place. Of course, there are certain criteria, which have been detailed and shared with the Ukrainians. If they meet those criteria, it is a choice for Ukraine to join NATO and for other member states to agree its membership. However, at this particular juncture, I agree with the noble Lord that our focus should be very much on the situation as it is unravelling. We offer Ukraine our full support in every respect and are working, together with our NATO allies and our partners across the European Union, in the context of the United States and others, to ensure that this message is received in Moscow very clearly: its actions were not just unprovoked but are an act of aggression against a sovereign state. Pull back, and pull back now.
Viscount Waverley (CB)
My Lords, the Minister spoke of the importance of a unitary voice; of course, he is absolutely correct as far as this place is concerned. However, in his initial response he also touched on matters relating to the European Union. Is he aware that, yesterday, both Italy and Austria prevaricated in their support for sanctions? Indeed, Hungary is directly opposed to sanctions. What will the Minister do to encourage these states to come in line with what is the right thing to do?
Lord Ahmad of Wimbledon (Con)
My Lords, I can share that, among my meetings at the United Nations yesterday, I met the Foreign Minister of Germany. We welcome the decision made by the German Chancellor to pull back on Nord Stream 2. That shows the real sense of unity prevailing across Europe. It is my understanding that, later today, there will be an EU Foreign Affairs Council meeting, which will discuss the very issues that the noble Lord raises.
Higher Education: T-Levels
(2 years, 9 months ago)
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The Lord Bishop of Coventry
To ask Her Majesty’s Government what assessment they have made of the acceptance of T Levels by Higher Education institutions for candidates for admission to universities via the Universities and Colleges Admissions Service (UCAS) in the current application cycle.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
My Lords, we recently published a list of higher education providers that will accept T-levels. Some 118 higher education providers, of which 78 are English universities, have so far agreed to accept applications from T-level students. This overall figure has increased from 75 since December last year, and we expect it to continue to grow.
The Lord Bishop of Coventry
My Lords, I thank the Minister for her very helpful response and the progress that has been made. Given the importance of students and parents having every opportunity to find out about T-levels, alongside other routes into intended careers, what further steps are the Government considering to better ensure that parents and students receive the right kind of information and advice at the right time? Might the Minister consider bringing together those with a specific contribution to make in addressing these and other issues to ensure the success and full take-up of T-levels in advance of the next admissions cycle?
Baroness Barran (Con)
In response to the last part of the right reverend Prelate’s question, I say that we would be delighted. We are already hosting a number of round tables, particularly with higher education providers, and would be glad to widen that circle and learn from his expertise and that of others like him. We are working hard to engage with the sector directly. We are providing support and resources so that students can find the course that is right for them.
Lord Addington (LD)
My Lords, does the Minister agree that we need a better picture of universities— 115 is the figure I had found as well—that might sometimes offer only one or two courses? Students need a better picture of what they are signing up to and what they are removing themselves from if they take the T-level option. Will the Government look at how A-level options can work with the T-level, as they currently do with BTECs?
Baroness Barran (Con)
To the best of my knowledge there are no plans to look at the noble Lord’s second proposal, because a single T-level is equivalent to three A-levels, so it would perhaps be unrealistic to do that. We are obviously in the very early stages of T-levels. We currently have 11 T-level options, I think. There was some confusion in the early stages about some of the content of those courses and how that translated to universities. However, we remain optimistic about the potential of T-levels.
Lord Lingfield (Con)
My Lords, does my noble friend agree that one of the most important aspects of T-levels is that students have to spend nine weeks of work experience with a local firm? This is quite difficult to find even in the great metropolitan areas, but in areas of deprivation and in rural areas it is very difficult indeed to find such placements. What inducements will the Government provide for firms in those areas to take part? I remind your Lordships of my interest as chairman of the Chartered Institution for Further Education.
Baroness Barran (Con)
I absolutely agree with my noble friend about the value of work experience and the whole philosophy of T-levels—that students undertaking them will be work-ready. I am aware that there has been disruption to opportunities for work experience—caused principally by the pandemic—but, having designed the qualification with employers, we remain confident that those opportunities will emerge.
Baroness Blower (Lab)
My question follows rather well from the previous question. In the information to employers, the Government say:
“At the heart of each course, a 45-day industry placement will give you early access to the brightest talent entering your market”.
How are we going to ensure that this happens? The Minister has responded to that point, but what oversight will there be to ensure that this really is good-quality work experience?
Baroness Barran (Con)
I am happy to write to the noble Baroness and send more details on the oversight. We know that local colleges are working closely with their employers so that the framework and aspirations of T-levels will be delivered most effectively.
Lord Davies of Oldham (Lab)
My Lords, the Minister will appreciate that further education, technical education and engineering have had a devastating time over the last decade, with the failure of the Government to sustain anything like the resources which colleges needed. If we are to make a success of the qualifications, let us make no bones about it, that is what students and their parents and those who look after them will look at closely. They will be keen to see what credibility is attached to this development. Will the Government give the assurance that it will be a high priority?
Baroness Barran (Con)
It is absolutely a high priority for this Government. Within the department, we have three key areas of focus: skills, schools and families. I hope I can reassure the noble Lord that we are all very focused on this issue.
Lord Storey (LD)
My Lords, it is important that we make the T-levels the success that they should be for vocational education as a whole. I am not sure the Minister properly answered the question about rural areas, where there will be a much narrower choice of options and students will struggle to find employers who will give placements. Could encouragement be given to those employers through financial incentives?
Baroness Barran (Con)
I will gladly take the noble Lord’s suggestion back to the department. Obviously, the colleges can deliver the T-levels that they believe will be most relevant in their community and where work experience exists.
Baroness McIntosh of Hudnall (Lab)
My Lords, closely tied in with the emergence of T-levels is the fate of BTEC qualifications. Are the Government confident that the range of opportunities aside from A-levels that will be available to all students once T-levels have been phased in will be wide enough to encompass the many students who may have special needs or special abilities—sometimes those things go together—which are best served currently by BTEC? I ask particularly, given that the Government declined to extend the life of BTECs by more than a very short amount in the Bill.
Baroness Barran (Con)
I understand the noble Baroness’s concern. Of course we want to make sure that young people in this country have the range of opportunities that they deserve, and that the industries and employers get the range of skills they need to be able to deliver. The Wolf review and the Sainsbury review were clear that things needed to change in terms of technical and vocational qualifications, and we are addressing those recommendations.
Lord Lexden (Con)
Will my noble friend give the House a little more information about what the Government are doing to try to secure opportunities among employers, in rural areas in particular, to which my noble friend Lord Lingfield referred?
Baroness Barran (Con)
I will try to answer that question twice. I can only reiterate what I said to the noble Lord, Lord Storey; namely, that local colleges will choose the courses most appropriate in their communities and work with employers to deliver those experiences.
Lord Watson of Invergowrie (Lab)
My Lords, if T-levels are to be a success—we on these Benches very much want them to be—there are two issues. One has been raised by the noble Lords, Lord Lingfield and Lord Storey, which is the question of placements. The other is the question of recognition by universities. The list on the DfE website of the 118 higher education providers, which the Minister referred to, that will accept T-levels for entry is welcome and encouraging, but only 10 of the 24 Russell group universities are on that list. What are the Government doing to encourage more of these institutions to recognise T-levels, as a means of widening the access for young people from less well-off families to the more selective universities?
Baroness Barran (Con)
I will answer the noble Lord in two parts. First, we are working closely and engaging actively with a number of universities, including those in the Russell group. I am sure that he will share my pleasure in seeing that the number of applicants to universities in England from the most disadvantaged backgrounds rose by 10% year on year in January 2022, which is perhaps not an outcome we would have expected. Equally, the point of T-levels is to give the students who take them choice. For some students that will be university, for some it will be Russell group, for others it will be going straight into employment, and for others it will be further qualifications at different levels. Choice is essential.
National Food Strategy
(2 years, 9 months ago)
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Baroness Boycott
To ask Her Majesty’s Government when they will publish their response to the National Food Strategy.
Baroness Boycott (CB)
My Lords, in begging leave to ask the Question standing in my name on the Order Paper, I declare my various interests in this field as stated in the register.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
My Lords, I declare my farming interests as set out in the register. The forthcoming government food strategy will set out the Government’s ambition and priorities for the food system, considering the evidence set out in Henry Dimbleby’s independent review and building on additional topics. We are actively collaborating across government to cover the entire food system, to consider the unforeseen challenges that the agri-food sector has faced in this last year since the independent review was published. We expect to publish the Government’s food strategy very shortly.
Baroness Boycott (CB)
I thank the Minister, but I am disappointed that I did not get an answer as to the date, since it is now already two weeks since the agreement. I am glad that the Government agree that the food system is in urgent need of reform. There are many major risks to not acting. Our health is worsening, supply chains are fragile, and the climate and nature commitments cannot be met without more action on food. The NFS has created a rare moment of consensus across the board, which should be grasped by the Government. Do they agree that part of the food strategy White Paper will demand a commitment from the Government to follow through with a good food Bill which will set this stuff up as a framework for the future?
Lord Benyon (Con)
The food strategy is an attempt for the first time to draw together all different aspects of the food system. I am very admiring of the noble Baroness’s work, not least with the Food Foundation. I assure her that the Government will take any measures necessary, legislative or otherwise, to implement this very well thought-through piece of work. I regret that it was not published exactly within six months, but it will be published very shortly.
Baroness McIntosh of Pickering (Con)
My Lords, I congratulate the Government on their work on the food strategy, and the noble Baroness and Henry Dimbleby on their work. Bearing in mind that we might be facing a humanitarian crisis in Ukraine, will my noble friend update the House on what measures we are taking to increase our self-sufficiency in food and our general food security? What measures are the Government taking to tackle the immediate pig crisis that we face with the difficulty of manning abattoirs and their slaughterhouses?
Lord Benyon (Con)
The Government have gone to great lengths to ensure that the latter problem has been resolved. As things stand, we have imported enough people to help with the processing of pigmeat, although there are still problems. It is too early to assess the issue concerning Ukraine. Some 75% to 80% of our seasonal workers come from Ukraine. It is uncertain at this stage whether the current situation will have any effect on that, but we are watching it very closely and talking to other countries as well.
Lord Cunningham of Felling (Lab)
My Lords, will the Minister guarantee that in the context of the national food strategy, those companies—I am sure he knows which ones they are—that have sought to manipulate meat and chicken products in various markets are excluded from trying to do the same in the United Kingdom’s markets. They have been very heavily prosecuted in other countries. Nevertheless, will he ensure that they are not allowed the freedom to exploit, in some cases illegally, the market opportunities in the United Kingdom?
Lord Benyon (Con)
The food strategy sits within the wider intention of the Government, with cross-party support, to ensure that we have the most sustainable and highest standards in all areas of food production. That requires the corporate organisations such as the ones that the noble Lord recognises to understand that there is no safe place for them if they break those rules in this part of the global economy.
Baroness Walmsley (LD)
My Lords, will the Government’s response also include a land use strategy, which was recommended recently by your Lordships’ Science and Technology Committee, in its report on nature-based solutions to climate change? Given the increasing pressure on land use, is it not important to recognise the pressure to grow more foods and fuels sustainably, and build houses and land for industry and infrastructure, alongside the need to set aside certain land for conservation of biodiversity? We need a land use strategy. Will the Government come forward with one?
Lord Benyon (Con)
This is a moment of almost revolutionary change in agriculture, not only in how we support and incentivise farmers but in how we produce food. What was so impressive about Henry Dimbleby’s work, and what will be reflected in the food strategy, is that we are looking at the entire food system—yes, the impact that our food production has on the environment but also the effect it has on people and diet, so the whole food chain.
Baroness Jones of Whitchurch (Lab)
It is this side. The national food strategy recognises that farmers need greater help to transition to more sustainable land use. Does the Minister understand the frustration of Minette Batters, who said at the NFU conference this week that rather than having a clear plan and vision for sustainable and productive farming, the Government are “repeatedly running” into short-term crises in the sector which they could have foreseen and pre-empted if there had been a proper food strategy backed up by the proper resources?
Lord Benyon (Con)
We are putting enormous resources into supporting farmers, incentivising them in a different but less prescriptive way than under the common agricultural policy. We are supporting an industry-wide attempt to ensure that we are eating better, healthier, more sustainable food. There will always be problems, but we have a remarkably resilient food supply system in this country which has ridden out some very difficult bumps in the road recently. We are not complacent. We are putting enormous resources, human and financial, into ensuring that we have a sustainable, long-term, well thought-through food system in this country.
Lord Vaizey of Didcot (Con)
My Lords, I apologise; I did not realise that it was the Opposition Front Bench speaking. The national food strategy is a fantastic piece of work, but it concerns me that the Government are pressing ahead with a ban on what they pejoratively call “junk food advertising”, which will damage our public service broadcasters, before they have published their comprehensive response to the national food strategy. Will the Minister put these proposals on hold until he comes forward with what will no doubt be an excellent and comprehensive strategy?
Lord Benyon (Con)
The Government have consulted widely on this and there is significant evidence that banning junk food advertising at certain times of the day on certain channels does have an effect on the younger elements of our society who are partial to junk food. I respectfully disagree with my noble friend. This is an opportunity to take a small step as part of a much bigger picture to protect people from unhealthy diets.
Baroness Jones of Moulsecoomb (GP)
My Lords, I chaired the London Food Board, which produced the first London food strategy. In that, the biggest win for people and planet was to eat local food. This Government are not supporting our UK farmers but are buying food, which we can produce, from half way around the world. How is that helping our UK farmers?
Lord Benyon (Con)
Quite to the contrary, we want people to eat good-quality, sustainably produced food with high welfare standards. The intention is to enable farmers to produce that successfully in a global marketplace. Ultimately, it is the consumer who makes these choices. We want to ensure that we are giving farmers every support they need to continue producing the high-quality food that our consumers benefit from.
Baroness Ritchie of Downpatrick (Lab)
My Lords, Dimbleby’s strategy referred to the rising levels of food allergies, particularly among young children but also among adults. Given the increasing importance of support needed for those affected by food allergies, what discussions has the Minister had, or will he be having, with colleagues in the Department of Health and Social Care, regarding the establishment of a national allergy lead?
Lord Benyon (Con)
I will write to the noble Baroness with details of that. The food strategy is a comprehensive piece of work which looks at a lot of health-related matters. It is across government, and the Department of Health has been very closely involved in putting it together. I cannot tell her exactly whether there will be reference to food allergies in it, but there is certainly a lot of work going on in government on that subject.
Lord Cormack (Con)
My Lords, last week’s “Countryfile”, which has great influence, was very disturbing. It indicated that we were not giving proper encouragement to our own sugar beet industry but bringing in cane sugar from thousands of miles away. This supports what was said by the splendid noble Baroness, Lady Jones. Is this the case? If it is, we have got it wrong.
Lord Benyon (Con)
It is the Government’s intention to sustain a viable sugar beet industry. That involves not just farmers producing sugar beet but the four factories that we have in this country continuing to do so. If one or more of them were to close, we would be reliant on sugar produced in less environmentally sustainable ways from much further away, and my noble friend is entirely right to point out that it would be at a much higher environmental cost as well.
National Tutoring Programme
(2 years, 9 months ago)
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Lord Lexden
To ask Her Majesty’s Government what assessment they have made of the progress of the National Tutoring Programme.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
My Lords, more than 300,000 tutoring courses began last term, nearing the total figure for the whole of the previous academic year. We remain confident that the National Tutoring Programme is on track to deliver the ambitious target of 2 million courses this academic year. We are particularly pleased with the uptake of the school-led part of the programme, and we are working closely with Randstad to address the challenges in the tuition partner and academic mentor elements.
Lord Lexden (Con)
My Lords, has something not gone wrong with this immensely important programme? Is it not attracting criticism from experts, many of whom regard it as unduly bureaucratic and insufficiently resourced? Why have the Government not done more to involve independent schools? They want to play their part in this programme, in the spirit of the partnership between the two sectors of education which we all want to encourage. I declare my interest as president of the Independent Schools Association.
Baroness Barran (Con)
My noble friend makes a fair point about ensuring that the programme is as unbureaucratic as possible. I know that colleagues are working very closely with Randstad to try to simplify elements of the programme, and that work is happening at pace. I am also aware that a number of partnerships already exist between the independent sector and state-funded schools. We have very much followed the advice we were given by state-funded schools about structuring the programme.
Lord Blunkett (Lab)
My Lords, Neil Armstrong, the astronaut, was once asked what frightened him most about going into space. He said it was the idea that a thousand different component parts had been put out to the lowest possible tender. This is what has happened with the National Tutoring Programme. Is it not time to stop the complacency, put children first and cancel the contract?
Baroness Barran (Con)
I had not thought about Neil Armstrong for a while. I thank the noble Lord for the reminder, but I do not think that that is an accurate reflection. There is absolutely no complacency in the department about this contract. We are committed to delivering 2 million courses, and we are working extremely closely with Randstad to make sure this happens.
Lord Storey (LD)
My Lords, what would the Minister say to Garry Ratcliffe, the chief executive of an academy trust of primary schools in a deprived community in Kent? One Saturday morning, 20 or so pupils were gathered together for their tutoring session and 10 minutes beforehand, it was cancelled. We hear from school leaders up and down the country about the poor quality of tutors, their lack of punctuality, “no show” and lack of specialist knowledge. Surely it is time that the financing of this programme be given directly to the schools. Independent schools could be involved to make this a really successful programme.
Baroness Barran (Con)
I remind the noble Lord that the bulk of the programme is being directly delivered by schools; that is what they recommended to government, and we listened. Some 230,000 tuition courses started through the school-led pillar, 52,000 through tuition partners and 20,000 through academic mentors. There is a reason for the blend of approaches. It is clearly unacceptable for a tutor not to turn up, and I hope that Mr Ratcliffe has been able to resolve that.
Baroness Wheatcroft (CB)
My Lords, the government figures are for courses which have started, but as the noble Lord pointed out, many of these courses cannot be completed because of no shows by tutors. Does the Minister have any figures for how many courses have been fully completed?
Baroness Barran (Con)
It is relatively early days. I do not have those figures with me, but I am happy to share them with the House if they are available. We will obviously be evaluating the programme, but I reiterate that the vast majority of the courses have been delivered in schools by school staff, so I am surprised at the suggestion that they have not been completed.
Baroness Whitaker (Lab)
My Lords, what monitoring of outcomes and attainment has taken place with the current scheme? If this has happened, has it been broken down into categories, such as black and minority ethnic—including Gypsy, Traveller and Roma—disabled, girls and boys, so that we can see the real picture?
Baroness Barran (Con)
As I say, it is relatively early in the academic year. The programme started in September and if the noble Baroness looks at last year’s data, she will be aware that, even though there were no exams, the numbers taking these courses picked up very strongly ahead of the summer term. As I mentioned, we will be publishing the first stage of the evaluation in autumn 2022.
Baroness Blower (Lab)
My Lords, can the Minister be sure that wherever the programmes are being delivered, there is sufficient emphasis on oracy—on speaking and listening? In many communities, particularly deprived ones, there may well have been a loss of confidence in speaking and even much slower language development. Of course, this underpins literacy and numeracy. It is clearly important that oracy should figure significantly in these tutoring programmes.
Baroness Barran (Con)
I absolutely agree with the noble Baroness about the importance of oracy. My understanding is that there is some discretion, so that tutoring can be tailored to the individual needs of the child.
Lord Addington (LD)
My Lords, can the Minister give us some indication of the bureaucratic costs of delivering these courses outwith the schools? Surely, it would be better if the schools were co-ordinating these from their own resources?
Baroness Barran (Con)
To repeat myself, 230,000 out of almost 300,000 tuition courses are being delivered by the schools themselves.
Lord Watson of Invergowrie (Lab)
My Lords, the Minister’s bold attempts at boosterism cannot disguise the fact that the element of the National Tutoring Programme entrusted to Randstad is a car crash. I take no pleasure in saying that Labour warned of this last June, when the contract was awarded to a foreign company with little tutoring experience and no knowledge of our education system. The real tragedy is that the pupils who need it most are those who, in many cases, are being denied it. This was made clear by school heads when they gave evidence to the Education Committee last month, when they described the bureaucratic nightmare involved in trying to access the scheme. In words rather lengthier than those of my noble friend Lord Blunkett, will the Government now accept that this element of the National Tutoring Programme is failing and redirect its resources direct to schools, so that they can buy in resources to bolster their pupils’ recovery?
Baroness Barran (Con)
To reiterate, the Government are absolutely committed to this programme—the tuition and support should go to the children who need it most. We are working on a weekly basis with Randstad to address these issues. We have already made some changes, and improvements are coming through. We will not shy away from our responsibility to these children.
Baroness Bennett of Manor Castle (GP)
My Lords, the Government like to talk about being “world leading”. However, a survey by the National Association of Head Teachers found that one-fifth of those questioned rated the quality of tutors in the Randstad programme as low or very low, and 39% rated them as average. How can we possibly be achieving world-leading standards of education with such a low base, based on this privatised Dutch company?
Baroness Barran (Con)
I am surprised at the implicit criticism of a company being Dutch; the last time I looked, I think Randstad was pretty global, and I am sure that the noble Baroness would support a global outlook. I can only repeat that we are working with it on a weekly basis, and we are not going to accept second best. This contract, as is normal with many government contracts, is on a one year, plus one year, plus one year basis, with break clauses for both sides. Our priority is delivering for children.
Lord Wallace of Saltaire (LD)
My Lords, global companies are not always best placed for local delivery. I recall that one of the major outside contractors for test and trace was a company headquartered in Miami, whereas local health officers might well have known what they were doing much more quickly. The Government seem to have an overall bias in favour of outsourcing rather than insourcing, despite the clear evidence that outsourcing very often ends up more expensive and less effective. Is it not time that we began to look at the public sector, particularly local authorities, can deliver services, rather than constantly outsourcing them to more expensive external providers?
Baroness Barran (Con)
I just cannot agree with the noble Lord in this case. If we step back and think about what children need, there is more capacity in some schools and less in others to deliver tutoring support, which is happening incredibly effectively, but it is also clear that, in some areas, additional support is required, for example, where there are particular requirements for special educational needs or a particular intensity of this support. This programme was designed to be flexible and to address those needs. We are working with the provider to ensure that happens.
Arrangement of Business
(2 years, 9 months ago)
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Lord Ashton of Hyde (Con)
My Lords, before we move on to the main business, I will update the House on business today and tomorrow in the light of events overnight in Ukraine. In doing so, I express my thanks to the usual channels for their co-operation. The current plan is that the Prime Minister will make a Statement in the House of Commons at around 5 pm. On that basis, the Leader of the House will repeat the Statement here at a convenient moment after 7 pm. The rest of the business will proceed as planned. The business tomorrow will be changed to a general debate on Russia/Ukraine, starting at 10 am. Members can sign up now on the Government Whips’ Office website. That list will close at 6 pm this evening. The three Select Committee reports that were due to be taken tomorrow will now be debated on Friday 11 March. I am very grateful to the noble Lords, Lord Lipsey and Lord Ricketts, and the noble Baroness, Lady Suttie, whose reports were due to be debated tomorrow, for their timely assistance this morning to allow this change to happen.
War Powers Bill [HL]
Thursday 24th February 2022
(2 years, 9 months ago)
Lords ChamberRead Full debate War Powers Bill [HL] 2021-22 View all War Powers Bill [HL] 2021-22 Debates Read Hansard Text
Nationality and Borders Bill
(2 years, 9 months ago)
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Lord Sharpe of Epsom
That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 1 to 8, Schedule 1, Clauses 9 to 22, Schedule 2, Clauses 23 to 28, Schedule 3, Clauses 29 to 41, Schedule 4, Clause 42, Schedule 5, Clauses 43 and 44, Schedule 6, Clauses 45 and 46, Schedule 7, Clauses 47 to 84, Title.
Lord Sharpe of Epsom (Con)
My Lords, on behalf of my noble friend Lady Williams of Trafford, I beg to move the Motion standing in her name on the Order Paper.
Post Office: Horizon
(2 years, 9 months ago)
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The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, with the leave of the House, I will repeat an Answer to an Urgent Question given in the other place earlier this morning:
“I will update on Horizon matters since I last provided a Statement in December. I met with the BEIS Select Committee last month and last week the Select Committee published its interim report into the Post Office and Horizon IT scandal. The Government will consider the Committee’s recommendations and will respond in due course.
People need to know how this scandal came about and what protections are in place to avoid history repeating itself. That is why the Government established the Post Office Horizon IT Inquiry to investigate what went wrong. The evidence from postmasters who have participated since the inquiry hearings began last week has been harrowing to hear. I thank these postmasters for their courage and willingness to revisit the trauma they have experienced. Compensation cannot take away the suffering affected postmasters have experienced, but we are determined that each eligible person gets what is due to them and that it is paid as quickly as possible.
Of the 72 postmasters whose convictions have been overturned, over 95% have so far applied for an interim compensation payment of up to £100,000, of which 63 offers have been accepted and paid. The Government are pushing for final settlements for quashed convictions to follow as quickly as possible. Negotiations on the first two have begun. The Government are determined that all unjust convictions are quashed. The Post Office is reaching out to affected postmasters. The Post Office is also in discussion with other public prosecuting bodies responsible for the convictions of postmasters which may have relied on Horizon evidence to ensure that those postmasters are also contacted and enabled to appeal.
Offers have been made to over 40% of applicants and compensation has been paid to 764 postmasters who have applied to the historical shortfall scheme. Twenty-eight postmasters so far are proceeding through a dispute resolution process aimed at achieving acceptable settlements. At least 95% of cases should have been dealt with by the end of this year.
With compensation for overturned convictions and the historical shortfall scheme both well under way, the group of postmasters on whom my attentions are now focussed are those who exposed this whole scandal by taking the Post Office to the High Court. I know many honourable Members support the Select Committee’s view that it is unfair that they should have received less compensation than those who were not part of the case. I sympathise with that view too. I cannot yet report a resolution of that legally complex issue, but we are doing everything we can to address it.
The compensation which postmasters are due will exceed what the Post Office can afford. The Government are therefore stepping in to meet a good deal of the cost of that compensation. I recognise that this is an unwelcome burden on the taxpayer, but the House will agree that the alternative is unacceptable.”
Lord McNicol of West Kilbride (Lab)
I thank the Minister for repeating the response in the other place. The Horizon scandal is the UK’s biggest miscarriage of justice. The Minister has partly answered my question, but I will push him a little further on it because we are really keen to ensure that the 555 litigants who originally exposed this do not receive a lesser amount.
The judge-led inquiry into the scandal began this week, as the Minister said. He is right that we have heard some extremely moving testimonies. Can he confirm that the 555 litigants—the group who exposed this issue—will be able to claim full compensation and that the Government will spend some time and resources looking specifically at that? I appreciate that the Government are trying to achieve 95% by the end of the year, but now only 30% have had their claims processed. What pressure are the Government putting on the Post Office to speed the process up?
Lord Callanan (Con)
I thank the noble Lord for his excellent questions. On this, I agree with many of the points he made. Regarding the 555, who he rightly highlighted, as I said, they have been pioneers in this area. My honourable friend the Minister for Small Business is working at speed on this issue. They exposed the scandal by taking the Post Office to the High Court. They performed a huge public service by doing so, and I know that many noble Lords will support the Select Committee’s view that it is unfair that they have received less compensation than those who were not part of the case. I know that my honourable friend shares that view, and he has said that resolving that is the most important issue he currently faces. It is important to recognise that this is a legally complex issue because the case was settled in the High Court, but I know that officials and my honourable friend are working at pace to try to resolve it.
With regard to the historical shortfall scheme, things are slightly better than the noble Lord suggested; we are now up to 38% of the cases having been resolved. The Post Office’s best current estimate is that the scheme will cost £153 million across about 2,300 claims. It is important that we work through them as quickly as possible. Some of them are complex but they need to be worked through and resolved.
Lord Fox (LD)
My Lords, I know the Minister has been working hard on this issue and he should be commended by all sides of the House on the effort that he is putting into it. The Statement says the Government are stepping in and that that is unwelcome. We should remember that the genesis of this problem came with faulty software and a system that did not work; it was made worse by the events that followed. We should also remember that Fujitsu, the company that provided that software, had revenues last year of over £20 billion, and we calculate that since 2013 the Government have awarded it a further £3 billion in contracts. Does the Minister share my surprise and indeed incredulity that Fujitsu has not been asked to provide some of the money that the Government are now unfortunately having to step up and pay?
Lord Callanan (Con)
I thank the noble Lord for his praise for me, but it is slightly unjust; it is the Minister for Small Business who is responsible for the Post Office and is putting in the hard yards on this issue, and I will certainly pass on the noble Lord’s commendations.
I have considerable sympathy for the view that the noble Lord, Lord Fox, outlines. A public inquiry is taking place and that is the proper place for blame to be apportioned. We all have our suspicions and views, but let us wait for the outcome of the inquiry to see exactly where fault lies—whether with Ministers, officials, Post Office executives, Fujitsu or whoever—and then we can take the appropriate action.
Lord Cormack (Con)
My Lords, it is a great pity that my noble friend Lord Arbuthnot cannot be here today because we all owe him an enormous amount for his work. That should be firmly on the record. My noble friend Lord Arbuthnot himself raised the point about Fujitsu the last time we discussed this issue. While it is of paramount importance that those who suffered are properly compensated—in so far as they can be, because they can never be fully compensated—that money should come not from the public purse but from those who supplied deficient goods, with anything that is left topped up by the public purse. I want to press a point that I have made several times to the Minister: it really is in everyone’s interest that we get this concluded as soon as we possibly can. People are still suffering and indeed still dying.
Lord Callanan (Con)
Again, I find myself agreeing in large part with my noble friend. I am happy to join him in paying tribute to my noble friend Lord Arbuthnot, and to the many other noble Lords on all sides of the Chamber and indeed Members on both sides of the House of Commons as well who have campaigned for many years to draw attention to this outrageous situation. Again, I do not really want to apportion blame until we have the results of the inquiry. The job of the inquiry is to find out who or what was responsible for the case. We all have our suspicions but let us wait and see what the inquiry comes up with and then draw the appropriate conclusion.
Baroness Chakrabarti (Lab)
My Lords, I wholly endorse everything that has been said about Fujitsu and the possibility of applying the “polluter pays” principle in this area, as in others. Will the Government also consider the potential dangers of large bodies corporate—be they local authorities, the Post Office or others—abusing the ancient right for individuals and families of private prosecution? I urge the Minister and his colleagues to consider whether it is really appropriate for these bodies to be prosecuting serious crimes in their own interest in future.
Lord Callanan (Con)
The noble Baroness makes an important point. Certainly the Post Office has said it will not be conducting any further prosecutions. This is a wider question than this particular case, and it is not an area with which I am overly familiar. I know the question has been asked and other people are looking at it, but I will take it back to the appropriate department.
Lord Lexden (Con)
Have serious and sincere expressions of contrition been made by those who held senior management positions when this scandal took place? Have any of them offered to dip into their own not insubstantial financial resources to assist the process of reparation for those who have suffered so much?
Lord Callanan (Con)
My noble friend makes a very good point. Again, let us wait for the outcome of the inquiry to see exactly where the blame lies and what suitable redress can be provided.
Viscount Stansgate (Lab)
My Lords, can the Minister remind the House whether the compensation that is due to the people who have suffered this terrible injustice extends to the consequential effects on the lives of those who have been declared bankrupt?
Lord Callanan (Con)
It is a complicated picture. There are a number of different compensation streams. There are the original GLO participants who took the case to the High Court. The problem there is that that case was settled—the point that I was making earlier—although there is considerable pressure, with which I sympathise, for them to be compensated further. There is the historical shortfall scheme and then there is the compensation due to those who probably suffered more than anyone, in that they were prosecuted, found guilty and often jailed or bankrupted accordingly. So there are a number of different compensation streams, and we need to make sure that everyone receives the compensation they deserve.
Lord Stevenson of Balmacara (Lab)
My Lords, the Minister will be aware that we have previously raised the question of the powers of the inquiry. Obviously, the inquiry has got going, and quite significant information has already been released. My concern was—I think the Minister has answered this before, but I would like to get him to repeat it—whether the inquiry, although not being held under the Inquiries Act, has the powers to call all the evidence that it may require in order to get to the bottom of this. That includes not just Fujitsu but Ministers.
Lord Callanan (Con)
My understanding is that, yes, Sir Wyn has all the powers available to him. We would be happy to look at any further powers that he needs if he does not have them, but my understanding is that Ministers going back over the relevant period, officials, executives of the Post Office and Fujitsu will all be playing a part in the inquiry and giving evidence to it.
Dissolution and Calling of Parliament Bill
Thursday 24th February 2022
(2 years, 9 months ago)
Lords ChamberRead Full debate Dissolution and Calling of Parliament Bill 2021-22 View all Dissolution and Calling of Parliament Bill 2021-22 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 51-R-I Marshalled list for Report - (7 Feb 2022)
Lord Ashton of Hyde (Con)
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Dissolution and Calling of Parliament Bill, has consented to place her prerogative, so far as it is affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Motion
The Minister of State, Cabinet Office (Lord True) (Con)
My Lords, I thank your Lordships’ House for its expertise and careful work on the Bill. It has again demonstrated the constitutional, legal and political expertise that makes this House such a remarkable revising Chamber. The Government have valued those exchanges, as have I. I particularly thank the noble Baroness, Lady Smith of Basildon, the noble Lords, Lord Kennedy of Southwark, Lord Wallace of Saltaire and Lord Butler of Brockwell, the noble and learned Lord, Lord Judge, and the Front Benches for their co-operation and discussions.
We disagreed on the question of whether there should be a role for the other place over Dissolution. However, although we do not believe it is good practice for this place to seek to dictate procedure in the other place, we will of course now properly await their further opinion on this point. The Government will oppose your Lordships’ amendment in the other place, for all the reasons that I set out during the passage of the Bill. Our intention was to repeal the Fixed-term Parliaments Act, and that remains our intention.
In conclusion, I thank the dedicated Bill team for its hard work over so many months, which I am sure was appreciated by colleagues on all sides. I thank all noble Lords who have taken part for their dedication in scrutinising the Bill and for their courtesy in our many meetings. It has been an honour to assist the Bill’s passage and serve your Lordships, and I beg to move that the Bill do now pass.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, on behalf of my noble friend Lady Smith of Basildon, who is unable to be with us this morning as she is having a briefing at the moment, I thank the noble Lord for his usual courtesy in dealing with the House and for taking this Bill through it. I also thank the Bill team for the meetings that took place. As he said, we have had scrutinised the Bill well and made one change. We have sent that back to the other place, and we will wait for it to come back to us, and then we will have further debates on that. I know my noble friend is very grateful for the co-operation we have received on the Bill going through. I sat in on many of the debates, and the other Benches were fascinating to listen to. I think we have done our job well and properly, and we await the decision of the other place. I give our thanks to the noble Lord, other Members, the officials and the team in the Labour Whips’ Office for what they did.
Lord Wallace of Saltaire (LD)
My Lords, I add my thanks. It is important that we conduct legislation in the House, and off the Floor in between the different stages, in the way we did on this Bill and I hope will do also on the Elections Bill—a much longer and more complex Bill. Indeed, we discovered on Second Reading of that Bill yesterday that abolishing the fixed terms for Parliament has knock-on effects for third-party campaigning—a point made in yesterday’s debate. We in this House often deal with the complex interdependence of different aspects of the rules that govern our democracy. There will be a rising tide of opinion inside and outside Parliament that we need to look at some of these things fairly soon together, rather than in one chunk after another. I regret to repeat—the Minister will hear it yet again—that I did agree with the part of the Conservative manifesto that said there should be a constitutional commission. I hope it will be in the next Conservative manifesto, and I hope it will be in the manifestos of other parties and that it will then happen. Having said that, I look forward with interest to how the Commons will respond to the Lords amendment, and perhaps it will return here.
Lord Judge (CB)
My Lords, I join in thanking everybody. I have two points, one serious and one less so. One is an entirely private thought, so nobody is listening to me saying this: I hope the Commons has enough time to look at the issues that arise in relation to this Bill. The other is of particular thanks to the noble Lord, Lord Lisvane, who is not in his place, for reminding me of a lesson I learned when I did English language grammar—gosh, does that still exist? I was taught the auxiliary verbs “shall”, “should”, “will”, “would”, “may”, “can”, “must” and “do” and to appreciate the difference between “shall” and “must.”
Lord Grocott (Lab)
My Lords, I have just a small observation on the suggestion of the noble Lord, Lord True, that we were somehow telling the Commons to alter its procedures or advising it on its procedures in relation to this Bill. What we have done is say to the House of Commons that we are an unelected House, but we want it to think again whether it is wise for it, the elected House, to say, “No, we don’t want these powers of Dissolution at all. We think it is important they are carried out by the monarch.” I think that is a development without precedent anywhere in the world—the legislature saying it does not want these powers and wants to give them back to the monarch. That does put a slightly different construct on what we are asking the Commons to consider.
Russia (Sanctions) (EU Exit) (Amendment) Regulations 2022
(2 years, 9 months ago)
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Lord Ahmad of Wimbledon
That the Regulations laid before the House on 10 February be approved.
Relevant document: 30th Report from the Secondary Legislation Scrutiny Committee.
The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)
My Lords, we laid this instrument to strengthen our response to the grave situation that we face today in Ukraine. Sadly, the need is now greater than ever. As stated by my right honourable friend the Prime Minister, we will be tightening the ratchet in response to Russia’s aggressive actions. Noble Lords will be aware that my right honourable friend will make a Statement in the other place at 5 pm today, where he will set out in further detail the work of this Government on this important issue. As noble Lords will also be aware, the Statement will be repeated here at a convenient time after 7 pm. Therefore, at this point in time, I cannot go into any further detail on the specifics of our response in advance of those Statements being made.
We are seeing the situation playing out as many of us feared it might. President Putin has used disinformation, lies and false flag activities to justify his unprovoked and unjustifiable invasion of Ukraine. Later today the United Kingdom, working with international partners, will bring forward an unprecedented level of sanctions to punish this aggression and persuade those around Mr Putin that this is frankly the wrong thing to do. We will continue to stand in solidarity with the Ukrainian people.
Sanctions announced by the UK and our allies are already having an impact, as we have seen today with direct impacts on markets and the rouble, which has stooped to a record low. These sanctions are impacting and will impact Russia. The institutions that prop Mr Putin up and the people around him should take note. The decision to invade a sovereign territory, Ukraine, is unjustified and will be met with an unprecedented and universal response, which is already under way.
Mr Putin has been clear that he wants to recreate a Russian empire and claim back places he defines as Russia, but these places he describes are sovereign states in their own right. Let us be absolutely clear: Ukraine is not part of Russia. The fantasy Mr Putin is trying to play out of tsarist expansionist Russia must be stopped now. I assure your Lordships that we will bring forward an unprecedented, co-ordinated sanctions response to punish this appalling decision.
For your Lordships’ information, I say that the G7 will meet later today to discuss the severe co-ordinated sanctions we will be imposing on Russia. Ukraine, of course, is not a NATO country, but we will help it with self-defence. We are talking with other leaders to co-ordinate our response, as well as our response when it comes to sanctions. The solidarity of NATO is clear. We stand together. That is why the UK and other NATO states have been moving troops to our NATO allies. We will continue to support the legitimate Government of Ukraine and, importantly, the people of Ukraine in their self-defence against this attack by Vladimir Putin. We will use every lever under our control in pursuit of that end.
The legislation follows the “made affirmative” procedure set out in Section 55(3) of the Sanctions and Anti-Money Laundering Act 2018. The statutory instrument amends the Russia (Sanctions) (EU Exit) Regulations 2019. It allows the Government to impose sanctions on a much broader range of individuals and businesses who are or have been involved in
“obtaining a benefit from or supporting the Government of Russia”.
These include those that, first, carry on business as Russian Government-affiliated entities; secondly, carry on business of economic significance to the Government of Russia; thirdly, carry on business in a sector of strategic significance to the Government of Russia; and, fourthly, businesses that own or control, or act as a director, trustee or equivalent of, one of these entities.
It is very clear from the events of last night that Russian aggression against Ukraine is part of a long-term strategy. If we give ground now, or we try to accommodate illegitimate Russian demands, Russia’s strategy of aggression—we fear—will not end here. Who will be next? Russia, if we were to give way, would be emboldened. President Putin’s focus would simply move on to the next target. What is being done is an attempt to turn back the clock to years gone by, and perhaps a mythical past, to rebuild the Russian sphere of influence. We must be absolutely firm in our response.
As my right honourable friend the Prime Minister will set out in more detail to the nation later this afternoon, what we do today will shape European security for many years to come. Together, we must rise to this moment, and we must stand united with Ukraine and with the people of Ukraine. In the Revolution of Dignity, it was the Ukrainians who risked their lives to choose freedom; they fought for democracy. I am determined that we will continue to support them in that choice which they made for themselves. I therefore commend the regulations to the House and would also share once again that it is our intention, as I said at the start, to go much further.
Amendment to the Motion
Lord Foulkes of Cumnock
“As an amendment to the above motion, at the end insert “but that this House (1) regrets that the sanctions are inadequate, and (2) calls on Her Majesty’s Government to lay more powerful and effective sanctions before both Houses.”
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, first, I sincerely thank the Government and the Opposition Whips for agreeing that there should be some extra time for this important debate, in light of the current situation. I also thank the Minister for his introduction and for the helpful conversations we have had informally. I hope that he will take the opportunity of listening to the debate—I know he always does—and then passing on some comments and suggestions to his colleagues in the FCDO and to the Prime Minister—and I hope he may be able to answer some questions without pre-judging what the Prime Minister might say later.
The situation is unpredictable. Today is a really dark day for Ukraine, and for Europe and the world as a whole, because the future is now terribly unpredictable. I know some Ukrainian MPs who are delegates to the Council of Europe Parliamentary Assembly, as my noble friend does as well, and I fear for them. They will be among the targets if things go wrong in Ukraine, because they have stood up at the Council of Europe and elsewhere and fought the cause of Ukraine very valiantly.
It is clear that the current sanctions have not deterred Putin. The Foreign Secretary said—I think rather infelicitously—that some sanctions had to be “left in the locker”. It is now clear that, while they have been in the locker, they have had little or no effect. So we must now immediately extend our sanctions, and I am glad that the Minister has indicated that that is the intention. We must intensify our co-ordination with the United States, the European Union and other countries.
First, I suggest that we need to expand the list of Russian oligarchs subject to sanctions. The European Union unanimously agreed to target 27 individuals and entities who are playing a role in
“undermining or threatening the territorial integrity, sovereignty and independence of Ukraine”.
Yet, so far, we have sanctioned only five banks and three Russian billionaires. We must extend to at least the European Union’s 27—and beyond, I hope.
The Minister has indicated in a letter to us all that the Government are planning to introduce legislation to prevent the Russian Government from raising finance. This needs to be done urgently. I ask the Minister: can he confirm that this legislation will be brought before both Houses of Parliament at a very early opportunity, so that it is not allowed to drag on?
We should also introduce export controls on Russia, stopping shipments to Russia of microchips, computers, consumer electronics, telecommunications equipment and other items made anywhere in the world if they were produced using US, UK or EU technology. Most importantly of all, we must disconnect Russia from SWIFT. Russia is heavily reliant on SWIFT due to its multibillion exports of hydrocarbons denominated in US dollars. The cut-off would terminate all international transactions, trigger currency volatility and cause massive capital outflows. In my view, and the view of people far more expert than me, it would probably be the most effective action we could take—yet it has not even been mentioned by the Government so far.
We should also sanction luxury property in the United Kingdom.
Lord Foulkes of Cumnock (Lab Co-op)
I am grateful for that support from the other side. Russian businesspeople and officials accused of corruption or links to the Kremlin own at least 150 huge properties in the UK, worth £1.5 billion, according to Transparency International. I accept that there would be some difficulties in doing this, and it would require significantly more resources for our law enforcement agencies, but it should be looked at and I think it should be done.
I also agree that we should target the members of the Duma, the Senate and the Presidential Council. The Minister has indicated that they are compiling evidence, but I hope they will do it quickly because, unlike the oligarchs, they actually advise Putin. Sanctioning the western luxuries they all enjoy—I have seen them enjoy property, schooling and holidays in Europe and the US—will cause a groundswell of discontent. I see some of them as Russian delegates at the Council of Europe. They are parroting the words of Putin; they are his voices in the Council of Europe. I will come back to that in a minute. Mr Tolstoy and Mr Kalashnikov —strange names, but they are very familiar—are hardliners and people we should be dealing with. The only likely way that Putin can be replaced is by people in Russia, and I hope we can make sure that pressure is put on them to do that.
We should also look to provide further lethal and non-lethal aid to Ukraine and neighbouring nations such as Poland, Latvia and Lithuania. We could assist further with intelligence surveillance reports. I know from my time on the Intelligence and Security Committee how good our intelligence agencies are. We can do that without directly entering the conflict and sending troops.
Finally, the leader of the UK delegation to the Council of Europe, John Howell MP, has suggested that we should now expel Russia from the Council. That is a move I would support, as one of the UK delegates to the parliamentary assembly. I hope the Minister, who has the Council of Europe in one of his many and increasing responsibilities, will look at this, because it needs to be done in a co-ordinated way— not just by the parliamentary assembly but by the Governments of the 46 other countries.
Putin needs to know that we are going to take these strong actions and take them now to stop him in his tracks and prevent any further aggression and the inevitable bloodshed that will result. I move this amendment.
Lord Robathan (Con)
My Lords, I rise briefly. I take comfort from what my noble friend the Minister has said and pay tribute to the resolve being shown by the Prime Minister and the Government—but they need to do more, as the noble Lord, Lord Foulkes, has said.
This is not new. Litvinenko was poisoned in 2006 not a mile from here; Salisbury, Skripal, et cetera, took place in 2018; the invasion of Georgia, Abkhazia and South Ossetia, took place in 2008, and Crimea in 2014. We must understand the pattern here. As the noble Lord, Lord Foulkes, and I think my noble friend the Minister agree, we must take action now and it must be really dramatic.
Lord Cashman (Lab)
My Lords, I congratulate the Minister on his opening statement. We all believe that sanctions must be tougher and go much further. I agree with everything that my noble friend Lord Foulkes has said, particularly in relation to SWIFT. That is a very good mechanism for bringing Putin and the rest of his mob to reality.
Having visited Ukraine pre pandemic, and having worked with NGOs there, which have wrought such wonderful, positive changes, I urge the Minister, through his department and others, and the embassy in Ukraine, to work very carefully and closely with these NGOs. In particular, might I make a plea for those NGOs working on LGBT issues? When we look at the history of Russia under Putin, and its views and treatment of minorities—particularly the LGBT+ minority—they and we have much to fear, so anything the Minister can do in this regard will be welcomed, not only by friends and sympathisers in this country, but by those NGOs and individuals who currently feel vulnerable and under great threat in Ukraine.
Lord Wallace of Saltaire (LD)
My Lords, I always think about the inadequacies of the Government’s response to the Intelligence and Security Committee’s Russia report. I recall the paragraph that talks about the penetration of our society and politics by people from these autocratic states, which, to some extent
“cannot be untangled and the priority now must be to mitigate the risk”.
We now need some much more decisive action from the Government to mitigate that risk and to see how far we can untangle this.
I was very struck by the inadequacy of the Government’s response to that report in the following respect. The Intelligence and Security Committee recommended that the Government should publish the evidence that they had collected on foreign penetration of British politics. We know that that has happened on the right and on the left: on the hard right and on the hard left. The Government’s response was that they had
“seen no evidence of successful interference”
in British politics. That is a phrase that I would love to have drafted if I had been a civil servant: it lets them completely off the hook. There clearly is evidence of foreign penetration, whether or not it has been successful, and the Government should now publish that in full.
I will ask the Minister a question about the Crown dependencies and the overseas territories. We are now extending—and there are more to come—sanctions against Russians close to Putin, and their money. Much of the money that has come through the London laundromat has gone on to the Crown dependencies and the overseas territories. When the British Government, as the sovereign, enforces sanctions, what happens to the Crown dependencies and the overseas territories? Do we ask their permission? Do we suggest that they might possibly consider that it is desirable to follow within the next few months, or do we, as their sovereign, say that on a matter as important as this, they must now follow?
Lord Browne of Ladyton (Lab)
My Lords, I rise to ask one very specific question about the impact of sanctions, but before I do that, I would like to associate myself with the earlier remarks commending the Minister on his introductory description of where we are and why we should roundly condemn Russia’s actions. He got the tone of that exactly right, and we need to continue with that.
I am conscious that, later today, we will take the Statement from the Prime Minister and have an opportunity to debate that, and we will have a long debate tomorrow. I therefore intend to restrict myself to sanctions, although I share all the ambitions of previous speakers that we will be able to extend our influence on a legal basis against the interests of people who are supporting this dreadful and inexcusable criminal behaviour that is taking place as we speak.
Here is my question. These sanctions need to be meaningful. I carefully read the debate on them in the other place, and I have read the letter that the Minister sent to us all thereafter, which deals with a number of the technical and legal points that were raised in that debate, some of which have been repeated here today. I am clear that nowhere in that debate did the Minister say at any point what the three persons mentioned in the sanctions on Tuesday—Gennady Timchenko, Boris Rotenberg and Igor Rotenberg—are not able to do today that they were able to do on Monday; nor did anybody say what impact these sanctions would have on any of those relatively small banks. They may be very important, but what are those banks not able to do today that is within our jurisdiction that they were able to do on Monday?
I raised this issue with the Leader of the House when that Statement came on Tuesday to your Lordships’ House. I said specifically that I recognised that this was a framework for the sanctions to be made, but the implementation of them depended on a suite of legislation, not only for their existence but for their actual use properly for the purpose for which they were designed. She gave me a very comprehensive answer, but the answer was all, “We have plans to”, “We intend to”, “We are working on”, “We are looking at”. I am not quoting her exactly, but it was all prospective.
We need to put into position a suite of powers that will then allow us to do what we need to do, so as we debate these sanctions, we should not kid ourselves that we are having an impact on Putin or any of his acolytes today, but we may have in the future. Interestingly, today, before the Prime Minister makes the Statement to the House of Commons, it is being reported that he is promising massive sanctions designed—and this is the interesting phrase—“in time” to hobble the Russian economy. Why do we not already have the ability to change the way in which Companies House practises and its ability to pour out shell companies that people can use to hide their assets? Why do we not have anti-money laundering legislation that is used in an impactful way to prevent the sort of stuff that is going on? Why do we not already recognise that we have people in the City of London who make a significant living out of facilitating all of that sort of behaviour, and they do it openly, with nameplates on the door that tell people that that is what they are doing?
It is important that the Government recognise that what we are doing here is legislating for potential, but it is not potential that will be impactful, although it may, for a couple of days, affect the sentiments of the stock exchange.
Lord Balfe (Con)
My Lords, a few days ago, I was in the House of Commons at a meeting of the All-Party Parliament Group on Russia at which the ambassador said quite clearly that Russia had no plans to invade. That can lead to only two conclusions: his Government do not tell him what they are doing or he was not telling us the truth. There can be no other conclusion in the middle.
I am very sorry that we are where we are today because, as the noble Lord, Lord Foulkes, will know, I worked pretty ceaselessly in the Council of Europe to try to get the Russians back on side. I worked in the legal affairs committee with them and said to them “Look, if you want to be in the Council of Europe, you’re very welcome, but basically you have to underline and support what we are trying to do”. In a very short temporary period as chair of legal affairs, I was instrumental in getting a couple of rapporteurships allocated to the Russian delegation. I spoke to it about the need to reflect the values of the council in producing the report. In other words, being a rapporteur was not a licence to print Russian propaganda but an opportunity for members of the Russian delegation to show that they were prepared to produce reports reflecting the views of the council in a legal and human rights situation.
What has happened overnight is absolutely dreadful—there is no other word for it—because it destroys many months of work that has taken place, particularly outside the United Kingdom. Members may have noticed that on numerous occasions I have urged the British Government to work with their French and German counterparts because I thought that the French and German foreign ministries were trying very hard to lead Russia to a place where it would settle its disputes with Ukraine through the Minsk process, negotiation and talk.
I am sure that it is recognised today in Berlin and Paris that that has failed. At the beginning of this week, I had lunch in this House with some German politicians who were hopeful of it working. They pointed out to me that Nord Stream 2 had been put on hold, not cancelled, and it could be revived. We talked about it, and one of the points that was made was that, of course, it goes two ways: it can bring gas from Russia and, once it is in the European gas network, it can pump it back. Indeed, some of my German interlocutors said that one of the guarantees that they could give would be that, if Russia threatened Ukraine’s gas supplies, Germany could supply it with gas. I mention that because it shows that, right up to the last minutes, the foreign ministries in Europe were trying to find a peaceful solution.
However, we now have to be firm because, as the peaceful solution has not worked, it cannot be said that no consequences flow from what has happened. So, clearly, we not only have to have sanctions, but if we are going to have sanctions that work, they have to be agreed among the larger players in Europe. That, frankly, means that we have to do what has been suggested about the overseas territories and we also have to stand up and be quite firm with Hungary and Austria because countries that are making large profits out of Russia have to realise that they are either in a European solidarity pact or on the other side. They cannot be on both sides at once.
Lord Pannick (CB)
I will make a short contribution. In this very interesting debate, mention has been made of Russians who have obtained funds by corruption and who come to this country and buy property or otherwise invest. Is the Minister confident that these regulations confer power to act against such persons? As he said, the only change that is made by these regulations is to give power to take action against those who have obtained
“a benefit from or supporting the Government of Russia”.
As the Minister rightly said, that concept is narrowly defined in new Regulation 6(4). The fact that you have obtained vast wealth by corruption in Russia, and you have come here and bought property or engaged in other economic activity, is not necessarily sufficient to bring you within the scope of these regulations, as I read them, but I would be delighted if the Minister tells me that I am wrong.
Viscount Stansgate (Lab)
My Lords, I welcome the Minister’s statement, and will be brief. I am also very grateful to the Government and the usual channels for enabling us to have a debate tomorrow. However, it is true that the regulations we are discussing today—which I think the whole House supports—are out of date. Indeed, I do not know when my noble friend drafted his amendment, but my guess is that everything has been overtaken by the events we woke up to find this morning.
What is going on is not just war of a kind that many of my generation never thought we would see, but also a battle of ideas and information. This morning, I watched Russia Today. I am not in favour of banning it, because it is interesting and important to know what the other side—as it were—is saying about this conflict. To give it credit, I saw a report from Berlin which listed the overwhelming criticism by European leaders on what is happening. However, I am sure that the Foreign Office and the Government are monitoring what the Russian people are being told. I put it to the Minister that we should do more to influence public opinion, because sanctions, if they are to work, are not going to work just on the people at whom they are aimed. The world is a rather more sophisticated and international place than it used to be. There will be people in Russia who are eager to understand more about what we are saying has happened and for us to use our power of information to counter the disinformation that they are being fed.
Lord Lexden (Con)
Could I ask my noble friend what assessment the Foreign Office has been able to make about the extent of internal opposition to President Putin? Were there any signs that sanctions have strengthened that internal opposition to him?
Viscount Waverley (CB)
I wish to be identified with the remarks of the noble Lord, Lord Foulkes, and the Minister in particular, and all other noble Lords who have spoken today. I am prompted to ask a question in response to a remark made by the noble Lord, Lord Foulkes: that it is up to the people of Russia to determine the country’s future. Of course, he is right. However, I am tempted to ask the Government whether nothing short of regime change would be a practical solution. The Minister might wish to at least consider that point at some stage.
I think that a message ought to be passed to the British ambassador in Moscow that the time has possibly come when her husband might wish to relinquish his post as the executive director of the Russo-British Chamber of Commerce, both in Moscow and London. It probably does not stand well with the issues with which we find ourselves in today’s world.
Is the time now coming when we should prepare the people of this country for war? What action, therefore, are the Government taking to protect the security of the UK’s energy, cyber networks, food and general defence, given the complete breakdown in relations with Russia?
Lord Brooke of Alverthorpe (Lab)
My Lords, I have a quick question for the Minister. It is a little wide of the regulations but related to it: the hole in the dyke could be Switzerland. Have we had conversations with Switzerland, and are we going to close any holes there?
Baroness McIntosh of Pickering (Con)
Following on from the noble Viscount, Lord Waverley, I rise briefly to ask my noble friend the Minister a question. The hostilities against Ukraine started with cyberattacks. There have been multiple cyberattacks and ransomware attacks on at least one firm of which I am aware in North Yorkshire, but FatFace and a number of other companies as well. What advice are the Government giving to companies, local authorities and, not least, the infrastructure network—to which the noble Viscount referred—to ensure that we can keep ourselves safe from such cyberattacks at this time?
Lord Berkeley (Lab)
My Lords, I will be very brief. Of course I support the comments from my noble friend Lord Foulkes. However, in relation to the Council of Europe, I hope the Government, in doing what they are currently doing—although they need to go a bit faster, as many noble Lords have said—are thinking about an exit strategy. We need one. While we are cutting ourselves off from Russia because we are almost at war, it is still important that the dialogue continues between us. It is also important that we understand the feeling from the people in Ukraine—as well as the people in Russia, as the noble Viscount, Lord Waverley, said. I hope that the Minister will keep the dialogue open as long, and as widely, as he can, because getting out of a war is extremely difficult.
Baroness Smith of Newnham (LD)
My Lords, like other Peers, I welcome the introductory remarks made by the noble Lord, Lord Ahmad. Clearly, from these Benches, we stand in solidarity with the people of Ukraine. Like the noble Lord, Lord Browne of Ladyton, I intend to focus my remarks almost exclusively on the question of sanctions and the statutory instrument before us. However, I also want to touch very briefly on the issue of the Council of Europe.
These Benches support the views of the noble Lord, Lord Foulkes, and his amendment because, while the passing of the statutory instrument is necessary today for sanctions to be effective, there is a very real question about whether the sanctions go far enough. In his opening remarks, the Minister said that the Prime Minister is proposing to give a Statement this afternoon and he will go further, so the Minister cannot pre-empt that. This is fully understood. However, if your Lordships’ House were to support the amendment put forward by the noble Lord, Lord Foulkes, then it might be the quickest time in history when the House of Lords has voted on something. If we hear the Prime Minister doing something rather more effective and expansive, we might all be able to celebrate the fact that swift action has been taken.
Overnight, we received the letter from the Minister which has been referred to and in which he says:
“Since announcing the package on Tuesday, both the speed and level of co-ordination between the UK and its allies on these sanctions has taken the Russian elite by surprise.”
If the Russian elite were taken so much by surprise, and we went from potential mobilisation to full-scale invasion of Ukraine, what does that tell us about the way that they have responded? Do the Government really think that the elite have been taken so much by surprise that they have acted precipitately, or have they not really been taken by surprise? The sanctions proposed so far by the United Kingdom seem very limited. Other countries have done far more; as the noble Lord, Lord Foulkes, pointed out, the European Union imposed much wider sanctions overnight.
Yesterday, at Questions, the noble Lord, Lord Goldsmith, stressed that the UK was acting
“in lockstep with our allies”.—[Official Report, 23/2/21; col. 218.]
If that is the case—without pre-empting what the Prime Minister will say this afternoon—could the Minister reassure the House that the UK will indeed work with our European Union allies to ensure that our sanctions are at least as broad and deep as theirs?
Could the Minister perhaps reflect on the question of Russian membership of the Council of Europe? Some of the criteria for Council of Europe membership relate to human rights and the rule of law. What on earth is Russia doing in the Council of Europe? Should we not be at least considering suspension of its membership? It might not be a sanction which falls within the statutory instrument, but it would be a sanction. Have the Government thought about it?
Lord Collins of Highbury (Lab)
My Lords, of course these sanctions were laid in a different context. Earlier today, I said that the Opposition fully support the Government and will continue to support them in all their actions against Russia. We should be in no doubt, as the Minister said, that this is an assault on a democratic and sovereign European nation. It is an act of war in no one’s interests. We will fully support all the necessary action.
Lord Ahmad of Wimbledon (Con)
My Lords, I am very grateful to all noble Lords for their support for the position of the Government, but to be frank it is the position, and rightly so, of our country, which stands united against the aggression of Vladimir Putin in terms of what has happened overnight. The noble Lord, Lord Pannick, made a specific point about what is in front of us—with his legal prowess, I know that is what he is focused on—but as I said in my opening remarks, events have superseded where we are today. While this was tabled, rightly, as a debate on what had already been laid before us, equally, as I have already alluded to, there is more to be done in this area. Statements that will be made later by my right honourable friend the Prime Minister will certainly detail the extent to which further action can be taken.
I can share with the noble Lords, Lord Foulkes and Lord Pannick, and others that we are also looking closely at the economic crime and corporate transparency Bill. The noble Lord, Lord Collins, knows that I have advocated strongly for this, and my right honourable friends the Prime Minister and the Foreign Secretary have recently reaffirmed the Government’s commitment to bringing it forward. This legislation will, of course, significantly enhance our ability to clamp down on dirty money in the UK by reforming Companies House, a point made by the noble Lord, Lord Wallace. It will also require foreign companies that own property in the UK to reveal their beneficial ownership, a point made by my noble friend Lord Robathan. As we heard from the Prime Minister on 2 February, we are committed to bringing this legislation forward; however, as I said at the start, there are certain things I cannot pre-empt, so I will not go further, but I assure noble Lords that that is very much on our agenda.
My noble friend Lord Balfe rightly raised various issues concerning people of Russian origin. I say at the outset that we need to be very clear that our argument is not with the Russian people. There are people in our country who are dual nationals—British nationals of Russian origin who are British citizens. Many of them are critics of Mr Putin, and I am sure I speak for every Member of your Lordships’ House when I say that it is completely wrong to in any way put everyone together. This is a clear action by President Putin, and that is what we should be calling out.
The noble Lord, Lord Browne, spoke about the implications for those individuals already mentioned. Of course, we are in the process of freezing assets and imposing travel bans on the individuals already named. He raised a wider point about the impact that our sanctions have had under various regimes. We have sanctioned 81 individuals and entities—for example, those involved in human rights violations. I think sanctions do have an impact. They send a very strong message to different parts of the world—whether in the context of human rights or as we broaden the issue to include corruption and illicit finance—that we are ready to take action, particularly on the assets of people who may be resident here in the UK, or indeed by restricting their travel. This does have an impact.
The noble Lord, Lord Foulkes, raised the issue of members of the Duma and the Federation Council. We are looking closely at those who voted in support of annexing parts of the two republics—the illegal annexation—and I will share information with noble Lords on specific names and institutions as we move forward. The noble Lord, Lord Wallace, asked whether the statutory instruments will apply to the OTs. I can confirm that they will automatically apply to the OTs and Crown dependencies, and we will be co-ordinating with them. The noble Lord knows from our time spent considering the Sanctions and Anti-Money-Laundering Bill the importance of pursuing public registers, as they have all now committed to doing.
The noble Lord, Lord Browne, the noble Baroness, Lady Smith, my noble friend Lord Balfe and others said that action must be co-ordinated in order to be effective. This has become part of my own mantra, as the noble Lord, Lord Collins, knows well: sanctions are only good enough when they are co-ordinated with our partners, and I assure noble Lords that we are working very closely with them. Yes, because of certain legislative extensions and broadening of legislation, there are certain sanctions we have not applied, but we are working very closely with our European partners, the United States, Canada and Australia to ensure that there is co-ordinated activity in this respect, and that international co-operation will remain at the heart of UK sanctions policy. We will continue to work very closely with the EU and other international partners to tackle these shared objectives. I assure the noble Baroness, Lady Smith, that, as I said in answer to a question earlier this morning, I recently discussed this specific point with the German Minister.
The noble Lord, Lord Wallace, asked about the Russia report, to which the Government have published their response. I listened carefully to his concerns, and he is right that we have seen the impact of Russian interference around the world and the cyberattacks that have been generated, to which my noble friend also referred. My noble friend also asked about support to Ukraine. Of course, we are working with them, but to be clear, when I met the Ukrainian Foreign Minister yesterday, as well as the physical intervention—which turned from an incursion into what is now an invasion of the sovereign territory of Ukraine—the issue of disabling all communications in Ukraine and how best we can mitigate such action was very much part of our discussions.
The noble Lords, Lord Foulkes and Lord Collins, and other noble Lords raised the issue of SWIFT and what could be imposed and what that would mean. What I can say at this juncture, without going into detail, is that, simply put, we have not ruled anything out in terms of sanctions. What we are proposing, and certainly what will be heard later, will be a toughening up of our sanctions regime. We are very conscious to identify all those entities and individuals with strong links to the Kremlin.
The issue of disinformation was also mentioned briefly. The Russian Government are—and since the events of last night continue to be—conducting an aggressive set of information operations against Ukraine and, indeed, NATO. It was that particular disinformation that they used as a trigger to launch the invasion into the sovereign republics of Ukraine.
The noble Lord, Lord Cashman, raised an important issue about human rights. He knows how central this is to my own thinking. On Monday, I hope, events prevailing, to be at the Human Rights Council, where I will have various discussions with key partners on what more we can do within the context of the multilateral system. The noble Lord is, of course, right that the issue of human rights within Russia has been a particular challenge. Indeed, my noble friend talked about the opposition within Russia. We do not need to go further than the appalling treatment of Mr Navalny to see how Mr Putin has first suppressed internal opposition and has then moved, as we saw last night, to suppressing democratic progression in other near neighbours.
I assure the noble Lord, Lord Cashman, that we are using our sanctions regime. Indeed, in December 2020, we announced designations of Russian individuals and entities responsible for the torture and murder of members of the LBGT community in Chechnya specifically. In that regard, I thank the noble Lord and the noble Lord, Lord Collins. We have worked very closely on these issues, and they remain very much at the forefront of our mind.
On the broader issue of freedom of religion or belief, we have again seen the appalling suppression of the rights of Jehovah’s Witnesses, for example, in Russia, and we will continue to focus with our international partners on how we can act further in this respect.
I said at the start of this debate that events had overtaken us. Rightly, we need now to look at the here and now. In doing so, what my right honourable friend will detail later today will reflect many—
Lord Foulkes of Cumnock (Lab Co-op)
I wonder if the Minister can just deal with the question laid by the noble Baroness, Lady Smith, and me about the Council of Europe.
Lord Ahmad of Wimbledon (Con)
I was very much coming to that. I met John Howell and discussed what our approach should be. Again, this was in advance of recent events. As the noble Lord and noble Baroness will know, I regard the Council of Europe as an important way of engaging with those countries which perhaps we would not normally engage with through other institutions. The issue of whether Russia should remain part of it will, of course, be a matter for the Council of Europe. I have noted very carefully what the noble Lord has said in this respect.
One thing that I have always retained from my own experience of diplomacy is the importance of continuing to communicate in some shape or form. What was very clear to me with Russia yesterday at the United Nations was that when the Secretary-General of the United Nations rightly—I am sure noble Lords agree—condemned Russian actions, and this was in advance of what happened last night, even he became the subject of extreme criticism from the Russian representative. That was coming from a P5 member of the Security Council of the United Nations, which was set up to ensure that we address the scourge of aggression and conflict.
Let us not forget in particular the aggression and conflict that took place in Europe. Sitting there in the chamber and listening to what was unfolding in front of us, it was very clear. In my later meeting with the Secretary-General, he again reflected that this was perhaps the biggest challenge he had faced during his tenure, not least because it was being initiated by a permanent member of the UN Security Council, a body that was created to address conflict and sustain peace.
Lord Foulkes of Cumnock (Lab Co-op)
I thank the Minister for his, as usual, comprehensive and very helpful response. While I am tempted by the suggestion from the noble Baroness, Lady Smith of Newnham, to press this so that we are ahead of the game, as it were, my head has not been turned by my successful vote earlier this week. In light of the Minister’s very helpful response and the assurances that he gives privately as well as publicly, and the fact we will have the Prime Minister’s Statement repeated at 7 pm this evening and a whole day’s debate tomorrow, I think it will help to express the way in which this House, this country, is united against the Russians if I withdraw my amendment.
Judicial Review and Courts Bill
Thursday 24th February 2022
(2 years, 9 months ago)
Lords ChamberRead Full debate Judicial Review and Courts Act 2022 View all Judicial Review and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 102-II Second marshalled list for Committee - (22 Feb 2022)
“(1) Before this section may come into force, the Secretary of State must—(a) commission an independent review of the potential impact, efficacy, and operational issues on defendants and the criminal justice system of the automatic online conviction option and penalty for certain summary offences;(b) lay before Parliament the report and findings of this independent review; and(c) provide a response explaining whether and how such issues which have been identified will be mitigated.”Member’s explanatory statement
This amendment would require a review of the potential impact of Clause 3 before it can come into force.
Lord Marks of Henley-on-Thames (LD)
My Lords, Clause 3 of the Bill sets out a new code, which is to become new Sections 16G to 16M of the Magistrates’ Courts Act 1980, which provides for a new procedure. I will summarise it relatively briefly. First, it enables those accused of certain summary non-imprisonable offences to be offered an automatic online conviction option; secondly, it enables such an accused to plead guilty online; thirdly, it provides for such an accused to be convicted as a result of such an online plea; fourthly, it provides for the penalty for such a conviction to be determined at a figure to be specified in regulations; fifthly, it provides for the endorsement of a driving licence with points, as appropriate; sixthly, it provides for compensation to be payable up to a maximum specified figure, the amount to be determined by the prosecutor; and finally, it provides for the payment of prosecution costs and a surcharge of the amount specified for the offence. That is not defined but is to be specified in regulations and could vary for different offences and circumstances. As to the question of appeal, it is intended by new Section 16M that a magistrates’ court may set aside a conviction or penalty under the procedure if it is unjust.
My Amendment 24 calls for an independent review of the potential impact, efficacy and operational issues on defendants and on the criminal justice system of these provisions. That is not prompted by unqualified hostility to the idea of a simple, streamlined online option to deal with low-level offences that are voluntarily admitted by offenders. On the contrary, if that is properly introduced, with suitable safeguards, I see considerable benefits to these provisions.
Rather, my amendment is an expression of concern that the full personal consequences for people likely to be convicted and penalised by these new means have not been sufficiently considered. They need to be fully considered before the new procedures come into operation.
There have been several impact assessments on the Bill, one of which was targeted on its criminal procedure measures, including these—but it is limited in scope. That is not a criticism of the MoJ; it is in the nature of such impact assessments that they explain what the measures proposed will do and consider what they call the “monetised” and “non-monetised” costs and benefits of the measures proposed. But the assessment is, if I may so describe it, extremely clinical.
The non-monetised costs of measures in Clause 3 are described in the impact assessment in fairly stark terms. The first part of the measures, the online pleas, are described as having the following non-monetised costs for legal aid agencies:
“There is a cost for the LAA associated with changing their service design to ensure that legal representation is available for defendants indicating a written/online plea, where duty solicitors will no longer be engaging with defendants at the first magistrates’ court hearing. Currently this cost is not monetised, as the LAA are exploring a number of different change options.”
For the CPS:
“There may be additional administrative costs … as the new processes will mean more activities are moved online. However, until the future service design model for the CPS has been finalised, these costs cannot be quantified.”
On the online conviction and sentence provisions, the assessment states:
“There will be IT costs to HMCTS for the development, operation and maintenance of the online system. However, as it is not possible to isolate these costs from the wider costs of digitisation and modernisation under the HMCTS Reform programme, they cannot be monetised … There may also be a perceived lack of fairness in the new system insofar as it is no longer means-tested, allowing those with higher incomes to reduce the imposition they receive.”
That last paragraph is the only real mention of the personal non-monetised costs of these provisions.
Right at the outset, I accept that a great deal of the impact will depend on the regulations and the way in which the system operates in relation to offenders. The amendments from the noble Lord, Lord Ponsonby, pick out some of the possible pitfalls. He addresses the difficulties faced by disabled and unwell defendants; those with vulnerabilities or disabilities. He addresses the need for legal representation, which might of course mitigate many of the difficulties for defendants involved in this procedure. But will simple legal representation and its availability address not just the question of cost but the difficulty in accessing legal aid? There is also the rather more nebulous question of whether defendants will take the trouble to get representation or land themselves in difficulties by proceeding without it until it is too late. They may decide not to get representation because the new procedures are online and relatively simple.
There are also wider problems of the defendant’s understanding of not just the process but its consequences. How will digitally excluded offenders deal with the process? Later, we will come to the question of digital assistance in civil proceedings, but those who are unable to access online proceedings easily will find this extremely hard. How many people will be accused and plead guilty for convenience only, because they are faced with an online procedure, when they might not plead guilty were they better informed? How far will defendants understand the consequences of the online conviction that will follow a plea of guilty, and how far will they be aware of the financial consequences? At the moment, it is entirely unclear how far defendants pleading guilty will do so without knowing the financial implications of conviction. It would be helpful if the Minister could indicate whether the regulations will require that all the financial consequences of conviction will be spelled out when the option of online conviction is offered, given that penalty, prosecution costs, compensation and surcharge are likely to be determined only after the plea.
There are other consequences that need consideration, which online processes may make more difficult. The court will lose the opportunity, which I regard as valuable, to identify and address problems for the defendants it penalises. In personal proceedings, justices can see the defendant and can consider for themselves any difficulties and consequences. How do we address that?
There will also be problems with how fines, compensation and costs will be paid. How far have the consequences for families been considered? The impact on defendants and their families of having to pay even relatively small sums can sometimes be underestimated. Another issue that arises is the effects on families of enforcement measures when fines have been levied and compensation and costs have been ordered to be paid. These can amount to quite significant sums which, for people in want of means, are very difficult to raise. Enforcement measures can be far more severe than the financial penalties originally imposed.
How far will the convictions, penalties and consequences reduce or eliminate the opportunity for defendants to get assistance from local authorities and other agencies for them and their families? Perhaps the Ministry of Justice has in mind to ensure that these issues are thoroughly addressed before the regulations come into force, but I fear that they may not be addressed at this stage or even then, and this work needs to be done. I invite the Minister to address these issues not just in his response now but over the period pending Report.
Lord Pannick (CB)
Perhaps I might raise a point with the Minister. As I understand the scheme of Clause 3, this automatic online conviction procedure is going to apply only to those offences which are set out in regulations made by the Lord Chancellor, as in new Section 16H(3). The Lord Chancellor has a discretion as to which offences are here relevant. That is by contrast with the provisions set out in Chapter 2 for online procedures generally in relation to civil proceedings, where under Clause 21 the Lord Chancellor may make regulations determining which proceedings the online procedure applies to. But under Clause 21(6) he or she may make regulations only with the concurrence of the Lord Chief Justice, or the Senior President of Tribunals.
Noble Lords in this Committee may recall—certainly the noble Lord, Lord Beith, will recall—that this was the consequence of amendments which we tabled as a result of a report from the Constitution Committee which stated that it was appropriate for the Lord Chancellor, in the civil context only, to provide for particular matters to be subject to the online procedure if there was the concurrence of the Lord Chief Justice. My question to the Minister is whether it would not be more appropriate in this criminal context, in order to provide added protection for individuals for the sorts of reasons indicated by the noble Lord, Lord Marks, if the Lord Chancellor was required to have the concurrence of the Lord Chief Justice before specifying the appropriate criminal offences. I say that with the understanding that we are talking only about summary offences, as in new Section 16H(4). Nevertheless, it may be more appropriate to require the concurrence of the Lord Chief Justice.
Baroness Jones of Moulsecoomb (GP)
I am struggling to remember as far back as Second Reading of this Bill, but I did say at the time that Clause 3 was designed to save money in the courts system, and that the main savings would arise from people who pleaded guilty but who should have pleaded not guilty. The risk is so obvious that I am surprised that there are no safeguards or legal protections included in Clause 3. People need to have legal advice; they need to know whether they have a valid legal defence prior to deciding whether to plead guilty or not guilty. Whether someone has a legal defence is not obvious or straightforward; if it were, we would not have lawyers and judges—including lawyers of the huge talent that we have here in your Lordships’ House. The mishandling of all those Covid prosecutions shows how badly the system can get it wrong when things are not clear: there were thousands of wrongly issued fines and wrongful convictions by magistrates.
Defendants need independent, quality legal advice prior to deciding their plea, and the lack of any such safeguards in Clause 3 makes me wonder how it has got so far without this problem being exposed by the Minister, because the risks are even greater for vulnerable groups, such as those with learning disabilities. The pressure of avoiding going to court might make pleading guilty online feel like the safer option, and the cost of getting a lawyer might make the online guilty plea seem like the best option. There is nothing in these proposals to ensure that vulnerable people are supported in making informed decisions. So the potential for disaster is huge, and there should at the very least be signposting by the Government to independent legal advice, screening for vulnerabilities, and checking whether people are eligible for legal aid. I ask the Minister whether the Government are going to bring amendments along these lines on Report. It is potentially a sensible idea, but I would like to see it work well for defendants, and for that there will have to be some changes.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I agree with the final sentence of the noble Baroness, Lady Jones. We all want to see this system work well, and we all want to see adequate safeguards. It seems to me that the safeguards may be built into the regulations, but of course we can build in further regulations and safeguards through the process we are going through now. We are not hostile to these procedures as such; we are just concerned that proper safeguards are built in, either through primary legislation or the regulations.
The noble Lord, Lord Marks, set out fully the broad gamut of issues relating to these types of online convictions, where people plead guilty and receive a computer-generated sentence based on certain summary, non-imprisonable and relatively minor offences. All noble Lords who have spoken raised the point about the ramifications of people making guilty pleas because it seems easier to just get it out of the way, and that the possible consequences of having that criminal conviction, even though it is a non-recordable conviction, are not readily known.
I spoke about this point when I had a meeting with the Minister last week. The wording in the Bill is “recordable offences” and I made the point that there are plenty of offences which are recorded, but they are not recordable in the sense of going on the Police National Computer. For example, when I sit in court as a magistrate and deal with people who have non-recordable offences such as evading train fares, the information is available to me that they have previous convictions for avoiding train fares. I am aware of that information, even though it is not a recordable offence, and that will obviously have an impact on the sentence I give to the person who has not paid their train fare for a second or third time. So there is a distinction between offences which are recorded and offences which are recordable.
I will briefly run through the amendments in my name. As the noble Lord, Lord Marks, said, they are trying to mitigate the possible problems with this approach, to which all noble Lords have spoken. Amendment 26 would require all accused persons considered for automatic online convictions to be subject to a health assessment and that only those who do not have any vulnerabilities or disabilities are given the option of being convicted online. Under Amendment 27, the automatic online conviction option would be available only if the prosecutor is satisfied that the accused has engaged a legal representative. Amendment 28 would exclude any recordable offences from the automatic online conviction option. Amendment 29 would raise the age of eligibility for written procedures for entering guilty pleas from 16 to 18 years old.
As the noble Lord, Lord Marks, said, those four amendments in my name attempt at this point to probe the Government’s response to the potential pitfalls of this approach, to put in adequate safeguards for vulnerable people and children and to make sure that people do not plead guilty out of a sense of convenience. I was particularly taken by the argument used by the noble Lord about ensuring that, when people plead guilty, they know the full ramifications of the possible costs of their guilty plea. As he said, there is the cost of the fine itself, the cost of the prosecution and the cost of the victim surcharge, and all those numbers add up. When one sits as a magistrate, one has discretion over the fine and the costs but no discretion over the victim surcharge, so it is not a straightforward calculation. Depending on the means of the person one is dealing with, one would make a suitable adjustment.
After one has put the fine in place, one puts in place a collection order. This is where you give a specific and direct warning to the person you have just fined that, if they do not pay the money, there is a power for debt collectors or bailiffs to come to their house to collect goods to the same value. I go on and warn them that that makes things more expensive because the bailiffs also charge their costs. So there is quite a bit of procedure that one can adjust when one is sentencing, according to the nature and means of the person in front of you. The noble Lord, Lord Marks, asked a good question: how will this online procedure have the flexibility that the in-court procedure has to make sure that a fair disposal is reached?
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I will first deal with the general argument for Clause 3, not least because the noble Baroness, Lady Chakrabarti, gave notice that she would oppose the Question that Clause 3 stand part of the Bill.
As we have heard, Clause 3 creates an alternative new automatic online conviction and standard statutory penalty procedure for some single justice procedure cases. I should say at the outset that it comes with a number of safeguards. I assure the noble Baroness, Lady Jones of Moulsecoomb, that, as the noble Lord, Lord Ponsonby, fairly said, we all want to see the system work well. This is about putting in place a system that is appropriate and fair.
The procedure would provide defendants aged over 18 and companies that wish to plead guilty to specified offences the additional option of accepting a conviction and pre-agreed standard penalty online without the involvement of the court. Importantly, prosecutors will offer this to defendants only in cases that they consider can be dealt with appropriately through this procedure. It is unlikely even to be offered in cases where, for example, there are aggravating factors or the defendant is a habitual offender.
The procedure is entirely optional on the part of the defendant. Defendants can choose to have their case heard in court at any time before they accept a conviction. Defendants who opt in to using this procedure will be guided through the process and provided with all the information they need to make an informed decision, including—the noble Lord, Lord Marks, made this point—the consequences of accepting a conviction and the full details of the prospective fine. I will say a little more about that in a moment.
Lord Pannick (CB)
I am grateful to the Minister. That was the point that I was seeking to make. The last time the online procedure Bill came before Parliament, in 2019, this Committee debated very carefully whether it was appropriate to allow the Lord Chancellor to determine which civil matters should be dealt with online. Your Lordships’ Constitution Committee recommended that it was inappropriate for the Lord Chancellor to decide such matters. This House debated and the Government gave way. The Minister’s predecessor —not quite his predecessor—the noble and learned Lord, Lord Keen, who was speaking on behalf of the Government, accepted that it was appropriate for the concurrence of the Lord Chief Justice to be required. Why does the Minister think it is different in the criminal context? I suggest that there is even greater sensitivity in the criminal context than in the civil context and that the concurrence of the head of the judiciary is required.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful for that further explanation of the point and will happily reflect on it. At the moment, I stand by the point I made a moment ago, which is that it is right in principle for the Government to be able to decide which offences are included under the new procedure. Of course, we discuss with the Lord Chief Justice and other elements of the judiciary how these offences will be managed in practice. As the noble Lord, Lord Pannick, knows, the operation of the courts is run essentially under a concordat agreement between the Lord Chancellor and the judiciary. I will look again at Hansard and go back to the discussion which somebody who was not quite my predecessor was involved in. For present purposes, that is my answer to the noble Lord.
Baroness Chakrabarti (Lab)
Just on that—and by the way, I did not speak earlier because the case was made so well by the noble Lord, Lord Marks, and I think it is a kindness to the Committee at this stage not to duplicate concerns and comments—to develop the point from the noble Lord, Lord Pannick, and to comment on his conversation with the Minister, it is not for the Government to decide, is it? It is not actually the Government’s position that it is for them to decide which offences are covered by the new procedure, because mercifully the Government have said that there will be parliamentary procedure and regulations. It is for Parliament to decide.
Is not the point that when Parliament looks at these regulations that are made in the future, by a future Lord Chancellor who may not take such a measured approach as the Minister is taking now in relation to which offences are to be included, Parliament would benefit from regulations that come with the advice and endorsement not just of the Government of the day but of the senior judiciary?
Lord Wolfson of Tredegar (Con)
I should say, first, that when I mentioned the noble Baroness in my speech, I was not making the point that she had not risen. I wanted her to appreciate that I had taken on board that she was opposing the clause. When I say “the Government”, of course I mean “the Government with the authority of Parliament”. We are looking at a Bill and that is taken as read. Ultimately, the question is: is it necessarily right for Parliament to say that we cannot proceed unless we know that the LCJ is on board? I suggest that it is quite proper in this case for Parliament and the Bill to say, “This is a power which can be exercised by the Lord Chancellor and no concurrence is necessary.” As I said to the noble Lord, Lord Pannick, I am happy to look at this point, but that is the current position which I adopt.
I was going to make one more point on Clause 4 and Amendment 29, which seeks to raise the age of eligibility for the Section 12 procedure—often referred to as “pleading guilty by post”—from 16 to 18. This procedure has been available as an alternative method of summary-only prosecution for defendants aged 16 and over since 1957. I am not aware of any issues of concern being raised in relation to under-18s during the whole of that time.
Lord Marks of Henley-on-Thames (LD)
Before I consider our position, can I just ask when the cooling-off period is likely to kick in. In other words, does it start immediately upon the indication of a plea of guilty or will it be following the conviction that is a consequence of the online plea?
Lord Wolfson of Tredegar (Con)
My Lords, I will give an answer, but I will check it and if I get it wrong I will write to the noble Lord. I think the way it works is that it will be immediately after conviction. The conviction is almost instantaneous with submitting the online form because it is an online procedure. Therefore, the cooling-off procedure would start immediately after conviction and would run from that time. Indeed, I have just received a message to say that that is correct.
Lord Marks of Henley-on-Thames (LD)
I am grateful to the noble Lord for that clarification; I will consider it.
I will of course withdraw the amendment at this stage, but I see the process that we have had today as calling for continuing discussion. Although it is helpful to know from the Minister that the financial consequences will be spelled out precisely in the offer, he did not address the non-financial consequences—the personal consequences—in enough detail. Of course I take his point that, at this stage, this procedure will apply only to travelling on trains without a ticket, what used to be called riding on trams without a ticket or unlicensed fishing. In those circumstances, limited to those three offences, the consequences might not be as serious as they otherwise might be, but since the statute refers to all summary-only, non-imprisonable offences, it potentially goes very much wider. It would be very helpful if, during continuing discussions, we were assured about the criteria that would be applied in much more detail for its application to future offences because one can see the distinction simply from the offences that he mentioned and we cannot be sure what will happen.
The amendment tabled by the noble Lord, Lord Pannick, seems to have a great deal to commend it. He raised it as a query to the Minister. If there were an amendment to that effect on Report I rather expect that it would have a lot of support in the House. Having said that, I beg leave to withdraw the amendment.
“Review of the single justice procedure
(1) Within two months beginning with the day on which this Act is passed, the Secretary of State must commission a review and publish a report on the effectiveness of the single justice procedure.(2) A review under subsection (1) must consider—(a) the transparency of the single justice procedure in line with the principle of open justice,(b) the suitability of the use of the single justice procedure for Covid-19 offences,(c) prosecution errors for Covid-19 offences under the single justice procedure and what redress victims of errors have.(3) The Secretary of State must lay a copy of the report before Parliament.”
Lord Ponsonby of Shulbrede (Lab)
My Lords, in introducing this group, I thought I would tell the Committee about my experience of sitting as a single justice magistrate dealing with Covid emergency legislation about a year ago. I dealt with fixed penalty notices handed out to people who broke the emergency legislation. The fine was £60, but if it was paid within 14 days it was £30. If that was not responded to the defendants received a letter saying that they should either turn up to court or respond to the letter or the matter would be dealt with by the single justice procedure.
I sat at my dining room table as a magistrate and I dealt with 30 trials in the morning. I convicted 29 of the 30. The prosecution case was the police officer’s note, which I had up on my screen so I could read it. There was no defence case because the defendant had not turned up. I then went on to sentence, which was a £100 fine, £100 in prosecution costs and a £34 victim surcharge, so £234 to pay and a collection order. That is what I did 29 times out of 30 last summer. It was a special time. It was a difficult procedure to go through, but we need to be very conscious of the difficulties and potential pitfalls with these types of procedures. Having said that, and given that example, I believe there are occasions and types of cases where it is appropriate.
Both my amendments make the same point in trying to build in suitable reviews of the procedure to ensure it acts fairly. Amendment 30 states:
“Within two months beginning with the day on which this Act is passed, the Secretary of State must commission a review and publish a report on the effectiveness of the single justice procedure.”
My noble friend will speak to her Amendment 37. Amendment 54 says:
“Before section 43 may be commenced, the Lord Chancellor must—
(a) undertake a consultation with relevant stakeholders regarding the proposed abolition of local justice areas under that section, considering in particular the impact on the principle of local justice,
(b) lay before Parliament the Report and the findings of such consultation, and
(c) provide a response explaining whether and how such issues which have been identified would be mitigated.”
To say a few words on Amendment 54, magistrates arrange themselves in local justice areas. There are nine local justice areas in London. It is a historical way of organising magistrates, if I can put it that way. I understand that there are arguments on both sides. I also understand, from talking to the Minister and his officials last week, that there will be extensive consultation and further legislation on this matter if it is taken forward. Nevertheless, I beg to move.
Baroness Chakrabarti (Lab)
My Lords, before I speak to Amendment 37, I should like to congratulate my noble friend Lord Ponsonby on everything that his public service outside this Committee and your Lordships’ House brings to our deliberations about criminal justice. The Committee needs no reminders from me of all that the eminent silks, retired Law Lords and former members of the senior judiciary bring to your Lordships’ House. The magistracy is a very important part of the criminal justice system. My noble friend brings an experience, a humility and an anxious scrutiny of the system to our deliberations which is incredibly helpful and always illuminating.
Amendment 37 is purely a probing amendment, and I hope the Minister received that message via his office. I have unashamedly taken this opportunity to put issues concerning women and girls in the criminal justice system on the map. As the Committee and the Minister will know, this is ultimately a shared responsibility with his noble friend Lady Williams of Trafford and her department. These two great departments of state—the Home Department and the Ministry of Justice—are responsible for the whole system, including matters well beyond the scope of this Bill, such as the police and the CPS. They also have responsibilities that are dealt with in this Bill, such as for the court system.
Just last year, both Secretaries of State felt the unprecedented need to issue a public apology to women and girls for their experience of the handling of sex offences in our criminal justice system. To some extent, that has led to the resignation of the Commissioner of Police for the Metropolis. Perhaps more importantly still, it has led not just to terrible attrition rates for sex offences in particular, but to a real crisis of trust and confidence in the system on the part of women and girls that none of us on either side of your Lordships’ House wants to see.
I do not want to say that there should be an inquiry on the narrow grounds that happen to fit into the scope of this Bill. Rather, I want to give the Minister the opportunity to update the Committee and therefore the country on where the Government are and where they propose to be, and how quickly they can rebuild trust and confidence in relation to sex offences in particular and criminal justice in general for slightly more than half of the population.
Lord Falconer of Thoroton (Lab)
My Lords, I will make two separate points. First, Amendment 54, tabled by my noble friend Lord Ponsonby, relates to Clause 43, which abolishes local justice areas. It says that the Lord Chancellor must,
“by regulations, make consequential or supplementary provision in relation to the abolition of local justice areas.”
I assume that the thinking behind this is that it would be convenient if all justices were appointed, say, for England and Wales and not to a local justice area, and training, deployment and other issues should be dealt with on a national basis.
I do not know what is planned, but I do know from my experience as Lord Chancellor that being a Justice of the Peace in a particular area is of very considerable importance. I also know that people are appointed as magistrates because they are committed to their local community, and that people being trained and deployed together over a period of time in a particular area is also incredibly important to local justice.
This looks to be a very wide-ranging provision which may well have been thought out in full, but I should be grateful if the Minister explained the thinking, and what is being done about recruitment, deployment and training.
Baroness Whitaker (Lab)
My Lords, as a former magistrate, I warmly support the first point made by my noble and learned friend. The differences in offences, their nature and conduct vary enormously in general, from area to area and region to region. To understand not only the offence but its cause and, therefore, what a suitable disposal might be is really important.
Lord Marks of Henley-on-Thames (LD)
My Lords, the amendments in this group seek reviews or consultations in three quite disparate areas. The first, in Amendment 30 tabled by the noble Lord, Lord Ponsonby, concerns the single justice procedure. The second, in Amendment 37 from the noble Baroness, Lady Chakrabarti, concerns a call for an inquiry into the treatment of women and girls in the criminal justice system. The third, in Amendment 54 in the name of the noble Lord, Lord Ponsonby, concerns local justice areas.
First, as to the single justice procedure, there is no reason in principle to oppose Clause 5, which is the related provision in the Bill. It simply extends the procedure to corporations—and it is probably an anomaly that it did not apply to corporations in the first place. Many of the points that I made during consideration of the first group, relating to a review of the new online procedure, also apply in respect of the single justice procedure. It would be sensible for the single justice procedure to be the subject of the same review, consultation and consideration as the new online procedure.
I join the noble Baroness, Lady Chakrabarti, in thanking the noble Lord, Lord Ponsonby, for his helpful account today, and the help that he gives to the House generally as a practising magistrate and with his very important experience in the magistrates’ court. The magistracy is an extremely important part of our criminal justice system. I forget the precise statistic, but magistrates’ court deal with some 96% of all criminal cases. They are a crucial point of disposal.
I accept, as he did, that the single justice procedure has been of considerable use in minor cases generally, but he also pointed to the impersonality of that procedure and the lack of flexibility that it has in dealing with particular cases. It is valuable in minor cases and in cases such as television licence evasion, which I understand is one of the areas for which it is used. It has been particularly helpful with Covid regulations during the pandemic. However, we should not forget that imposing financial penalties remotely—for example, in the case of television licence evasion—can end up with people being severely penalised for failure to pay and even sent to prison. There is also significant evidence that that particular offence and its enforcement affect women disproportionately.
This brings me to the second area in which a review is sought in this group, Amendment 37, tabled by the noble Baroness, Lady Chakrabarti, which seeks a judicial inquiry into the criminal courts’ treatment of and service to women and girls. The noble and learned Lord, Lord Falconer, spoke to it too. In debates on the Police, Crime, Sentencing and Courts Bill, now back in the other place for further consideration of our amendments, I moved an amendment seeking the establishment of a women’s justice board. It had significant and widespread support around the House, and for me it is a matter of great regret that despite having the personal support of the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Ponsonby, the Labour Party was not prepared to vote for the measure. If the measure had been supported by the Labour Party, we might have succeeded on that Division. That is a major reform for which I will continue to press. I hope that the support of those who supported it across the House in that Bill will continue to be forthcoming in future attempts, because it is one way to have a significant effect on addressing the difficulties of women and girls within the criminal justice system. Meanwhile, I of course support the noble Baroness in her Amendment 37.
Amendment 54 mandates consultation with relevant stakeholders about the abolition of local justice areas before that abolition under Clause 43 can come into effect. I see the merits of abolishing local justice areas. It will remove the boundaries between such areas, which—as the Explanatory Notes suggest—are largely artificial. That ought to enable magistrates’ courts to work on a more unified or at least a more collaborative basis and manage their work more logically. However, I listened with care to the note of caution introduced by the noble and learned Lord, Lord Falconer. If it is intended by the abolition of local justice areas to destroy the local base of the magistracy, that would be a great step backwards. It is very important that magistrates are dispensing, are seen as dispensing, and understood as dispensing, local justice. While I am completely understanding of the proposal to alter the artificial boundaries so that courts can collaborate on wider areas or narrower areas as appropriate, so that the artificiality is removed, it is very important to preserve the local justice principle. I expect that we will hear more from the Minister about the consultations that have already taken place on this issue in response to the amendment, and I look forward to hearing what he has to say. I hope that he will address that point with care.
Lord Mackay of Clashfern (Con)
I strongly agree that the magistracy is essentially a local service built up by knowledge of the area in which magistrates are asked to administer justice. It would be an extraordinary development to cut that out, because the knowledge of what is going on in their area is a source of strength to the magistracy in issuing judgments which, as has been pointed out, are a very high proportion of the total number dispensed throughout the country. On the other hand, I can see that sometimes a technical relief from the particularity of the boundary may be important. Perhaps that can be done without losing the principle of the locality of the magistracy.
I support what the noble Baroness, Lady Chakrabarti, said about the help that we are getting in this respect, having here a practising magistrate who knows the difficulties that arise and can be dealt with by personal experience. I also support the idea that we must have some system for noticing what the difficulties of different people are in relation to the courts, particularly women and girls. I imagine that this has to do with the treatment given by the courts, not particularly the question of certain types of crime that may not always be getting the result that we might expect in various situations.
Lord Wolfson of Tredegar (Con)
My Lords, the amendments in this group, Amendments 30, 37 and 54, all deal with reviews of the criminal justice system or criminal court procedure. I will take them in turn.
Amendment 30 would require the Secretary of State to commission a review and publish a report on the effectiveness of the single justice procedure. The review would consider the transparency of the procedure and its use in the prosecution of Covid-19 offences. Let me begin by allying myself to the comments of the noble Baroness, Lady Chakrabarti, and thanking the noble Lord, Lord Ponsonby, for his service as a magistrate, and for what that service gives us in these debates: a real, from-the-front-line addition on how things are going. Since that has been raised, I also thank more generally all magistrates. As the noble Lord, Lord Marks, said, they are the backbone of our criminal justice system. During the pandemic, they went above and beyond to keep the wheels of justice turning.
On the substance of the single justice procedure, I should first make it clear that a case dealt with under the single justice procedure is dealt with in the same way as any other case, except that a single magistrate can deal with it and, as we have heard, the hearing need not be in public. The magistrate must comply with the same legislative safeguards as all other proceedings, and the Sentencing Council’s sentencing guidelines apply in the same way. Importantly, as with the previous group, the single justice procedure is entirely optional. Also, all processes are reviewed regularly to ensure that it is easy to navigate and accessible. Following consultation, the single justice procedure notice has recently been revised to make it even clearer for users.
We have also worked closely with the media to ensure that this procedure is accessible and open, because justice in this country is public justice. While the criminal procedure rules require all courts to give certain additional information on individual cases upon request from the media and other interested third parties, courts are currently obliged to give more information on cases prosecuted under the single justice procedure. That would include the prosecution’s statement of facts and the defendant’s statement in mitigation if there was one.
In addition, a list of pending single justice procedure cases is published each day online and is available to the public. The media also receive a more detailed list of these cases so that they can report on them if they so wish. So, actually, the media receive more information about cases dealt with under this procedure than traditional proceedings, where they get the information only if they actually turn up to the hearing. As I am sure the noble Lord, Lord Ponsonby, would confirm, it is now quite rare that local newspapers turn up. So, far from reducing transparency, the online procedure actually increases it, and I am sure that everyone in the Committee would agree that that is a very good thing.
Lord Beith (LD)
I am grateful to the Minister. Does he think that he ought to consider the impact that would flow from removing local justice areas, when we already find that taking cases to the furthest point within a local justice area—because there is a particularly well-equipped courtroom there, say—means that magistrates are finding that most of the cases they will be asked to sit on are taking place 50 or 60 miles away? It is extremely difficult to recruit magistrates who are prepared to accept that distance, and it does not do much for local justice.
Lord Wolfson of Tredegar (Con)
Of course I accept that point as a matter of principle. That is why consultation is really at the heart of this. There has to be a balance. For example, there could be a case where you have a number of very disabled witnesses and a particular courthouse is more accessible for them than another one. There could be cases, as in the pandemic, for example, where some courthouses have been more easily adapted than others. But, as I hope I have made clear, we will make sure that there will be full consultation on this. But we want to build in the legislative flexibility to allow that to take place in cases where it is needed. If I may say—
Lord Falconer of Thoroton (Lab)
The legislative form that this is taking, in Clause 43(1), is:
“Local justice areas are abolished.”
The Minister referred to things on the edges, such as greater flexibility between areas and particular courthouses being suitable, all of which sound quite sensible. But it is very hard to think that that requires the wholesale abolition of local justice areas. Echoing what the noble Lord, Lord Marks of Henley-on-Thames, said, could the Minister tell us what consultation has taken place already and led to the conclusion that the solution to, and the right way to deal with, what appear to be problems around the edges is to abolish local justice areas altogether?
Lord Wolfson of Tredegar (Con)
First, the legislative architecture, so to speak, is not just Clause 43: I have already mentioned other statutory provisions that require consultation. There has been consultation on this, although I do not have all the details of it to hand. If I may, I will drop the noble and learned Lord a note setting that out.
I was just about to thank my noble and learned friend Lord Mackay, and I apologise for standing up when he was about to speak. I respectfully say that he summed up perfectly the balance that is required between the need for a local link and for flexibility when it is useful.
Finally, as the noble Baroness, Lady Chakrabarti, explained—I received the message—Amendment 37 essentially a probing amendment for me to explain what is going on. It would formally require an inquiry into the adequacy of the criminal courts in relation to women and girls. We are doing significant work in this area, both to improve the experience of women and girls in the criminal justice system—or, in some instances, the justice system more broadly—and to better scrutinise the agencies involved. As she said, a number of agencies are involved, and this is a cross-government issue.
We are already taking specific actions. I shall set out some of them now, although it is a non-exhaustive list. We know that pre-recorded cross-examination can help to improve the experience of victims, so we are rolling out the use of this measure, known as Section 28, for sexual violence and modern slavery complainants to all Crown Courts nationally. We have introduced a single source of 24/7 support for victims of rape and sexual violence. We are working with the police and the CPS to reform approaches to disclosure, and I am sure that the noble Baroness has heard the DPP talk about that in particular. In July last year we launched a violence against women and girls strategy that contained a number of commitments to keep women and girls safe. I will not read those into the record, but I know the noble Baroness is familiar with them.
On a cross-government basis, we have cross-system governance structures to hold criminal justice system partners to account. We published the first criminal justice system scorecard for adult rape in December last year. Publishing and monitoring that data will enable us to improve how adult rape cases are handled at each stage of the criminal justice system, focusing on key metrics such as—I apologise for using this phrase because I hate it, but it is the phrase that is used—“victim attrition”. It sounds terrible but we know what it means.
Finally, there are reviews and inquiries, similar to the one proposed in this amendment, already in place. On 5 October last year the Home Secretary announced the Angiolini inquiry to investigate the issues raised by the conviction of Wayne Couzens for the murder of Sarah Everard. Among other issues, the inquiry is looking at what police forces are doing to identify and deal with misogynistic and predatory behaviour.
In October last year, the Metropolitan Police announced that it had commissioned the noble Baroness, Lady Casey, to lead an independent review of its culture and standards following Sarah Everard’s murder. The review will assess the extent to which the force’s leadership, recruitment, vetting, training, communications and other practices effectively reinforce the standards that the public should expect. Finally, the Victims’ Bill consultation, which recently closed, explored how to amplify victims’ voices, improve the accountability of criminal justice agencies and generally improve support for victims, and we will of course be responding to that in due course.
I am very grateful to the noble Baroness for raising the issue. I hope she will forgive me for not mentioning everything in response, given that her amendment is a probing one, but obviously I can assure her that this is right at the top of our priorities across government. Formally, though, I respectfully ask noble Lords not to press their amendments.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank all noble Lords who have spoken in this debate. I have to admit that Amendment 54 provoked more comment than I was anticipating. I particularly thank my noble and learned friend Lord Falconer for his observations about the importance of local justice areas, and my noble friend Lady Whitaker for her experience of local justice areas. The same point was made by the noble and learned Lord, Lord Mackay.
I understand that there needs to be a balance between getting rid of artificial boundaries and recognising the importance of locality. While the point made by the noble Lord, Lord Beith, about rural local justice areas is absolutely right, where people have to travel a great distance, in a big conurbation such as London I personally feel very much connected to the area where I sit as a magistrate.
I want to add one extra point to this debate, which I understand will be going on, about the importance of the pastoral role of the Bench chairman. I sit as a chairman for the Greater London Family Panel, and quite literally every day I deal with pastoral matters for my magistrate colleagues. It is a very important role and one that my colleagues appreciate. I think it is important that that role should continue in some way, because it is a way of maintaining the morale of magistrates within a particular area. I beg leave to withdraw the amendment.
“and has received the advice of a legal representative prior to submitting a plea.”
Lord Ponsonby of Shulbrede (Lab)
My Lords, in this group of amendments we are dealing with offences triable either way and determining the mode of trial. I will go through all the amendments one by one and then make some rounding-up comments at the end.
In Amendment 31, the provisions in Clause 6 would apply only to persons charged with an offence who had received the advice of a legal representative prior to submitting a plea. In Amendment 32, the provisions in Clause 6 would apply only if the court had been provided with a physical and mental health of the accused, confirming that the written procedure would not impede the ability of the accused to understand or effectively participate in proceedings.
Amendment 33 would ensure that an accused person was informed about not only the consequences of giving or failing to give a written indication of a plea but the potential legal and practical consequences of pleading guilty. Amendment 34 would remove cases involving children and young people from the provisions of Clause 9. In Amendment 35, Clauses 6 to 9 would expire two years from when the Bill was passed, unless Parliament passed a resolution to retain those clauses.
Baroness Chakrabarti (Lab)
My Lords, I shall speak to Amendment 36 in my name. I also support Amendment 36A in the name of my noble friend Lord Ponsonby. I declare an interest as a member of the council of JUSTICE, the all-party law reform organisation, and a British agent of the International Council of Jurists, along with many other Members of the Committee and your Lordships’ House.
Notwithstanding the praise that we all rightly heaped on my noble friend and his fellow magistrates in the earlier group, I am a passionate believer in the right to jury trial. I suspect I am not alone in that in this Committee. Juries are not perfect; however, I have defended jury trial, sometimes against Governments of both stripes, for at least 20 years. I hope I do not need to rehearse for too long why it is such an important right. It is not just because people believe in it. People want to be tried for serious matters that will send them to prison for a long time and destroy their reputations, and lives in many cases, not just because they want to be convicted by their peers; it is also important for trust and confidence in the justice system that it is not always seen as primarily about more-deprived and working people in the dock being adjudicated over by middle-class professionals like this Committee. As a third point, my experience of people who have served on juries is that it is a really important part of public service and engagement that people from a broad range of communities can ideally participate in. It is a very important glue for our country and the rule of law. I hope that did not need rehearsing, and I will stop on it there.
I note that in more controversial debates, for example around the Human Rights Act and its survival or not, some of the Minister’s colleagues—and indeed the current Justice Secretary—have said that one of the ways in which the Human Rights Act might be improved on would be with greater entrenchment of the right to jury trial. That is said on the one hand yet, on the other hand, provisions are taken to extend the sentencing powers of magistrates, which is ultimately a significantly broad back door to undermining jury trial.
I understand that the Government are concerned about the backlog. I certainly understand that the backlog in the system has been exacerbated by the pandemic. But if the Government did not share some of my concerns, they would not have added the so-called off switch in the other place that is now to be found in Clause 13. I am concerned not just in principle because of my belief in jury trial, but in practice as to whether the measures in the Bill will actually do what the Government are hoping. First, will these measures really save 1,700 sitting days in Crown Courts by enabling 500 jury trials to be switched to magistrates? Is that really a credible figure? Even if it is, we think that it would represent a saving of only 1.6% according to recent courts service estimates. Secondly, there is a presumption that defendants will not exercise their right to opt for a jury trial, which they are more likely to do if the benefit of a lesser sentence is not a temptation to take the magistrates’ court option. Thirdly, I am really concerned about whether there will be sufficient and appropriate training for magistrates if we are to double their sentencing powers. That is the rationale behind Amendment 36 and, quite possibly—I will not speak for my noble friend Lord Ponsonby—part of the rationale for Amendment 36A as well.
Lord Pannick (CB)
My Lords, I express my support for Amendment 36A. When I was a member of your Lordships’ Constitution Committee we looked into the impact of the pandemic on the criminal courts. What was striking about our activity was the difficulty we had in extracting from the Ministry of Justice any valuable, reliable statistics on what was happening in the criminal justice system. To have a specific statutory obligation to produce data on this important subject is essential if Parliament is to know what the impact of these new provisions will be.
Baroness Whitaker (Lab)
My Lords, I support all the amendments in this group. My support comes from my experience as a magistrate, and I appreciate the endorsements of the role of the magistrate from all around the Committee. As those who frequent magistrates’ courts will know, they are places where invariably vulnerable and some other defendants are simply not able to understand or cope with the requirements of the legal system, as my noble friend Lord Ponsonby described, so effectively they do not have a fair trial. With regard to increasing the powers of magistrates in Clause 13, magistrates too are not experts, and that is partly the point of them. In my view, the safeguards in Amendments 35 and 36 would be very useful against inadvertent injustice.
Lord Falconer of Thoroton (Lab)
My Lords, I have very considerable concerns, which have also been expressed by the Delegated Powers Committee, about the Secretary of State being able in effect to double the length of time that a prison sentence can last in relation to both summary offences and either-way offences. How long a person goes to prison for as a result of a magistrates’ court sentence is a considerably important factor in determining which cases are tried by a jury and which are tried by the magistrates’ court. If there is to be a change in the powers of the magistrates’ court of this dimension, it should always be done by primary legislation and not by regulatory powers. I oppose the proposal that the Secretary of State could in effect double the sentencing power of the magistrates’ court and think that should be left to primary legislation. For that reason, I support the amendment tabled by the noble Baroness, Lady Chakrabarti.
Lord Deben (Con)
My Lords, as a non-lawyer, I have listened to much of this debate before and today and I think this Government are going too far in taking into ministerial powers decisions which should come before Parliament. This is another example of that. I do not want the Secretary of State to be able to do this without Parliament discussing seriously what it means. Parliament ought to be much tougher about its powers being taken into the Executive.
I was first elected to the other place in 1970. Since then, Parliament has become increasingly less powerful and increasingly the Executive have increased their power. I do not believe that the Secretary of State should have this power. I believe it should be Parliament. What is more, I believe that the public think it should be Parliament. Only with the consent of the public does the legal system work.
I usually come here to ensure that lawyers do not do things a bit on their own in legal matters, and I think I am the only non-lawyer here, but I wish to say—I apologise to the noble Lord, Lord Ponsonby, a fellow recalcitrant individual. It seems to me that we have to be much tougher about things that look small because, in aggregate, they become very dangerous, because the public will lose their belief in the fact that the legal system is independent except that it is dependent on the good sense of the elected Parliament and the House of Lords in ensuring that the Executive do not overstep the mark. I do not want this Government to overstep the mark in this or any of the other things they seem to wish to take unto themselves.
Lord Marks of Henley-on-Thames (LD)
My Lords, the first two amendments in this group, Amendments 31 and 32 from the noble Lord, Lord Ponsonby, would add requirements that an adult accused should have received legal representation and had a physical and mental health assessment confirming their capacity to understand the meaning and consequences of a guilty plea in order to participate in proceedings before the court seeks an indication of a guilty plea in writing. Amendment 33, also from the noble Lord, Lord Ponsonby, would require information to be given to the accused as to the consequences of a guilty plea. These are similar to some of the issues we have canvassed before this afternoon. But, again, I support the principle of these amendments. They are directed at the proposition that before a court proceeds to accept a guilty plea, it must be satisfied that the accused has full capacity and understands the consequences.
These are complex proposals, and the consequences of a guilty plea are challenging to understand. They may, for example, include the consequence of being committed to the Crown Court for sentencing under new Section 17ZB of the Magistrates’ Court Act 1980. It is important to understand how these points are going to be addressed in practice, and I hope the Minister will help us with that.
As for the next amendment from the noble Lord, Lord Ponsonby, I agree with him that taking a guilty plea from children, as proposed by Clause 8, is unacceptable, and I support him in opposing that clause and, consequently, in opposing Clause 14, which would, independently as well as consequently, water down the involvement of parents and guardians in child cases. That involvement is, I suggest, extremely important. There are two principal reasons for my opposition. First, it is extremely difficult to guarantee that a child of whatever age under 18 will fully understand the proceedings or consequences before giving an indication of a guilty plea. Secondly, a criminal charge often brings matters, risks and difficulties that are faced by particular children to the attention of the court when they attend court. That gives the court and other agencies an opportunity to address those difficulties, and that opportunity ought to be available and taken as soon as possible and before any question of indicating a guilty plea arises. For the same reasons, I support Amendment 34 in relation to Clause 9, which would permit allocation hearings in respect of children or young people to proceed in the absence of the accused. That does not seem appropriate.
These are difficult provisions for indicating a guilty plea in writing, and as I have said, it is difficult to see how they will work in practice. While they may prove to be inoffensive if introduced, the sunsetting provisions in Amendment 35 are surely sensible. If our concerns turn out to be groundless, Parliament can revisit the procedures on the basis of evidence of how they have worked out in practice and make them permanent or extend them. Otherwise, they ought to lapse after two years, as is suggested in the amendment.
I turn next to Clause 13, permitting the extension of a magistrate’s sentencing powers. I cannot, at the moment, for the life of me see why the noble Lord, Lord Deben, and the noble and learned Lord, Lord Falconer, are not right to say this is a matter that ought to be considered discretely and independently by Parliament, rather than having delegated powers enable the Secretary of State to increase magistrates’ sentencing powers at a later date by executive action. That does not seem appropriate, and no good reason has been advanced for why that should be right.
As to the threat to jury trial considered by the noble Baroness, Lady Chakrabarti, I share her belief that increasing sentencing powers is likely to lead to more, rather than fewer, defendants opting for jury trial. The greater sentencing powers of magistrates would lead only to defendants taking their chances with a jury trial rather than staying in a magistrates’ court, and forfeiting what has been traditionally the incentive to stick with the magistrates—that they are likely to impose a shorter sentence and unlikely to commit for sentence.
As a matter of principle, I am instinctively opposed to increasing the sentencing powers of magistrates. At the same time, along with many who have considered the evidence, we are strongly opposed to short prison sentences. Against that, there is a serious risk that a move to permit 12-month sentences, when previously six-month sentences were the maximum that could have been imposed, will increase the use of custodial sentences of a longer period where community sentences would be more appropriate. I find that a difficult issue to face. We should be concentrating on increasing the use of community sentences; and increasing magistrates’ powers to 12 months for a single offence is entirely wrong. But I wait to see how the Minister approaches this change and justifies it.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to all noble Lords who have taken part in this debate. It covers a number of different points, but, essentially, it focuses on the procedure for triable either-way cases and the recent announcement that the Government intend to extend magistrates’ courts’ sentencing powers from six months to 12.
Let me start with amendments to Clause 6 —Amendments 31, 32 and 33. They all seek to add further safeguards to Clause 6, but I hope to explain why the Government consider them to be unnecessary. I share the concern of the noble Lord, Lord Ponsonby, to ensure that defendants are able to seek legal representation in criminal proceedings at the earliest opportunity. The central point here is that a defendant is unable to proceed with the new online procedures without the support of a legal representative. That is because the online procedures we are dealing with here are made possible through the common platform, which is currently not accessible by individual defendants. So, as currently, legal representatives would be needed to access the platform, and they will then be able to help identify whether a defendant has particular vulnerabilities or does not understand the process even after explanation.
Defendants, as in a previous group, will be under no obligation to accept an invitation to proceed online. They can choose to discuss these matters at a traditional court hearing if they should so wish. Where a defendant fails to take up the offer of engaging online, the proceedings will simply default back to a normal court-based procedure. Furthermore, the court itself will be able to stop an online proceeding and call an in-court hearing if it has any concern or would like the defendant, for whatever reason, to attend court in a contested case. That would include cases where, for example, the court had concern about a defendant’s mental health or mental capacity, or where, for any other reason, the court considered online proceedings inappropriate.
Amendment 33 would require that defendants are informed about the real-world consequences of pleading guilty to a crime at court and what it could mean to get a criminal record. Of course, getting a criminal record is not something that should ever be taken lightly, but Clause 6 already ensures that the court must provide important information about the consequences of giving or failing to give an online indication of plea.
Where a defendant does decide to proceed with the online procedure, all the communication that would take place between the parties and the court to facilitate effective case management, which would otherwise take place in court, can take place online. A defendant will, for example, still be able to seek an indication of whether a custodial sentence would be likely if they were to plead guilty and were dealt with at the magistrates’ court. Further, any online indication of plea—and that is what we are dealing with, an indication of plea—will remain just that, an indication. A defendant is able to withdraw it at any time before their first appearance at a hearing in court. They will still need to enter a binding formal plea before the court at that hearing and any online indication of plea cannot be admitted as evidence in later proceedings. So I suggest that we have enough safeguards in place to ensure that defendants are appropriately supported.
Given that there has been some recent press coverage of the online procedure, I reiterate the important point I made earlier: the principle of open justice will be maintained for cases dealt with under this new online procedure. Magistrates’ courts will publish the result of these proceedings in the usual way and, and I said earlier, various measures in the Bill will actually mean that the press get more material here than they would from a traditional format.
Amendment 34 to Clause 9 would prevent the courts having a power to proceed with trial allocation decisions for children who fail to appear at their hearing without an acceptable reason and where it would have been in the interests of justice to progress the case. It is important that all cases, but particularly cases involving children, are progressed as expeditiously as possible, so that interventions to tackle offending are not delayed. This provision recognises that with the increased vulnerability of child defendants there will need to be additional safeguards.
Clause 9(5) creates a new, but clearly defined, set of circumstances that would enable a court to allocate a child’s case in their absence. A point to underline is that these conditions are far more stringent than those prescribed for adults, even though children cannot elect for jury trial.
There are essentially five conditions. The first is that the child has been invited, but failed, to provide an online indication of plea and that, in accordance with Clause 14, the court should, where appropriate, have made sure that the child’s parent or guardian was aware of the written proceedings. The second condition is that the child has then also failed to appear at the subsequent allocation hearing. The third is that the court must be satisfied that the child was served with adequate notice of the hearing or had previously appeared at a hearing and was therefore aware of the proceedings. The fourth condition is that the court does not consider that there is an acceptable reason for the child’s failure to appear. The fifth is that the court must be satisfied that it would not be contrary to the interests of justice to proceed to allocate the case in the child’s absence. There are a number of other existing safeguards—I will not go through them all—for example, when a child is arrested, the law requires that a parent or guardian must be notified as soon as possible. For prosecutions initiated by summons or postal requisition, the notice is also sent to the child’s parents or guardian.
Amendment 35 would add a sunset clause, which would essentially switch off the provisions in Clauses 6 to 9 two years after Royal Assent, unless Parliament passed a resolution to prevent it. I understand that the intention is to ensure that defendants are not disadvantaged, but I suggest it is unnecessary for three reasons.
First, as the Committee will appreciate, magistrates’ courts already have powers to allocate in the defendant’s absence. The online procedures are already used effectively in magistrates’ courts; we are simply extending the circumstances in which these powers can be used. Secondly, these measures do not replace current tried and tested procedures; they offer more options to defendants to save time and reduce the number of unnecessary appearances at court. If a defendant does not want to go online, the proceedings simply default to the usual court-based proceedings on their allotted hearing date. Thirdly, as I have said, there are safeguards to protect defendants who need protection, particularly children but also others, recognising that we have a distinct youth justice system.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I find myself in a somewhat invidious situation regarding Amendment 36. I thank the Minister for defending the position of the Government and I speak against my noble friends who questioned the increase in magistrates’ sentencing powers. Having said that, I accept the more general point—or more principled point, if I can put it like that—of the noble Lords, Lord Deben and Lord Marks, and my noble and learned friend Lord Falconer, that the changes should be done by primary legislation rather than in the way in which the Government are proposing to do it here.
I shall just make a couple of points regarding magistrates’ sentencing powers. Magistrates in youth courts sentence up to two years. I have done that once in 12 years as a youth magistrate. Magistrates in adult courts, for more than one either-way offence, can currently sentence up to 12 months. The difference is that it is on multiple offences that you get to the 12-month maximum, rather than on the single offence, which is the proposed amendment. I do that very infrequently: I could probably count on the fingers of one hand in 14 years as a magistrate when I have sentenced 12 months on multiple charges. It really does not happen that often. Nevertheless, the Minister made a fair point when he said that the Government will monitor the impact of this proposed change. I am sure that people will keep a very close eye on whether these sentencing powers are being used in any inappropriate way, but I really cannot see it happening. Nevertheless, I am happy for the Government to monitor the change. I beg leave to withdraw Amendment 31.
Lord Wolfson of Tredegar
“Power to make certain provision about dispute-resolution services
(1) This section applies to Online Procedure Rules which provide—(a) for the transfer by electronic means of information held for the purposes of an online dispute-resolution service to a court or tribunal, or(b) for a court or tribunal to take into account, for any purpose, steps that a party to proceedings has or has not taken in relation to an online dispute-resolution service.(2) The Rules may be expressed so that their application in relation to a particular service depends on things done by a particular person from time to time.(3) The Rules may, for example, refer to such services as—(a) appear from time to time in a list published by a particular person, or(b) are from time to time certified by a particular person as complying with particular standards.(4) In this section—“online dispute-resolution service” means a service accessible by electronic means for facilitating the resolution of disputes without legal proceedings;“particular person” and “particular standards” include, respectively, a person of a particular description and standards of a particular description.”Member’s explanatory statement
This new clause enables Online Procedure Rules to allow things done by third parties to determine the application of the Rules to particular online dispute-resolution services.
Lord Wolfson of Tredegar (Con)
My Lords, I am conscious that there is another amendment in this group, Amendment 39, in the name of the noble Lord, Lord Ponsonby of Shulbrede. I hope the Committee will find it helpful if I speak to my amendment and then respond in the normal way to the noble Lord’s amendment.
Both amendments relate to the new Online Procedure Rule Committee, OPRC, created by the Bill. Amendment 38 seeks to give, by way of a new clause, greater flexibility to the Online Procedure Rule Committee when it comes to establishing standards relating to dispute resolution conducted online before court proceedings are initiated. This will enable parties who try to resolve their dispute online prior to commencing legal proceedings to then transfer into the legal process in a seamless and efficient way if it proves impossible to resolve some or all of their dispute. The key point is that the IT processes will enable these pre-action dispute resolution processes to roll over into the online legal processes where that is necessary, saving parties time and cost in preparing a new claim. I am grateful to members of the Committee who have taken time to engage with me on this proposed government amendment.
Baroness Chapman of Darlington (Lab)
I shall quickly speak to Amendment 39, in the name of my noble friend Lord Ponsonby, which seeks some assurances from the Minister on how this will work in practice. We accept the good intentions of the Government in this, and we welcome Ministers making it clear that they understand that not everyone is going to be able to use online procedures and some may feel that assistance in starting or progressing their case is needed. We support the extension of digital procedures, but we think it is very important that users receive an equal service no matter which channel they engage through.
We know that, despite the best intentions of everybody involved, everyday pressures on the ground can sometimes conspire to make unavailable the assistance that, ideally, we would all like to see, or to not deliver it in an appropriate way. We have tabled this amendment because we want assurances from the Minister about provision for digitally excluded people. Research from Lloyds Bank indicates that some 16% of the population do not have the skills to participate digitally. I have colleagues on the Labour Front Bench whom I frequently assist with Divisions, so I do hope they never find themselves subject to these procedures. It is not always obvious, though, who is going to need this support—I am not going to name names. Those who, ordinarily, might be able quite easily to access services online might struggle when dealing with complex issues because they are at a time of extreme crisis in their lives. Others, I am sure, could take great advantage of being able to complete processes digitally. We need to be confident that we are not putting in place systems that leave some individuals disadvantaged.
In Committee in the Commons, there was a long discussion about this issue, whether the definition in the Bill of those who need support was sufficient, and whether paper-based processes should be available on demand. Can the Minister assure us that a user-centred approach will be taken at every stage and in every case, so that the means of engagement is always appropriate to the individual and is offered, rather than that which may be most convenient for the service provider?
I am slightly nervous about the emphasis on the service seeking to direct as many users as possible through primary digital channels and this becoming the priority for the service, even when an individual may not feel completely comfortable with that approach. I know that during earlier stages of the Bill, Ministers have been as reassuring as possible on these points, but we still need more reassurances about the practical reality. Perhaps the Minister can say how he intends to monitor implementation of these measures, so that we can make appropriate interventions should the need arise.
Lord Pannick (CB)
My Lords, the Minister rightly said that his Amendment 38 is a modest one, but this group of amendments raises more general concerns, as the noble Baroness, Lady Chapman, has just explained.
The noble Lord, Lord Deben, may be interested to know, in the light of his earlier observations, that Clause 19 gives the Minister a power to make rules that require that specified kinds of legal proceedings “must” be conducted, progressed or disposed of by electronic means. The Minister could say, in principle, that all cases in the Court of Appeal of a civil nature will not be conducted by oral hearings; they will disposed of by pressing a button on the computer, and the judge will then decide. That is quite a remarkable power, the noble Lord may think.
Lord Pannick (CB)
The Minister draws my attention to subsection (6), which allows a person to choose to do so by non-electronic means, but that is not easy to reconcile with the provision I have just referred to in Clause 19(1)(b). If the Minister can assure me that the person who is the litigant—either the claimant or the defendant—can always choose in all cases to have an oral hearing in the court, then I would be very pleased indeed to hear that.
When we debated provisions in very similar form in 2019 in Committee and, I think, on Report, the noble and learned Lord, Lord Keen, assured the House that the Government’s intention was to introduce online procedures only for civil money claims up to the value of £25,000. I ask the Minister whether that remains the intention of the Ministry of Justice. Does it have any plans to introduce these online procedures, including those covered by his Amendment 38, for any other civil proceedings?
Lord Falconer of Thoroton (Lab)
In relation to that point, it is absolutely plain that the wording of Section 19 applies to any sort of civil proceedings, including family proceedings. So it is plainly envisaged that this goes beyond simply money claims. Can the Minister describe the sorts of family proceedings that will be dealt with by the Online Procedure Rules and online processes? In particular, is it envisaged that this is to be restricted to the actual process, for example of getting a divorce or judicial separation, as opposed to proceedings that relate to the division of assets upon judicial separation or divorce, proceedings in relation to wilful neglect to maintain and any proceedings—in both private and public law—relating to children?
Secondly, and separately, I want to make a much more minor point. I understand that one of the things the Master of the Rolls has in mind in relation to Amendment 38 is that dispute resolution services must be used before, or as part of, the online process. The services envisaged by the amendment will themselves be online, so purveyors of online dispute resolution services will become quite significant players in the civil justice system, and perhaps in the family justice system as well. The rules may include a provision that the goodness or quality of those services can be
“certified by a particular person as complying with particular standards.”
To be helpful, in a way, the amendment says that
“‘particular person’ and ‘particular standards’ include, respectively, a person of a particular description and standards of a particular description.”
Can the Minister indicate who will determine whether the online dispute resolution services, which may become something that you as a litigant must engage with, meet an adequate standard? Will it be a judge, an official or some independent body? I would be interested to know what the Government’s intentions are in relation to that.
Lord Pannick (CB)
My Lords, I am sorry to rise again, but I want to respond to what the Minister was indicating to me: that, under Clause 19(6), it would be open to a litigant in civil proceedings to choose not to proceed by electronic means even if the rules otherwise so required. What Clause 19(6) actually states is:
“Online Procedure Rules must also provide that, if the person is not legally represented, the person may instead choose to do so by non-electronic means.”
As I understand it, this means that, if the claimant or defendant is legally represented, they can be compelled to proceed by electronic means. So, if the Minister were ever to return to the Bar, which would of course be a great loss to Parliament, and were I to have the pleasure of appearing against him in a case in the High Court, the Court of Appeal or the Family Division, the Lord Chancellor could, by rules, specify that those proceedings are to be conducted by electronic means and that the normal course of advocacy in court—I of course declare my interest as a practising barrister—would not take place. That is why I am particularly concerned that the Minister can assure the House that the ministry has no intention of applying these rules to the Family Division, the High Court and the Court of Appeal other than in small claims cases—that is, cases involving sums of up to £25,000—which is what the noble and learned Lord, Lord Keen, told the House in 2019.
Lord Marks of Henley-on-Thames (LD)
My Lords, I will speak first to government Amendment 38, which makes provision for pre-action dispute resolution services and procedures to be taken into the overall procedure within the Online Procedure Rules. In principle, we particularly welcome this recognition of the importance of alternative dispute resolution procedures in the civil justice context. We accept the Government’s point that it is even more important in the context of online procedures, where modernisation and simplicity of approach are at the forefront of the Government’s aims, than it is in the context of conventional procedures to make provision for online alternative dispute resolution procedures to be brought into the overall picture.
However, what is proposed is a power only; it is not even really a template, as the noble and learned Lord, Lord Falconer, pointed out, although not in those words. We simply stress how important it will be, in the context of the Online Procedure Rules, to integrate the arrangements to facilitate ADR into online procedures in a clear way. The noble and learned Lord pointed out particular areas where the provisions were very unclear about who would be responsible for those procedures and how they would be authorised, but I would welcome clarification from the Government as to how they propose to proceed in that regard.
Amendment 39 on online procedural assistance in the name of the noble Lord, Lord Ponsonby, which was moved by the noble Baroness, Lady Chapman of Darlington, and to which I have added my name, is comprehensive. At its heart is the aim in proposed subsection (1) of introducing a statutory duty to provide assistance to those who need help navigating online procedures. That is an adjunct to the importance attached to them in the Bill itself. We of course accept that the Government intend to ensure the availability of assistance with the new procedures and we welcome the introduction of these online procedures. We were also reminded by the noble Lord, Lord Pannick, of the limitations of the procedures that the noble and learned Lord, Lord Keen, promised when he was Advocate-General and we last debated these procedures. Our concern is that what the Bill proposes is very much wider and could, as the noble Lord, Lord Pannick, pointed out, cover family proceedings, proceedings for injunctive relief—almost any proceedings of whatever magnitude. However that might be, the importance of online assistance becomes greater with the importance of the proceedings to the parties.
The noble Baroness, Lady Chapman, talked about digital exclusion by virtue of skills, but it is not only a question of skills. She is absolutely right that many people are unable to handle digital technology through age, disability or vulnerability, as well as, of course, through lack of education or simply not having kept up with advances in technology. There is also the lack of availability of fast broadband and an inability to access the internet in the way those of us who live in areas of fast broadband are becoming completely used to. There is the availability of technology and computers. The answer might be that people can go to their local library, but for many people in rural areas, local libraries are very distant and lacking in decent equipment. It is not enough to say that anybody can access a computer.
That ties in with the financial abilities and means of people who may be litigants. If they do not have the equipment, as well as not having the skills, they cannot access it. For us, the cardinal principle is that no one, however unable to access digital procedures without help for whatever reason, should be disadvantaged by the new procedures. That can only be answered by a duty upon the Lord Chancellor to provide digital and online assistance. There needs to be assistance to a sufficient level that every litigant understands the procedures and how they are to be implemented and is able to have personal, telephone or remote appointments, whatever is necessary, to enable them to participate in procedures at every stage online. As per our amendment, this also means assistance with language in terms of interpretation or translation for those for whom English is not their first language.
An important part of our amendment is the prescription of an annual evaluation of online procedural assistance and the collection of information about how it is proceeding. I add only this: we are concerned to see that it will remain possible to take all steps in proceedings by paper means. This has been promised by the Government, as the noble Lord, Lord Pannick, pointed out. I am confident that the number of those requiring step assistance by paper proceedings will reduce as time passes. However, the ability to take all steps on paper, at any stage, must remain. This is essential to honour the fundamental principle of our justice system that we preserve universal access to enable people to enforce and defend their rights.
Lord Wolfson of Tredegar (Con)
I will first say a word about the amendment which I have put before the Committee. Dispute resolution is fundamental, and it is becoming ever more important. Although the noble Lord, Lord Marks, referred to alternative dispute resolution, as he may have heard me say before, we have sought to drop the “A”. We do not call it ADR anymore, we call it DR, because we do not see it as alternative, like alternative medicine. I can see my postbag about to grow, but I am going to say it anyway: alternative medicine is sometimes seen as somewhat outré and whether it actually works is questionable. Dispute resolution is not unusual; it is now a central part of resolving disputes and we know that it works. We want to ensure that people who engage in dispute resolution can do so online and—I will come to the point made by the noble Lord, Lord Pannick, in a moment—that they can also vindicate their legal rights online when it is appropriate to do so. I give the example that I have given before: there is a small trader who has a debt of £13,000 and the hearing is going to last for 90 minutes. Do we expect that person to take a day off work and go to the local county court and hang around when, instead, they could continue their job and—I was going to say “dial in” for the benefit for the mystery person on the Opposition Front Bench—go online, engage in the court hearing and vindicate their legal rights.
I will come back to the safeguards in a moment. Properly used, the online procedures are a way of enabling people to vindicate their legal rights. In justice, like in many other parts of our society, we have been forced to go online more during the pandemic and we have seen that it can work. The noble Lord, Lord Pannick, talked about when I was previously at the Bar. Before I joined your Lordships’ House, I had to take a three-week trial entirely online. That trial could not—and probably would not—have taken place five years ago, but it took place online. I accept that it was a commercial case, and I will come to the points about family and other cases a little later. However, these proceedings and the Online Procedure Rule Committee are focused on ensuring that the civil justice system can respond to, and is appropriate for, the sort of world in which we now live.
Having said that, the noble Baroness—
Lord Marks of Henley-on-Thames (LD)
I am sorry to interrupt the noble and learned Lord and am grateful for him giving way. May I draw him back to Amendment 38? I completely accept and take on the chin his criticism of my use of the word “alternative”, but I used it as a distinction from procedures by court. I understand his Amendment 38 to be concerned with out of court procedures, with what I used to call “alternative dispute resolution” procedures, but never will again. Nevertheless, it is concerned with integrating, as I understand it, dispute resolution procedures organised by third parties, which are not applicable to the example that he gave of having your rights vindicated by reference to the procedures that are allowed by Clause 19 of having court procedures online, which is slightly different.
Lord Wolfson of Tredegar (Con)
The noble Lord is absolutely right, but I was seeking to make the point more broadly. I will come to the court procedures, but the noble Lord is right: Amendment 38 seeks to ensure that, when people go to pre-court dispute resolution—I think everybody in the Committee wants to encourage that—if the case does not settle in whole or even in part, they can seamlessly transition to the online court procedure. They do not have to repopulate forms or send in new documents. Of course, I emphasise the mediation bit of it remains without prejudice, obviously, that is fundamental to mediation. Amendment 38 is to ensure that there is a set of protocols, essentially, to make sure that we can have that seamless transition. It is part of enabling people to vindicate their legal rights, either by way of an out of court settlement, with which they are satisfied, or by migrating into the online court space.
Lord Thomas of Gresford (LD)
May I assist the Minister with an illustration? Four weeks ago, a close relative was owed a significant sum of money and used dispute resolution procedures. He filled in a claim form online, and the debtor filled in a claim form also online. There was a half-hour hearing on the telephone with a judge who reserved his judgment and fortunately found judgment for my relative very quickly after. It shows that it can be done. In that sort of circumstance, it saves days of problems in filling out written documents and attending at court.
Lord Wolfson of Tredegar (Con)
I am grateful to the noble Lord for his intervention. Absolutely, this is about enabling people to vindicate their legal rights. The Government are conscious—we put a clause in the Bill specifically for this reason—that we need to safeguard those who cannot get online, either because they do not have proper broadband or proper facilities or because they are incapable for whatever reason of using computers.
I anticipated that it would be the noble Lord, Lord Ponsonby, who spoke, so I apologise to the noble Baroness, Lady Chapman for that. She made absolutely the right point. We agree that assistance may well be needed. Although we do not accept Amendment 39, that is because the Bill already places a duty on the Lord Chancellor to arrange for such support. Extensive measures, which I will mention, have been put in place to make sure that assistance is provided to those who need it. We need to distinguish between online procedures, that is, the form-filling applications, and an online hearing. The two things are quite different.
So far as online procedures are concerned, I recognise that some users may find it difficult to use digital services. Therefore, I should make it absolutely clear that there will be no change in the current options to use paper forms and processes. As the noble Lord, Lord Marks, says, the cardinal principle is that nobody will be disadvantaged.
For those who choose to conduct proceedings using paper routes, they will be available in the same manner as at present. At HMCTS, we are improving and streamlining the paper routes and are committed to making sure that the level of service is the same no matter whether litigants are engaging with the justice system through online or offline routes. We will therefore be offering substantial support for those who want to use online routes and who can do so with support.
Lord Falconer of Thoroton (Lab)
I am increasingly bewildered by these answers. I have obviously misunderstood this clause, but it says that the rules
“may authorise or require the parties … to participate in hearings, including the hearing at which the proceedings are disposed of, by electronic means.”
I thought that meant you could have rules that said this sort of case has to be dealt with at an electronic hearing, which does not give the judge a discretion. Is it the position that this is all subject to an overarching discretion in a judge to say that the hearing can be dealt with in person?
Lord Wolfson of Tredegar (Con)
That is the point I was going to come to. Here we are dealing with the rules set out by the Online Procedure Rules Committee. That is not the Lord Chancellor. I want to show the Committee that the Online Procedure Rule Committee is set out in Clause 22, and in the usual way it is a committee which is not run by the Government but is run in the way that the procedure rule committees are run, which is ultimately under the control of the judiciary. The central point is that ultimate control rests with the judiciary.
As I understood it, the point made by the noble Lord, Lord Pannick, was that two safeguards are in place in relation to the powers to make amendments in Clause 27, which states:
“The Lord Chancellor may by regulations amend, repeal or revoke any enactment to the extent that the Lord Chancellor considers necessary or desirable in consequence of, or in order to facilitate the making of, Online Procedure Rules.”
I cite—this goes back to a point made by the noble Lord, Lord Pannick, in relation to a different issue—subsection (3), which is a consultation requirement with the Lord Chief Justice and the Senior President of Tribunals, and subsection (5), which states:
“Regulations under this section that amend or repeal any provision of an Act are subject to affirmative resolution procedure”.
I suggest that that is very important. So the architecture here means that, ultimately, judges retain control, in practice, of what is heard online and what is heard in court.
However, there will be increasingly firm directions and defaults as to what is heard online and in court— I make no apologies for this. In my own area, the Commercial Court, although you can ask for an in-person hearing if there is a good reason, it is now the default that, if you have an application for half an hour or one hour in front of a judge, it will be online, because that saves time and money and provides access to justice.
On family courts, which the noble and learned Lord, Lord Falconer of Thoroton, asked about, I had discussions very recently with the President of the Family Division about this. Again, this is ultimately a matter for the judges, but he was saying that it is actually better to have certain hearings online. For example, if everything has been agreed between the parents and it is essentially a consent hearing, that will be done online. I am sure that it would be inconceivable that a public law family hearing, for example, where the court is taking a child away from parents, would be done online. But, ultimately, that is a matter for the judges.
I regret that, during the pandemic, there were cases where that had to be done, unfortunately, because of the need to protect children—because, when push comes to shove, protecting children is more important than having a face-to-face hearing. But, in normal circumstances, one would certainly expect that that sort of hearing would be face to face—but that is not a matter for Government Ministers or the Lord Chancellor.
These provisions seek to set up the Online Procedure Rule Committee, which will have the same sorts of powers for online procedures as the current rules committees have for the current procedures, whether that is the Family Procedure Rule Committee, the Civil Procedure Rule Committee, the Criminal Procedure Rule Committee or the rules committee for the Court of Protection—there are a number of different rules committees—
Lord Pannick (CB)
My concern is not about online hearings, because they do take place and may be convenient in some circumstances; it is that Chapter 2 allows for no hearings at all. It allows for legal disputes, if the Online Procedure Rule Committee so authorises, to be conducted entirely electronically, which means by the submission of arguments in writing. The Minister really needs to recognise that that is authorised by Clause 19. He says that this is only if the independent Online Procedure Rule Committee so decides, but will he accept that, under Clause 22, that committee consists of three people who are appointed by the Lord Chief Justice and three people who are appointed by the Lord Chancellor, so the Lord Chancellor has a very considerable influence over the composition of that committee?
The Minister may be coming to this question. Does it remain the intention of the Government—who clearly have a very influential role in this—that these provisions should be used only for money claims up to £25,000? The origin of that origin, as the Minister will confirm, was the report of Sir Michael Briggs, now Lord Justice Briggs. He investigated these matters and proposed a £25,000 limit which would always apply to this category of case. There would be no hearing. It would be conducted entirely electronically—although perhaps, in exceptional cases, the judge would have a discretion to decide that the matter would be conducted in an oral hearing.
Lord Wolfson of Tredegar (Con)
I am grateful to the noble Lord. He is absolutely right about the three/three appointments, but I would respectfully direct his attention to two features of Clause 22. First, whom the Lord Chancellor can appoint is circumscribed by subsection (4). One of the three has to be a barrister, solicitor or legal executive. The second must have
“experience in, and knowledge of, the lay advice sector”.
The third is somebody
“who has experience in, and knowledge of, information technology relating to end-users’ experience of internet portals.”
The second safeguard is in subsection (7):
“Before appointing a person under subsection (4)(a)”
there is a requirement on the Lord Chancellor to consult with
“the Lord Chief Justice … the Senior President of Tribunals, and … the relevant authorised body.”
So this does not enable the Lord Chancellor just to appoint three friendly faces—although I am sure no Lord Chancellor would do so. They must be people with a particular expertise, and there is a consultation requirement. I accept that the Lord Chief Justice, the Senior President of Tribunals or the authorised body do not have a veto, but, in the real world, it will ensure that we have proper people on the committee.
If I may, I will come back to the £25,000 point in a moment. I am conscious that I want to finish giving the Committee an assurance about assistance, so I will finish this point and then come back to the £25,000 point.
The assistance currently provided by HMCTS is offered over the phone through our Courts and Tribunal Service Centres. HMCTS has also designed and tested a digital support service to ensure that access is available even for those who need more intense support. The contract was awarded to We Are Digital in late 2021. We expect full national coverage by the late spring of this year. Users will be able to attend in-person appointments. It will also be possible for a trainer to attend an applicant’s home for in-home, face-to-face support. If the noble Baroness passes to me confidentially the name of the relevant individual, I might even be able to arrange a home visit. One-to-one video appointments will also be available for those who already have access to online services, as well as the support over the phone. Therefore, I believe that this level of support, combined with the duty in the Bill, is enough to ensure that the digitally excluded receive the support that they need.
Finally, I turn to the outstanding question from the noble Lord, Lord Pannick. I have been able to check while I have been on my feet. The position is that the legislation is not limited expressly to those claims. I am told that they are first in line to be used under these procedures. The noble Lord’s question went further and asked what was anticipated would be done after that. I will write to the noble Lord once I have an answer which I am satisfied is absolutely clear. I am concerned to make it very clear to the Committee that civil justice in particular is going to change. It has changed and it will change. For example, there does not seem to be any clear reason why a claim of £25,000 would be done online and not one of £26,000. One always has to have a limit but, once we accept that justice can be delivered online, the question then is what cases are suitable. I will write to the noble Lord on that.
Lord Falconer of Thoroton (Lab)
The relative of the noble Lord, Lord Thomas of Gresford, is the proof that we all want. We are also aware that the judges will have an incredibly important role in determining the rules. The fact that the judges will have an important role in determining the rules does not mean that Ministers should not tell Parliament what the Online Procedure Rule Committee has in mind. We should expect to be told, for example in relation to money claims, whether, if £25,000 is okay online, £25 million is okay online and required to be online. If that is the vision, tell us, so that Parliament can properly debate it.
In relation to family matters, I am hugely unimpressed by the Minister referring to consent orders, because almost every consent order now is already dealt with online, in the sense that it will be dealt with by emails. We should be told if it will go beyond the sorts of things that I referred to earlier—not because we will necessarily object to it but because we can then debate it. Of course, we are as keen as he is to go towards the future, but we would like to know what the Government’s view of the future is. If the Minister wants to write to us, that is fine, but on Report this might be quite important.
I will say just one more thing. I probably missed it, but I am keen to know who these people were who were going to approve the dispute resolution alternatives to court that are referred to in Amendment 38.
Lord Wolfson of Tredegar (Con)
Let me deal with that last point. Amendment 38 is not about approving the persons but approving the process. For example, the Online Procedure Rule Committee will say, “This is the protocol” and there will be Wolfson Mediation Services and Falconer Mediation Services and people can choose in a market who they go to. Of course, those services which offer seamless transition to the online courts service are likely to be better placed in the market, because they will have an advantage. However, it will be up to the providers to set up their services so that people can seamlessly transfer in. The Online Procedure Rule Committee will set up the protocol, so that you know what you are aiming at and the way that you must set up your online procedures so that, if the case does not settle, the data can transfer into the court process.
Lord Falconer of Thoroton (Lab)
What is envisaged in Amendment 38 is that, if it is Falconer Services or Wolfson Services, somebody has to say that they are okay. Who will be saying whether those services are okay?
Lord Wolfson of Tredegar (Con)
That is not what Amendment 38 is aimed at. It is not about accrediting mediation services. It is about saying to mediation services, “If you want people who are using your services, if the case does not settle, to be able to integrate seamlessly into the online court space, these are the protocols to do it”. It is a process point, not a mediation accrediting point. There is a separate issue out there about accrediting mediators. The noble and learned Lord will be aware that there are a number of entities that seek to accredit mediators. There are also a number of bodies such as CEDA in that space. That is an important issue but a separate one to the point of Amendment 38.
I will write about what is online because this is a much bigger point than the Online Procedure Rule Committee. Ultimately judges—I emphasise this point—decide what is online and what is not. At the moment, judges decide whether you get a hearing at all. As the noble Lord, Lord Pannick, will be aware—to give an example from my background, but it appears in other areas of the law as well—if you appeal an arbitration award to the commercial courts, the judge may say no without giving you a hearing at all, either because you do not pass the permission threshold or because you do but the judge decides to have the hearing on paper. There is therefore no substantive difference between that and what is proposed here.
As to what the Online Procedure Rule Committee will do, I am afraid I will not be able to assist the Committee because the Online Procedure Rule Committee has not been set up yet; there are no people on it and it does not exist. This legislation sets out what the Online Procedure Rule Committee will be looking at. I will, however, look again at what the noble Lord, Lord Pannick, has said, and I will write if I can.
Lord Pannick (CB)
I am very grateful to the noble Lord. He correctly points out that there are occasions where there is no oral hearing and the judge so decides. Would he not accept, however, that there is a fundamental difference between that and a decision being taken, at the encouragement of the Master of the Rolls and certain others in the legal profession, to do away with oral hearings in categories of case because it is quicker and cheaper to do so?
The noble and learned Lord, Lord Falconer, has made the point but I join with him; it would be a matter of policy and of great significance were a decision to be taken by the Online Procedure Rule Committee that, for example, all civil claims for money are no longer to have oral hearings but to be determined on paper. There need to be some criteria for the exercise of these very broad powers that Parliament is conferring. There is no parliamentary approval of these new rules as I understand it, so it is a matter of enormous concern.
Lord Wolfson of Tredegar (Con)
With respect, of course I understand the point the noble Lord has made, and I will write to try to put a little more flesh on the bones. The last point he makes is in some ways perhaps the most important because I have seen two sides of this coin. The point the noble Lord has just made is that Parliament should have the final say on court procedures because, ultimately, it should not be for judges to decide whether you have a hearing; there should be a parliamentary override.
In a completely separate issue that I have been dealing with, child trust funds, I have sought to have a better procedure in the Court of Protection. It has been quite properly and very firmly pointed out to me that, ultimately, it is a matter for judges, not Ministers or even Parliament, to decide how the courts are run. This is a difficult topic. I take the point the noble Lord has made. I will write to him and the noble and learned Lord, Lord Falconer, and copy it generally to the Committee.
Baroness Chakrabarti
“(4) After subsection (2), insert—“(2A) The coroner is not to decide that the investigation should be discontinued unless—(a) the coroner is satisfied that no outstanding evidence that is relevant to the death is available,(b) the coroner has considered whether Article 2 of the European Convention on Human Rights is engaged and is satisfied that it is not,(c) there are no ongoing investigations by public bodies into the death,(d) the coroner has invited and considered representations from any interested person known to the coroner named at section 47(2)(a) or (b) of this Act (“interested person”), and(e) all interested persons known to the coroner named at section 47(2)(a) or (b) of this Act consent to discontinuation of the investigation. (2B) If a coroner is satisfied that subsection (1) applies, and has complied with the provisions at subsection (2A)(a) to (d), prior to discontinuing the investigation, the coroner must—(a) inform each interested person known to the coroner named at section 47(2)(a) or (b) of this Act of the coroner’s intended decision and provide a written explanation as to the reasons for this intended decision,(b) explain to each interested person known to the coroner named at section 47(2)(a) or (b) of this Act that the investigation may only be discontinued if all such interested persons consent, and(c) invite each interested person known to the coroner named at section 47(2)(a) or (b) of this Act to consent to the discontinuation of the investigation.””Member’s explanatory statement
This amendment would ensure that certain safeguards are met before a coroner can discontinue an investigation into a death and that family members and personal representatives of the deceased are provided with the coroner’s provisional reasons for why the coroner considers that the investigation should be discontinued, helping ensure that family members make an informed decision as to whether to consent to the discontinuation.
Baroness Chakrabarti (Lab)
I am conscious that the Committee is valiant and well into the third hour of today’s proceedings; nevertheless, the next is a very important group. We are now in Chapter 4 and we are not talking even about £25 million; we are talking about life and death, bereaved families and the vital work of our coroners’ courts. We are talking about provisions that will broaden the circumstances in which coroners may discontinue their investigations. We are talking, once more, about the power to hold inquests on the papers, in writing only, and we are talking about the wider use of remote hearings. Amendments 40, 42 and 43 are in my name and I am honoured to share those with my noble friend Lord Ponsonby and maybe even my noble friend Lady Chapman of Darlington as well—I am doubly honoured. I also have the support, I am delighted to say, of the noble Lord, Lord Thomas of Gresford, for the Liberal Democrats.
Further amendments in this group are about providing an appeals process for families who disagree with discontinuance, about ensuring that there are no audio-only inquests, even within the class of remote inquests—no telephone or audio-only inquests—and to ensure that remote hearings are still accessible to the public. Amendment 53 ensures pre-implementation consultation before the remote inquests come into effect. The noble Lord, Lord Thomas of Gresford, supported by his noble friend Lord Marks of Henley-on-Thames, has a very important amendment to ensure a right of address for bereaved families. I do not see the right reverend Prelate the Bishop of St Albans in his place, but he may appear in the way that only the Lords spiritual can, and his Amendments 50A and 50B contain important provisions in relation to cases of death by suicide. The indefatigable Minister will speak to his provisions on the register of deaths, which will be important; there are things to tidy up there where an inquest has been discontinued.
I turn to Amendments 40, 42 and 43 in my name. Amendment 40 is about ensuring vital safeguards before a coroner can discontinue an investigation into a death. I hope I do not need to go into too much detail about why safeguards are important in such a scenario, but these include ensuring that family members and personal representatives of the deceased get at least a provisional indication of why this is to be the case, so that they can evaluate whether they support the discontinuance of an inquest. Amendment 42 ensures that inquests will not be held without a hearing—in other words, not on the papers only—if this is against the wishes of the bereaved family. Amendment 43 ensures safeguards before there can be a remote hearing, including by giving interested persons the reasons for that judgment.
I say to the Committee that we need to remember the position that bereaved families, in particular, and other interested parties are in when there is an unexplained or unnatural death. I commend the briefing that will have been provided to, I hope, all members of the Committee by the NGO Inquest. It has done vital work in this area for many years. I remind the Committee that legal aid is not available to these families, and it has often been inquests, over the years, that have been the sole source of support and advice to them. Sometimes these will be deaths in custody, deaths in hospital or deaths in other circumstances where people were very vulnerable and looked after, especially by the state to begin with, before that unnatural and unexplained death happened.
Lord Thomas of Gresford (LD)
My Lords, the office of the coroner has evolved over 1,000 years since William the Conqueror introduced it. There were too many dead Normans lying about attacked by Saxon villains. The coroner inflicted a fine called murdrum on a community where a dead body was found. The deceased was presumed to be Norman under the presumption of Normanry, unless the community, by the presentment of Englishry, could avoid the fine by showing that the deceased was English, in which case it did not matter.
The problem is that traces of these ancient procedures continue to dog the present and to provide cover to government not to recognise the realities of coroners’ proceedings today. Coroners today will tell you that their duties are confined to determining who the deceased was and how, when and where they came by their death. But it is not as simple as that. The thread that runs through this chapter on coroners in this Bill is the lack of concern for the interests of the bereaved, particularly the involvement of the family. The Commons Justice Committee reported last year, and Section 3 of its report is entitled:
“Putting bereaved people at the heart of the Coroner Service”.
This Bill does not even begin to do that.
The evidence given at an inquest and the decision of the coroner or a coroner’s jury has many consequences. When the family of the deceased arrive at the coroners’ court, they will frequently find that skilled advocates are representing a hospital, the police if there has been a death in custody, the insurers of a potential defendant in a road accident or insurers where there may be defects in a stadium, a block of flats or other structure. The evidence given on oath before the coroner may be crucial in determining an allegation of assault or negligence or, where the suggestion is suicide, whether life insurance will be paid out to the dependants. A finding in a coroners’ court frequently determines whether the dependants of the deceased can settle a claim for compensation quickly and without stress or whether they have to go through the agony of a court case.
I turn to Amendment 40. Currently, as the noble Baroness, Lady Chakrabarti, said, the coroner can discontinue an inquest only after the results of a post-mortem have been delivered to him unless he suspects a sudden and violent death or a death in the custody of an organ of the state, such as the police. Clause 38 of this Bill now extends his discretion to discontinue by the use of wide words: if the
“cause of death becomes clear”
before inquest. Under this Bill, all the family receive is a statement of reasons. The purpose of this amendment is to ensure that, before the coroner makes his decision to discontinue, he has made all proper inquiries, and ensured that there are no ongoing investigations into the death, such as a hospital inquiry, and crucially that the family have been given the opportunity to make representations and actually consent to the discontinuance.
I think the Explanatory Notes are disingenuous when they suggest that an inquest adds to the distress of the bereaved family. Certainly, there is distress, but a decision to discontinue, taken above their heads and without their participation and consent, may very well cause much greater distress.
I come to Amendment 41. We are all aware of the struggles of many families to obtain an inquest through the courts by way of the discretionary remedy of judicial review. Amendment 41 provides for rules to establish an appeals process for those who disagree with the decision to discontinue. To succeed in the Bill as currently drafted, they would have to establish that the cause of death is not clear. What does that mean? What may seem clear to the coroner may not be clear to the family at all. If Amendment 40 is carried, the need for appeal would be considerably lessened since all interested persons known to the coroner would have been notified of his intention to discontinue prior to the inquest and would have consented to it. Appeals could then be brought only by interested persons who had been overlooked. That is possible but very rare.
I turn to Clause 39 and Amendment 42, where the theme continues. The decision of a coroner to determine that a hearing is unnecessary and may be determined in writing should also involve the consent of the bereaved: put the bereaved at the heart of the coroners service. Proposed new subsection (2)(a), to be inserted by Clause 39(2), requires the coroner to invite representations from known interested parties before he makes his decision, while (2)(b) deals with situations where no representations have been made and (2)(c) deals with situations where there is a disagreement between interested parties. That is what the Bill talks about, but nothing is contained in the clause about the position where all the interested parties oppose the coroner’s notification of his intent to determine the issues in writing on the papers, much less a requirement that they all consent. Amendment 42 would deal with those omissions.
Amendment 43 to Clause 40 again seeks to involve the family in the decision to hold remote inquests. First, they should consent. Secondly, the coroner should be assured that such a hearing is in the interests of justice, in particular that the issues are not too complex and interested persons are able to use to technology involved. Thirdly, the coroner should give his reasons in writing. However, a remote hearing has this disadvantage: the family are not open to the support services that would be available at a live hearing. The Commons Justice Committee recommended at paragraph 66 of its report that
“local volunteers in the Coroners’ Courts Support Service”
use their skills to assist the bereaved and commented that that service is not centrally funded, nor available everywhere.
Amendments 44 and 45 emphasise the public interest in inquests. If held remotely, they should not be held simply by telephone and absent the public. The rules require that inquests be held in public, except for reasons of national security.
Amendment 50, after Clause 42, is an amendment in my name to delete Rule 27 of the 2013 rules, which states:
“No person may address the coroner or the jury as to the facts of who the deceased was and how, when and where the deceased came by his or her death.”
I have been present at a number of inquests and have always found this to be quite extraordinary. Deborah Coles, the director of Inquest, told the Justice Committee about her experience of a culture of “defensiveness” on the part of public bodies:
“Very often, those lawyers are working as a team to try to reduce the scope of the inquest, to try to limit the number of witnesses or argue against questions being left to a jury, if indeed there is one, or argue against a coroner making a prevention of future death report … There is much more concern for reputation management, rather than a meaningful search for the truth.”
In my experience, it is much the same with employers who seek to limit their liabilities. “Well,” you might say, “so much the better if they cannot address the coroner.” However, they often make submissions on facts dressed up as submissions on process. Where both sides are represented, the coroner should be helped by submissions made by both sides to clarify issues of fact and make points about the evidence that has been heard; those points may be crucial to the issue of liability. Whether both sides are represented and there is equality of arms is a matter that we shall come to in the debate on the next group.
Lord Beith (LD)
My Lords, I agree with many of the points my noble friend has made. He made a particularly forceful point about addressing the jury at an inquest. It seems an absurdity that the law is in that state; I will come back to the encrusted historical nature of the law on coroners in a second.
I will add to what my noble friend said, although it might seem a slightly conflicting point. It is simply that the circumstances can be very different in so many of these cases. From my experience of inquests and dealing with families going to inquests, I have often come across the circumstances so vividly described by the noble Baroness, Lady Chakrabarti, of those who do have any equality of arms and are dealing with a major public sector body or a private organisation with great resources. There are other families for whom an inquest is just another liability they do not want at a time of maximum grief. If there are no grounds for holding an inquest or drawing them into that procedure, we do not want to make life more difficult for them at a time of very real grief.
Lord Falconer of Thoroton (Lab)
I strongly agree with the noble Lord, Lord Beith, but I understand that he does not contest any of the propositions put forward by my noble friend Lady Chakrabarti and the noble Lord, Lord Thomas of Gresford. They are dealing with cases where people are desperate to find out what happened and want a proper hearing.
I underline the point made by the noble Lord, Lord Thomas of Gresford, which is that the key issue here will be in the next group dealing with the provision of legal aid, where appropriate, in cases where there is a dispute. We are not talking about that now, but it is vital to there being a level playing field.
This group of amendments is, in effect, trying to bring the coronial system into line with its current role to allow a proper contested hearing, where appropriate, if there is an issue about the cause of death, rather than it being the administrative process it previously was. There needs to be that change.
The biggest example of why these amendments are right and the Government’s position is wrong is in the amendment proposed by my noble friend Lady Chakrabarti on what is currently Clause 38. Clause 38 amends Section 4 of the Coroners and Justice Act 2009. The 2009 Act allows the coroner to stop an investigation where the cause of death becomes clear after a post-mortem examination. Section 4 also provides that the coroner can, if asked, give reasons after he has discontinued the investigation. That is not apparent in this Bill, but comes only in Section 4 of the 2009 Act.
Based on not just a post-mortem examination but any other matter the coroner thinks relevant, if he is satisfied that the cause of death has become so clear that he thinks an inquest is no longer appropriate, he can simply stop the whole investigation, without reference to the family, even if they are desperate for an inquest. The coroner’s only obligation is to explain why he or she did that after the event. That is the effect of Clause 38, so my noble friend Lady Chakrabarti is absolutely right to say there should be safeguards, and the key safeguard is that proposed in Amendment 40, subsection (4)(2A)(d):
“the coroner has invited and considered representations from any interested person”,
which would include the family. Why do the Government not think there should be such a requirement? What is the purpose of a justice system that can reach a decision without hearing from interested parties, and whose only obligation is to explain why it took that decision after it has been made, without giving the family the opportunity to comment?
Baroness Chapman of Darlington (Lab)
My Lords, I commend my noble friend Lady Chakrabarti for tabling these amendments so quickly; I am pretty sure we would have tabled something almost identical. She is right in everything that she said, and she did so succinctly but effectively. I shall address Amendments 40, 42 and 43 in her name as well as Amendments 41, 44, 45 and 53 tabled by my noble friend Lord Ponsonby.
As the noble Lord, Lord Thomas of Gresford, said, there is a theme running through this group: putting families at the heart of this process. There are long-standing concerns about the way that the process often takes place. It is unfortunate that the Government have not taken this opportunity to consider the issue as fully as they could have done. We are worried that efficiency and streamlining of processes should not in any way bring about a sense that these matters are to be treated with less solemnity or seriousness than they should be. We are very nervous that the Government are permanently changing procedures because of a backlog following Covid-19; we understand that that needs to be dealt with, but the needs of families must be central to the Government’s thinking here and at the moment I do not think they are.
We all appreciate that there is widespread inconsistency with coroners and that something of a postcode lottery is developing. I recommend the Justice Select Committee’s report to Members of the Committee. It is a thorough and excellent piece of work; the Government would do well to consider it and implement more of its recommendations. One of the suggestions that the Select Committee made was the introduction of a national service. As I say, the Government have missed an opportunity to go much further than the measures before us, which I am afraid seem motivated predominantly by a need to make up ground after the pandemic.
The current law, the Coroners and Justice Act 2009, holds that where a coroner has commenced an investigation, they must proceed to an inquest unless the cause of death becomes clear in a post-mortem examination. The Government are arguing now that cause of death can be established by what they call “other means”, and they give the example of medical records. They need to be incredibly careful not to create a situation where the justification for discontinuing is based on evidence that cannot be challenged by the family or by others.
My good friend Andy Slaughter in the other place gave a long list of examples, which he probably got from inquest, showing clearly the need for safeguards, particularly the need to allow the family to consent to discontinuation and for such consent to be properly informed. I shall read from Hansard an example that he gave, of Laura Booth. It will just take a minute to read it, but I think it will help us to appreciate the seriousness of the issues that we are considering:
“Laura sadly died on 19 October 2016 at the Royal Hallamshire Hospital in Sheffield. Laura went into hospital for a routine eye procedure, but in hospital she became unwell and developed malnutrition due to inadequate management of her nutritional needs. The coroner overseeing the investigation into Laura’s death was initially not planning to hold an inquest because the death was seen to be from natural causes. However, Laura’s family and BBC journalists fought for the coroner to hold an inquest. The inquest reached the hard-hitting conclusion that Laura’s death was contributed to by neglect. A prevention of future deaths report issued by the coroner to the Royal Hallamshire Hospital noted serious concerns about the staff’s lack of knowledge and understanding of the Mental Capacity Act 2005, and recommended that families should be better consulted in best-interests meetings.”—[Official Report, Commons, Judicial Review and Courts Bill Committee, 18/11/21; col. 334.]
So this really matters. Inquests play a vital role in making sure that loved ones understand the reasons for a death.
Amendment 41 would provide that the Lord Chancellor should establish an appeals process for families who disagree with the decision to discontinue an investigation. We think that is an important safeguard, and it would rightly respect the interests of those whose closest have died. We see it as an anomaly that no right of appeal exists for families in that situation.
Amendment 44 would prevent an inquest being conducted by telephone or other means that were audio-only. We think that audio-only risks hindering engagement with families, and it may be inappropriate in these circumstances.
Amendment 45 would ensure that remote inquest hearings and pre-inquest hearings were still be held in a manner accessible to the public. We think this is important for public confidence, for scrutiny and for challenge. We are worried that measures in the Bill designed to streamline processes will make it more difficult for families to be active participants in the process when all the evidence is that we should be taking steps to help their participation.
We strongly support Amendment 42, which would ensure that inquests were not held without a hearing if that was against the wishes of the family. To do so, as well as being incredibly insensitive, would deprive the family of the opportunity to explore all available evidence and limit their ability to scrutinise the accounts provided by relevant authorities, including by hearing oral evidence and questioning key witnesses. I am sorry the Government are taking the route that they are taking, and I am sure we will want to continue to press them on this as we progress.
Lord Wolfson of Tredegar (Con)
My Lords, the amendments in this group relate to coroners’ inquests, and include government and non-government amendments. I will begin with those tabled by noble Lords who have spoken and then come to the government amendment at the end.
Before I do that, I should inform the Committee that the right reverend Prelate the Lord Bishop of St Albans has kindly sent me a note, because his Amendments 50A and 50B are in this group. As he is serving elsewhere, in Committee on the Building Safety Bill, he is unable to join this Committee this afternoon. I do not know whether this is normally done, but unless the Committee objects, I propose to write to him setting out substantially what I would have said had he been here and I will circulate the letter, because even though the amendments are not formally moved, the right reverend Prelate raises points which he has raised in the House on previous occasions.
Baroness Chakrabarti (Lab)
Subject to the views of the Committee, that sounds eminently sensible. In case it is necessary, perhaps I might say that I support those amendments and would not want to deprive the right reverend Prelate of the opportunity to bring them back to the House at a later stage.
Lord Wolfson of Tredegar (Con)
I was not seeking to take any procedural point. Rather than take time this afternoon, because we have not had a debate on the amendments, I will set out the position in writing and copy the letter appropriately.
Before taking the amendments in turn, perhaps I may make an important point which is central to this discussion, which is that coroners—
Baroness Chapman of Darlington (Lab)
I am sorry, I know that we are pushed for time and there are important matters that we want to get on to. I do not know about other noble Lords, but I would appreciate hearing the Government’s position on Amendments 50A and 50B. Is that possible?
Lord Wolfson of Tredegar (Con)
It certainly is. I had prepared to respond to the amendments and am happy to do so if the Committee finds that more helpful. I see some nodding heads, in which case I will do it that way instead. I will obviously direct the right reverend Prelate to Hansard. I am very grateful.
A central point which is really important is that coroners are judicial office holders—whether they go back to William the Conqueror is not directly relevant for these purposes, although it was interesting. That point is important: they are not administrators or decision-makers; they are judicial office holders. Ultimately, it is therefore up to the coroner, circumscribed by statute, how to conduct their investigations and inquests. I respectfully ask the Committee to bear that in mind when considering a number of these amendments, to which I will now turn.
Lord Thomas of Gresford (LD)
The Minister has said we want coroners’ inquests to remain inquisitorial. In practice, they are adversarial. The ancient position of a coroner does not allow the proper adversarial safeguards to be in place. I would like the Government to rethink that position and consider whether it is appropriate at this time.
Lord Wolfson of Tredegar (Con)
I can accept two points there. I can accept that I and the Government will reconsider it. We certainly will think about it. This is a bit of a chestnut point, if I may say so; it has been discussed on a number of occasions. But the Government’s current position is that we want coroners’ inquests to be inquisitorial and not adversarial. Secondly, I accept, as a consequence of that, that we do not have adversarial safeguards. But that is consequent on the first point; the inquests are not adversarial.
There is a real problem, I would suggest, in changing the nature of a coroner’s inquest to being adversarial. I accept there will be particular inquests where it is appropriate for people to be legally represented. I do not want to mix the groups up, but we will discuss in the next group the issues of legal aid, exceptional case funding, et cetera. But the central fact is that the inquest is there to determine who the deceased is, where he died—I will say he—when he died and how he died, but not why he died. That is an important point.
Baroness Chapman of Darlington (Lab)
We are getting to the heart of it, in a sense, because the Government contend that these processes are not adversarial. I understand why they are doing that. However, I am increasingly of the impression that what the Minister has just said has absolutely no grounding in reality. The lived experience of extremely vulnerable people in this context reveals that the processes are deeply adversarial. Their experience does not align with what the Minister has just said. It is unfortunate that the Government do not seem able to appreciate this in their consideration of these amendments.
Lord Wolfson of Tredegar (Con)
Of course I understand that point, in the sense that I too have read the material of people who have been involved in inquests. I have read some of the material from the various groups which have been lobbying for changes in this area. I hope that I have set out the Government’s position fairly. As we all recognise, the point being made to me is fundamental. I do not want to keep repeating it in response to each amendment, but I certainly accept that what I have just said underpins the Government’s response to a number of these amendments. Therefore, I absolutely accept and understand the noble Baroness’s position; that is, because she disagrees with me on this fundamental point, necessarily she will disagree with me on a number of these amendments because they are underpinned by the same point—
Lord Falconer of Thoroton (Lab)
Whether the process is inquisitorial or adversarial, surely you are entitled to basic fairness. This means you are entitled to having a say on what is going on and an opportunity to make proper representations. This is the case whether you are either a family member saying, for example, that your loved one is the victim of a criminal offence by the police, or you are a police officer being accused of manslaughter. Indeed, the Minister has just said that there would be a coroner at the inquest. Therefore, I am not sure why—whether it is inquisitorial or adversarial —you are to be deprived of that basic fairness.
Lord Wolfson of Tredegar (Con)
The fundamental point is: who is the “you”? Who are the parties to an inquest? As I was saying earlier, you do not have “parties” in inquests, in the same way that you do in adversarial proceedings. Of course, there are inquests where legal aid is provided and family members—or, indeed, other people—turn up with lawyers. However, as a Government, we certainly do not want the general inquisitorial procedures, in the normal run of an inquest, to become adversarial. I understand that this is a point of principle between us; this is not a point of detail.
This point will underpin a number of the responses which I am going to give. I turn to Amendment 42, which would require the coroner to obtain consent from interested persons, including bereaved families, before determining whether to deal with an inquest on the papers. Clause 39 has been designed to give coroners the flexibility to conduct inquests without a hearing, where there is no need to hold one. They would exercise that power judiciously, because they are judicial officeholders, in cases where they consider them to be non-contentious, where there is no concern about the cause of death, or where the family have indicated that they do not wish to attend a hearing.
To return to the point I started with: because coroners are independent judicial officeholders, introducing the concept of consent into their decision-making process would cut across their judicial independence and fetter their discretion. The coroner would still be required to hold inquests with a hearing, in cases which require one. The Chief Coroner would issue guidance to coroners on how they should exercise their discretion.
Amendments 43, 44, 45 and 53 all relate to remote hearings. The purpose of Amendment 43 is to ensure that additional safeguards are met before a coroner can hold a remote hearing. The position here is that coroners have always been able to conduct hearings with virtual elements, but the coroner and the jury, if there is one, must be physically present in the courtroom. Clause 40 allows all participants to participate in a remote hearing.
As we have said on previous groups about magistrates and jurors, throughout the pandemic, coroners’ courts have also worked very hard to keep their services running. They have taken advantage of the benefits of remote hearings to keep inquest participants safe. Key witnesses, who often could be front-line doctors, have been able to focus on their primary role and attend remotely. Clause 40 ensures that coroners can continue to operate remotely, when they regard it as appropriate. Again, we expect that, being judicial officeholders, coroners would work with interested persons to address any concerns that they may have regarding remote hearings. Again, the Chief Coroner is expected to provide guidance on any law changes.
Amendment 44 deals with remote hearings. The short point here is that there may be instances where participants might prefer or need to participate in a remote hearing only by audio, without video; perhaps that is the only way that they can participate if they are based abroad, for example, and there are technical limitations to how they can access the hearing. As we understand it, the amendment would exclude those participants from participating in the hearing remotely—
Baroness Chapman of Darlington (Lab)
That is not the intention; it is that the hearing in its entirety should not be conducted by audio only. The amendment would not prevent someone participating by audio only.
Lord Wolfson of Tredegar (Con)
I am grateful for that clarification, but the same point would apply. If the only people who are interested—I am using that word in the technical sense—in the inquest can participate only by audio link, the coroner would have to either not hold the inquest and adjourn it or hold it, so to speak, in a room, despite those interested people not being able to be there. I will consider again whether what the noble Baroness has said resolves my concerns, but I do not think that it does. Certainly, we are concerned to make sure that an inquest can still go ahead when, for some reason, everyone relevant can participate only by way of audio.
I assure the noble Lord, Lord Thomas of Gresford, that what underpins this and Parliament giving coroners these powers is concern for families. We want people to be able to participate, and we are conscious that some people may only be able to participate through technical means or audio only.
Amendment 45 seeks to ensure that remote inquest hearings and pre-inquest hearings are heard in a manner that is accessible to the public. In this regard, Clause 40 is designed to complement Clause 166 of the Police, Crime, Sentencing and Courts Bill, which is currently in the other place. Clause 166 provides for wider remote participation in court proceedings, under the direction of the court, and it covers a number of courts, including coroners’ courts. So, Clause 166 will ensure that justice remains accessible to the public, regardless of how the hearing is conducted. Again, the Chief Coroner will provide additional guidance on the use of remote hearings to ensure that coroners’ inquest hearings remain accessible to the public, as set out in Rule 11 of the Coroners (Inquests) Rules 2013.
Lord Beith (LD)
It is not just human nature; it is the practical difficulty of registering deaths and making appointments in coroners’ offices, because registrars’ and coroners’ offices have very limited not just opening hours but opening days. This has been particularly marked during the pandemic.
Lord Wolfson of Tredegar (Con)
I understand that, certainly from my postbag. I should say that coroners work extremely hard, but the pandemic has caused a real problem. I do not want to go back to the online discussion, but we hope that enabling people to do that sort of thing online will help. I certainly take the noble Lord’s point.
To solve this, the amendments in my name will enable a coroner to provide the registrar with the information required for the registration to take place on the basis of that information. I should make it clear that we are not introducing new duties on coroners or removing the duty on qualified informants to provide information. It is intended to be used in those exceptional circumstances where qualified informants are unable or unwilling—often for good reason, as the noble Lord, Lord Beith, said—to discharge their duties. The effect will therefore be that the death will not go unregistered. We think that about 200 of these cases happen a year. They affect the accuracy of records, but there is also the potential for fraudulent use of the identity of an unregistered deceased person, since the identity has not been closed by the death being registered. It is not quite Day of the Jackal territory, but there is potential for fraud there. We want to close that.
For those reasons, I invite noble Lords not to press their amendments and I will move mine when the time comes.
Baroness Chakrabarti (Lab)
My Lords, I am grateful to every Member of the Committee who participated, in particular to the noble Lord, Lord Thomas of Gresford, and my noble and learned friend Lord Falconer of Thoroton, for crystallising the fundamental inequality of arms that exists in so many inquests. Regardless of jurisprudence or terminology, that is how it is and how it feels for these families.
I am grateful, too, to my noble friend Lady Chapman of Darlington for making it crystal clear that evidence that cannot be challenged is going to be a huge problem, not least for compliance with Article 2, and for reminding us of the tragic case of Laura Booth, which is in the Inquest briefing in case noble Lords want to read it at leisure. There are other tragic cases of that kind, where, but for close scrutiny and the testing of evidence that initially seemed very straightforward, some real public interest problems, whether in our hospitals or elsewhere, would not have been revealed.
I am only slightly disappointed that the very busy right reverend Prelate disappointed my hope that it would be possible for a Lord spiritual to be in two places at the same time. None the less, I am very happy to take care of his amendments and ensure that he has the opportunity to bring them back next time. I think that is the right thing to do.
The Minister will forgive me, I hope, for being disappointed in the 100% defensive rebuttal of every single concern raised in this Committee. He reminds us that coroners are judicial officers and not mere administrators; of course, he is right about that. But he says that in total rebuttal of every safeguard and gentle constraint suggested—for example, the discretion to discontinue these vital investigations.
I cannot help but point out the contrast in the Government’s approach to this part and, for example, to Clauses 1 and 2. In Clause 1 we are told that it is perfectly acceptable for the legislature to constrain judicial thinking and discretion in quite convoluted ways, but here, when we want to put the needs and concerns of families into the equation, we are told that it is somehow an inappropriate constraint on the wonderful, inquisitorial, coronial province. We are reminded that coroners are inquisitorial and not adversarial, as if these terms of art are set not in aspic but in stone. I do not really care whether these are technically inquisitorial or adversarial—you can call them “Doris” as far as I am concerned. There are vital rights and interests being explored in this jurisdiction.
I am sorry to say that I do not know whether the government position is science fiction or space fantasy. In many cases these proceedings are tantamount to very difficult quasi-adversarial proceedings, but one side is silent. One side is silent because it does not have the language and resources to put its side of the picture. This is exacerbated in cases where very defensive public authorities, understandably, are heavily represented by Silks and so on. We cannot say that the full answer to that problem will be a technical, jurisprudential definition of inquisitorial versus adversarial proceedings. That is not reality at this moment in the 21st century.
I gently ask the Minister to consider meeting some representatives of the unrivalled NGO Inquest before Report. That organisation and those working within it have done so much work over the years with a number of bereaved families. I am sure they would at least help illuminate the Minister’s understanding of what some of these most difficult inquests are like for ordinary people. That would be my request to him. None the less, for the moment—but only for the moment, because having heard from my noble friend Lady Chapman and from the Liberal Democrats, I suspect that the Committee will want to return to this group on Report, and I obviously preserve the position for the spiritual Benches opposite—I beg leave to withdraw the amendment.
Lord Wolfson of Tredegar
“Provision of information to registrar when investigation discontinued
In section 23 of the Births and Deaths Registration Act 1953 (furnishing of information by coroner in connection with registration of death), after subsection (3) insert—“(4) Where a senior coroner— (a) discontinues an investigation under section 4 of the 2009 Act,(b) authorises the disposal of the body, and(c) sends to the registrar, on request by the registrar, a certificate stating any particulars required by this Act to be registered concerning the death (so far as they have been ascertained at the date of the certificate),the registrar shall in the prescribed form and manner register the death and those particulars, so far as they are not already registered.”Member’s explanatory statement
This new Clause enables a coroner who has discontinued an investigation into a death without holding an inquest to supply information needed for the death to be registered.
“Publicly funded legal representation for bereaved people at inquests
(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.(2) In subsection (1), after “(4)” insert “or (7).”(3) After subsection (6), insert—“(7) This subsection is satisfied where—(a) the services consist of advocacy at an inquest where the individual is an interested person pursuant to section 47(2)(a), (b) or (m) of the Coroners and Justice Act 2009 because of their relationship to the deceased; and(b) one or more public authorities are interested persons in relation to the inquest pursuant to section 47(2) of the Coroners and Justice Act 2009 or are likely to be designated as such.(8) For the purposes of this section “public authority” has the meaning given by section 6(3) of the Human Rights Act 1998.””Member’s explanatory statement
This new Clause would ensure that bereaved people (such as family members) are entitled to publicly funded legal representation in inquests where public bodies (such as the police or a hospital trust) are legally represented.
Baroness Chapman of Darlington (Lab)
My Lords, with the permission of the Committee, my noble friend Lady Chakrabarti and I have had a conversation and, in order to move things along, we have agreed that I will speak to her Amendment 49 as well as Amendments 47 and 48.
Having listened to the Minister’s response to the last group, I am incredibly disappointed at the lack of willingness to engage on the issues we were discussing. I really do not hold out much hope on this group, but these are matters that are of such importance. We have tried pushing this issue in the past via other Bills. Perhaps Covid and perhaps just more understanding and the work of Inquest are getting us to a point where the pressure to resolve this problem is increasing substantially. I know that the Minister understands the point we are trying to make. I get that he has a position he needs to defend, but he understands where we are coming from, so it would be welcome if he could try to do something through this Bill to try to improve the situation for bereaved families at inquests.
Amendment 47 would ensure that bereaved people, such as family members, are entitled to publicly funded legal representation at inquests where public bodies, such as the police or hospital trusts, are legally represented. Amendment 48 would remove the means test for legal aid applications for legal help for bereaved people at inquests. Amendment 49 would insert a new clause that would bring the LASPO Act into line with the definition of family used in the Coroners and Justice Act 2009.
The problem that we are getting at with these amendments is well understood. There are plenty of examples to which we can all refer. This is fundamentally about fairness. I pay tribute to the work of Inquest—we have referred to that organisation a couple of times—which has worked so hard on more than 2,000 cases, with 483 families currently receiving its support.
People who die in police custody, prison, hospital, a care home or a disaster such as Grenfell or Hillsborough need support in order to secure effective understanding and scrutiny of what has taken place. At Second Reading and again just now, the Minister said that the state did not need to fund representation for families as our system is not adversarial. I do not want to go through the whole argument again, but it is just nonsense. If relatives have to fight to discover the truth about what has happened to their loved one, with lawyers putting events in a way that suits the institution and with points that are contestable not allowed to be contested, that is in effect adversarial. The family’s desire to uncover the truth and the institution’s desire or need to conceal it, or to be insufficiently curious about discovering what has happened, are competing aims.
The two parties—I am not going to get into what and what is not a party: we know what we are talking about—might not be adversaries in a formal legal sense, and we understand that, but their competing, different interests mean that there is an inequality of arms which results in injustice for a bereaved family. That is what is happening. I do not believe for a minute that the Minister thinks I am wrong about that; it is just that at the moment he does not feel able to move the Government forward to do something about it.
Inquests are intended to seek the truth and to expose unsafe practices and abuses of power. They are about learning, so that lessons can be taken and future deaths prevented. This opportunity to learn is undermined by the pitting of unrepresented families against multiple legal teams defending the interests and reputations of state and corporate bodies. Public bodies have unlimited access to legal representation at public expense. Too often, families have absolutely nothing. At one of the most difficult periods in a family’s life, they are unrepresented.
Legal aid is granted under the Government’s exceptional funding scheme only if it is considered that there is a wider public interest in the inquest or if it is an Article 2 inquest, where a death was in state custody or it could be argued that the state failed to protect someone’s right to life. It must also meet the financial means test. Removal of the means test in these cases will be helpful, but given that asking people to demonstrate Article 2 qualification is such a high bar, this will not be sufficient to correct the injustice that many families are experiencing now. The evidence for change is completely overwhelming. I hope the Minister will not rely solely on the adversarial/inquisitorial argument. Frankly, it is beneath him. I hope that he will feel able to persuade his colleagues of the need for change. I will say no more. I think that is sufficient to make the point today, but I do not see a situation where we will not come back to this on Report or in future Bills. I gently suggest to the Minister that we have a Queen’s Speech coming up. This is such a problem for the coroners service across the country that it might be worth a Bill in its own right. We could then do justice to the service and to the experience of bereaved families. We are not doing so at the moment.
Lord Thomas of Gresford (LD)
My Lords, in the mists of time I was articled to Maurice Evans, who was the coroner on the inquest of the 266 miners who lost their lives in the Gresford disaster. The mine owners were represented by Hartley Shawcross, later the chief prosecutor at Nuremberg, Attorney-General in the Attlee Government and after that a very distinguished Member of this House. On the other side for the miners there appeared pro bono Sir Stafford Cripps, who later became the Chancellor of the Exchequer in the Attlee Government. There was equality of arms there. That is what it means, that is what it is about and that is what these amendments are about.
Inquest has very helpfully set out a schedule to its briefing in which it outlines what representations have been made over time. In 1999, Lord Macpherson in the Stephen Lawrence inquiry said:
“That consideration be given to the provision of Legal Aid to victims or the families of victims to cover representation at an Inquest in appropriate cases.”
That is 23 years ago. The Corston report and the review led by the noble Lord, Lord Harris, made similar recommendations. His Honour Judge Sir Peter Thornton QC was the first Chief Coroner appointed and I knew him very well; he was in my chambers. He made his report in 2015-16 and said:
“The Chief Coroner … recommends that the Lord Chancellor gives consideration to amending his Exceptional Funding Guidance … so as to provide exceptional funding for legal representation for the family where the state has agreed to provide separate representation for one or more interested persons.”
You could actually take that and make it the amendment we are seeking to put before the Government. Dame Elish Angiolini carried out an independent review of deaths and serious incidents in police custody in 2017 and put it this way:
“For the state to fulfil its legal obligations of allowing effective participation of families in the process that is meaningful and not ‘empty and rhetorical’ there should be access for the immediate family to free, non-means tested legal advice, assistance and representation immediately following the death and throughout the Inquest hearing.”
The right reverend Bishop James Jones in the Hillsborough review said that:
“Publicly funded legal representation should be made available to bereaved families at inquests at which a public authority is to be legally represented … the requirement for a means test and financial contribution from the family should also be waived in these cases. Where necessary, funding for pathology or other expert evidence should also be made available.”
I could go on because there are a large number of these quotes but, coming closer to the present time, the Joint Committee on Human Rights in 2019, considering the detention of young people with learning disabilities and autism, said that:
“Families must be given non-means tested funding for legal representation at inquests where the state has separate representation for one or more interested persons.”
The Justice Select Committee, reporting last year in the other place, said:
“Bereaved people should not be put through the difficult and time-consuming process of meeting the exceptional cases requirements and the means test for legal aid where public authorities are legally represented at public expense at the inquest into the death of their loved one. The Ministry of Justice should by 1 October 2021, for all inquests where public authorities are legally represented, make sure that non-means tested legal aid or other public funding for legal representation is also available for the people that have been bereaved.”
Your Lordships will see that this is not a single voice calling. Everybody who has looked at this particular problem realises that there is no equality of arms, as there was in the Gresford disaster inquest, and that families suffer as a result. They cannot put their case adequately. It is time that the Government should grasp this and not go back to talking about coroners being inquisitorial, therefore we cannot have proper legal representation and so on. It is just shutting your eyes to what is going to happen, and I am sure it is going to happen with the quality of advocacy of Inquest and other people. I hope it will happen through this Bill if we can get together and put the proper amendment forward.
Baroness Jones of Moulsecoomb (GP)
I do not want to repeat anything that the noble Baroness, Lady Chakrabarti, said in her moving contribution earlier, nor anything said by the noble Lord, Lord Thomas of Gresford, but perhaps I can remind the Minister that we are talking about people who do not have much money and are often in the worst position of their lives, in that they have lost somebody whom they loved very deeply. They are not at a point in their lives where they can cope with the sort of the pressure that the Government are making happen to them. Honestly, the Government are so penny-pinching when it comes to things like this—and student education; indeed, any number of other things—yet they do not make multi- nationals pay their taxes. I do not understand why we ever think that Conservatives are good at running the economy; I think that they are rubbish.
Every death in custody, of any sort, means that a family is bereaved. They may therefore not be thinking clearly and may be extremely upset. For them, the injustice is perpetuated and they are re-victimised because the inquest system is unable to give them the sort of justice they need. Without equality of arms against state parties, effective justice is extremely difficult to achieve. These issues come up time and again; the arguments are well rehearsed. The Government have access to unlimited public funds to instruct the very best lawyers, while the bereaved must navigate complicated legal aid applications in the vague hope that they might be awarded a scrap of money towards their legal costs. It just sounds so mean. It is absolutely mean of the Government. Far too often, the outcome is that inquests and inquiries are seen to have resulted in a damage limitation exercise—an exercise in saving reputations and finding excuses.
I had a grandfather who was killed in the Senghenydd mining disaster. Some 440 men and boys were killed in 1913. The mine owners were brought to court on various issues and paid a total of five and a half pence for every life lost in the mine. This debate reminds me of that: we just do not understand the sort of pressure that we put on people when we do not allow them the legal means to achieve what they need to achieve. It is a bit like the Sue Gray report. Everybody is told that they have to wait until the inquiry is finished but there is another excuse and another delay until, possibly years later, the authorities and everyone have simply forgotten about it.
Here, of course, we all want justice to be done. We all want life to be fair—that is why I am in politics, anyway—but these proposals are not fair. I really hope that the Minister will meet Inquest members because they can give him a first-hand understanding of the pressure and pain that families experience. Justice will not be seen to be done until families are given automatic, non-means-tested legal aid on a footing equivalent to that provided to state parties.
Lord Hacking (Lab)
My Lords, if noble Lords will permit me, I would like to make a short intervention. I have not taken part at all in the debates on Part 2 because I wanted to find my feet more in this House. I do so as a member of the council of Justice and, until recently, president of the Civil Court Users Association. I certainly intend to get further involved on Part 2 when we get to Report.
To go back to what the noble Lord, Lord Thomas of Gresford, said, in the mists of time I was called to the Bar in 1963, and in the 1960s and 1970s, legal aid was one of the most socially important provisions that the Labour Government of 1945-51 had brought in. The other one, of course, was the National Health Service and it has been treading backwards ever since that Labour Government went out of power. It is very sad. I remember sitting on a lot of legal aid cases. The problem with legal aid cases was not the lack of spread of legal aid; it was the slowness of the fees coming in. Sometimes they took 18 months or two years to come in, but they did come in and they were very highly supportive of those involved in legal aid. As we see now, particularly in our discussions of coroners, legal aid is no longer supplying the social need that it set out to do, successfully, in 1945. It gets ever more depressing that there is not further support or further money available to support legal aid now, in our present age of the 2020s.
Lord Wolfson of Tredegar (Con)
My Lords, the amendments in this group, Amendments 47, 48 and 49, would introduce three new clauses on legal aid for inquests. Let me make two points right at the start. First, we have now heard about two colliery disasters. The Gresford disaster was something that my late grandfather used to talk about, although he was from south Wales and not north Wales. As a boy, and I have just been looking it up, one thing that stuck with me when he talked about it was the numbers: 266 people were killed in that disaster. Only 11 bodies were recovered because of the understandable, albeit controversial, decision to seal the districts. I remember as a young boy hearing him talk about how that added immensely to the grief that the families went through, because there was no body to bury. I was very moved, if I may say so respectfully, by the noble Lord’s reference to that.
Secondly, as a matter of introduction, it has been suggested by a number of noble Lords that I should meet Inquest. I hope I have established that my general approach is to meet anybody who reasonably wants to meet me. I would be very happy to meet Inquest; I will ask my office to arrange that. Of course, I am sympathetic to the difficulties facing all bereaved families. We certainly take the view that the bereaved family should be at the heart of any inquest process that follows a death. I set out on a previous group, and I will not repeat, the inquisitorial point: I know that is an issue on which we are not going to agree, so I just ask the Committee, respectfully, to take that as read.
It is against that background that I suggest that Amendments 47 and 49, which seek to expand access to legal aid at inquests, run counter to that approach. There is a risk that having additional lawyers at an inquest will not provide an overall improvement for the bereaved and could have the unintended consequence of turning an inquisitorial event into a significantly more complex defensive case, which could, in the majority of cases, prolong the distress of a bereaved family. I think it is important to recognise in this area that for every inquest such as that for Hillsborough—the Committee will appreciate that with my background I remember Hillsborough and I remember that night, as the news came in, very clearly—for every awful case like Hillsborough, there are thousands of, so to speak, normal, usual inquests up and down the country and we want to make sure that they remain inquisitorial. However, we recognise that inquests need to be a process that bereaved families can engage with properly. We have introduced a number of measures in this area; let me set out a few.
We have engaged with the Chief Coroner on training for coroners and their investigating officers; we have published new guidance on coroner services for bereaved people; we have developed a protocol which, among other things, ensures that where the state is represented, it will consider the number of lawyers instructed so as to support an inquisitorial approach; we have, building on the protocol, supported the legal services regulators—the Bar Standards Board and the Solicitors Regulation Authority—in their work to develop inquest-specific information to guide lawyers who represent at inquests. The regulators published a toolkit and competences for practitioners on 13 September last year.
Turning to legal aid and legal advice and assistance: for bereaved families who need advice and assistance, legal help is always available under the legal aid scheme, subject to a means and merits test. This can help preparation for an inquest, including help for families to decide what questions to ask.
For legal representation at an inquest, legal aid may be available under the exceptional case funding scheme, where certain criteria are met. Where those criteria are met, the Government are of the view that the process should be as straightforward as possible. I do not know whether Members of the Committee have picked this up, because it is very recent, but as of January this year there is no means test for an exceptional case funding application in relation to representation at an inquest or for legal help at an inquest where representation is granted. I appreciate that does not go as far as the amendment, but I hope it indicates that the Government have considered this and moved in this area.
Amendment 48 seeks to remove the means test for legal help prior to an inquest hearing. I have just said that as from January there is no means test for legal representation granted under the exceptional case funding scheme. This change will also provide non-means-tested legal help in relation to an inquest for which exceptional case funding has been granted for legal representation.
I hope that Members of the Committee are aware that we have been conducting a review of the legal aid means test as a whole across civil legal aid, which has been a substantial piece of work. I cannot give a date, but I hope that the review will be published very shortly. It might not go back to the position which the noble Lord, Lord Hacking, set out, but I hope that when Members of the Committee see the review, they will be interested in it and that it will engender some broad support.
Lord Wolfson of Tredegar (Con)
The noble Lord has not read it yet, but I will take the bravos in advance in case I get brickbats later. I hope it will be a piece of work which will find support. Given that ongoing work and while recognising there is a point of principle between us—I absolutely accept that—none the less, for today’s purposes, I respectfully invite the noble Baroness, Lady Chapman, not to press the amendments.
Baroness Chapman of Darlington (Lab)
Clearly, we will not push the amendments to a vote today. It is pleasing to hear the Minister recognise the problems that we are raising, so at least we have got somewhere. Too often, Ministers say, “Well this isn’t a problem; we don’t need to fix it”. I do not think that is what the Government are saying. I am pleased that the Minister has agreed to meet Inquest; that will be very helpful. We obviously reserve our right to come back to this matter at future stages.
Lord Etherton
“Pro Bono Representation: TribunalsPayments in respect of pro bono representation: tribunals
(1) Section 194 of the Legal Services Act 2007 (payments in respect of pro bono representation) is amended as follows. (2) In subsection (1) after “civil court” insert “or tribunal”.(3) In subsection (3)—(a) after “the court” insert “or tribunal”; and(b) after “in respect of that part)” insert “, but so that no award made under this subsection may exceed the amount that the court or tribunal could order to be paid in respect of R’s representation of P, had such representation not been provided free of charge in whole or in part”.(4) In subsection (4) after “the court” insert “or tribunal”.(5) In subsection (5) after “the court” insert “or tribunal”.(6) In subsection (7)—(a) after “Rules of court” insert “and tribunal rules of procedure”;(b) omit the word “civil”; and(c) after “the court” insert “or tribunal”.(7) In subsection (10)—(a) in the definition of “legal representative” for “exercising a right of audience or conducting litigation on the party's behalf” substitute “, who has a right of audience or has the right to conduct litigation in relation to any class of proceedings in any part of the Senior Courts of England and Wales, or all proceedings in county courts or magistrates’ courts, whether or not the person is exercising such right in the particular proceedings”;(b) in the definition of “relevant civil appeal”, after paragraph (a) insert—“(aa) from the Upper Tribunal in accordance with permission granted under section 14B(3) of the Tribunals, Courts and Enforcement Act 2007 (appeal to Supreme Court),”; and(c) after the definition of “relevant civil appeal” insert—““tribunal” means—(a) the First-tier Tribunal;(b) the Upper Tribunal;(c) an employment tribunal;(d) the Employment Appeal Tribunal;(e) the Competition Appeal Tribunal; and(f) any other body, established under or recognised by any enactment, which performs the function of determining matters, which are not criminal in nature, including but not limited to regulatory and disciplinary issues, and which has the power to make an order for the payment of costs.””Member’s explanatory statement
These new provisions will confer on tribunals the same power as civil courts and the Supreme Court currently have to order an unsuccessful legally represented party to pay pro bono costs to the prescribed charity the Access to Justice Foundation where the successful party has been represented pro bono.
Lord Etherton (CB)
As I foreshadowed at Second Reading, I have tabled this amendment to enable tribunals to make pro bono cost orders, as is currently the position in the civil courts and the Supreme Court. I am very grateful to the Minister and his officials for their positive engagement on this issue. I know that the Minister himself, as he was at Second Reading, remains genuinely sympathetic to the principle embodied in the amendment.
We have not received so far any amendment proposed by the Government to match what I have tabled, but this morning those representing the Access to Justice Foundation, which is the prescribed charity and will be the recipient of any pro bono award, received notification that the Attorney-General and the Solicitor-General support this change, with the Solicitor-General, who has general responsibility within the Government for pro bono, expressing strong support for it.
On that basis, I am cautiously optimistic that a government amendment will emerge in due course. The main issue of concern at the moment relates to the width of the tribunals that will be caught under the amendment. I know that work is going on regarding that. It would be useful for those who are interested in this issue to have the Minister’s current position recorded in Hansard. I beg to move.
Lord Marks of Henley-on-Thames (LD)
My Lords, we fully support the amendment moved by the noble and learned Lord. There is nothing that I wish to add. It is plainly sensible. There is no distinction between the civil courts and tribunals, and it is an obvious case for orders in respect of costs.
Baroness Chapman of Darlington (Lab)
Similarly, I indicate our hope that the Government will bring something forward. Should that not be the case, we will happily play our part in doing whatever we must to move this on.
Lord Wolfson of Tredegar (Con)
My Lords, as this is the last group in Committee, it is nice to end on a point of general agreement rather than discord. Whoever put the groups together, I take my hat off to them.
I respectfully welcome the proposals in Amendment 51, tabled by the noble and learned Lord, Lord Etherton, and am grateful to him for the time that he has given to me and my officials in discussing this. The amendment would allow pro bono cost orders to be made in tribunals, in much the same way as they are already available in the civil and family courts. This is a helpful proposal which will not only provide additional funding to the Access to Justice Foundation but—moving from pounds, shillings and pence to a statement of principle—importantly signals our support for the excellent work that is done pro bono by the legal profession up and down the country. Indeed, in the last group we heard an example of that from many years ago.
As I have already explained in meetings with the noble and learned Lord, we have two concerns about the amendment as drafted, though I underline that I am making not a point of principle but points of drafting. First, as drafted, it would apply to a very wide range of tribunals of different types, including tribunals for which the Government are not responsible; for example, professional disciplinary tribunals, such as those of the General Medical Council. I am sure that the noble and learned Lord and the Committee would agree that it would not be right for the Government to impose this measure on those tribunals that the Government are not responsible for, in circumstances where we have not been able to engage with them or seek their agreement. That is the first point: the ambit of the tribunals which we are talking about, although those for which the Government are responsible are, for these purposes, the vast majority, so that carve-out will not have too much of a practical effect, I hope.
There is a second point: issues of territorial extent. Again, as drafted, in Wales, it could impose measures on tribunals that are administered by the Welsh Government, while in Scotland, judges would not be able to make pro bono costs awards, even when they are dealing with reserved matters in reserved tribunals. That, again, is a drafting point I am confident we can discuss and agree on.
Therefore, I will formally invite the noble and learned Lord to withdraw his amendment, but I assure him on the record that I and the Government remain entirely supportive of the principle behind his amendment. As he says, my learned friends the Attorney-General and the Solicitor-General are also supportive of the measure. The noble and learned Lord and I have met on a couple of occasions now to discuss the amendment ahead of today’s debate. I will certainly continue to discuss this issue with him ahead of Report, and I am very hopeful that we will be able, between us, to do something that will resolve this issue and meet the point he seeks to address in his amendment.
Lord Etherton (CB)
I think there is nothing more to say. I am very grateful to the Minister for those indications, and on that basis, I beg leave to withdraw the amendment.
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment provides for the new Clause after Clause 42 in the name of Lord Wolfson of Tredegar to be brought into force by regulations.
Ukraine
(2 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)
My Lords, with the leave of the House, I will now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:
“Mr Speaker, I have just come from a meeting of G7 leaders, joined by Secretary-General Stoltenberg of NATO, and with permission I will update the House on our response to President Putin’s onslaught against a free and sovereign European nation.
Shortly after 4 am this morning, I spoke to President Zelensky of Ukraine as the first missiles struck his beautiful and innocent country and its brave people, and I assured him of the unwavering support of the United Kingdom. I can tell the House that, at this stage, Ukrainians are offering a fierce defence of their families and their country, and I know that every honourable Member will share my admiration for their resolve.
Earlier today, President Putin delivered another televised address and offered the absurd pretext that he sought the ‘demilitarisation and denazification of Ukraine’. In fact he is hurling the might of his military machine against a free and peaceful neighbour, in breach of his own explicit pledge and every principle of civilised behaviour between states, spurning the best efforts of this country and our allies to avoid bloodshed. For this, Putin will stand condemned in the eyes of the world and of history: he will never be able to cleanse the blood of Ukraine from his hands.
Although the UK and our allies tried every avenue for diplomacy until the final hour, I am driven to conclude that Putin was always determined to attack his neighbour, no matter what we did. Now we see him for what he is: a bloodstained aggressor who believes in imperial conquest. I am proud that Britain did everything within our power to help Ukraine to prepare for this onslaught, and we will do our utmost to offer more help as our brave friends defend their homeland.
Our embassy took the precaution on 18 February of relocating from Kyiv to the city of Lviv in western Ukraine, where our ambassador, Melinda Simmons, continues to work with the Ukrainian authorities and to support British nationals. Now we have a clear mission: diplomatically, politically, economically—and eventually, militarily—this hideous and barbaric venture of Vladimir Putin must end in failure.
At the G7 meeting this afternoon, we agreed to work in unity to maximise the economic price that Putin will pay for his aggression. This must include ending Europe’s collective dependence on Russian oil and gas that has served to empower Putin for too long. So I welcome again Chancellor Scholz’s excellent decision to halt the certification of Nord Stream 2. Countries that together comprise about half of the world economy are now engaged in maximising the economic pressure on one which makes up a mere 2%. For our part, today the UK is announcing the largest and most severe package of economic sanctions that Russia has ever seen. With new financial measures we are taking new powers to target Russian finance. In addition to the banks we have already sanctioned this week, today—in concert with the United States—we are imposing a full asset freeze on VTB. More broadly, these powers will enable us to totally exclude Russian banks from the UK financial system, which is of course by far the largest in Europe, stopping them from accessing sterling and clearing payments through the UK. And with around half of Russia’s trade currently in US dollars and sterling, I am pleased to tell the House the US is taking similar measures.
These powers will enable us to ban Russian state and private companies from raising funds in the UK, banning dealing with their securities and making loans to them. We will limit the amount of money that Russian nationals will be able to deposit in their UK bank accounts, and sanctions will also be applied to Belarus for its role in the assault on Ukraine.
Overall, we will be imposing asset freezes on more than 100 entities and individuals, on top of the hundreds we have already announced. This includes all the major manufacturers that support Putin’s war machine. In addition, we will ban Aeroflot from the UK.
Next, on top of those financial measures, and in full concert with the United States and the EU, we will introduce new trade restrictions and stringent export controls, similar to those that they in the US are implementing. We will bring forward new legislation to ban the export of all dual-use items to Russia, including a range of high-end and critical technological equipment and components in sectors including electronics, telecommunications and aerospace. Legislation to implement this will be laid early next week. These trade sanctions will constrain Russia’s military-industrial and technological capabilities for years to come.
We are bringing forward measures on unexplained wealth orders from the economic crime Bill to be introduced before the House rises for Easter. We will set out further details before Easter on the range of policies to be included in the full Bill in the next Session, including on reforms to Companies House and a register of overseas property ownership. We will set up a new dedicated kleptocracy cell in the National Crime Agency to target sanctions evasion and corrupt Russian assets hidden in the UK, and that means oligarchs in London will have nowhere to hide.
I know this House will have great interest in the potential for cutting Russia out of SWIFT, and I can confirm, as I have always said, that nothing is off the table. But for all these measures to be successful, it is vital we maintain the unity of our partners, the G7 and other fora.
Russian investors are already delivering their verdict on the wisdom of Putin’s actions. So far today, Russian stocks are down by as much as 45%, wiping $250 billion from their value in the biggest one-day decline on record. Sberbank, Russia’s biggest lender, is down by as much as 45% and Gazprom by as much as 39%, while the rouble has plummeted to record lows against the dollar. We will continue on a remorseless mission to squeeze Russia from the global economy piece by piece, day by day and week by week.
We will of course use Britain’s position in every international forum to condemn the onslaught against Ukraine, and we will counter the Kremlin’s blizzard of lies and disinformation by telling the world the truth about Putin’s war of choice and war of aggression. We will work with our allies on the urgent need to protect other European countries that are not members of NATO and could become targets of Putin’s playbook of subversion and aggression. We will resist any creeping temptation to accept what Putin is doing today as a fait accompli. There can be no creeping normalisation—not now, not in months, not in years.
We must strengthen NATO’s defences still further, so earlier today I called for a meeting of NATO leaders, which will take place tomorrow. I will be convening the countries that contribute to the Joint Expeditionary Force, which is led by the United Kingdom and comprises both NATO and non-NATO members.
Last Saturday I warned that this invasion would have global economic consequences, and this morning the oil price has risen strongly. The Government will do everything possible to safeguard our own people from the repercussions for their cost of living, and of course we stand ready to protect our country from any threats, including in cyberspace.
Above all, the House will realise the hard and heavy truth that we now live in a continent where an expansionist power, deploying one of the world’s most formidable military machines, is trying to redraw the map of Europe in blood and conquer an independent state by force of arms. It is vital for the safety of every nation that Putin’s squalid venture should ultimately fail and be seen to fail. However long it takes, that will be the steadfast and unflinching goal of the United Kingdom, of every honourable Member of this House and of every one of our great allies, certain that together we have the power and the will to defend the cause of peace and justice, as we have always done.
I say to the people of Russia, whose President has just authorised an onslaught against a fellow Slavic people, I cannot believe that this horror is being done in your name or that you really want the pariah status it will bring to the Putin regime.
To our Ukrainian friends in this moment of agony, I say we are with you and we are on your side. Your right to choose your own destiny is a right that the United Kingdom and our allies will always defend. In that spirit, I join you in saying ‘slava Ukraini’. I commend this Statement to the House.”
Baroness Smith of Basildon (Lab)
My Lords, I thank the noble Baroness for repeating today’s Statement. I think the mood of the House is sombre but also very angry. We welcome the new measures announced in today’s Statement and assure her of our support to ensure their speedy implementation. Could she pass on my thanks for the briefings I received on this issue?
This morning, as Ukrainians woke to the sound of sirens, military aircraft and tanks, they knew that their worst fears had been confirmed. Despite his false claims, President Putin’s invasion of a democratic and sovereign state is totally unjustified. It is a moment in history, the consequences of which will reverberate around the world.
Putin will learn that his aggression carries a very high price. The Moscow stock market collapsed this morning, the rouble has fallen in value and the human loss is already clear. We make it clear that we stand with the people of Ukraine and reassert that democracy will always triumph over dictators.
Resistance will not be limited to Ukraine. It is backed by the united resolve of democratic nations around the world. As the noble Baroness alluded to, there are also many people in Russia who are horrified by this violent aggression. The free people of Ukraine are supported by the entire NATO alliance in their resistance, many of whom will feel less safe and secure today. The decision to strengthen NATO’s defences is welcome and we must work with our NATO allies in eastern Europe to bolster their security, especially in the light of Estonia’s decision to trigger Article 4 of the North Atlantic Treaty.
The noble Baroness will recall that, earlier this week, I asked her for an update on our support to the Baltics. I understand that she was not able to respond then, but if she could give some further information today we would be grateful. We welcome that Sweden and Finland will attend tomorrow’s NATO meeting. This is a moment to show the world that we stand shoulder to shoulder with all those who feel the destabilising impact of this invasion.
The noble Baroness may know that noble Lords from across the House, some of whom are here today, including me, have been actively supporting peaceful protesters throughout Belarus through an adoption scheme of political prisoners. We particularly welcome the announcement of additional measures against Lukashenko’s regime, which is enabling this offensive.
We now must combine military assistance with political and financial support. There is no greater display of solidarity than to expose and tackle illicit Russian finance. The steps announced, including deposit limits, are welcome. The noble Baroness will have our support in implementing these urgently to prevent restrictions being circumvented. We must now go further. Although I accept the need for wider agreement to exclude Russia from financial mechanisms such as SWIFT, I urge the Government to act without delay to seek to achieve such an agreement. Given that the central bank of Russia is known to have developed an alternative to SWIFT payments, we also need to be prepared for any follow-up action.
I am pleased that the noble Baroness the Leader reiterated the UK’s intention to divest from Russian oil and gas. We should support others in doing the same. Many of our NATO allies in eastern Europe are heavily reliant on them, and we need to support them in transitioning from Russian fossil fuels as part of an international focus on energy security.
The noble Baroness will have heard calls on many occasions from Members of this House to bring forward the economic crime Bill, so the Government are right to commit to it today. We offer practical support to ensure that it is implemented. We need tough action on shell companies, urgent reform of Companies House, and zero tolerance for Russian interference and Russian money in our democracy. The noble Baroness will understand that these Benches have called for the Elections Bill to be used as a means of banning Russian donations to political parties. Sanctions have to go beyond just squeezing the Russian economy. They have to be part of an entirely fundamental change in our approach towards the Kremlin, so it would be helpful if the noble Baroness could outline what other legislation—she mentioned the economic crime Bill—will be brought forward as part of the Statement.
Can we say something about humanitarian support, because it is going to be crucial? The Government will have our support in any steps undertaken by our representatives at the UN, working with UNHCR and other appropriate agencies, to prepare for this. We must fully engage in our international institutions to secure humanitarian access under the Geneva conventions, and we must recognise the very great risk of large-scale displacement of people.
As we turned on our TVs this morning, no one could be failed to be moved by the shocking and very distressing pictures of Ukrainians fleeing their homes, some of them unable to carry their possessions with them, their cars stuck in traffic jams as they sought escape for themselves and their families. I hope the Minister will be able to confirm that the Government are already engaged with neighbouring allies to offer the UK’s support.
President Putin has made it clear that he sees any ally of Ukraine as an opponent of Russia. He is prepared to act as the world’s aggressor, whatever the consequences. Ukraine, NATO and the Government have our full support in challenging this barbarism, and we will do all we can with them to ensure that Putin fails. He will learn that his actions serve only to strengthen the alliances against his corrupt regime. The spirit of Ukraine will live on in the resistance and, while there will be dark days ahead, we will ensure that the price Putin pays for his aggression will outweigh the doomed pursuit of personal glory.
Lord Newby (LD)
My Lords, when we debated this issue on Tuesday and President Putin’s intentions were already pretty clear, I doubt that we fully comprehended the scale and ruthlessness of what he had in mind. Now we have no such doubts. By his own words, we know that he wants the demilitarisation of Ukraine, which he can achieve only by the successful subjugation of the whole country. We are united in offering our full support to the Ukrainian people in resisting this illegal aggression and, metaphorically at least, we stand alongside them in their defence of shared values, peace, democracy and liberal views.
There is therefore much in the Statement which we welcome. It is encouraging, for a start, that the G7 leaders have been working so closely together today, and we hope that this process continues. Some of the specific measures are particularly welcome. We welcome the exclusion of Russian banks from the UK financial system, the banning of Russian banks and companies from raising funds in the UK, the extension of these sanctions to Belarus, the freezing of assets on individuals and companies, and the banning of high-tech dual-use items as exports to Russia. There are, from the Statement, clearly still many details of how these measures will be worked through, and we will obviously co-operate with the Government on any emergency legislation required to do this.
There seem to be two glaring omissions from the list of sanctions announced this afternoon: the words “Rosneft” and “Gazprom” do not appear. Quite apart from their size, these two companies stand to gain more than any others by the rise in oil and gas prices that Russian action is causing. It would surely be sensible to freeze them from the City of London, and any activity in the UK more generally. Could the Minister explain whether that is really an omission, or if they might in fact be covered under the headline of the 100 banks and companies affected by these sanctions?
The Prime Minister said that the package means that oligarchs in London have nowhere to hide. Given that they are not actually hiding in London but do have assets here, what does this mean? Which oligarchs might be involved? It would, for example, send a strong signal if one of them were Roman Abramovich, one of Putin’s close allies. I say this not just as a Leeds United fan: will he be affected?
The Prime Minister says that the Government will introduce legislation covering unexplained wealth orders before Easter. That is fine, but why are the other measures in the economic crime Bill, particularly the reforms to Companies House, and the register of overseas property ownership, being delayed until the next Session?
The whole Bill is apparently ready. To have potentially to wait for more than a year before it is on the statute book seems plainly inadequate to us.
The Government say that nothing is off the table and specifically cites the SWIFT system as being in that category. As the noble Baroness, Lady Smith, asked: what is happening with SWIFT? Are the Government actively pursuing it with their allies, and is there any sense of when the exclusion of Russia from SWIFT might actually take place? Can the Leader of the House confirm whether any other measures are also under consideration, such as a blanket travel ban for all Russian nationals or a more complete trade ban?
In terms of the military situation, it is a positive step that NATO leaders are meeting tomorrow. However, the Prime Minister gives no clue about what he will be proposing to them. For example, will NATO—and, in any event, will the UK—be making more military equipment available to Ukraine? Does the UK stand ready, as we believe it should, to offer more troops and aircraft to NATO if they are requested?
The fog of war has descended on Ukraine. We cannot yet see clearly how events on the ground are progressing. However, we can see enough to know that Ukraine faces the gravest possible threat to its independence as a sovereign state and that the longer-term peace and prosperity of Europe is in the balance. We must now unite, both as a country and with our democratic friends, to defeat these threats.
Baroness Evans of Bowes Park (Con)
I very much thank the noble Baroness and the noble Lord for their comments and support. The incredibly constructive and sombre tone which all noble Lords have taken in their contributions is gratefully received. I look forward to working with noble Lords across the House as we face this difficult situation.
The noble Baroness asked about the Baltics. We are working extremely closely with them. We are doubling the number of UK troops in Estonia in support of NATO’s enhanced forward presence. My noble friend Lord Ahmad visited there 10 days ago, so a lot of contact is going on. Of course, we will work with our allies and, as was mentioned in the Statement, we will have meetings with NATO leaders tomorrow to discuss this further. We are also deploying four more RAF jets to create a squadron in southern Europe. As I mentioned in the previous Statement earlier in the week, a small number of marines have been deployed to Poland from the UK and more will travel during the next week. These personnel were originally due to deploy on Exercise Cold Response in Norway but have been reassigned to this task. We will be working with our allies to look at what further support we can provide in the region and to Ukraine itself.
Both the noble Baroness and the noble Lord asked about SWIFT. As the Statement made clear, we have not ruled anything out in terms of sanctions. None the less, this is an area where we need to work with our global partners, and we will continue to have discussions with them to see as and when further action can be taken. I can assure the noble Lord that there will be a rolling programme of sanctions and actions. As we have already seen from Tuesday to today, significant developments have happened. Today, I cannot go any further than what has been said in the Statement in terms of shedding light on things to your Lordships’ House. I am sure noble Lords understand. As I hope noble Lords have already seen, I can assure the House that we are working globally with our partners to ensure that we are moving and responding to the situation as things develop on the ground.
In relation to legislation, as the Statement made clear, we will bring forward measures on unexplained wealth orders before the House rises for Easter. Next week, we will be laying SIs which will be able to implement some of the other measures. As I said in the Statement, we will set out further details before Easter on the range of policies to be included in the economic crime Bill, including on reforms to Companies House and a register of overseas property ownership. We are already taking action on multiple fronts to crack down on economic crime. Noble Lords will know that, in July 2019, we published Economic Crime Plan bringing together Government, law enforcement and the private sector to tackle fraud and money laundering. We have already delivered 37 actions within this. We have created a new National Economic Crime Centre to co-ordinate law enforcement response to economic crime and have introduced further new powers. Obviously, more work needs to be done, and we are focused on that.
The noble Baroness rightly asked about the humanitarian situation. We are providing financial and technical assistance to partners on the ground to ensure the system is prepared to support those in Ukraine who need it most. For instance, we are working with partners, supporting the Ukraine Humanitarian Fund through the UN humanitarian agency. We have already committed £100 million to new funding to aid efforts to build Ukraine’s resilience and reduce reliance on Russian energy supplies, and 1,000 more British troops will be put on readiness in the UK to support a humanitarian response in the region as and when we know where we need to deploy it.
The noble Baroness was absolutely right: the international community must speak as one in demanding full humanitarian access, respect for human rights and adherence to international humanitarian law. Once again, I thank the noble Lord and the noble Baroness for their comments.
Lord Cormack (Con)
My Lords, of course the people of Ukraine are uppermost in our minds and thoughts, but should we not also remember that people have demonstrated on the streets of Russian towns and cities today? Can we do everything possible to utilise to the full the soft power of the BBC World Service to make sure that people in Russia know what is being perpetrated in their name? While we do that, should we not also give the boot to RT, which is a Russian propaganda tool in our own country? Finally, would it not be unthinkable if we did not make sure that the football tournament scheduled for St Petersburg takes place somewhere else?
Baroness Evans of Bowes Park (Con)
I thank my noble friend, particularly for the opportunity once again to state that we have no quarrel with the Russian people; our quarrel is with the Russian leadership and President Putin’s regime. I thank my noble friend for giving me the opportunity to say that on behalf of the House.
In relation to Russia Today, my noble friend will know that the Culture Secretary has written to Ofcom to express her concerns. It needs to keep the situation under careful review. It does have powers to step in when broadcasting rules have been breached. It has, as my noble friend will know, previously sanctioned RT for serious failures to comply with broadcasting rules on impartiality. As we in this country obviously benefit, thankfully, from a free and open media, it is right that all regulatory decisions by Ofcom be made independent of government.
In relation to the football tournament, I think the Prime Minister has been very clear in his view that it should not take place in Russia.
Baroness D'Souza (CB)
My Lords, the Statement says that the invasion of Ukraine must fail and must “be seen to fail”. Can the noble Baroness the Leader say something about what failure might look like? Would it, for example, be similar to the rather bedraggled departure of Soviet troops from Afghanistan in the 1990s after well over 10 years of occupation?
Baroness Evans of Bowes Park (Con)
I thank the noble Baroness for her question. I do not think I can stand here today and set out exactly that. What I can say is that we will be working with our NATO partners, as we have seen today through the G7, to ensure that we have a united front against Russian aggression and that we maintain a strong posture together, in order to make sure that we have the outcome in this situation that we all want.
Lord Robertson of Port Ellen (Lab)
My Lords, I am sure I was not the only one waking up this morning to listen to the news who was not reminded of that similar day in 1968 when we woke up to hear the news that Soviet tanks had crushed the velvet revolution in Czechoslovakia. In May 2002, when I chaired the NATO-Russia summit with President Putin as an equal member around that table, I thought that I had finally exorcised the ghosts of 1968. Only hours later, I stood on a platform beside President Putin at a press conference when he said these words:
“Ukraine is an independent, sovereign nation state and it will choose its own path to peace and security.”
Now, remarkably, the same man says that Ukraine does not exist as a state, does not deserve to be considered as one and that its democracy will be crushed. The leader of the Russian people—a people to whom we owe so much for our liberty today—is taking his country down the road to pariah status. The Russian people do not deserve this.
Baroness Evans of Bowes Park (Con)
I thank the noble Lord. He has huge expertise in this area and speaks with great authority. He is absolutely right. Russia’s assault on Ukraine is an unprovoked, premeditated attack against a sovereign, democratic state. As we have discussed in this House in recent weeks, the Russian Government have repeatedly denied their hostile intent towards Ukraine. At the same time, they have amassed troops, launched cyberattacks and staged false pretences and provocations. As the Statement made clear, unfortunately, the Russian Government seem to have shown that they were never serious about engaging in diplomacy. I thank the noble Lord for his comments. I entirely agree with him.
Baroness Ludford (LD)
My Lords, when we eventually get the economic crime Bill, it and other similar legislation will be welcome, but critics would say that the challenge is enforcement. Do the Government plan to boost the resources of bodies such as the National Crime Agency, the Serious Fraud Office, HMRC and the Financial Conduct Authority to allow them to crack down on the abuses we see in London and the UK?
There is a very good article in the Telegraph today which reminds us that it is not just cash that is being invested in Londongrad:
“Russian reputations have also been polished, courtesy of London-based PR and libel law firms to whom the oligarchs pay generous fees”
to protect both their image and the Kremlin’s. Specifically, will the Government tackle the abuse of libel laws to stop this crushing of free speech and criticism?
Baroness Evans of Bowes Park (Con)
I thank the noble Baroness. Before I answer her points, I should say that I was a bit out of touch. It looks as if the football tournament has already been moved. I was not aware of that. This is good news. I hope that my noble friend is pleased.
As the Statement mentioned, we are setting up a new, dedicated combating kleptocracy cell within the National Crime Agency. We have ensured that it is staffed with both the resources and the people it needs to do its important work. We have done a lot in this area. For instance, the Criminal Finances Act 2017 has allowed us massively to step up our recovery of criminal assets. We seized £1.3 billion between April 2015 and 2021. We have also conducted around 7,900 investigations. There have been 2,000 prosecutions and 1,400 convictions annually for stand-alone money laundering or where it was the principal offence. Our record shows that we are committed to putting money into this area. We have also committed £400 million to tackling economic crime during the next three years through our new anti-money laundering levy.
Lord Alton of Liverpool (CB)
My Lords, just three hours ago, at a meeting with the Ukrainian ambassador, he reported fighting in the government district of Kyiv. What more can we do to ensure the safety of President Zelensky, his family and his cabinet, not least because of our long and honourable record in providing, where necessary, a place of safety for Governments in exile?
When we respond to Putin’s illegal actions, will the Leader bear in mind that, in addition to economic sanctions, in 2000 Ukraine signed the Rome statute, which established the International Criminal Court? Will the Government urgently discuss with our law officers and the ICC how we can invoke its powers to prosecute war crimes committed on the sovereign territory of Ukraine, so that Russia’s military and political leaders understand that they can be brought to justice within the ICC’s jurisdiction without any veto at the Security Council, and that they can be prosecuted for atrocities committed on Ukrainian soil? Will the political leaders in the Duma who voted for these war crimes have sanctions imposed upon them as well?
Baroness Evans of Bowes Park (Con)
In relation to the noble Lord’s comment about war crimes, conversations are ongoing within the discussions that are being had internationally. I cannot go further and give specifics in this Statement, but I can certainly say that conversations are being had across a whole array of issues. Yes, we are looking at imposing sanctions on individual members of the Russian assembly.
The Lord Bishop of Coventry
My Lords, while weapons of war reduce people and property to ash, will the Leader join me in commending the Pope on calling for a day of prayer and fasting for peace next Wednesday, which is Ash Wednesday, and in commending the most reverend Primate the Archbishop of Canterbury on calling us all to join in that world movement of prayer and calling all churches of this land to set aside Sunday as a day of prayer for peace? Also, would she care to expand on her answer to the noble Baroness, Lady Smith, on the humanitarian response, especially in terms of how we are co-ordinating our response with European partners to the predicted refugee crisis? The Leader may be glad to know that Coventry City Council has assured me that it stands ready to do its part should that be needed, as it has been in the past.
Baroness Evans of Bowes Park (Con)
I am grateful to the right reverend Prelate and all the faith leaders he mentioned for the action they are taking. We stand united in the face of this Russian aggression and, once again, it is fantastic to have leadership from across all our communities standing together. I set out to the noble Baroness, Lady Smith, a number of things that we are doing in relation to the humanitarian effort—in particular working through the UN, which we will continue to do. Of course, we will assess the situation and discuss with international partners other things that we may be able to do to help if we see a refugee crisis unfold within what is happening in Ukraine.
Baroness Neville-Rolfe (Con)
My Lords, I thank my noble friend the Leader for taking the time to make this Statement and have a full Front Bench, as well as for finding time tomorrow for a proper debate. I want to return to the economic crime area and ask whether resources will be made available to Companies House for enforcement, because that is of course important and reform there is overdue. Also, will similar measures be taken in other countries? That would level the playing field, act as an incentive for good behaviour and reduce corruption in other countries.
Baroness Evans of Bowes Park (Con)
As I have set out in our general discussion—obviously, there was also the G7 call today—we are working with our global partners on a range of issues. I am sure that discussions around the international rules have been part of that. As I said in the Statement, we will set out before Easter further detail on the policies that we intend to bring in, including reforms to Companies House, so my noble friend should not have too much longer to wait for that.
Lord Watts (Lab)
My Lords, I welcome the Government’s announcement today on the measures that they are going to take, but Putin will not just sit there; he will probably use cyberattacks as a way of hitting back at the West. Are the Government prepared to do the same back to him if that happens? Unless we do that, we will see continual cyberattacks. We need to make sure that he understands the consequences of what he intends to do.
Baroness Evans of Bowes Park (Con)
The noble Lord is right; that is certainly an area we are looking at. He will know that we have put a UK cyber sanctions regime into force to ensure that the consequences of malign cyber activity are felt. We have specialist teams of cyber experts and intelligence analysts working round the clock to detect, decipher and deter Russian threats. We are also investing £2.6 billion in cyber and IT capabilities over the next three years.
The Earl of Kinnoull (CB)
My Lords, I must say, it was good to hear of the strong co-operative approach with our European friends and neighbours; I very much welcome all that was announced today. Less good, however, was today’s news that one of the armoured columns started the morning in Belarus. The Belarusian leadership has been acting as cheerleaders from the side for Mr Putin on this. Can the Leader comment on that and confirm to us that the sanctions regime that will hit Belarus will be equally as tough and strong as the one that will hit Russia for this infamous act of brutality?
Baroness Evans of Bowes Park (Con)
Yes. In the Statement, it was quite clear that the sanctions will also be applied to Belarus for its role.
Baroness Bennett of Manor Castle (GP)
My Lords, in responding to the Front-Bench questions, the noble Baroness the Leader of the House said the international community must speak as one. That is identifying it, I think rightly, as a world crisis, not just a European one, as it has sometimes been painted. I note the very powerful contribution from Kenya’s ambassador to the United Nations reflecting on his own country’s experience that the recovery from the “embers of dead empires” must be completed without creating new forms of oppression and domination. Will the UK go to the United Nations General Assembly to seek collective action under the uniting for peace procedure created by Resolution 377A, given that it is obvious that action by the Security Council would be blocked by Russia?
Baroness Evans of Bowes Park (Con)
The noble Baroness will be delighted to know that my noble friend hotfooted it back from the UN this morning and will no doubt be able to give more information on that in the debate tomorrow.
Viscount Waverley (CB)
My Lords, it might be helpful to have an insight from the Government about what is known about Russia’s endgame in this whole arena. Might the Leader be minded to respond to the question from the noble Lord, Lord Alton, about the Cabinet and the President and their safety in Ukraine? I would just counsel that cool heads need to prevail in ensuring that the British media are not kicked out of Russia as a result of tit for tat, otherwise it will probably be less helpful than any other area.
Baroness Evans of Bowes Park (Con)
The noble Lord invites me to get into the mind of Vladimir Putin and I am afraid that that is not something I am at all qualified to do, I am pleased to say. I am sorry; I forgot to cover the point from the noble Lord, Lord Alton: the Prime Minister is talking regularly to the President of Ukraine and so I am sure will have discussions around the issues that he raises. He spoke to him first thing this morning and is speaking to him very regularly.
Baroness Wilcox of Newport (Lab)
My Lords, if I may push the Leader of the House a little further on the question raised by my noble friend the shadow Leader of the House, what new legislation is being brought forward as a result of today’s Statement?
Baroness Evans of Bowes Park (Con)
As I have said, there will be some SIs next week in relation to some of the sanctions. Through the debate we had earlier today, we already have some of the powers we need. There will be that and, as I said, we will be bringing forward measures on unexplained wealth orders before the House rises at Easter. We will also be bringing forward an economic crime Bill in the next Session, of which further details will be set out in due course.
Viscount Stansgate (Lab)
My Lords, like my noble friend Lord Robertson, I well remember waking up in August 1968, not least because it was my birthday and, instead of being wished a happy birthday, I was told that the Russians had invaded Czechoslovakia. I want to ask one question arising out of the Statement. It says that the UK now has
“a clear mission: diplomatically, politically, economically—and eventually, militarily”.
Can I invite the Leader of the House to explain the use of the word “militarily” in that context? Does it imply that the UK will now continue to supply arms to Ukraine?
Baroness Evans of Bowes Park (Con)
Yes, we have said that we will provide further support to Ukraine in terms of both lethal aid in the form of defensive weapons and non-lethal aid, such as body armour and helmets. We will be continuing to supply them and support them in that way.
Lord Austin of Dudley (Non-Afl)
My Lords, can the Leader tell us what support the Government will provide to the BBC World Service so that the citizens of Russia can continue to receive accurate information from the free and democratic West? Can she assure the House that Putin himself is on the list of people to be sanctioned? I underline the importance of making it absolutely clear to the Russian military, Russian officials and the security services in Russia that they will be held to account individually for war crimes committed during the invasion of Ukraine.
Baroness Evans of Bowes Park (Con)
As I mentioned in answer to an earlier question, discussions are ongoing around the issues the noble Lord talked about. On the BBC and Russia, this was a question the Prime Minister was asked in the other place and I know that he and the Culture Secretary will be looking at how we can best support that to continue, because it is obviously extremely important to make sure that information that is true and valid is able to be accessed by the Russian people—and not just the misinformation and disinformation by the President.
Lord Beith (LD)
My Lords, has the Foreign Office offered any new travel advice relating not just to Ukraine and Belarus, but any neighbouring countries?
Baroness Evans of Bowes Park (Con)
As I said on Tuesday, I think, British nationals were being encouraged to leave Ukraine. What we have also said now is that any who are still in Ukraine should register their presence, which will allow us to provide the latest information. Obviously, now there will be a lot of difficulties around this, but we have encouraged all British nationals to leave Ukraine. We are also providing an enhanced response in the FCDO, with teams working around the clock to support British nationals and respond to political developments. Obviously, we will continue to update travel advice as and when we can.
Baroness Featherstone (LD)
My Lords, will the measures that the Leader of the House has announced target Putin’s personal wealth? I do not think he cares about institutions but I do think he cares about his wealth.
Baroness Evans of Bowes Park (Con)
As I say, I cannot go any further than what was said in the Statement, I am afraid. As I said, sanctions and action is a rolling programme, but I cannot say anything more specific. I apologise.