Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2021

Baroness Whitaker Excerpts

Wednesday 10th February 2021 Grand Committee

[Baroness Whitaker (Lab) [V]]

My Lords, as a former civil servant, I had responsibility for compensation for industrial illness schemes. Updating the regulations is to be welcomed but I have two questions for the Minister. I agree with my noble friend Lord McKenzie about the unfairness for dependants.

My questions concern the 2008 mesothelioma regulations. First, Regulation 4(1) stipulates that the claimant’s exposure must have been in the UK. There used to be a considerable amount of asbestos on board ships, where mesothelioma—as my noble friend Lord McKenzie said, it has a long latency period—was contracted by many claimants. Can the Minister confirm that personnel at sea on UK ships outside territorial waters are in the UK for the purpose of the regulations?

Secondly, do the tables in the schedule take account of up-to-date increases in the average age of mortality when computing the relative amounts per age of the complainant? In that context, these sad deaths, usually caused in the ordinary routine of earning a living, are all the more premature and might merit larger sums.

Employment

Baroness Whitaker Excerpts

Wednesday 21st January 2015 Lords Chamber

[Lord Freud]

The noble Lord makes an excellent point. This is a complicated area. We have had some large-scale debates in which we have had some very interesting contributions from all over the House. One of the most important things that the Government are trying to do is restructure the market so that we have sustained genuine employment. One of the most encouraging figures that we have seen is that the number of untrained people who have moved into the middle section of the market has improved quite strongly over the past four years.

[Baroness Whitaker (Lab)]

My Lords, I welcome what the Minister said about genuine employment, but following the questions from the two noble Lords opposite, which he must have welcomed, can he say what is the median annual pay of those new jobs?

[Lord Freud]

All I can say on what is happening in the market in terms of real disposable incomes is that we are now seeing inflation falling below the level of pay increases. In the latest set of figures, regular pay went up by 1.8%, compared to a 1% rise in inflation in the same period. We have seen some extremely encouraging forecasts. I cite the Ernst & Young ITEM Club forecast that real disposable incomes were likely to rise by 3.7% in 2015.

Architecture and the Built Environment

Baroness Whitaker Excerpts

Monday 28th July 2014 Lords Chamber

Asked by

[Baroness Whitaker]

To ask Her Majesty’s Government what is their response to the Farrell Review of architecture and the built environment.

[Baroness Whitaker (Lab)]

My Lords, I declare an interest as honorary fellow of the Royal Institute of British Architects and vice-chair of the All-Party Parliamentary Group on Design and Innovation. The United Kingdom is very lucky to have Sir Terry Farrell’s magisterial Review of Architecture and the Built Environment at the very moment when we have a crisis that requires a very large number of houses to be built fast; when we have pressure to question the tall towers of London; when our undoubted national talent in architecture is rarely matched by equal calibre in planning; and when our citizens, at local level, have the new responsibility of developing their own neighbourhood plans.

The intellectual cogency of Sir Terry’s review has impeccable authority not only because of his own distinction, but because of the breadth of its consultation among experts, representative organisations and lay people—and it has some very nice diagrams, intelligible even to the non-expert.

What problem was it set to address? Those of us who have been depressed by the meagre and dismal quality of some recent public housing and have feared a return to the disasters of the 1960s and 1970s might have thought that reason enough, but in his preface Sir Terry also talks about the increase of urbanisation, the onward march of digital technology and the challenge of sustainability. The Minister, Mr Ed Vaizey, who is much to be commended for having commissioned it, reflects in his foreword to the review on the,

“critical importance of architecture and design in all aspects of our lives”.

The profound impact of our built environment on the way we live our lives needs to be better understood.

In effect, we would be missing an extraordinary opportunity if we did not get the systems and culture that create good and sustainable place-making right for our time now, and we would do irreparable damage to the fabric of our communities if we missed that opportunity. Our systems and culture have not got it right, although there are examples of great achievement here and there. That is what this review sets out to tackle.

There is a large number of detailed conclusions and recommendations, which I hope all those responsible for planning decisions will study, but they fall into simple broad categories. Interestingly, education comes first. The recommendations travel from ensuring that children at school understand the importance of the built environment to equipping architects and all those involved in planning decisions with the skills to engage the public in making sound decisions—and to being better able to make them themselves. This leads naturally on to ensuring quality, including restoring the profession of planning to its rightful high place, making space for design in infrastructure decisions, and the role of industry and public procurement. There follows an imaginative section on the part played by our cultural heritage, and another on economic benefit.

Through all these sections, several cross-cutting themes run: there must be better understanding of what place-based planning and design is really about; better connectedness between all the institutional stakeholders; better public engagement through education and outreach; a sustainable and low-carbon future for our built environment; and a commitment to improving the everyday built environment—to “making the ordinary better”.

In Sir Terry’s conclusion, an overall built environment policy that can rest outside government is proposed, with an independent PLACE leadership council. PLACE is the acronym for its constituent parts—planning, landscape, architecture, conservation and engineering. There should be a government-appointed chief architect to sit alongside the current chief planner and the chief construction adviser on the council. So it has a broad sweep, based on a very detailed analysis, with clear recommendations. I strongly support all these.

In the time permitted, I just want to pick out a few of the more detailed proposals. From the education section, I was particularly taken by the idea that planning committee members and highway engineers, among others, should be trained in design literacy, with the dedicated commitment of the professionals concerned. For too long we have suffered cities and housing estates made fit for the motor car and thereby also made polluted, dangerous and ugly for people to walk in and children to play in. I am also a fan of proactive planning, as recommended in the review, and have long admired its results in the Netherlands and in Sweden, where there is some of the most varied and attractive public housing in Europe. This would really only work, again as the review says, if design reviews were more widely available, much more participative and not just for new applications, but, say, to revive a high street. The plea for government leadership in explicitly valuing the long-term benefit of well designed places, as well as setting up new institutions to carry forward these values, is well made. What is the Minister’s response to this?

I had rather hoped for a bit of detail on space standards, so important in lifting the quality of public housing in the days of Parker Morris and honoured now only by the Mayor of London; and for post-occupancy reviews of new-build housing by the people who live there, but the frameworks proposed by the Farrell review could easily welcome such features.

In conclusion, to implement this review would transform those parts of the UK that most need it. It would harness our undoubted talents in building and design for the benefit of all of us, rather than the fortunate few. Many of us are proud to live in Britain because of its tolerance, humanity, the beauty of the landscape and our civic energy and conscience. Would it not be good if we were as proud of our built environment and the national well-being that that would create, so clear in some of our places, so lacking in others? What does the Minister say to the recommendations of the Farrell report?

Atheists and Humanists: Contribution to Society

Baroness Whitaker Excerpts

Thursday 25th July 2013 Lords Chamber

[Baroness Whitaker]

My Lords, I intend to go rather farther back than my noble friend’s powerful speech. I congratulate him on giving us this opportunity to go a little wider and deeper than our usual deliberations. My thesis is that our idea of the good society has its roots in many traditions, some of which are humanism and atheism, and that the contribution of humanist thought is significantly underrated and denied its status in our education and our social policy. I declare an unremunerated interest as a vice-president of the British Humanist Association, whose causes my noble friend has so eloquently described.

By “humanism” I do not mean the Christian Platonism of Erasmus and his followers, although it is perfectly reasonable to call them humanists because that is what he called himself. For the purposes of this debate, I mean people whose ethical framework is unattached to religious belief. Strictly, I leave out later thinkers whose ideas chimed with humanism such as Montaigne, who would have courted death if they spoke in those terms. However, rather as early Christians thought Virgil was one of them, I hope that I can count Montaigne as sympathetic to the values of humanism.

Democritus, from fifth century Greece, was clearly an atheist. For our debate, perhaps his most significant contribution was his idea that there were systems which controlled how materials behaved—in effect, physics and chemistry. He also had a clear picture of the difference between subjective and objective perception. Both these extraordinarily modern-seeming theories offered an alternative to the supernatural and shamanic versions of the world available at the time. Bertrand Russell thought Democritus was simply lucky in his conclusions, but Lucretius, Democritus’s much later Roman disciple, gave a series of empirical arguments for the same beliefs. The great beauty of De Rerum Natura is its idea of a world determined by natural laws. It was astonishingly prescient—and, incidentally, was saved for our post-classical world by a Christian scholar. We do not acknowledge these two giants much as we go about our lives but we still stand on their shoulders, in Isaac Newton’s graphic phrase.

I should also like to claim the sceptics of the Enlightenment such as Voltaire, but more exactly he and some of his contemporaries were deists, so perhaps I may call them fellow travellers. There were certainly avowed atheists among them, such as Diderot and the German Matthias Knutzen, who proposed conscience and reason as the only guides to behaviour. We could also claim Spinoza, with his idea of the human mind. To jump a couple of centuries, we teach George Eliot and Thomas Hardy as civilised and penetrating writers, but do we acknowledge equally their atheist values? I think we could with advantage put John Stuart Mill’s pellucid Three Essays on Religion, which is actually about morality, on the sixth-form reading list.

Why does it matter to give humanism its due? After all, world views come and go. Who today respects the truths of Zoroaster—apart from the folk my noble friend referred to? Before some eminent Parsee Member of your Lordships’ House gets up to say, “Ahura Mazda lives”, perhaps I may hastily say that we should respect humanism, at least, because of the enduring nature of its tenets and, above all, their capacity to unite people of different faiths and none in common values.

What would this greater contribution produce? It would strengthen the part played in ethics by conduct. It might give some credit to a tradition that goes back even earlier than the Abrahamic religions—much earlier even than classical Greece—to the religious tolerance of Ashoka, the great Indian king of the sixth century BCE, or to the idea of human rights in the Code of Hammurabi three centuries earlier. It might draw a continuum from those milestones to the atheist inventors of the United Nations and its founding charter of human rights. I wish that this Government respected what human rights are really about, as their founders down the centuries have. Acknowledgment of humanist traditions of thought would help to put that in proper perspective. More emphasis on conduct rather than faith or revealed axioms would be beneficial in the education of our diverse society. It would make a better way to educate our children together to form one society, whatever their affiliation to a particular religion or belief.

I personally would not like to see too much downgrading of the status of religion in a secular society. The values of the great religions of the world are inestimable and it would be foolish to deny the fundamental role of Christianity in our culture, or of the one I am closest to: Judaism. The influence of Islam, especially from the Andalusian period, is underrated. The great religious patrons financed some of the greatest art the world has seen.

What I hope for is an understanding of the importance of ethics and morality that allows non-religious systems equal respect. I am heartened in this by occasional references by right reverend Prelates to those of faith and of none. I ask for an equal place in our counsels and advisory bodies, and, most of all, in the education of our children. It should be the primacy of an ethical framework in our public policy, not the primacy of religion, that matters.

Of course people are entitled to draw a religious conclusion from the awe-inspiring features, and the challenges of evil, in our world. Those of us who grew up in the 20th century will have noticed the need for redemption. If some people over centuries, even millennia, have not found it right to fit that into a religious framework but have nevertheless developed the values that we honour, we should make sure that we know all of the shoulders we are standing on.

Town and Country Planning (Temporary Stop Notice) (England) (Revocation) Regulations 2013

Baroness Whitaker Excerpts

Monday 17th June 2013 Lords Chamber

[Lord Avebury]

My Lords, this order removes the restriction from the Town and Country Planning Act 1990 on a local authority’s powers to serve a temporary stop notice in respect of caravans which are used by the occupants as their main residence, where there is a suspected breach of planning control. Hitherto, a local authority could issue a TSN in these circumstances only if it considered that the risk of harm to a compelling public interest arising from stationing the caravan on the land in question was so serious that it outweighed any benefit to the occupier of the caravan of stationing the caravan there for the period of a TSN.

The Government say that unauthorised caravans can often cause immediate and significant impact on the local area and that this is no longer to be weighed against the interests of the occupiers. The order equalises the planning authority’s powers in regard to caravans used as a person’s main residence with other types of development. That is the point. Parliament has rightly in the past made a distinction between a caravan which is somebody’s home and all other types of development. There is a huge difference between stopping ordinary breaches of planning control and depriving a family of their home, with devastating consequences for their future. Not only do they become homeless, but their access to education, health and other public services is seriously prejudiced.

The Community Law Partnership deals with a great many planning cases on behalf of Gypsies and Travellers and in its response to the consultation, it said that the untrammelled use of TSNs would lead to breaches of Articles 6, 8 and 14 and the first protocol of the European Convention on Human Rights. Article 6 deals with the right to a fair hearing and there is, of course, no appeal against a TSN. Article 8 covers the right to respect for private and family life, which is obviously impaired when a person or family is evicted. If councils provide a five-year rolling supply of land with planning permission for Traveller sites—as required by 31 March this year under the CLG’s Planning Policy for Traveller Sites—and if they refrain from using these powers until those sites are provided, a great deal of unnecessary human suffering would be avoided. It would also avoid the additional public spending which is incurred in dealing with the health, social and educational problems caused by the notices.

Not a single local authority has implemented PPTS, three months after the Government’s deadline. Essex, for example, expects only to complete the preparatory assessment of need demanded by the policy six months hence; and no authority has identified the required five-year supply of deliverable sites. That word “deliverable” means that they should be,

“available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years”.

I would be grateful if the Minister would explain why this information, which is so crucial to the success of the Government’s strategy for Gypsies and Travellers, is not collected centrally. When a delegation from the Gypsy APPG asked Brandon Lewis, the junior Minister at the CLG, this question last Tuesday, he said that it would be a top-down approach, contrary to the philosophy of this Government. He added that it was up to local planning inspectors to deal with the failure of councils to comply with the PPTS as they saw fit.

I ask my noble friend if that means widespread rejection of local plans and random granting of appeals against refusing planning applications by Travellers. For the last 50 years we have said that the problem of unauthorised sites arises from the failure of the political system to provide adequate accommodation for Gypsies and Travellers. Governments have generally agreed that accommodation is a key factor, not only in dealing with unauthorised sites, but also in tackling the appalling educational, health and other social disadvantage suffered by Gypsy and Traveller families. Yet they have ducked the responsibility of ensuring that these problems, affecting 0.02% of the population, are resolutely addressed. On the contrary, their priority has been to make life harder for those who have nowhere to live, as this order will inevitably do.

That brings me to the prohibition of discrimination in Article 14 of the ECHR, taken together with Protocol 1, Article 1. This entitles a person to the peaceful enjoyment of his possessions. This combination calls into question the difference in treatment between Gypsies and Travellers, who may be deprived of their homes without notice or right of appeal, and gorgias—that means non-Gypsies—who are protected against this treatment by Section 171F (1)(a) of the 1990 Act. The JCHR has drawn attention to the risk of breaching these ECHR provisions, as well as those of Article 2 (1)(a) and Article 5 (b)(3) of the Convention on the Elimination of All Forms of Racial Discrimination.

In some cases, the use of a TSN may be contrary to the public sector equality duty, particularly to the requirements in Section 149 of the Equality Act, to:

“Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it”.

There may also be cases where, because of our adherence to the Convention on the Rights of the Child, the use of the TSN may be unlawful because it would not be in the best interests of a child. Under the Health and Social Care Act, too, the Secretary of State must have regard to health inequalities in exercising his functions. Will my noble friend explain how he can do that if Gypsies, who are already at the bottom end of the scale in morbidity and mortality, are harried from pillar to post, unable to seek the medical attention that they may need?

The Explanatory Memorandum says that the Government intend to produce guidance to assist councils in taking into account human rights and inequalities considerations and balancing those considerations against the impact of the unauthorised development on the local area. However, the guidance is likely to be so general as to be useless in enabling the council to decide whether it is safe to issue a TSN. It will hardly venture into the dangerous territory of predicting how the courts will deal with a particular set of circumstances.

Councils may be aware in general terms of the need to take account of human rights and equalities considerations in deciding whether to issue a TSN, as the consultation showed. However, the Explanatory Memorandum envisages the possibility that they may use these powers inappropriately and may then be challenged by judicial review. However, since the order has been published, legal aid for such cases has been withdrawn. Do the Government really believe that Traveller litigants in person are likely to launch judicial review proceedings?

Almost certainly, the families targeted by a TSN will end up back on the roadside, with all the disastrous consequences for their access to healthcare, education and other public services that are well known from evictions such as Dale Farm in 2011. The public expenditure costs downstream are likely to be enormous. This no doubt explains why the Government make no effort to quantify them.

Forty per cent of respondents to the consultation felt that the impact of the changes on caravan occupiers would be unacceptable—as it certainly would be when they have nowhere else to go. The government response to the consultation on the Taylor review of planning practice guidance was published in May. Will the Minister confirm that the guidance on the use of TSNs will be part of the new guidance suite that will be published before the Summer Recess? Will the guidance say that councils should use TSNs only once they have a five-year deliverable supply of sites in place? If it will not, these regulations put the cart before the horse. The draconian power to make people homeless should be invoked only after a local deficit of sites has been eliminated.

[Baroness Whitaker]

My Lords, when on 13 February this year the Department for Communities and Local Government concluded its consultation on the proposal to change the temporary stop notice system and, in effect, leave it up to local planning authorities to determine whether it is right to evict families from unauthorised caravan sites irrespective of the availability of other sites, special circumstances of health and education, or any kind of disproportionate impact, more than 40% of responses stated that the impact on Gypsies and Travellers would be unacceptable. However, six weeks or so later, on 29 March, just before the Easter bank holiday, the Secretary of State, Mr Pickles, announced that he would go ahead with measures that he unveiled just two weeks later. His precipitous move means that there will now be a complete absence of any need to consider, let alone provide, an alternative legal site if a family, even in great need, perhaps with an oxygen machine or with a heavily pregnant mother, is evicted from an unlawful site.

Noble Lords will know that unlawful sites happen because far too few councils have made a proper assessment of site need, let alone made new council sites or approved private ones. Therefore those families—not a large number—who have been obliged to stop on unauthorised ground will be even more disadvantaged, sometimes dangerously so. Nor, if the Ministry of Justice’s proposals go ahead, will judicial review be as available as in the past.

Is this warfare between communities necessary? Is it essential that in addition to enforcement notices, injunctions and direct action, councils should be able, without any corresponding duty to provide or allow the small number of sites required, to remove whole families into a further progression of illegal stopping, and enduring a lack of facilities such as mains drainage, piped water and rubbish removal, which will further deny their children education and their sick people healthcare?

It is not as if there are not examples of much better practice. The successful pilot of the negotiated stopping system in Leeds is one of the best. Everyone took part: the council, the police, the local Traveller support group, Gypsy and Traveller families themselves and local businesses. Leeds City Council estimates that it has saved more than £100,000 so far by avoiding eviction and clean-up costs—a far cry from the millions of pounds spent in the Dale Farm disaster. It also says that access to healthcare, education and training has significantly improved for the roadside families concerned. Your Lordships will well understand the benefit of that for community cohesion and for the prospects of employment and, in some cases, life itself.

Councils need to be encouraged through the legal framework to behave like this, not discouraged. How will the Government achieve improvements? I am reminded of Mahatma Gandhi’s famous answer to the question of what he thought of English civilisation. He said, “It would be a good idea”. A good start would be to drop these regulations.

Mesothelioma Bill [HL]

Baroness Whitaker Excerpts

Monday 20th May 2013 Lords Chamber

[Baroness Whitaker]

My Lords, when I worked in the Health and Safety Executive, mesothelioma was recognised as the most dread of all occupational diseases. It is as yet incurable. There is no safe threshold, so that the smallest exposure to crocidolite or blue asbestos could produce it. There are many cases on record of a few weeks’ work or less in which the tiny fibres lodged fatally in the lung cavity, producing a lingering, miserable death in breathlessness and pain. A little girl contracted it simply from being around her grandfather’s work clothes. It was diagnosed when she was in her 40s.

Almost worst of all, although the toxicity of asbestos generally was recognised at the very beginning of the 20th century, effective preventive regulations had to wait until the 1970s. The import and use of blue asbestos was not banned until 1985, after many hard fought legal battles. As it is a disease with a long latency period, those dangerous conditions from before the ban are still now producing cases of mesothelioma.

The disease is now recognised to be so clearly linked to occupational exposure that there have been arrangements for compensation for some time, but there are obvious difficulties when an employer or the employer’s insurer goes out of business. Any improvement on the present system, where invalids not infrequently die before their case is settled, is an important step forward.

The Government’s proposals are therefore welcome. While there are aspects of the Bill that could, and I hope will, be improved in the time-honoured way in which your Lordships’ House deals with legislation, I, too, congratulate the Minister on bringing the Bill before us.

As other noble Lords have said, we shall need to look at the rationale for making the cut-off date for diagnosis as of last year and for setting the compensation cap at 70% of the average. Both will result in arbitrary and inequitable decisions. Some victims of occupational exposure with an equally valid claim will not be covered, as my noble friend Lord Howarth of Newport explained. There is much to tease out in the proposed system itself. I look forward to the Minister’s further answers to these points. I hope that he will offer the possibility of adaptation in the interests of fairness.

Enterprise and Regulatory Reform Bill

Baroness Whitaker Excerpts

Monday 14th January 2013 Grand Committee

[Baroness Whitaker]

My Lords, I support my noble friends and the noble Lord, Lord Lester, in opposing that the clause stand part because of my experience as a member of employment tribunals. Far from being a piece of red tape, the questionnaire speeds up and simplifies tribunal procedure. Briefly, the problem with discrimination is that it is very hard to prove. It is easy to understand why. You are trying to pin down a mental attitude which has resulted in unfair treatment. Employers, naturally enough, give all sorts of plausible reasons for this treatment. No one wants to admit that they have been unfair or racist.

Quite often the person bringing the case does not know how to expose discrimination in cross-examination. Sometimes they do not have a case, just a grievance or perhaps even an obsession. The questionnaire is vital in this process. It is the best way to deter hopeless cases and it elicits, in a very simple way, proper grounds of discrimination when they exist. It is a pity that we cannot know how many cases are deterred, with a great saving of public money. Can the Minister help on this? Do we have any figures?

In short, cases go better, faster and more cheaply with the questionnaire. That is why such a large proportion—83%—of consultees support it, including, as my noble friend Lady Thornton said, judges and tribunal chairs. Parliament would surely be misguided in accepting this clause. The questionnaire has stood the test of time and ordinary, day-to-day justice would be the poorer without it.

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[Baroness Whitaker]

I am sorry to interrupt the noble Baroness. I am grateful for her answer about the statistics, as far as it goes. As regards what the employer stands to gain from retaining the questionnaire, which was the case that I was also trying to argue, would she comment on the British Chambers of Commerce survey which showed that none of the businesses questioned raised concerns about the questionnaire procedure? In the Government’s survey of 2009, when I think they examined 811 businesses, was it not the case that only one organisation said that the questionnaire had been a time-consuming exercise? Could she comment on that?

[Baroness Stowell of Beeston]

If the noble Baroness is referring to 2009, I think I have already answered that point by explaining that that was about the layout of the questionnaire and not the whole process of dealing with a full set of questions from a claimant. However, I am clear that the response to our consultation from the business community was clear. As I said at the beginning, I am very happy to follow up, in writing to the Committee, with further information to support that point. I should add that in some cases the cost to business, including legal advice, often runs to several hundreds of pounds and that is before any costs associated with defending the case at a tribunal.

Having said that, I turn to what is a more constructive alternative way forward. We are agreed that there is value in the aim of encouraging a pre-claim dialogue and exchange of information. There is merit in establishing the facts of a potential discrimination case, and this is certainly what our proposed early conciliation of certain employment claims is intended to achieve. Noble Lords who followed this Bill in debates on earlier clauses will be familiar with the sort of changes that we are proposing. I think those clauses have attracted considerable support.

People thinking of bringing proceedings could still seek information from an employer or service provider about an alleged breach of the Equality Act 2010, either verbally or in writing. As I read that out, I should make it clear that that can be done orally or in writing because I am not aware of anyone writing without using words. That point was stressed by several of those responding to the consultation. This is in a climate where, compared to 40 years ago, businesses are on the whole far more transparent about the information they disclose. I am speaking generally but I think organisations understand the importance of transparency in the way they operate, and that attaches to their reputation. Employers or businesses who refuse to respond to reasonable requests for information will continue to run the risk of this being taken into account by a court or tribunal when deciding whether a basic case of discrimination has been made out. They will be more conscious of that risk than in the past for the reasons that I have just given.

Even if the parties do not in the end agree to conciliation taking place, a conversation with ACAS will give them a better understanding of the issue and of the tribunal process. The Government Equalities Office is in discussion with ACAS with a view to producing approved guidance which would help set out for employers and potential claimants in discrimination cases—

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[Baroness Brinton]

My Lords, there is a balance in these cases. I accept the points that the noble Baroness, Lady Turner of Camden, has made, but an issue has concerned me for some time about there being no defence for breach of duty for organisations that have done their absolute utmost to prevent an accident.

Let me give the Committee an illustration. An organisation with catering facilities for conferences has an extremely good record in public hygiene, effective written policies for staff at all levels and good training in management oversight of practices in its kitchens. A casual chef was employed from an agency. The chef was briefed that he was not to use raw egg in a mousse. He was given a written recipe to follow as well as the policy about why raw egg should not be used in such recipes. He disobeyed the order and, as a result, a conference delegate became seriously ill and had a miscarriage. That is a dreadful outcome from a single thoughtless incident by someone who was not even an employee but an agency worker not following instructions.

The lack of defence for the breach of duty legislation meant that the organisation itself was sued both civilly and criminally, but so were the people who had put in place the policies and monitoring, even though they had explicitly told this particular individual not to follow that course. As a result, individuals further up the organisation were extremely concerned that there was nothing further they could have done. Everything that the managing director, for example, had asked to happen had been carried out by those working beneath him. The organisation was rightly fined and compensation was rightly paid. However, the point is that there has to be some defence for breach of duty.

[Baroness Whitaker]

I apologise for interrupting so early in the noble Baroness’s speech, but it is important to say first of all that almost all provisions in the Health and Safety at Work etc. Act include the little phrase,

“so far as is reasonably practicable”.

Some have strict liability but there are very few. I hope that the noble Baroness will accept that, on the whole, lack of prior knowledge and lack of control does not mean that you will be judged to have committed a criminal act.

[Baroness Brinton]

I am grateful for the intervention by the noble Baroness, Lady Whitaker. Unfortunately, that was not true in this case. Only at the last minute were the managing director and someone else removed from the criminal action, which was helpful, but it was only after months of papers going between the Health and Safety Executive and others.

The point that I am trying to make is the one that I started with: there is a balance. I accept the undertaking that employees need to be protected, but there are occasions when there should be a defence for a breach of duty. I believe that new subsection (2D) in Clause 61 attempts to do that. The concerns that the Baroness has raised should be looked at and I hope that there will be some scope for the Minister to address them. But I would not want the record to show that concern was only one-sided. Certainly, some organisations do their utmost to make sure of something and they appear still to fall foul of legislation.

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[Lord Monks]

My Lords, I rise to support the question put by the noble Baroness, Lady Turner, and to follow some powerful speeches that have been made in support of it. I declare an interest. I am a non-executive director of Thompsons, probably the most prominent trade union firm of solicitors.

The Government cannot be accused of inconsistency when it comes to rights at work. I see Clause 61 in a wider context: namely, that the direction of travel which the coalition has adopted is pretty clear. It is to keep chipping away in the name of deregulation at a range of rights, some more fundamental than others. When the opportunity comes along to chip away a bit more, it is taken. The Bill enabled this late amendment to be added. It can be seen in the context of raising qualifying periods and other obstacles to justice, changing the personal injuries area, without touching road traffic accidents, which is the major problem area of a compensation culture, and generally moving to disadvantage the already vulnerable. It is a kind of convoy and Clause 61 is one ship in the convoy.

For those of us who have spent most of our lives working to advance good relationships and security at work, and particularly to make sure that health and safety is of the best possible standard, Clause 61 is disappointing and frustrating. Of course, for the victims it is much worse than that. Clause 61 removes the ability of an employee to enforce a civil claim for workplace injury on the grounds of workplace regulations. I hope that we can take advantage of what my noble friend Lord Browne said, and pause and have a better look at this. If this change is enacted, the employee would have to rely on the common law doctrine of negligence to enforce a civil claim, but it is not always about negligence. The noble Baroness, Lady Brinton, picked an example where negligence did not come into it, certainly on the part of the employer, even if it was not quite in the mainstream of the Health and Safety at Work etc Act. As she said and as others have repeated, health and safety legislation is always looking for a balance between different types of obligation. In my long trade union career I have not met too many employers who are totally blameless, but I will accept the suggestion that there are some.

Before today’s discussion I did some research on this issue. In this House in 1969 Lord Morris of Kenwood introduced some regulations on protecting machinery. I summarise what he said, “If both parties are innocent and neither is to blame, who should bear the loss?”. The reality is that the legislation up until Clause 61 has favoured putting the liability on the employer. He has more resources. As the noble Lord, Lord Browne, powerfully pointed out, he also has insurance. The principle is a mutual one which means that the insurance payment does not go up very much if, because of the mutual process of sharing the burdens, a pay-out has to be made by the insurance company.

However, an employee has no such resources to fall back on and removing strict liability at civil law makes the process that much harder. Removing strict liability does not remove unfairness; it merely shifts it on to the most vulnerable. I worry, too, about the cultural signal that this clause sends out. It is basically saying, “Health and safety is a bit overregulated. You do not have to take it quite so seriously as you did before. We are removing one bit of liability and if you are not negligent you might get away with this in future”. It is the wrong kind of signal. It is a signal that bad practices will be encouraged rather than good practices; that health and safety is not quite such a central feature of business culture as it is in many places, I acknowledge, and should be in all places.

I am proud of the United Kingdom's record on health and safety. If you look at the comparison with similar countries in the European Union, whether on skills, productivity or a range of other issues, we are not at the top of the league. We are at mid-table in most areas. But in health and safety we are at the top of the league. This is an area of excellence and many of the EU directives on health and safety have been the British Government's diplomacy spreading good practice through some countries that have some pretty ropey practices in this area. It is an area of excellence and our regulations, plus the fact that they enjoyed support on a wide basis, have laid the basis of a good record. It is not as good as we would have liked: there are still too many people killed, as has been recited today. There are too many people being injured and whose lives are wrecked, but this is an area of comparative excellence.

I ask the Government to think again and pause. They should have a look at this before Report. I have one question to add to those that have already been asked. In the impact assessment, there was no mention of the applicability of the European framework directive on health and safety. If an injured worker has no redress outside the negligence area, some legal opinion is already beginning to form that says that they can exercise the right under the European directive against the Government. In other words, they cannot take action against the employer so they will take it against someone else. Will the Minister comment on that particular expression and view? Generally speaking, this is a clause that goes in the wrong direction and I hope that while there is still time we can turn back in the right direction.

[Baroness Whitaker]

My Lords, as a former head of bits of HSE policy, I want to say that this clause undermines the main concept behind the Health and Safety at Work etc. Act to make it clearly enforceable that employers should not with impunity be so recklessly negligent as to imperil life, limb or health if they can help it—that is part of the Act, too. Clause 61, as has been said, does not minimise the potential criminality of this behaviour, but it prevents anyone using a proven breach with any degree of liability as grounds for compensation. Injured employees must fall back, as my noble friends have said, on the common law duty of care, which is very hard to prove.

Recalling the debates over the Health and Safety at Work etc. Act when it was passed—and it received all-party support—Section 47 was put into the Act for this exact reason: so that the workforce could have something effective and tangible if they were severely injured, not just the knowledge of a successful prosecution in which they were a passive witness.

Section 47 was widely consulted on. I would like to ask the Minister the response of the Governments of Scotland, Wales and Northern Ireland to this provision, Clause 61. Can he confirm that they were consulted?

Finally, there is a potential increase in National Health Service costs from this clause because costs are clawed back from the employer if there is compensation and they will not be if there is none. Does the Minister agree? I fear that the Government will be going backwards in their understanding of workplace risks, let alone in recognition of justice for injured work people if the provision goes forward in this form.

[Lord Young of Norwood Green]

My Lords, we support the question on clause stand part from my noble friend Lady Turner, and I am not going to repeat all the abundance of evidence as to why we should adopt this view, because it has been amply demonstrated by the majority of speakers, apart from the noble Baroness, Lady Brinton, who made an appeal for balance. We would support that, but the balance that the Government propose is certainly, in our view, in the wrong direction.

In excess of 20 specific sets of regulations have been introduced under powers given to the Secretary of State by the Health and Safety at Work etc. Act 1974. They include regulations relating to work equipment, personal protective equipment, manual handling, hazardous substances, construction, offshore installation, railways, young workers, and working at height and in confined spaces. Collectively, these regulations are the basis of workers’ rights to a safe working environment in the UK, as they contain the vast majority of duties that the law imposes on employers to create and maintain safe workplaces.

As a number of my noble friends pointed out, there is no evidence to show that there is overcompliance. There are perceptions, maybe, but is that really how we should frame legislation, based on perception with a lack of evidence? If only there was a culture of overcompliance, we would have less to complain about. There would be no situation with the number of deaths and serious injuries that still take place throughout British industry. Far too often we see examples of employers failing to comply or adopting the wrong attitude towards health and safety. Again, as a number of my noble friends have pointed out, this legislation would give them entirely the wrong signal.

Some of the regulations contain duties that impose a strict liability on employers. I am not sure where my noble friend Lord Browne got the figure of 200; I have a slightly lower figure than that. But it is something that the Government could cope with if they wanted to carry out the recommendations of the Löfstedt report. Others contain duties that are less strict in relation to which an employer shall not be held to be in breach of their duty if it is shown that they could not have foreseen the accident, if the accident could not practically have been avoided or if it is not reasonably practical to avoid the incident. Currently, if an employer breaches any health and safety regulation, there are two possible consequences; the employer can be prosecuted as having committed a criminal offence by the HSE, or the injured worker will be entitled to compensation. The declared intention of Clause 61 is to remove strict liability from the body of health and safety legislation. The genesis of removing that strict liability is found in the Löfstedt report. If only the Government had stuck to that, we might not be in that situation. But Löfstedt did not positively recommend that as the only course of action; it was only one possible option among others, and his firm recommendation was that a further, thorough investigation be undertaken—something that this Government have signally avoided. They have not followed the recommendation to carry out further research and have instead leapt straight into introducing legislation.

With Clause 61 introduced as an amendment, there has been no public consultation. As currently drafted, the clause does not simply remove strict liability; it goes much further than that. There is a fundamental disconnection between the declared intention of Clause 61 and the legislative impact that it will have. On the two consequences that currently exist when an employer breaches a health and safety regulation, the impact of Clause 61 is that one of those consequences shall be removed from the law altogether. Given the very small number of criminal prosecutions brought under the health and safety regulations each year, the consequence being removed by Clause 61 is the most important one in ensuring not only that justice is served but that workplace safety is maintained. The effect of the clause is to withdraw the right of injured workers when claiming compensation to rely on a breach of the statutory duty imposed on the employer in regulations made under the Health and Safety at Work etc. Act 1974. The statutory duty on the employer to comply with the regulations will remain; the clause does not remove a single regulation from the statute book. The employer will remain liable to prosecution for the breach of any regulation in the criminal courts. It is only injured employees who the regulations are designed to protect for whom it will no longer be relevant. As we have heard, according to statistics published by the Health and Safety Executive, only 0.5% of reported workplace injuries result in a criminal prosecution. The prospect of prosecution provides no incentive to employers to comply with their duties. Our concern is that this measure will give the opposite signal.

Employers are obliged by law to maintain insurance to meet claims for damages arising from workplace injuries. Claims against employers are dealt with and paid by insurers. This clause will make no change to this system but, as has been pointed out by a number of my noble friends, the costs are likely to fall on the Government and, in effect, the taxpayer. What on earth is the value of that?

If the clause passes into law, no legislative burden will be removed from any employer. With no saving to the public purse, the Government will remain liable for civil claims deriving from European directives in respect of injuries to their own workers and will also still have to pay benefits to injured workers which they may no longer recover from employers’ insurance.

A number of detailed and valuable points have been made by my noble friends Lady Donaghy, Lord Browne, Lady Turner and Lord McKenzie. A number of questions were posed to the Minister which I look forward to him answering: for example, what is the evidence base for the measure? How many claims will be affected? What is the cost of shifting the burden on to the NHS and government? Will it reduce the cost burden on employers? That is unlikely in our view. As I say, I look forward to hearing the Minister’s response.

[Viscount Younger of Leckie]

My Lords, I have listened very carefully to the debate this afternoon. I understand the concerns of noble Lords about the importance of protecting people at work from risks to their safety and long-term health so eloquently put forward by the noble Baroness, Lady Turner, and the noble Lord, Lord McKenzie, and, indeed, by the noble Lord, Lord Browne, in an impassioned and extensive speech. If noble Lords will bear with me, there is much to say in response to the many views and concerns expressed.

First, I reassure noble Lords that the purpose of this clause is not to weaken or reduce the existing protections for employees. It is about helping to increase the confidence of responsible employers to continue to do the right things to protect their employees. I stress emphatically that the law, which sets out the standards that employers must meet and the duties which employers must perform, including in relation to self-employed contractors on construction sites, is not affected by this proposal and is not changing. The Health and Safety Executive will continue to investigate serious incidents and complaints about poor practice and will take enforcement action, including, where appropriate, prosecutions, against those employers who fail to meet their responsibilities in line with the executive’s established policies and procedures, so let me explain why it is appropriate to take action.

We all recognise that the world has changed since 1974, when the Health and Safety at Work etc. Act was introduced to replace large numbers of detailed regulations with a proportionate risk-based approach to health and safety. Indeed, the late Lord Robens, on whose recommendations the 1974 Act was based, noted,

“that the sheer mass of this law, far from advancing the cause of health and safety, may well have reached a point where it becomes counterproductive”.

Clearly, every death and serious injury is a tragedy that should not happen. The noble Baroness, Lady Donaghy, referred to this earlier in Committee and has spoken about it again today. However, considerable progress has been made in reducing the incidence of injury and ill health. I listened carefully to the heartbreaking stories of those who have been killed or injured, as outlined in the speech of the noble Baroness, Lady Donaghy. Each one represents a tragic human story for individuals and for their relations.

Progress has been illustrated by the successful delivery of the Olympic Games, where there were no work-related fatalities on the whole of the London 2012 construction programme. This is the first time that any host nation has achieved that. The noble Baroness, Lady Donaghy, specifically raised the issue of construction sites. The substantive law that sets out the duties and responsibilities on employers, and to whom these are owed, including to self-employed subcontractors on construction sites, will not change. Therefore, the ability for such workers to bring a claim for negligence will also remain the same as now. Anyone who directly employs or engages construction workers or controls or manages construction work is a contractor for the purposes of the construction regulations. The duties on contractors apply whether the workers are employees or self-employed or agency workers. There is no distinction.

We are committed to the continued improvement of health and safety standards at work and to building on the progress made to date. The effectiveness of the health and safety regulatory framework has more recently been thoroughly examined by my noble friend Lord Young of Graffham in his report Common Sense, Common Safety.

[Baroness Whitaker]

Will the noble Lord confirm that the noble Lord, Lord Young, did not touch on the matter of Clause 61 in his report?

[Viscount Younger of Leckie]

I would need to refer back to the report to give the noble Baroness a full answer. Indeed I shall do so.

The effectiveness of the health and safety regulatory framework has also been highlighted by Professor Löfstedt, as has been mentioned today by several noble Lords, in his independent review, Reclaiming Health and Safety for All. Both my noble friend Lord Young of Graffham, whose report received much support across the House when it was debated, and Professor Löfstedt found that there is no case for fundamental change of the health and safety framework itself and that the existing regulatory requirements are broadly right. In fact, the biggest problem today is the way in which the regulatory requirements are interpreted and applied.

No one can be complacent. If we are to build on the steady progress made, we need to take action to tackle the current myths about health and safety, myths which the Health and Safety Executive see as such a problem that it has set up the Myth Busters Challenge Panel to provide a mechanism so that anyone who receives advice in the name of health and safety which they believe is disproportionate or inaccurate can challenge that advice.

Businesses consistently report that these myths lead to confusion about what the law actually requires and a fear of being sued, which, in turn, drives employers to overimplement the law in an effort to protect themselves and indeed discourages them from expanding their business. This in turn reinforces the perception that the application of health and safety law is unduly burdensome. I shall have more to add to that later.

This situation results in responsible employers taking an overly cautious approach, which has a detrimental effect on their approach to controlling risks properly in the workplace. For example, spending considerable resources on disproportionate paperwork and record-keeping, far in excess of what is necessary to comply with the law, diverts employers from taking a sensible approach to identifying the risks that actually affect their business and their employees, and taking sensible day-to-day precautions to protect their employees from those risks.

In the interests of both employers and employees, the aim is to improve understanding of what the law actually requires and to allay fears about possible litigation to help build employers’ confidence to take on new activities and further develop their businesses and to include recruiting new employees, which is so vital today.

To address these issues, the Government are implementing a package of measures, based on the recommendations of my noble friend Lord Young of Graffham and Professor Löfstedt, to reform both the civil litigation system and to restore a common sense approach to health and safety. This measure forms part of this package and I would reassure noble Lords that its introduction into the Bill at a later stage is purely due to the timing of the publication of Professor Löfstedt’s report and the Government’s desire to address the concerns he raised at the earliest opportunity.

We have already put in place a programme of work to improve understanding by simplifying the supporting guidance that explains what the law requires and to consolidate and clarify the body of health and safety regulation in a number of key industrial sectors. This programme builds on the work carried out as part of the better regulation initiative led by the previous Administration.

The clause does not change the duties placed on employers, but amends Section 47 of the Health and Safety at Work etc. Act so that in future, unless the legislation provides for an exception, it will be possible to bring a claim for compensation in respect of a breach of health and safety legislation only where it can be proved that the employer has been negligent.

Claims for breaches of the general duties of the Health and Safety at Work etc. Act can already be brought only for negligence. The change in this Bill simply extends this position to regulations made under the Act to create a consistent approach to civil litigation for all health and safety legislation. This means that if an employer fails in their duty of care towards their employee they can of course be successfully sued. However, where an accident has taken place and the employer could not have reasonably done anything about it, they should not be liable.

In the knowledge that they will not be liable if an accident happens which is totally outside their control, this change will support responsible employers, who take care to protect their employees, by encouraging them to take sensible steps to manage workplace risks. I am grateful for the speech made by my noble friend Lady Brinton and the example that she gave to support the helplessness that some businesses can experience where there is no defence for them. This will not assist irresponsible employers who fail to comply with the law as they will have no defence to an accusation that they did not take all reasonable steps to protect their employees.

This amendment to the Health and Safety at Work etc. Act has been adopted in preference to amending each strict liability duty, as Professor Löfstedt suggested, because an approach targeting each strict duty would be much more complex, and therefore complicated for businesses and their employees to understand.

The noble Baroness, Lady Turner of Camden, brought up the concern that the law would go backwards, which I think was her expression, and the employer would hold all the cards. I would like to assure her and all noble Lords that the provision will affect only a small number of duties that are unqualified. In any claim for negligence, the existing regulatory requirements on employers will remain relevant, as the courts will look to the statutory duties, approved codes of practice and established guidance to inform them about what risks a reasonable employer should be aware of and the steps they would be expected to take to manage those risks. I stress again that this change will only assist responsible employers who have done what is required of them and can demonstrate this.

This amendment reflects an adjustment to help rebalance the civil litigation system and, as part of the wider reforms of the system, is a proportionate response to the impact that strict duties currently have in the civil litigation system identified by Professor Löfstedt. It also has the benefit of creating a consistent approach to civil litigation for all health and safety legislation.

Currently, most claims are brought for both breach of statutory duty and negligence and, in practice, it is anticipated that the vast majority of claims will still be capable of being brought for negligence. For the small number of cases where this is not possible, as now, individuals will be able to claim for financial and other support through the state benefit system.

This measure is not about reducing the number of claims. It is about establishing the principle that an employer who has done nothing wrong should have the opportunity to defend themselves on the basis of having taken all reasonable precautions. Providing employers with this important reassurance will help them to manage health and safety risks in a sensible and proportionate way.

Enterprise and Regulatory Reform Bill

Baroness Whitaker Excerpts

Wednesday 9th January 2013 Grand Committee

[Baroness Hussein-Ece]

My Lords, I, too, support Amendment 27 and associate myself with the noble Baroness, Lady Campbell of Surbiton, and other noble Lords who tabled it. I will try not to repeat anything that has been said. I, too, am dismayed and frankly puzzled that the Government are proposing to remove Section 3 and the general duty on the Equality and Human Rights Commission. This was discussed at some length in 2006. That was before my time in this House, but I followed the debate very closely. It was a relatively short time ago and all parties at the time agreed to these principles. I understand that the objectives were discussed extensively with business, NGOs and others in the field.

I will draw attention to one interesting quote. Eleanor Laing MP, speaking as shadow Minister for women and equalities, said:

“The important thing about clause 3 is that we all admire the aspirational nature of the general duty within it”.—[Official Report, Commons, 30/11/05; col. 36.]

If we fast forward to the present day, we see that having a wide-ranging, aspirational duty is seen as a hindrance to the Equality and Human Rights Commission in carrying out its work effectively. In briefings that I have attended it has been mentioned that the duty is too wide-ranging and that the commission is not able to focus sufficiently on a narrower remit. I apologise for not declaring an interest: I was a commissioner at the Equality and Human Rights Commission for three years until last month.

I would like to know what has changed. I still have not heard any compelling or rational argument about what has changed, and why it is proposed that the commission should no longer have a duty to promote work to eliminate prejudice and hate towards these protected groups. What has changed in our society since this relatively new Act, which is still bedding down, came into force? Are we a more equal society? Has something happened that some of us may have missed? Is racism declining? Is hate crime falling? As the noble Baroness, Lady Campbell of Surbiton, mentioned, just today we read in the newspapers that Stephen Lawrence’s brother has launched a legal battle against the Metropolitan Police, claiming to have been stopped by the force up to 25 times purely because of his skin colour. This is still a very common experience for many black and Asian people. This comes at a time when one in five young men—21%—in young offender institutions identifies himself as Muslim, compared with 13% in 2009-10. We have 60% unemployment among young black men. Race and disability hate crime is unfortunately still rising. What has changed such that we need to take away the general duty from the Equality and Human Rights Commission?

I would also like to know what is wrong with promoting good relations. Why is that now seen as a hindrance to the commission’s work? What is wrong with promoting good relations between different sections of society? No other statutory body has this remit. If it were to be taken away who would do this work? Who would show the leadership that is needed to tackle these issues? Who would understand them? Which non-government statutory body would be able to take this up? I strongly suggest that this is not the time to weaken the Equality and Human Rights Commission’s remit.

Is this the time to be sending out negative signals, which were mentioned earlier, and to be seen watering down and neutering this country’s main race, equality and human rights watchdog? I have heard it said in briefings that this will make no difference. If this is to make no difference, why are we doing it? Surely it is better to have a wider remit that is aspirational and that allows the commission the freedom to tackle some of these issues and carry out in-depth reviews, as has been done before. What is wrong in allowing this to happen? Surely the perception and the signal that not allowing it sends out is that this Government do not value race equality, or equality for disabled people and other protected groups.

On the issue of good relations, it has been repeatedly pointed out in briefings that since its inception the commission has not always functioned properly. There were problems and nobody can duck that, but it has made huge strides in the last few years. The organisation has reformed and slimmed down a lot, and in its work has been far more strategic and effective than in some other reviews that have been carried out. It is important to note that promoting good relations between members of different groups has allowed the commission to work in relation not just to race, but with groups such as Gypsies and Travellers who, sadly, do not have the protection that other groups have. It has been able to look at interfaith relations and hate crimes, as mentioned; causes of violence against women; intergenerational issues; and highly stigmatised groups, such as people with mental health problems or HIV/AIDS. These are serious issues that need to be tackled. The Equality and Human Rights Commission is best placed to understand interracial and inter-religious tensions and advise on the best way that they can be addressed. In proposing the removal of these clauses the Government are doing more damage than they realise.

[Baroness Whitaker]

My Lords, I rise to support what the noble Baroness has just said. One of the first things that I did when I joined the House of Lords was to speak in favour of admittedly a similar aspiration provision, but in my view appropriately. It might have been on an amendment from the noble Lord, Lord Lester, in legislation in 2000. The concept eventually found its way into the 2006 Act.

When Parliament agreed this provision it was on the basis of discussion with a wide range of organisations. It was widely welcomed. Why? We do not have a fair and unprejudiced society. It may be that everyone in this room is fair-minded, but fairness and good relations between groups do not exist when, for example, Gypsy, Traveller and Roma people are harassed about where they can live. The noble Baroness mentioned that young people now describe themselves as Muslim in larger numbers. Gypsy and Traveller children dare not describe themselves as Gypsies and Travellers, because of the things that have happened to them.

We have a society in which children with disabilities are bullied in school. Members of minority groups that make up our society are denied jobs because of stereotyped expectations. Old people are despised and neglected. The ordinary self-respect that people need, particularly children, is undermined. This is at the expense of social cohesion and an ordinarily decent society. I support this group. I think that it is necessary to give the EHRC a proper strategic approach to help bring about a fair society.

[Lord Wigley]

My Lords, I am very glad of the opportunity to intervene briefly in this debate and should declare an interest in regard to my involvement with Mencap Wales, Autism Cymru and a number of other disability organisations. I congratulate warmly the noble Baroness, Lady Campbell, on introducing this important amendment. I agree with what she said, as I did with the noble Lord, Lord Low.

I recall the battles in the 1990s to establish disability rights. Those battles were led by Lord Ashley, Lord Morris, John Hannam and others, across party boundaries, because of the importance of enshrining in law the principles of rights. My fear is that we are in danger of a movement backwards today.

The general duty is necessary to avoid regulatory gaps or the effect of overlaps. Rather than being repealed, it should, if anything, be amended to establish more clearly the EHRC’s overriding purpose, powers and duties and to support the focus on being an equality regulator and a general human rights institution.

I have concern also about the proposal to move from a three-year to a five-year progress report cycle. There is a real danger here that if the cycle were to start coinciding with the electoral cycle, we could find many of these issues becoming politicised, which is in nobody’s interest. I have further reservations about the repeal of the conciliation powers, which would amount to the loss of the EHRC’s wide-ranging, background role in monitoring the effects of legislation.

The Government need to make a very strong case for repealing Section 3 as the Bill proposes, and I doubt that they can do so. If they are not prepared to think again between now and Report, we should support similar amendments at that stage in the Chamber in order to give the EHRC and all involved in disability the strongest possible messages.

--- Later in debate ---

[Baroness Whitaker]

Does the noble Lord think that there is no place at all in the whole of statute for aspirational or declaratory law? Is he sure that there is none?

Welfare Reform Bill

Baroness Whitaker Excerpts

Monday 23rd January 2012 Lords Chamber

[Baroness Wheatcroft]

My Lords, I did not join your Lordships' House in order to kick the underprivileged, particularly children, but I did believe that the Government were committed to healing the broken society. I do not think that any of us can doubt that society is broken, and we would all agree that there is a need to heal it and that dealing with the dependency culture is an important part of that. That is something that I believe in absolutely. That is at the heart of this legislation. To my mind, the worst sort of child poverty is poverty of aspiration.

[Baroness Whitaker]

I apologise for interrupting the noble Baroness, but she used the term “broken society” and said “I think we all accept that it is”. I am really surprised to hear her say that. Can she give us her evidence for the broken society?

[Baroness Wheatcroft]

I would refer only to the recent riots as evidence of a society that was not entirely at ease with itself. If the noble Baroness is content and happy with the state of society, I am happy for her. I have qualms myself, particularly when I look at the number of children who have no aspiration to education or a career. That is one of the things that I believe the Ministers who are pushing this legislation through are committed to.

As I said, the worst sort of child poverty is poverty of aspiration, and in this country there are many households with no experience of paid employment. That is a terrible condemnation of what has been allowed to grow up in the name of a welfare system.

One of the greatest welfare benefits that we can bestow on children is an aspiration to acquire education and then a career. Growing up in a household where the concept of working for a living is understood and embraced is important for starting youngsters on the right path. A cap on benefits is a sensible step towards encouraging people into work. If we are going to have a cap, in the end we have to have a cap. There is no saying where child benefit is spent. It may go to the women but, I am afraid, not every woman devotes her time to spending her money on her children. That is what we might like to think, but there are others who have drug habits to fund and so on. Women are not infallible and I would be the first to agree with that.

The Government have assured us that they are not approaching welfare reform in a truly one-dimensional way. This is not just about cuts and saving money. The problem households that are locked in a cycle of benefits dependency are known to the authorities. We are told that the authorities are ready to work with those households between now and when this legislation comes into force. They can produce results. I can believe the Government when they say that they are committed to doing that. If they do, and they produce long-term benefits for children in those households, it will be a far more caring result than just handing out cash.

[Baroness Farrington of Ribbleton]

My Lords, I also had not intended to speak in this debate, but I have just been reminded that we are celebrating the work of Charles Dickens. I do not know why that came into my mind in the last few moments. Is it the deserving poor or the undeserving poor?

In answer to the noble Baroness, I actually stand in the middle as regards the broken society. To me, as an individual, parts of our society are broken, and the ones that are the most broken are those who lack empathy for those less fortunate than themselves. That is the root of our problem: whether the lack of empathy is the teenager who is incapable of understanding that the pensioner at the bus stop whose handbag he tries to take is a human being like his mother or grandmother; whether it is someone who has made it in life and believes, “It is all due to me and other people could be like me”; or whether it is the elderly person who says—and we are all in danger of doing this—“It was not like this when we were young”.

When I fought against the threat to what was then family allowance many years ago, some of the people who said, “I don’t agree with you, Josie”, were people who said, “I didn’t get it when my kids were young”. They then went on to tell me about the miseries they went through because they did not get it. Today, we are debating family needs and the issue of what makes a good society. I cannot understand how, on the same weekend when this debate was around in the media, someone suggested that we should give a new tax allowance to people who were working, given that any tax benefit, any cut in taxation, benefits those who earn most at the expense of those who have least.

We have a Prime Minister who has talked about the importance of marriage. That is a matter for him. To me, the important issue is that of families with children: how we provide a society in which the next generation has more empathy. I know that I am not alone in coming from a large family. There is among large sections of this country, certainly in focus groups, the view: “Why did they have all those children? They didn't need to”. Among some people, there is prejudice that there is something morally wrong about having children. You can argue that case, but the child born into the large family should not be penalised. My work as a councillor leads me to know that there will be those who will blame their children for the fact that their income has gone down. They will say, “If I had not had you little devils, I would have had more money to spend on us”. That is the harsh reality of some children's lives.

I cannot understand how the Minister is talking about fairness. We need to be fair to families with children. Anybody who believes, as was hinted at on the radio this morning by a member of the Government, that people have children in order to get money, has never brought up a child. Child benefit does not cover the cost, however little you give those children. We are facing a system that will penalise children to appease those who think that the children ought not to have been born. There, I have said it. That was what made me remember Charles Dickens. He knew that there were huge sections of society who believed that the undeserving poor ought not to have children.

The Minister has told us that large chunks of the people who will lose their child benefit are people who cannot work, by the Government's own admission, yet sweeping changes will affect them. I appeal to everyone who knows what is fair and what is right. We did not fight the issue of income tax allowance; we must fight to keep child benefit. We know that we are not dependent on those children for our old age, because they are too young to be supporting us; most of us will be long gone; but we need them for a good future and we do not want to inculcate in them grinding poverty, and grinding poverty is what we will be condemning them to. I remember in my childhood that the best meal of the week after Sunday was Tuesday night, when the family allowance was paid out. That was a very common experience. We need to ensure that those people who have children can provide the basic necessities—they are basic necessities—and support the right reverend Prelate the Bishop of Ripon and Leeds.

Energy: Nuclear Safety

Baroness Whitaker Excerpts

Thursday 11th November 2010 Lords Chamber

[Lord Freud]

My Lords, as I said, we are hopeful of making a full announcement in the very near future. The two options under consideration for reform of nuclear regulation are, first, for a discrete agency within the Health and Safety Executive, which could be achieved rather rapidly without legislation, or, secondly, for a stand-alone statutory corporation, which could be delivered on a slower timescale either through the drawing up of a legislative reform order or through primary legislation. Both legislative routes offer potential advantages and disadvantages. As I said, I hope to be in a position to announce our decision very shortly.

[Baroness Whitaker]

My Lords, can the Minister assure the House that the independence and expertise of the Nuclear Installations Inspectorate—I declare a long-ago interest as a former planner there—will be maintained under any new arrangements, since this is surely what has kept our nuclear industry safe over the years since that inspectorate joined the Health and Safety Executive?

[Lord Freud]

I thank the noble Baroness for that question. Yes, it is absolutely at the centre of any decision going forward that we keep an effective safety regime—a regime that has indeed been congratulated on being a world leader. We would absolutely aim to keep that objective front and centre.