Police: Neighbourhood Policing
Lord Avebury Excerpts(11 years, 4 months ago)
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Baroness Stowell of Beeston
The HMIC report includes a survey of the public, and victim satisfaction is up from 82% in 2010 to 85% in March of this year.
Lord Avebury
My Lords, what increase in the volume of neighbourhood crime does my noble friend think would be attributable to the failure of the Government to implement minimum unit pricing of alcohol?
Baroness Stowell of Beeston
One measure that this Government have introduced is the late-night levy, which comes into force when pubs and clubs decide to stay open beyond midnight. We have taken real steps to address this kind of activity by ensuring that people take responsibility for the decisions they make in their local area that might lead to an increase in consumption and local crime.
Mesothelioma Bill [HL]
Lord Avebury Excerpts(11 years, 4 months ago)
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Lord Avebury
My Lords, I thought it was best to defer my thanks until after the Minister had completed his remarks on this group of amendments. I express my warm appreciation for the considerable work that he has done on the Bill, resulting in his welcome announcement this afternoon that the payments will increase from 70% to 75% for civil compensation claims. Although that falls well short of what some of us had hoped for originally, I have to say it compares with the estimated £1 billion of cost that would have been paid by the insurance industry if the employers had not gone out of business and the employers’ liability insurance policies had not been lost or, in some cases, possibly deliberately destroyed. That £1 billion is estimated by the Asbestos Victims Support Groups Forum UK as the amount that has been forgone over the years by victims, who have not been able to formulate claims for the suffering that they endured. At this stage, however, we have to be grateful and I echo the thanks expressed by others to the Minister for achieving this improvement in his discussions that he had with the insurance industry.
I should also like to take the opportunity to ask the Minister about a discrepancy in the DWP’s July 2013 analysis, which has been circulated to noble Lords. Column 6 of table 5 relates to the total amount of the levy from the start of 2010 to 1 July this year. On the assumption that that is based on 100% of average civil compensation, the figure would have been £118.9 million. The amount that individuals would have received directly from the scheme over this period, according to column 5, is £98.5 million. Adding the £20,480 estimated cost per claimant—
The Countess of Mar
My Lords, I am sorry to interrupt the noble Lord, but we are debating Amendment 1, which the noble Lord, Lord Freud, has moved. Would the noble Lord, Lord Avebury, care to address that?
Lord Avebury
I thought that this was the appropriate opportunity to raise a point about the document that has been circulated and, if nobody objects, I shall continue with my remarks, which I can assure the noble Countess will be very short. This is the only opportunity that I will have to ask this question about the discrepancy in the figures that have been circulated by DWP. As I was saying, adding the £20,480 estimated cost—
The Countess of Mar
I am sorry, but the noble Lord is not speaking appropriately to the amendment that the noble Lord, Lord Freud, has moved. Would he address that, or would he prefer to sit down and ask his questions when we have later amendments on the subject?
Lord Avebury
If the Minister is prepared to listen to my question, we shall come to an end in a few minutes.
The Countess of Mar
This is Report stage and we should be addressing the amendments of the noble Lord, Lord Freud.
Town and Country Planning (Temporary Stop Notice) (England) (Revocation) Regulations 2013
Lord Avebury Excerpts(11 years, 5 months ago)
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Lord Avebury
That this House regrets that the Town and Country Planning (Temporary Stop Notice) (England) (Revocation) Regulations 2013, laid before the House on 12 April, will have a negative impact on vulnerable Traveller families.
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.
Lord Ahmad of Wimbledon
My Lords, first, I thank my noble friend for securing this debate. Like other noble Lords who have participated in it, I, too, acknowledge his great commitment in furthering understanding of, and tackling and highlighting, some of the issues faced by the Traveller community in particular. I also thank other noble Lords, the noble Baroness, Lady Whitaker, and, of course, the noble Lord, Lord Beecham, for their contributions. Both they and my noble friend have raised valuable and thought-provoking comments. However, unlike my noble friend, I do not believe that there is a case to regret this change. Indeed, I welcome it as part of empowering local councils to take effective action against unauthorised sites.
The noble Lord, Lord Beecham, talked about a recent meeting, to which my noble friend also referred, with Brandon Lewis, who is now charged within the department with taking forward the agenda for Travellers. I would say, in defence of my honourable friend, that he has taken to this particular task with great aplomb. He has met with the APPG and is in listening mode, as the noble Lord, Lord Beecham, pointed out.
Just as an aside, the noble Lord, Lord Beecham, mentioned my right honourable friend the Secretary of State, Mr Eric Pickles, talking about approaches to local government. This underlines our Government’s commitment to localism. I, for one, as a former local councillor, actually welcome his intervention on matters such as ensuring that councils take up the good practice of weekly bin collections. Certainly in my 10 years in local government, including my time as cabinet member for the environment, I never found the idea of fortnightly collections resonated with any part of the borough and, indeed, boroughs across London either. However, if that is the case in the noble Lord’s area, I stand corrected.
I will set out from the beginning that the Government are totally committed, I assure my noble friend, to respecting the rights of Gypsies and Travellers, improving socio-economic outcomes and indeed reducing prejudice, which does exist. I encountered this at first hand in my own ward in local government. The Traveller site in Merton was actually in my ward, which itself could be regarded as a very prosperous part of the borough. Nevertheless, it was an eye-opener for me. I visited the site, which was a permanent site, and I worked with the local Traveller community there. I totally hear the points made and I think it is important for government at local level to ensure that there is correct representation for Travellers, because quite often they are not aware of the avenues open to them to make appropriate representations. It is incumbent on us, through our localism approach, to ensure that councils create those avenues and ensure that they are made fully available to all Traveller communities.
As we all know, the majority of Travellers abide by the law and planning procedures. It is only a small minority that may at times seek to set up on an unauthorised site, and that does, unfortunately, damage the reputation of the wider community. However, I highlight also the work undertaken thus far at the DCLG. For example, in April 2012, the ministerial working group looking into Gypsies and Travellers published a progress report, which included 28 commitments from across government to help outcomes for Gypsies and Travellers. These included promoting the improved health outcomes for Gypsies and Travellers within the structures of the National Health Service and encouraging authorised sites that have the backing of the local community. Indeed, £60 million has been made available through the Traveller pitch funding and the new homes bonus. I sought an update on progress in this regard and, by 2015, as part of this scheme, we are seeking to have in place 628 new pitches and 415 refurbished pitches across the country. Another recommendation of the ministerial working group was preventing hate crime, increasing the reporting of incidents and challenging the attitudes that underpin it.
In terms of specific progress, in education, for example, the Department for Education has already recruited virtual head teachers in three areas—Kent, Bradford and Cambridgeshire. In health, the Department of Health’s commitments mainly concern improving the evidence base on Gypsy and Traveller health and using the reformed health system to improve the commissioning of health services from April. The new legal duties as regards health inequalities will be a key lever to improve access to and outcomes from health services. Gypsies and Travellers are one of the priority groups on which their inclusion health programme is focusing.
The commitments made by the Home Office come out of the cross-government hate crime action plan, published in March 2012. This plan is currently being reviewed in order to assess progress and respond to new and emerging issues. Of course, I encourage all noble Lords—as they do; and I am sure that my noble friend will—regularly to ensure that progress is made on these initiatives and to hold the Government to account, as is right. In the Ministry of Justice, another department that I represent from the Dispatch Box, the National Offender Management Service, has started to collect statistics on Gypsy and Traveller prisoners, which, over the long term, will demonstrate outcomes. I am glad that I have been joined by my noble friend from the DWP because that department’s commitment to include Gypsies and Travellers in its internal monitoring systems will be met with the introduction of universal credit.
These ambitions are also enshrined in our planning policy for Traveller sites. This sets out up front that the Government’s overarching aim is to ensure,
“fair and equal treatment for travellers, in a way that facilitates the traditional nomadic way of life of travellers while respecting the interests of”
the community at large. As is the case with all communities, our planning policy asks local councils to plan to meet their objectively assessed needs for development in a way that is consistent with planning policy as a whole. Our policy promotes private-site provision and requires councils to identify and update a five-year supply of deliverable sites, and consider them against needs, as part of their local plan. Legislation requires that local plans take account of this policy. From March this year, where a local planning authority cannot demonstrate an up-to-date supply of sites, that should be a significant consideration in any planning application for temporary permission.
I can therefore reassure my noble friend that we as a Government have been absolutely clear that authorised site provision is key in planning effectively for travellers. When we look at issues such as health and education, some of the unauthorised sites are often not located in a way that is reflective of the needs of the local community and the needs of the Traveller community in terms of the provision of local services. In turn, sufficient, well planned and well managed sites are important in improving educational, health and integration outcomes for Travellers.
In support of this, we have provided £60 million Traveller-pitch funding through the Homes and Communities Agency to provide for new and improved sites. Similarly we are working closely with the Planning Inspectorate and Planning Advisory Service to promote high-quality plans, including in respect of Travellers. We are also seeing good progress towards local plan adoption, given that seven out of 10 local councils have already published their plans.
However, let me turn to matters related to enforcement against unauthorised Traveller sites, which caused my noble to raise this debate and to which he referred. While recent figures show that the number of unauthorised caravans has fallen—a point made by the noble Lord, Lord Beecham; only 14% are now on unauthorised land—the Government continue to hear about the problems associated with unauthorised Traveller sites and with long drawn-out and costly enforcement and eviction proceedings. Unauthorised development related to caravan sites often happens very quickly because caravans are mobile. Unauthorised provision is by definition inappropriate provision that often raises public health and safety concerns for those living on those sites, as well as for the surrounding community. Our policy makes clear that local councils should seek to reduce the number of unauthorised sites and make enforcement more effective. Intentional abuse of the planning system by a small minority of Travellers who set up unauthorised developments leads to tension, undermines community cohesion and damages the integrity of the planning system.
To ensure the legitimacy of the planning system, we have already introduced stronger enforcement measures through the Localism Act 2011 to enable local councils to deal robustly and effectively with retrospective and misleading planning applications in relation to all forms of development. Removing limitations on the use of temporary stop notices will further empower local councils to take appropriate enforcement action locally. As with other enforcement powers, temporary stop notices can have immediate effect. In most cases, the previous regulations prohibited local councils from using temporary stop notices against caravans used as a main residence. The new regulations simply remove this restriction and enable the local planning authority itself to determine whether the use of temporary stop notices is a proportionate response to the breach of planning control and safeguard valuable local areas.
The noble Baroness, Lady Whitaker, also highlighted specific cases and issues. It is down to the local authority to use these powers. I am confident that local authorities consider individual cases before they make a judgment call on whether to proceed. The change will encourage Gypsies and Travellers to apply for planning permission through proper channels, enabling full consideration of individual proposals, and result in better quality and more appropriate site provision for Gypsies and Travellers. I assure my noble friend that in exercising these powers, the local council as a public authority must have regard to its duties and responsibilities under the Equality Act 2010 and the Human Rights Act 1998, including to facilitate “the gypsy way of life” with regard to the Traveller community. In particular, it will need to consider whether taking such action could simply lead to displacing the occupants onto the roadside or onto other unauthorised sites which could potentially be less suitable. Again, I reiterate the point that local authorities acting responsibly within their legal requirements and obligations should make the decision which is right for the Traveller community and right for the community as a whole.
Perhaps I may pick a few other specific questions which were raised during the debate. My noble friend raised the issue on the guidance on temporary stop notices, a point also made by the noble Lord, Lord Beecham, in relation to legal aid. We confirm that the guidance on the use of temporary stop notices will be published in the summer, as part of the wider review of planning guidance. On the issue of no right of appeal against temporary stop notices, and also whether issues of legal aid are being tackled, temporary stop notices expire, as has been acknowledged during the debate, after a period of 28 days. Local councils will have to consider their duties under the equalities and human rights legislation in determining whether the use of a temporary stop notice is appropriate. In some cases, compensation may be claimed where temporary stop notices are served inappropriately.
I can also assure noble Lords that the Government’s proposed reforms to legal aid and judicial review are designed to ensure that those who can afford to pay, do so, to ensure that legal aid is not funding cases which lack merit, or which are better dealt with outside the court, and to target the unmeritorious cases which congest the courts and cause delays. Nothing in the Government’s reforms will prevent those who have arguable claims from having their claims heard. Indeed, the whole reforms are intended to protect the most vulnerable in society.
This is an important issue. I can assure my noble friend and all noble Lords that the Government are fully committed to consider our responsibility, and the responsibility of local authorities, to the Traveller community. I hope this debate has helped somewhat to illustrate an understanding of the Government's approach to this issue. I also hope it has reassured my noble friend that we share the same objectives in terms of improving outcomes for the Traveller community. The Government’s reforms have struck a careful balance between meeting the needs of the Traveller community while—and this is an important point as anyone who has served in local government will know—in considering and balancing the rights and merits of the Traveller community, it is also important to do so in the interest of the wider community as a whole. This particular measure will assist in ensuring that the planning system applies fairly and equally to all.
Lord Avebury
My Lords, in the few minutes that remain, I thank my noble friend the Minister warmly for his comprehensive reply to the points that have been raised in this debate; the noble Baroness, Lady Whitaker, whose invaluable work on Gypsies and Travellers is applauded by everybody; and the noble Lord, Lord Beecham, for the most important questions that he asked. We did get an answer on guidance; I understand from the Minister that it will appear before the Summer Recess. When the package of guidance on PPTS appears as promised, it will be part of that suite.
I am still very concerned that the victims, if I may put it that way, of temporary stop notices will have no right of appeal or a mechanism by which they can challenge the use of such notices. My noble friend rather avoided the questions about legal aid which both I and the noble Lord, Lord Beecham, put to him. However, since the order was first published, the fresh group of cancellations of legal aid affects this matter as well as many other important issues. The victim of a temporary stop notice will have no right of appeal or redress whatever and, as the noble Lord, Lord Beecham, said, he will face a huge fine if he fails to comply.
My noble friend also did not answer the question we put to him about the failure of the Department for Communities and Local Government to publish any statistics on progress towards the obligation on local authorities to provide by 31 March this year a five-year deliverable supply of land for caravan sites. We are now almost at the end of June, and as I have said, not a single authority has actually done this. My noble friend did not challenge that statement, not because he is unaware of the situation on the ground, but because DCLG does not bother to collect the statistics. I have to say that although I am grateful to my noble friend for setting out what the Government are doing in other areas, such as NOMS collecting statistics on offenders and the DWP collecting them on universal credit, that demolishes the argument put to me by Brandon Lewis that the department does not wish to collect statistics on the performance of local authorities in providing planning permissions because it would be a top-down approach.
On the amount of money that is available, a question also asked by the noble Lord, Lord Beecham, we applaud the £60 million that has been allocated by the Government for new sites and refurbishment. As I understood my noble friend, that was planned to produce 628 new pitches and 400 refurbished pitches by 2015. While my noble friend obviously cannot do it this evening, I hope that he will be able to tell me on another occasion how much of that money has been spent. Of the £60 million that has been allocated to local authorities and social housing agencies, has a single site been identified? If so, has planning permission been granted and what progress has been made towards the achievement that the £60 million is intended to produce?
Lord Ahmad of Wimbledon
Perhaps I may assure my noble friend and other noble Lords that I shall write in that regard after the debate.
Lord Avebury
That will be very helpful, and I am sure that the noble Baroness, Lady Whitaker, and the noble Lord, Lord Beecham, would also like to be informed about what is being done with the £60 million. I could have asked about what is to happen after 2015 because although the money will provide that number of pitches, it will not by any means cure the problem of unauthorised sites. As my noble friend said, the position has been improving, but it is not fully resolved. The reason people camp on unauthorised sites is not because they want to abuse the planning system, but because there is simply nowhere else they can go. I must say that until we have the properly delivered programme of sites which the Government set out in their policy on PPTS, we will still have a long way to go. In the mean time, I beg leave to withdraw the Motion.
Baroness Stowell of Beeston
My Lords, I am sure that the noble Lord could expand his views for a couple of minutes more.
Lord Avebury
If the noble Baroness wishes, there are some other questions that cropped up during the course of the debate on which it would be useful to have a few words. The noble Lord, Lord Beecham, asked what other considerations would be taken into account in deciding whether temporary planning permissions should be granted. I am also interested in that question. I can see that when a caravan is parked on a totally unsuitable site such as a playing field, urgent action needs to be taken. If a caravan is parked on the green belt, that might also be a factor to be taken into consideration.
I wonder if my noble friend the Minister has considered the suggestion made by Councillor Ric Pallister of South Somerset District Council. He has suggested that, where it is necessary to remove a person from a totally unauthorised and inappropriate site such as a playing field, a temporary permission might be granted on another piece of land, which is not unsuitable, for a period of 28 days. That would enable the persons in receipt of the temporary stop notice to draw breath and look around for whatever alternative accommodation might be available. It would be helpful if the Minister could think about that. I am not asking for a reply now but, perhaps, when he writes to us, he could cover that point as well.
I beg leave to withdraw the Motion.
Homeless People: Night Shelters
Lord Avebury Excerpts(11 years, 5 months ago)
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Lord Freud
My Lords, there are approximately a quarter of a million people living in overcrowded accommodation and 1 million spare bedrooms in homes lived in by people who receive benefits in the social rented sector.
Lord Avebury
My Lords, the noble Lord said that this was an isolated incident, but is he aware that local authorities are already cutting off housing benefit and that shelters are closing down? When will Homeless Link and Crisis have a reply to the representations that they made to DWP asking for an urgent clarification of this ruling?
Mesothelioma Bill [HL]
Lord Avebury Excerpts(11 years, 5 months ago)
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Lord Freud
My Lords, these amendments look to allow for legal fees to be paid by the scheme without limit. Amendment 17, tabled by the noble Lord, Lord Howarth, looks to reimburse in full all legal costs incurred either through applying to the scheme or through bringing proceedings against an employer or insurer. The noble Lord, Lord Howarth, has also tabled Amendment 28 to cover the cost of legal advice obtained in respect of appeals to the First-tier Tribunal. Amendment 42, in the name of the noble Lord, Lord McKenzie, and the noble Baroness, Lady Sherlock, also seeks to cover any legal costs, including the cost of appeals.
The introduction of the scheme is aimed at making the receipt of payment as quick and simple as possible. The amount that a successful scheme applicant is paid will include an amount for legal costs. This will be a fixed amount and will be included as part of the scheme payment received by an applicant and specified in the regulations. In the impact assessment, we used the working assumption of roughly £7,000 to go towards legal fees for each successful application. Since then, we have revised the numbers, using the working assumption of £2,000. The final amount will likely fall somewhere between the two. For clarity, the schedule will show the amount of the actual payment and the amount of legal fees, which will be on top of the 70% figure, to be absolutely clear in response to the question from my noble friend Lord German and the noble Lord, Lord Howarth.
I reassure the noble Lord, Lord Howarth, that the MoJ and the DWP are at least on the same planetary system—some of the time, anyway. The specific regulations will be laid after the Bill receives Royal Assent. The MoJ will conduct elaborate, complicated consultation. To update the noble Lord, Lord Howarth, on timing—I hear his strength of feeling on this—the consultation will be launched in July 2013, next month, and will contain specific options. Clearly, it is recognised that this is a complex issue. The consultation period will last 12 weeks as it will go through the summer, and the response will be published in the winter of 2013. Some of the issues around the right kind of fixed costs will be dealt with in that consultation.
The aim of the scheme is to make the receipt of payment as quick and simple as possible. In response to my noble friend Lord German’s question about the level of information that is required, the eligibility criteria are specified in Clauses 2 and 3 of the Bill. The scheme is not a no-fault scheme, so the applicant will be required to establish the eligibility criteria. However, they are in practice much simpler and more straightforward than in a civil claim. Rather than go through all the specifics of that, in the interests of time I would prefer to set it out in writing.
The reasons for wanting to set a fixed amount of legal costs that can be recovered by lawyers are threefold. First, it is important that applicants are not charged unreasonable or disproportionate legal costs by their lawyers, as we have seen happen in other instances. Any legal work would be in respect of an application to a statutory scheme, which is non-contentious and much quicker and simpler than civil litigation. Secondly, we hope that fixed costs will deter scheme applicants being pressured into entering no-win no-fee agreements, potentially reducing the amount of scheme payment paid in respect of their disease. Thirdly, it is important that the scheme is not overburdened with high legal costs, which would raise the levy and jeopardise the scheme in its entirety.
In respect of any legal costs associated with appealing to the First-tier Tribunal, if these were to be paid in every case that could act as incentive for anyone who was unsuccessful in receiving a scheme payment launching an appeal, even if the appeal was without merit. This would significantly increase the amount of money needed to fund legal fees, requiring the levy to be set higher. Any significant increase in costs could prevent the scheme being set up. It could also overburden the tribunals system with unnecessary appeals.
Lord Avebury
That takes care of the disincentive to bring claims to the First-tier Tribunal that have no merit, but what about the claims that do?
Lord Freud
It is important to highlight that higher rights are not required in the First-tier Tribunal or the Upper Tribunal as they are in civil courts. That means that scheme applicants could represent themselves, or that their solicitor could conduct any advocacy on their behalf; they would not need to instruct expensive legal counsel. There will be no legal aid for appeals to the First-tier Tribunal following the review scheme decision unless exceptionally it is necessary to make legal aid available to avoid a breach of an individual’s rights under the ECHR or under European Union law relating to the provision of legal services. This will keep costs to a manageable level.
Picking up on the point about the tribunal system, it is traditionally an inquisitorial rather than adversarial system and is designed to make things easier for those representing themselves. For those who do wish to obtain legal representation, it is hoped that lawyers will charge a fair and proportionate rate. The work will be non-contentious and there will be no defendant as there is in a civil case. The tribunal system is there to assist appellants. There is therefore every incentive for lawyers to carry out work on scheme appeals required efficiently and in a way that keeps costs proportionate.
Picking up the question from the noble Lord, Lord Howarth, on the level of fixed fees, clearly the MoJ consultation will consult on both the principle and the structure of such a regime to support a dedicated pre-action protocol. I hope noble Lords can see the need for pragmatism here—the need to keep costs at a proportionate amount and to protect the money that an applicant receives in respect of the disease from high legal costs, as far as possible. I urge the noble Lords not to press the amendment.
Lord Freud
My Lords, I fully recognise that Amendment 19 is a probing amendment that would remove the possibility of the scheme making payments subject to conditions. It would therefore have the consequence that the recipient of a scheme payment would have full control over the use of the scheme payment.
Let me make the purpose of this part of the clause absolutely clear. In general, we fully expect that most scheme payments will be made to the applicant. This is for vulnerable people who might be mentally incapable of handling their own finances or who are unable to look after their own welfare by attending to basic financial transactions that adults normally carry out for themselves. It is important, therefore, that in those sorts of cases the scheme administrator is able to subject some payments to certain safeguards, such as how a scheme payment is to be used, and to decide when such conditions should be imposed.
We expect the scheme administrator to use this power to ensure that, where appropriate, payment is made to an appropriate person or fund to safeguard the beneficiaries’ interests. I am sure that the one thing on which we are all agreed in this Committee is that we want to avoid the recipient of a scheme payment having unsupervised control over the use of a large sum of money if they are incapable of managing such a sum. However, a number of valuable points are being made about the interplay between primary legislation and regulations, which we will take away and consider. Clearly, the rules are in draft and we will take the points made today as we look over them. With that assurance, I urge the noble Lord, Lord McKenzie, and the noble Baroness, Lady Sherlock, not to press their amendment.
Lord Avebury
Perhaps I may ask my noble friend why, if the only circumstances in which conditions are to be imposed are those that he has just outlined, where the recipient of the compensation is incapable of handling his own financial affairs, Clause 15 does not specify those circumstances and thereby reduce the breadth of the wording, which according to him is completely unnecessary.
Lord Freud
I take on board my noble friend’s point. As I said, I shall look at this and the other points made by this Committee. The rules are only in draft form, and we may look at them to lock that down.
Lord Avebury
My Lords, would a person be advised not to submit a claim where it appears that the amount of the repayments would be greater than the £87,000 that he was likely to receive? Is that the effect of this particular section of the clause? When he obtains initial legal advice, would the solicitor be bound to tell him that, as he has already received a sum approaching £87,000, it would not be worth his while submitting a claim?
The Lord Bishop of Ripon and Leeds
I will just add my support for this, particularly for subsection 2(a) of the proposed new clause and the place in it of the Asbestos Victims Support Groups. We have talked lengthily in this discussion about the place of insurers, but one principle of legislation such as this needs to be that nothing that is for us may be done without us. It is crucial that the victim support groups are represented on any oversight group that is produced.
Lord Avebury
My Lords, I think the Minister said in replying to the previous amendment that when we came to this one he would give us some more information about the membership of the body that the industry proposes to establish. It would be very useful to know that, as it conditions the way we will think about monitoring and reviewing. Clearly, if the board established by the insurance industry contains people who have an association with that industry, the degree of intensity of monitoring and reviewing would have to be far higher than it would if the board were totally independent.
Lord Freud
To answer in just one minute: I will take the whole package and look at it. That is what I am committing to do.
Mesothelioma Bill [HL]
Lord Avebury Excerpts(11 years, 5 months ago)
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Lord Avebury
Lord Avebury
My Lords, I am glad that these things happen to other people as well as to me. The Deputy Chairman need not apologise because everyone, however careful they are with their diaries, makes these mistakes from time to time. I missed an appointment myself this morning and I am still smarting from it.
On Second Reading, the Minister said that the Bill would establish a payment scheme to make lump sum payments to eligible sufferers from mesothelioma and their eligible dependants but he later amended that and said that it was a means to create such a scheme. Clause 1 gives the Secretary of State power to create, amend, replace or abolish the scheme within the certain broad parameters referred to in Clauses 4, 5, 6 and 10. Parliament has no say in the details of the scheme or in any variations made to the scheme, although of course it does on the regulations that are made under the Bill.
My noble friend Lord German and I both commented on this at Second Reading but the Minister evidently did not consider it important enough to pick the matter up in his winding-up speech, nor is there any explanation of the drafting in the Explanatory Memorandum. We are merely told that the clause confers these wide-ranging powers on the Secretary of State without saying why Parliament is excluded from all these processes.
If the Government consider it necessary to make changes in the system of employer’s liability insurance under the 1969 Act, obviously they have to come before Parliament and seek approval, as they did for the Act itself. Under this Bill the amount of any payment is determined by regulations, but in Clause 4 there is provision for the payments to be made subject to conditions, or for the payments to be repaid in whole or in part in specified circumstances. Again, these decisions are the sole prerogative of the Secretary of State. Similarly under Clause 5, the procedure for the making and deciding of applications is part of the scheme issued by the Secretary of State without having to obtain parliamentary approval.
There are further provisions relating to the scheme in Clauses 6 and 10 which are left to the unfettered discretion of the Secretary of State. These may not be in the best interests of claimants—we simply do not know—and it would be helpful if my noble friend could say whether, before any of these decisions, drafts will be published for consultation with the stakeholders. In the period leading up to the publication of the Bill, the Minister told us at Second Reading, there were 15 meetings with the insurance industry and 11 with representatives of victims’ groups, lawyers and members of the APPG. If the Government had to come back to Parliament they would have some incentive to continue with these consultations on the scheme and on the amendments to it which may be made in the future.
I hope that my noble friend can assure us that there will be no private consultation with the insurance industry excluding organisations representing the victims of mesothelioma. According to the Guardian, firms with insurance interests have given the Tories nearly £5 million since Mr Cameron became leader of the party. I am sure that the Government would not like it to be suspected that the industry’s largesse entitled it to any special favours. Your Lordships will bear in mind that all firms providing employer’s liability insurance have a vested interest in ensuring that, as far as possible, the details of the scheme create as light a burden for them as they can achieve. If, however, the industry passes on the costs to customers, as the Data Monitor survey quoted in paragraph 97 of the 2013 impact assessment suggests, it might be more impartial if it is asked to comment on a draft before the scheme is published.
The Delegated Powers and Regulatory Reform Committee says that this scheme is comparable in structure and content with the one governing a discrete, targeted social security benefit. It concludes that,
“only a most compelling explanation could justify the establishment of a scheme that is to determine rights to statutory payments, yet is not to be subject to any form of Parliamentary scrutiny”.
That says it all. I beg to move.
Lord Freud
My Lords, before there are any other contributions on this topic, it might save time if I respond rapidly to the last point mentioned by the noble Lord, around Amendments 1, 2, 4 and 5, about establishing the scheme on a statutory basis. Clearly that is the recommendation of the Delegated Powers and Regulatory Reform Committee. We acknowledge the concerns behind it. In the time between the recess and the Committee stage it has not been possible to do more than consider the proposed changes to the Bill. I am sure that noble Lords understand exactly what I am saying. I understand their concerns about the means by which the scheme is established and we are giving the matter due attention. I hope that those remarks might save a little time today.
Lord McKenzie of Luton
My Lords, we have added our Front Bench names to Amendments 1 and 4 and concur with the two amendments of my noble friend Lord Howarth. I think that the arguments have been fully and effectively made and I do not think that I need to add anything. I take the Minister’s reply to be, “Yes, but not quite yet”, and that is comforting. It is a good way to start our deliberations today.
We are all grateful that we have now seen a draft of the scheme. It arrived this morning at 11.55 am, according to my machine. I wish to make the point that should there arise, after we have had a chance to study it, issues that we might otherwise have parsed today as these amendments go through, we could perhaps use our next opportunity to revisit them. This is not to slow up the overall process but to ensure that we make best use of the draft that we have.
We have also added our names to Amendment 6, about the annual report to Parliament. I concur with my noble friend’s list of issues to be covered. I would add that later in our deliberations we will consider our broader amendment which refers to the possibility of an oversight committee to oversee very much the same type of issues as my noble friend raised, in particular to deal with the issue that the noble Lord, Lord Avebury, raised. One of the concerns that we have throughout the Bill is the extensive engagement and powers that the insurance industry has—the administrator, the technical committee, ELTO setting up the portal. The oversight committee would be one way of at least addressing that scope in the interests of the sufferers. I think that that is for debate on Monday.
My noble friend’s Amendment 3 requires the Secretary of State to publish proposals and make a Statement to Parliament before establishing the scheme. Clause 1(3) currently requires the Secretary of State to,
“publish the scheme as amended from time to time”.
Does the Minister take this requirement as covering my noble friend’s aspiration in Amendment 3? If so, will he put that on the record?
Lord Freud
Ah, I might say a few words. I hope that in my earlier intervention in the interests of saving a little time I effectively dealt with our approach on Amendments 1, 2, 4 and 5. I will turn to Amendments 3 and 6 in the name of the noble Lord, Lord Howarth.
Amendment 3 requires that before the scheme is established,
“the Secretary of State shall publish his proposals and make a statement to Parliament about them”.
This falls into the area of the recommendations from the Delegated Powers and Regulatory Reform Committee to make the scheme rules subject to negative resolution. The result of those considerations may serve to enhance in practice the level of parliamentary scrutiny, which would make this amendment unnecessary.
One or two questions were raised. I apologise for the late arrival of the scheme rules—everything seems to be just in time today—but I was keen to get them to Committee Members before we started. Of course, we will have another day of Committee, and further stages. They are a draft at this stage and a work in progress and we will be continuing to refine them during the passage of the Bill and indeed afterwards.
I ought to deal with the question from my noble friend Lord Avebury on the meeting with the insurance industry. Bluntly, this was a negotiation with the insurance industry and you have to meet people to negotiate with them. To get a working scheme going, that was an essential job. I would have liked to have done it with rather fewer meetings, but that is what it took.
Amendment 6 requires that:
“The Secretary of State must report annually to Parliament on the performance and progress of the scheme”.
I argue that it is not necessary to include this in the Bill. Scrutiny and reviews are already planned for the scheme without the need to include those in legislation. Indeed, we cannot know at this stage whether it is necessary or appropriate to report annually. We are aiming to determine the details of the reviews at a later stage. I am happy to commit to making a Statement to the House on the scheme’s performance. We will keep this under review as, over time, we expect the volume of scheme cases to reduce and for further information on the schemes to be readily available. The kind of information that the noble Lord, Lord Howarth, was talking about may become transparent effectively on a daily basis. I urge the noble Lord, Lord Avebury, to withdraw his amendment.
Lord Freud
My Lords, the difficulty in doing such a negotiation is that this was pretty price-sensitive stuff in the marketplace. We had to keep it tight. I did, however, explore the angles without being specific or laying it out by saying, “Here is the architecture”. I explored the elements of what we were aiming to do with, as I say, not just the victims’ groups but the lawyers and the APPG. Keeping a balance between a commercially complicated deal and ensuring that the other side is well informed is always difficult, but that is the balance that I tried to strike.
Lord Avebury
My Lords, I certainly was not objecting to the meetings that were held with the insurance industry in the lead-up to the Bill. I mentioned that at Second Reading the Minister told us how many meetings there had been not just with the victims support group but with various other stakeholders, such as the lawyers representing the victims. I had hoped that those consultations would have been extended into the period when the details of the scheme are being formulated. We would hope that there would be equality of arms between the insurance industry and the representatives of the victims in designing the details of the scheme and in looking at any amendments that may be necessary later on. However, we have to be content with what the Minister has said this afternoon and hope that, at least by Report, we will be looking at something a little more concrete than the Minister was able to say to us. In the meanwhile, I withdraw the amendment.
Lord Freud
My Lords, there is a deep and difficult history to this of which, I suspect, everyone in this room is aware. We are trying to ensure that we can get money to that group who have missed out. I am as dismayed as many of your Lordships that that has not happened earlier, but we are where we are. We are doing it now in a way to ensure that we can get those payments flowing rapidly. I apologise if I seem to be making a Second Reading speech. The problem is that this is such an emotive issue—the disease is so horrible—that it is very hard not to do so.
We have to come back to what is a specific deliverable. It is awful to sound so legally defensive, as I know that I am sounding here, but I am trying to get a deliverable, to get as much money as possible to people. I shall answer the specific questions. I know that I will not have the noble Lord, Lord Howarth, resounding with pleasure, as he wanted to be, but that is the underlying reason. My motivation is to get as much money as I possibly can safely, without risk—legal risk, in particular—to people.
Lord Avebury
I am sorry to interrupt my noble friend, but was it always clear whether a person was covered by the employer’s liability insurance? In the industries which have been mentioned, such as the construction industry, where the boundaries between the employed and the self-employed were not always clear, and a person comes forward and claims that he worked for such and such a firm and was employed at the time, but the employer’s liability insurance has been lost, how can the scheme be satisfied that he was qualified within the terms of the Bill?
Lord Freud
That is a very important point. As the noble Lord, Lord McKenzie, was querying, some people will appear to be self-employed where the reality is that that was an artificial, tax-driven construct. In that case, if they can demonstrate that in practice they were acting like an employee, they would be eligible for a payment under the scheme. That is specifically allowed for.
The noble Lord, Lord Howarth, asked about estimates of exposure to people who have been washing laundry—secondary exposure in the household. We do not have those data, I fear. We have data on general environmental exposure, which would include that, and I can give that information to the noble Lord. Clearly, people who catch asbestos outside the employer liability framework can get payments under the 2008 Act. Various noble Lords thought that they were inadequate, but they are state payments established since then.
My noble friend Lord James asked about the MoD and the Admiralty in particular. The state does not have employer’s liability—
Baroness Masham of Ilton
My Lords, I, too, put my name to the letter and I, too, support my noble friend’s amendment—at least, the spirit of it. Mesothelioma is an awful condition, as has been so well explained by my noble friend Lord Walton. It needs research. Many more people will be developing this terrible disease. Research is advancing in many ways. One only has to think of stem cells and transplants. One never knows what will happen. However, this condition needs continuing expert research to find a way of alleviating the suffering, as well as a cure to stop this condition developing. I am sure there will be a way to stop it developing. It is there in the body but it needs the experts. Research means hope for these unfortunate people. Surely the Minister can find a way of accepting this amendment.
Lord Avebury
My Lords, I, too, was one of the signatories of the letter that was drafted by the noble Lord, Lord Alton. I join in the congratulations that have been expressed to him on his assiduous work over very many years on behalf of the sufferers of mesothelioma. I am delighted to support him in this amendment, particularly now that the arguments that might have been advanced against a statutory levy have been so comprehensively demolished by none other than the noble Lord, Lord Pannick, and several other noble Lords who have spoken.
If we get this amendment into the Bill, it may not be perfect but, as several of your Lordships have said, it will act as a stimulus to the provision of more funding from a number of different sources, which we may not all have known. The noble Lord, Lord Howarth of Newport, mentioned the DWP. We should look beyond the boundaries of the United Kingdom. Surely we are not concerned only with what has been called the national research effort. Mesothelioma is not confined within the boundaries of the United Kingdom. We might also look to the EU’s International Rare Diseases Research Consortium, which has a responsibility for looking at the 6,000 rare diseases that account for a surprisingly high proportion of the deaths and serious morbidity from cancerous diseases. I do not know whether mesothelioma is already on the consortium’s list but, if not, it certainly should be.
I wholeheartedly support the spirit of the amendment of the noble Lord, Lord Alton, and I hope that the department might consider widening the scope of the research that is conducted on the disease by looking to Europe, particularly this rare diseases research consortium.
Lord Empey
My Lords, I hope that the Minister did not think that I was being flippant in my earlier intervention when I said that I hoped we could finish off all the related issues. I understand what the Minister is confronted with. It is a serious business. He has put a lot of work into it and there is no doubt that there is advancement here. With so many people here supporting this amendment and talking in favour of it, he might also feel that it is not necessarily for him alone, in that there are other departmental interests to be taken into account. Perhaps between now and Report he could consult with some of his colleagues, because the contributions that have been made by people who really know what they are talking about have been very impressive.
It is amazing that as a nation we have not taken this issue sufficiently seriously, but at least we have an opportunity to spark a change. The noble Lord, Lord Alton, with his track record on this, has been trying to achieve this for a long time. Perhaps we have a confluence of events here that might actually bring this about. The levy issue is not an issue. It can be dealt with. I am unclear whether this is the right mechanism, or even the right Bill, but there is something here to be achieved and I think it can be done without a huge drain on public resources. I accept that the Minister is trying hard. Perhaps this is not the moment for him to respond to us, but perhaps he will discuss it with his colleagues in the Government.
Lord Howarth of Newport
My Lords, my Amendment 18 is grouped with Amendment 15, just moved by my noble friend Lord McKenzie, and it drives at very much the same purpose. Both of us seek to ensure that the scheme payments will match the average of court awards for people in comparable circumstances, thereby lifting the figure from 70% of the tariff to 100%.
I have not been able to discern any principled basis for this figure of 70%. I think that it was the best deal that the Minister could secure. I do not underestimate his achievement in securing that deal against an insurance industry that for decades fought a rearguard action to try to escape from its proper liabilities. At Second Reading, the Minister told the House of the press investigations into the mesothelioma scandal in its various dimensions from 1965 onwards. As time went by, we understand that policies went missing wholesale. As the Minister also told us at Second Reading, it was not until 1999 that the industry created a code of practice for the better tracing of employer’s liability policies.
As I said in an earlier debate, I do not think that Parliament needs to feel that it is bound by the deal that the Minister has secured with the industry. We respect the Minister’s efforts in securing that deal but it is our duty to take a view on where the public interest lies, and I do not believe that it lies in palpable injustice or in the convenience of the insurance industry at the expense of mesothelioma victims. It is surely unacceptable that mesothelioma victims should be penalised because, through no fault of theirs, documents have gone missing, and it is unacceptable that the insurers, whose duty it was to keep proper files, should benefit to the tune of 30% in precisely those cases where they failed in their responsibilities.
The Minister will argue to us again, I think, that there needs to be a discount in order to incentivise claimants to go to the courts first. However, I am not persuaded by that argument because it seems to me that the procedures of the scheme—the portal and the remit of the technical committee—will all ensure that they do go to the courts first if they can and that they pursue that avenue until they find that they cannot proceed satisfactorily or successfully along it. Be that as it may, in any case a 30% discount is simply too large. The Financial Services Compensation Scheme provides cover for 90% of the liabilities of insolvent insurers where insurance is compulsory. That 90% should be the very minimum and 100% would be right.
Lord Avebury
My Lords, I certainly agree with the noble Lord, Lord Howarth, about the incentive argument. I thought that that was comprehensively demolished at Second Reading and I hope that we are not going to hear it again from the Minister this afternoon.
I also think that my noble friend should pay attention to the fact that this was one of the subjects on which all the speakers at Second Reading were unanimous in saying that 70% was simply unacceptable. Whether it should be 100%, 90% or some other figure much higher than 70% could be a matter of argument between us. However, there are certainly very strong reasons for saying that the 30% deduction is totally unfair and unacceptable to the majority of your Lordships.
My noble friend said at Second Reading that he was keen to avoid the insurers passing all, or virtually all, of the levy on to existing insurers. As the noble Lord, Lord McKenzie, said, this would not require a very large increase in the premiums to be imposed. It is logical to assume that insurers would also be constrained by the effects of competition. Some might be inclined to pass the whole burden on to other insurers, but would be constrained from doing so by the thought that if others did not then they would obtain all the business. The threat of the insurers passing on the burden is a very slight one.
If there were an increase from 70% to some higher figure, that would not happen suddenly. Presumably, a proportion of the insurers might pass on some of the burden as we approach 100%. I do not think that the Minister has any objective evidence to show to what extent this would happen. I would be very glad to hear from him if he thinks that there is evidence of something that must be hypothetical and cannot intrinsically be tested without actually trying it.
Mesothelioma Bill [HL]
Lord Avebury Excerpts(11 years, 6 months ago)
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Lord Avebury
My Lords, perhaps I may begin by mildly disagreeing with the noble Lord, Lord Howarth. The Minister is in excellent company because he has built on the work done by the noble Lord, Lord McKenzie, and I thank both of them for their excellent work, for the processes which have led up to this Bill and for the actual construction of the Bill by the Minister. We owe them an enormous debt of gratitude for what has been an extremely long and arduous task.
The Bill allows the victims of this horrible disease, contracted as the result of working in environments that contained asbestos many years ago, to recover compensation even if the former employer, through whose negligence the patient was exposed to the asbestos, has gone out of business and the employer’s liability insurance, which would have covered a claim against the employer, cannot be traced. This is partly because the insurers irresponsibly destroyed policies taken out by firms that went bust, even though it was known right from the start of employers’ liability insurance in 1972 that mesothelioma has a very long latency period. A pamphlet entitled Asbestos Kills by Nancy Tait, which I published in 1976, quoted evidence going back to the 1930s to show that asbestos causes a wide range of diseases and that some of them have a latency period of as long as 30 or 40 years after exposure. There is absolutely no excuse whatever for what is now being euphemistically termed “market failure”.
The Minister referred to work being undertaken by the Ministry of Justice on a range of measures, which include a pre-action protocol, and several noble Lords have referred to the work being done by Senior Master Whitaker. Will the Ministry of Justice examine that work carefully because the administration of these mesothelioma cases by Senior Master Whitaker, his practice direction and his use of the “show cause procedure”—whereby once a claimant has established that he was exposed to asbestos in breach of the employer’s duty, the evidential burden shifts to the defendant to produce evidence to demonstrate that it has a real prospect of success in its defence—have been major causes of accelerating the progress of these cases through the courts. Rather than having a pre-action protocol, I wonder whether it might not be best to allocate a special court for the conduct of these cases, where the experience and wisdom of Senior Master Whitaker could be developed and extended to other judges.
Of course, the scheme does not go as far as the Asbestos Victims Support Groups Forum UK would have liked. I shall refer to two of its main concerns. It was unfortunate that the forum was not invited to any of the consultations held over the two-year period during which the scheme was being negotiated, and I would be grateful if the Minister could explain why the forum was not allowed to have its say. As I am sure he knows, the forum would have preferred a scheme like the one that applies to the motor accident victims of uninsured drivers. Representatives of the forum say, as every noble Lord who has spoken so far has also remarked, that it was wrong to apply the scheme only from 25 July 2012. As has been mentioned, it was a purely arbitrary date, although I imagine that that would have meant squeezing more money out of the insurance industry. The Government have decided to go for the best settlement they could get the industry to agree to voluntarily, and inevitably that was bound to be less than perfect.
The same applies to the 30% reduction, which, again, all noble Lords have condemned, from the average compensation paid to claimants of the same age who can identify the relevant employers’ liability policy. It is not clear how the 30% figure was determined, although I understand that it was intended to be a disincentive to claimants opting for this scheme when they could have identified the insurer and made a claim accordingly. I agree with the noble Lord, Lord McKenzie, who said that this was manifestly absurd—those were not the exact words he used, but that was their meaning—because the claimant who is unable to pinpoint the relevant insurer has no option but to apply to the Employers’ Liability Tracing Office, whose remit is to conduct the search, so the matter is entirely in its hands. A litigant cannot enter the scheme without ELTO being involved, a point to which I shall come back later.
I turn to the Bill itself. I do not believe that the scheme should be left to the unfettered discretion of the Secretary of State, as my noble friend Lord German has already said, but rather that it should be subject to approval by Parliament, as should any amendment, replacement or abolition of it. I have a couple of questions for the Minister. In Clause 2, is the definition of “relevant employer” intended to make a claim possible against any pre-1972 employer on whose premises it can be shown that there was asbestos? Is negligence to be assumed in these cases, irrespective of the circumstances in which the victim now finds himself? How can you establish negligence when the employer has gone out of business and there is no direct evidence of what he was doing in the period before 1972?
In Clause 4(2), is the age referred to the age at the date of diagnosis or the age when the claim was submitted? They may not always be the same. In Clause 4(3)(a) in what circumstances is it envisaged that conditions would be applied to the payment? I was advised that what may be in mind is a situation where the payment falls to be made to the trustees of a dependant who is a child or mentally disabled, but if that is the case, should that not be spelt out in the Bill rather than allowing the Secretary of State to impose any conditions whatever at his absolute discretion?
It is just a small point, but Clauses 11 and 12 appear to be superfluous because they merely repeat parts of what is already in the schedules. On Clause 13, the Government have found it necessary to defend themselves against the potential criticism of the levy as an infringement of the property rights of the insurers under Article 1 Protocol 1 of the ECHR. One would have thought that securing the agreement of the Association of British Insurers to the scheme would protect it against litigation by an individual insurer. One of the factors which they say is relevant in considering whether transferring to the insurance industry the cost of remedying the market failure to keep adequate records is that the compensation is limited to a percentage of the amount that would have been payable if the records had existed. In order to remedy this market failure comprehensively and restore mesothelioma victims to the position they would have occupied if the insurance records had existed, the figure would, of course, have had to be 100%. Would my noble friend consider aiming for a lower reduction—as all noble Lords who have spoken so far have recommended—than the planned 30%, preferably with the industry agreeing to an increase in the levy to fund the difference? I am advised that the Financial Services Compensation Scheme pays 90% compensation in a situation where the negligent employer is no longer trading and where the insurance company for the defunct company is also no longer trading. The FSCS is authorised by the Financial Conduct Authority and, so far as the asbestos-related disease claims are concerned, FSCS coverage is not limited to mesothelioma. Is this not a model for the scheme that is to be launched under this Bill?
Mesothelioma is an excruciatingly painful disease, and the struggle to get fair compensation for those who are struck down by it has been excruciatingly slow, having taken 40 years so far. As my noble friend Lord German said, the Bill is a milestone, but it is not the end of the road either for the beneficiaries of this scheme or for those who suffer from other asbestos-related diseases.
Enterprise and Regulatory Reform Bill
Lord Avebury Excerpts(11 years, 7 months ago)
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Lord Avebury
I shall add a 15-second contribution to what the noble and right reverend Lord, Lord Harries of Pentregarth, has already said about our gratitude to the Minister, who, as he said, has listened carefully to the representations that have been made. I only wish that she could have seen the joy that the announcement caused among the communities, which was displayed in a demonstration in Parliament Square yesterday afternoon. Hundreds of people were there, welcoming the change of attitude by the Government and saying that this was a moment of tremendous excitement and joy among all the Dalit communities.
I am not so sure about Talk for a Change, because I think that it is probably a waste of money. However, this is not the moment to cavil about the detail but only to welcome the principle that this matter will be dealt with by legislation. I am most grateful to my noble friend and to the Government as a whole for their change of mind, declared at this last moment.
Lord Stevenson of Balmacara
My Lords, we are extremely pleased that the Government have now accepted the need to legislate for legal protection against discrimination on the grounds of caste. Everyone agrees that caste has absolutely no place in our society and that, if there is even one case of such discrimination, proper action must be taken and there must be proper access to redress.
I also join the thanks for the exemplary work done by the noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Avebury, who have taken the main burden of negotiations and discussions about the right way forward. We have arrived at a very elegant solution by changing the legislation to require the duty on the Government to make progress, therefore bridging the not very large but seemingly unbridgeable points that seemed to divide us on this issue. Eventually, with good sense on all sides, they have been removed, and we are very grateful to the Government for that. This is now again a good day for equality, and we will all celebrate this as we go forward.
I thank my noble friend Lady Thornton, who cannot be here this evening, for the considerable work that she took on when she came into this area. She used me as a bit of a listening board from time to time, and I felt that sometimes I had been at some of the meetings, where some rather inelegant things were said that do not bear repeating in your Lordships’ House, because noble Lords would be shocked. We got through it, we are here today and we should celebrate where we are and wish the Government well in their onward work, which will all be very useful.
Enterprise and Regulatory Reform Bill
Lord Avebury Excerpts(11 years, 7 months ago)
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Lord Avebury
My Lords, I, too, welcome the forthright statement by the Minister that caste discrimination is unacceptable, unfair and must be eliminated. However, I disagree with the diagnosis that she offered, which involves a delay at least until the end of the year before anything positive is done. I think that your Lordships will agree with the noble and right reverend Lord, Lord Harries of Pentregarth, that, having spent three years since the Equality Act waiting for the Government to declare their intentions on Section 9(5)(a), which they could have invoked at any time during that period, it is now time for your Lordships to make a decision on how we deal with this matter in law.
The basis of the argument about this proposal has shifted radically since your Lordships agreed to give the Government the power to extend by order the protected characteristic of race to include caste. At that time, the Government were not satisfied that discrimination on the grounds of caste existed in employment, education or the delivery of services. Now, three years later, from the Prime Minister downwards the Government accept that people in the United Kingdom do suffer discrimination on the grounds of caste, and that action needs to be taken against it.
They believe, however, that, unlike with discrimination on the grounds of any of the protected characteristics that are already dealt with in the Equality Act—age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation—caste is unique in being susceptible to treatment merely by education and conciliation. This is clearly a vain hope, as we see from the history of racial discrimination. The noble and right reverend Lord, Lord Harries, mentioned the repeated efforts of Fenner Brockway in the 1950s and 1960s, which, as I remember very well, fell on stony ground. Before the 1976 Act, introduced by my late friend Lord Jenkins of Hillhead, provided legal remedies for victims of racial discrimination in employment, education and the delivery of services, the Race Relations Board provided education and conciliation but those remedies were ineffective.
The Government say that there is no consensus for this amendment. I remember that the Conservative Opposition in the Commons, led by Mr Quintin Hogg as he then was, were against the 1968 Race Relations Bill on the grounds that it was unfair to private employers. As your Lordships know, many employers today would like to be able to discriminate on grounds of sexual orientation. There is no consensus there, but it did not stop us from legislating.
There is a consensus in favour of legislation among all the organisations in this country that represent the Dalits and other groups that are on the receiving end of caste discrimination, as we saw from the BBC “Newsnight” programme last week. Those bodies that have expressed concern draw their members from the higher castes. I challenge the Minister to produce a single Dalit who belongs to any of them.
Welfare Benefits Up-rating Bill
Lord Avebury Excerpts(11 years, 8 months ago)
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Baroness Lister of Burtersett
My Lords, in opposing the question that the Schedule be agreed, I do not wish to reopen the debates we have already had about the damaging impact it will have on some of the most deprived members of our community. I hope I can take it as read that I oppose this schedule in the same way that I have opposed the clauses. Instead, on the helpful advice of the Public Bill Office, I wish to use this debate as an opportunity to draw attention to the needs of an even more deprived and vulnerable group who cannot even count on a miserable 1% increase in benefits, and that is asylum-seeking families reliant on asylum support.
The right reverend Prelate the Bishop of Ripon and Leeds and I raised this issue briefly during Second Reading. The Minister responded, correctly, that asylum seeker benefit rates are a matter for the Home Office and are not within the scope of the Bill. He kindly said he would draw our remarks to the attention of colleagues in the Home Office. We are, of course, aware that asylum seeker benefit rates are not within the scope of the Bill; that is the very reason why we raise the question. They should be part of its scope and treated in the same way as other social security benefits when it comes to uprating policy. As I have given the Minister’s office notice that I planned to raise this issue in this context, I hope that the Minister will be able to address the substance of our remarks when she comes to respond.
The right reverend Prelate and I, together with the noble Lord, Lord Avebury, remember the all-party parliamentary inquiry into asylum support for children and young people, set up by the Children’s Society. I would like to put on record my thanks to the Children’s Society for all the work it has done on this important issue and for its briefing for today’s debate. That briefing draws on the findings of our inquiry. We found that the current asylum support system is forcing thousands of children and young people seeking safety in the UK into severe poverty. We were shocked to hear of instances where children were left destitute and homeless, entirely without institutional support, and forced to rely on food parcels or charitable donations. This cannot be right.
It is estimated that there are 10,000 children living on asylum support. The panel heard powerful evidence of the reality for those living on as little as £5 a day, whose parents are forced to skip meals to feed their children and are unable to buy warm clothing in the winter. Some families find current levels of support particularly difficult, including pregnant women and lone mothers with young children—and families of a disabled child, because asylum support does not offer families any standard additional support when a family member has a disability. With regard to pregnant women, one particularly shocking example brought to our attention was a mother having to walk home from hospital in the snow with her newborn baby in her arms because she had no money.
Just last week, Maternity Action and the Refugee Council published a report which gave more examples of the problems faced by pregnant and nursing women who had insufficient money to meet their most basic needs. Most asylum-seeking parents are not allowed to work, leaving families totally reliant on state support; paid work is not a route out of poverty for them. Asylum support levels differ significantly from income support and other mainstream benefit levels. Until 1999, asylum support was set at 90% of income support, after which levels of support were reduced to 70%, with the justification that asylum seekers in accommodation no longer had to pay utility bills. There is currently no statutory provision to make an annual uprating of levels of asylum support in line with increasing costs of living. I acknowledge that the previous Government did not set a good precedent on the uprating of asylum support. I therefore hope that my own party will at least be open to rethinking our policy on this.
Asylum support rates have not been raised in 2012-13, so they have effectively been frozen without any announcement to justify this. When I asked a Written Question about this, the Answer was that there was not only no statutory obligation to carry out an annual review but no obligation even to make an announcement. There should be, in both cases. As it is, I was told:
“There are no current plans to change asylum support rates”,
although the Government,
“will continue to keep them under review”.—[Official Report, 15/1/13; col. WA 121.]
If the rates are frozen for a second year in succession, that will mean a cut of 6.2% in relation to income support payments over the last two years, making it even more difficult for families to survive. Can the Minister please explain which factors are taken into account when keeping asylum support rates under review? What is the actual process for deciding how and when they will be uprated?
The inquiry recommended that asylum support for families also provided with accommodation should be aligned with mainstream benefit rates paid for living expenses. Where accommodation includes utilities, which would normally be expected to be paid from living expenses, it is appropriate to make a deduction. However, such a deduction must be reasonable. The inquiry argued that the rates of support should never fall below 70% of income support. As it is, asylum support now bears no relation to income support.
The inquiry was particularly concerned about the situation of families on Section 4 support, which may be provided if a child is born after an asylum claim had been refused but where the family are, for some reason, unable to leave the UK. Almost 800 children are being supported under Section 4, some for many years. Under Section 4, the amount provided is even lower and the use of a cashless system—the azure card, as it is called—can be degrading and wasteful because it can be used only in certain designated shops. The inquiry recommended that this particularly inhumane form of asylum support be abolished entirely and replaced with a single cash-based support system for all children and their families who need asylum support while they are in the UK.
Given that asylum support rates were not increased in 2012-13, they should be raised as a matter of urgency for the 2013-14 financial year and thereafter increased annually, at the very least in line with income support, along with other benefits in the schedule. I would be grateful if the Minister could explain the rationale for treating asylum support differently from mainstream social security benefits when it comes to annual upratings. Ministers frequently refer to the Government’s ongoing review of asylum support when questioned on these issues, including recently in response to a Written Question from the noble Lord, Lord Hylton, which referred to our all-party inquiry. In his Written Answer, the noble Lord, Lord Taylor of Holbeach, said that the Government would consider our findings as part of this ongoing review. Will the Minister please tell us whether the Government will respond to the all-party inquiry’s report? How long will this ongoing review go on, and when can we expect an outcome?
I would argue that a review of the treatment of one of the most deprived groups in our community should be treated with a little more urgency. It is shameful that we are willing to allow children and their parents who are seeking asylum in a rich country such as ours to continue to suffer in this way.
Lord Avebury
My Lords, I agree with the noble Baroness that the payments made to people who have applied for asylum should be treated in the same way as any other benefits and should be subject to review by your Lordships. Instead, as the noble Baroness explained, there is no obligation to uprate the benefits or even to make a statement, nor, in particular, for the Government to explain whether they believe that the payments made to asylum seekers should bear any relationship to those on income support, or whether the two calculations are to be performed on an entirely different basis. If so, what is the underlying rationale behind the amounts paid to people on asylum support?
As the noble Baroness has already said, with her I was a member of the cross-party parliamentary inquiry organised by the Children’s Society into asylum support for children and young people, under the very able chairmanship of my honourable friend Sarah Teather, the former Minister for Children. I join the noble Baroness, Lady Lister, in expressing the concern and dismay that we all felt when listening to the stories of suffering and destitution of asylum seekers. The worst-off were those supported under Section 4 of the Immigration and Asylum Act 1999, many of whom were failed asylum seekers who could not be returned to their country of origin because it would not accept them. Under that provision, people have to live in housing and accommodation provided by private agencies, the standard of which often is grossly deficient and lacking in ordinary facilities.
I could not help noticing the contrast with the Statement made earlier today about the arrangements being made for our forces returning from Germany. Quite rightly, £1 billion is being spent on 1,900 new houses for those families, when nothing whatever is spent on the accommodation of people who have applied for asylum.
Section 4 provides support in the form of vouchers which can be redeemed only at certain shops. The value of the azure card, which is intended to provide for all essential living needs, is £70.78 a week, compared with income support for a couple with children of £123.35. Because they have no cash, as the noble Baroness has explained, the recipients cannot do many ordinary things, such as buying stamps, taking a bus or making a telephone call. She gave a particularly lurid example of evidence that we heard about a mother who had to undertake all sorts of physical arrangements with her small child as regards apparatus that was needed. My noble friend Lord Taylor of Holbeach said, in his brief answer to a question on asylum support on 24 January, that he was surprised to find that there were two levels of benefit within the asylum system. Indeed, one cannot imagine the motive for building this level of complexity into it.
Lord Avebury
This is the third or fourth time that my noble friend has mentioned that the arrangements under Section 4 are temporary, but will she acknowledge that some people remain on them for many years? In one case that we were told about, I think it was seven years.
Baroness Stowell of Beeston
I was going to refer to the complaints that have been made about delays in dealing with Section 4 cases. These problems have been acknowledged by the department. Efforts have been made to address the causes behind those delays and there have been some improvements.
The noble Baroness, Lady Lister, said that disabled people receive no additional support. If asylum seekers have higher needs, they are supported by their local authority under an old Act, the National Assistance Act 1948. My noble friend Lord Avebury asked whether disabled children would receive higher value support. Again, that is a matter for individual local authorities, which will have considered the needs of the child and conducted a relevant assessment. My noble friend also asked whether these arrangements are compatible with the UN Convention on the Rights of the Child, and the answer to that is yes. The UK Border Agency is bound by its Section 55 duty to consider the best interests of children. As I have said, fully furnished free accommodation, education and healthcare are provided, plus an allowance to meet the need for food, clothes and other essential items.
Although I acknowledge the strength of feeling that has been expressed by noble Lords about the difficulties that inevitably are faced by people who come to this country seeking asylum, when comparing asylum support rates across Europe, our research shows that the UK is comparatively generous in family cases, providing more to an asylum-seeking family of four than countries like Sweden or Denmark. Further, as I have mentioned, there is an ongoing review of our approach to asylum seeker support and we expect to finish conducting our inquiries shortly. We are taking account of the views of partners, including the recommendations of the Children’s Society. We will want to ensure coherence with the mainstream benefit system and the financial constraints being faced. The noble Baroness, Lady Lister, asked for further details about the evidence that is being considered in the course of the review. I shall see whether I can write to her with further details on that.
It is worth saying that there is no statutory obligation to carry out an annual review of asylum support rates. Instead, Parliament has set a clear benchmark that the support provided must meet the “essential living needs” of recipients of Section 95 support and that it must provide “accommodation” to recipients of Section 4 support. It would be wrong to raise expectations in this area given the current constraints on the funding available, but we are committed to an approach to asylum support that is fair, reasonable and balanced. No one who has sought our protection need be destitute while waiting for an application to be decided, but if the application is refused and the decision is upheld by the courts, we expect people to return home. Perhaps I may add that if someone is granted asylum, if they are in need of benefits they will transfer on to the domestic regime, which ensures that they receive the same benefits as anyone else in this country under the normal rules that apply.
If I have failed to address all of the detailed questions put by my noble friend Lord Avebury and, indeed, if there are any others, I will follow them up in writing. I am grateful to the noble Baroness, Lady Lister, for the opportunity to set out the support that is provided and I hope that I have been able to reassure her and other noble Lords that the Government continue to take this matter very seriously. I hope that she will withdraw her objection to the schedule.