Brexit: Environmental Regulation

Lord Deben Excerpts

Monday 4th November 2019 Lords Chamber

[Lord Gardiner of Kimble]

My Lords, my noble friend has hit on something absolutely crucial. We need to ensure that we lead. That is indeed why this country was the first in the world to introduce legally binding greenhouse gas emission targets. We were the first country to set a legally binding target to achieve net zero greenhouse gas emissions. All this is the direction of travel in which we wish to go. We should be ambitious about that; I agree with my noble friend.

[Lord Deben (Con)]

Does my noble friend the Minister agree that all this works only if we do not undermine those things by agreeing international trading arrangements that allow other people to export into this country goods and services that do not reach the same standards? Is it not true that those in charge of international trade in this Government have not been as committed to our environmental standards as other members of the Government?

[Lord Gardiner of Kimble]

Well, this member of the Government is delighted to say that the United Kingdom is a world leader on animal welfare and environmental standards. We will not water down our standards as part of trade negotiations; I have said that before. We are committed to making sure that any future trade agreements work for consumers, farmers and businesses across the United Kingdom.

Animal Health, Plant Health, Seeds and Seed Potatoes (Amendment) (EU Exit) Regulations 2019

Lord Deben Excerpts

Monday 13th May 2019 Lords Chamber

[Lord Deben (Con)]

My Lords, first, I commiserate with my noble friend who has to introduce these statutory instruments. I am sure the whole House understands. What we do not understand is why we are doing this at all, as it is manifestly barmy. It just reminds us why we should not be trying to leave the European Union. It really has to be said again and again. When we are talking about invasive species, I can think of one or two whose names will be on the ballot papers when we come to the European elections.

I want to question my noble friend a little about the African swine fever element of this. I declare a family interest. It is not just a question of making sure that there is no spread of invasive African swine fever at our borders but of making sure that it does not spread inside our borders. I am sure my noble friend will not mind me saying so but there is a degree of unhappiness about the large and growing number of wild boars in this country—I refer to the animal species—and the danger that African swine fever will therefore be very difficult to control. Will the Minister take this opportunity to tell the House what measures we are taking internally to complement the external measures he has outlined?

My second point is fundamental. Can anyone imagine circumstances in which we would have different animal and plant health arrangements from the rest of Europe? I cannot imagine circumstances in which, divided as we are by only 22 miles of water, with enormous movement backwards and forwards—unless, of course, we get ourselves into a situation in which it all stops—we could have a system that was not a common system because we are a common area irrespective of our political arrangements. I hope my noble friend, on behalf of the whole Government, will apologise to all the civil servants having to do all this knowing perfectly well that it is a futile exercise because there is no way we can imagine a Britain divided from our nearest and sometimes dearest—sometimes not—friends in the rest of Europe and have different policies in these areas. This is a means of protecting ourselves from a common enemy, and that common enemy is disease spread by the movement of plants and animals.

In case my noble friend feels I am being entirely negative on this matter, the third point I shall raise with him is that the reason it is important for us, even in a repeat debate such as this, to remind people of the futility of the exercise is that, so far, that message has not got out as far as it should. People still do not understand that we are bound so closely to our neighbours that we either have a sensible arrangement between us called the European Union or we have a much more difficult arrangement in which, from piece to piece and from time to time, we try to sort these matters out.

I accept my noble friend’s very understandable apology for reintroducing these regulations and I in no way criticise him, but I just want to say that it is yet again a misuse of this House and these parliamentary procedures. We would never have been here if anyone had behaved sensibly and recognised that, in the end, if the people were presented with the alternatives and were able to make a sensible decision, they might indeed ask why on earth no one had explained that much of what we do here we have to do anyway, and all we are doing is making life more complex, more difficult and more illusory. We are pretending to do something—pretending to take back control—and I really am fed up with being part of a pretence.

[Lord Hylton (CB)]

My Lords, I declare my interests as stated in the register—in particular in forestry. We have to learn from past sad experience—for example, over Dutch elm disease, which has wiped out the great majority of all the elms of southern England. At this very moment, we are grappling with ash bud disease, which can make the timber of ash completely useless, except as firewood. Other, lesser infections and importations have affected chestnut trees, oak and larch, and one hopes that they are not spreading or getting more serious. Invasive weeds have been mentioned, notably by the Minister, and on quite a few occasions your Lordships have discussed Japanese knotweed, but I will say no more about that.

I notice that of course the regulations are unamendable —incidentally, I apologise for not having been present when they were discussed earlier—but I trust that the Government have devised the very best possible protection. As an island, we are better placed than those with land frontiers to protect our stock of plants and trees, but we should try to benefit from our natural advantages and devise the very best possible protection.

Plant Health (Amendment) (England) (EU Exit) Regulations 2019

Lord Deben Excerpts

Monday 25th March 2019 Grand Committee

[Lord Gardiner of Kimble]

My Lords, I thank all noble Baronesses who have contributed to this debate. I suspect that we are united in every particular of the essentials. I stress again that as the Minister with biosecurity in his remit, I could not place a higher importance on keeping our country safe from pests, disease and invasive non-native species, all of which cause immense damage to our natural ecosystems.

As a farmer in the Vale of Aylesbury I was very scarred myself, as a boy, by the loss of all the elm trees on the farm. Now, having planted ash trees over the years and seeing them depleted, no one could be unhappier about that situation. However, in 2012, when it materialised that all sorts of extraordinary things were happening, whereby ash seeds—I think it was even small saplings as well—were going to other parts of the EU to come back and bring Chalara with them, that precipitated a change in Defra and an understanding that, while animal health had rightly been given a very considerable priority, plant health needed to buck up and become as rigorous and as sharp. I could mention many names, but the appointment of the chief plant health officer, Professor Nicola Spence, was one repercussion of an understanding that we needed to do a lot better.

On the issue of bonding and sealed, or whatever word may be used, I say to the noble Baroness, Lady Young, that I was absolutely clear in the early stages of this situation that I too wanted reassurances. I am well aware that pests may arrive at a port and we may find them going all around the country because we have done something utterly stupid. I was assured, and I will go into further detail on the assessments, about why this was a sound and sensible thing for us to do.

I will go through the points in no particular order. My noble friend Lady Byford asked about existing fees and any changes. Existing fees will apply to these import inspections at inland premises, so we will follow the existing fee arrangements.

The noble Baroness, Lady Parminter, asked about the estimated number of consignments and inspections. I want to be clear that by inspection we would mean physical inspection of a consignment of plant material, rather than simply checks of the documents associated with it. In a no-deal scenario the majority of plants and plant products imported from the EU, including fruit, vegetables and cut flowers, will continue to enter the UK freely without physical inspections, as currently. Those goods managed under the EU plant passport regime, such as certain species for planting and shrubs, will require an internationally recognised phytosanitary certificate. There will be no physical inspection of the goods at the border, although our risk-based inland surveillance system will continue. A documentary and identity check will take place remotely, without requiring that goods are stopped either at the border or inland awaiting checks. The importer will be required to pre-notify the Animal and Plant Health Agency about details of a consignment of regulated plant material. At this stage we are, in a sense, keeping what we have for certain regulated plants from within the EU—in other words, the phytosanitary certificate.

The important area—if the Committee does not mind my setting this out, because it is terribly important to establish the sequence—is that material originating in third countries that enters the UK via the EU without being checked in the EU will require a physical inspection in the UK, in the same way as we currently physically inspect material coming directly from third countries. So whether or not the material enters the UK at the ro-ro ports, we will inspect the goods at trade premises inland that have been authorised in line with biosecurity requirements. At this stage we do not have data on the current number of plants and plant products entering the UK from third countries via the EU which will require an inspection, but we estimate that there will be around 14,500 consignments per year.

My noble friend Lady Byford asked about the location of inland premises. They are located across the United Kingdom. We do not have to hand the exact locations of the 33 premises currently being organised but I can provide that information in due course. I should say, and this issue arose in another connection, that a lot of the current facilities are around Heathrow because obviously a lot of the plants from third countries come in there. I know that there have previously been considerations about the fact that it is London-centric; that is because often the bulk of plant material from third countries has come in that way. I have been to the excellent inspection unit alongside Heathrow, where so much of the biosecurity protection takes place with imports directly from third countries.

My noble friend and the noble Baroness, Lady Young, asked about the costs. It is the Government’s policy to charge fees for many publicly-provided goods and services. The standard approach is to set fees to recover the full cost of service delivery. This relieves the general taxpayer of the costs so that they are properly borne by users who benefit from the service. Charging for plant health services is consistent with the principle that businesses using these services should bear the cost. The costs incurred in any 12-month period are recovered by fees levied in the following 12 months. For example, fees for 2019-20 will be based on the costs incurred in providing services for the period from April 2018 to March 2019.

My noble friend Lady Byford and, I think, the noble Baroness, Lady Parminter, raised transporting, moving inland and the biosecurity risk. As I have said, experts both from the APHA and within Defra have made it clear that in their assessment, under the containerised, sealed and bonded arrangements, these materials will be secure until they are inspected.

The noble Baroness, Lady Parminter, asked about the volume of the imports from the EU that would be subject to the new process. We estimate that around 0.75 million tonnes of regulated plant products from the EU, out of around 7 million tonnes of total annual imports, will require a phytosanitary certificate. On the question that she also raised on concerns about blockages at points of entry, we are seeking to do this because the paramount concern is that we keep the country biosecure. Clearly, though, where inland premises have been inspected and are both suitable to the inspectors and secure, we have been advised that there is no biosecurity risk from that.

I want to respond to another point raised by the noble Baroness, Lady Parminter. She asked about the dangers of spreading pests. It is clear that we must ensure that that does not happen; that is the whole point of our carrying on with the EU system of requiring pre-notification with phytosanitary certificates for certain EU plant products. That is an important pre-notification system to enable APHA to be aware of arrivals. Moreover, part of the regime is that random checks are made of plant materials. We place the greatest importance on this area.

My noble friend Lady McIntosh asked about the risks. She talked about ash dieback; the outbreak has precipitated an enormous amount of research—here I am moving away slightly from the statutory instrument before us. Research now being undertaken into tree health is remarkable for both its public and private funding, through universities. The John Innes Centre has undertaken research into the genome of the ash tree which gives us hope that perhaps 15% to 20% of the trees may have some tolerance. We can ensure the future of the ash tree from them. This is an important area and we will work with evidence to develop a risk-based, proportionate approach to plant health measures.

In the past we have introduced precautionary national measures to protect the UK against threats. For example, the UK produced stronger national legislation against xylella in response to the situation elsewhere in the EU. We have also introduced national legislation to protect against oak processionary moth. In fact, during my early months in this post I am afraid that I made myself unpopular with our very nice Spanish friends when dealing with the Epitrix potato pest by requiring further washing because we were concerned about the arrival of unwashed new potatoes at certain times. Moreover, of course we will work with the devolved Administrations to ensure there is protection across the United Kingdom.

I turn to the question of Northern Ireland. As we have discussed in a number of debates, the island of Ireland is an epidemiological entity for obvious reasons. In fact, when we looked at aquaculture, we found that there are fewer fish pests in the island of Ireland than there are in Great Britain. It is terribly important that the all-Ireland concept is seen in that context because pests and diseases are not respecters of borders. It is intended that a similar SI will be made for Northern Ireland. The specific legislation will align with our own legislation to ensure a consistent approach to plant health. It will be laid before day one.

[Lord Deben (Con)]

Can my noble friend explain how we will keep that legislation in line with what happens in the south?

[Lord Gardiner of Kimble]

As I said to my noble friend, the whole point in raising the single entity is that is why it is so important that there is close co-operation. If my noble friend had seen our earlier consideration of Northern Ireland matters, he would have heard about the very strong relationship between bodies in the north and the south on almost the whole of the natural ecosystem area. That is tremendously important.

My noble friend Lady McIntosh asked about changes to the list of regulated pests. A plant health risk register is publicly available and I am afraid to say that currently we have 1,000 pests recorded on it. That somewhat bears out what the noble Baroness, Lady Young, said. I have regular meetings with Grown in Britain, and which side of the argument on the European Union one might be on is, frankly, irrelevant. We need to be more biosecure within the United Kingdom. We all need to be more biosecure around the world because our laxity in these matters has already caused enormous problems around the world and we need to attend to it.

Veterinary Medicines and Animals and Animal Products (Examination of Residues and Maximum Residue Limits) (Amendment etc.) (EU Exit) Regulations 2019

Lord Deben Excerpts

Wednesday 27th February 2019 Grand Committee

[Baroness McIntosh of Pickering]

They are all 2019.

[Lord Deben (Con)]

Just to make it easy.

[Lord Gardiner of Kimble]

This may well come into the trade and animal-related products SI.

Floods and Water (Amendment etc.) (EU Exit) Regulations 2019

Lord Deben Excerpts

Tuesday 22nd January 2019 Lords Chamber

[Baroness Young of Old Scone (Lab)]

My Lords, I too commend the noble Baroness, Lady McIntosh, for her points; I support all of them. I will briefly touch on the point made by the noble Baroness, Lady Parminter, about the format of reports. It seems to me that the format being decided not by a collaborative process across Europe but by the Secretary of State is a double whammy. The Government are not just filling in their own report card—they are designing their own report card, which they will then go on to fill in. I hope we can press the Minister on getting assurances that we will as far as possible shadow the extent and rigour of European formats for these reports in the future.

[Lord Deben (Con)]

As the responsible Minister during much of the period in which these European Union regulations were being put into operation, I would not like to let this occasion pass without pointing out a slight amusement of mine. This transposition from EU law into British law seems to be a perfectly happy and reasonable thing—and we have not heard shrieks from the anti-Europeans on the subject—but at the time of the original regulations Britain had the dirtiest reputation in Europe. We had filthy bathing waters; our drinking water was below the standard of most countries certainly in northern Europe and probably the whole of the then European Union. We were forced, because we had to sign up to this, to improve the conditions of water in this country—I say this as someone who was for some time the chairman of a water company, seeing it from that side of the fence as well as the government side. This House ought to remember that it must keep the Government’s feet to the fire, because, before we were a member of the European Union, we would not have done any of these things. I suspect that today, had we not been a member of it, we would have been considerably backward now.

There is a real issue about this too, because we also have to remember that no man is an island—this island cannot do things without affecting other people. We will have to think, were we to leave the European Union, of the points that the noble Baroness, Lady McIntosh, has referred to—that, if we wish to, we will be able to take laws which have been passed in the rest of Europe into our own hands. Of course, it will take much more statutory time to do so; it will not be as easy as it has been up to now. But we have to realise that what we put into the channel from our side will affect people on the other side of the channel, just as what we do in the United Kingdom from the north of Ireland directly affects people in Ireland.

--- Later in debate ---

[Lord Gardiner of Kimble]

I admire the noble Baroness’s inquiring mind. Clearly, that will be relevant to the environment Bill in the next Session, and to many of the deliberations in the other place and here. We are embarking on a very important move and I invite your Lordships to be fully engaged. We want to get it right for the long term.

On EU standards, I absolutely get the point expressed —and with passion—by the noble Lords, Lord Judd and Lord Teverson, and my noble friend Lord Deben. But it may be that a future Government of this country want to go further than the EU. We should be less pessimistic about our future in this country, whatever we think about arrangements. There may be intricacies of our national life that mean we want to go further than the EU standards of the time. I get the point, however, and of course we want to safeguard and improve the record that has been achieved. For example, there are some very good statistics on how bathing waters have improved. I particularly admire what Surfers Against Sewage has done—it has been tremendous in raising the public profile of this issue—and I also appreciate what many other organisations have done, in a European context and in the UK. However, the withdrawal Act ensures that existing standards transposed into domestic law will be retained. We want to maintain these high regulatory environmental standards and, as I said, improve on them wherever possible.

On the question of water supply fittings—

[Lord Deben]

Of course my noble friend is saying exactly what he and I would want. But I remind him that when we were not in the European Union—and if we had not been in the European Union—he and I would have been on the same side, pushing Governments to raise their standards and they would not have raised them. Therefore, we can only go on the past. We are where we are because we were in the European Union. We can have hopes for the future if we leave the European Union but, frankly, I doubt them. We have always been much less good at these things when we were not in the European Union because the Treasury always had a jolly good reason to stop good people like him and me fighting for what we believed in.

--- Later in debate ---

[Lord Gardiner of Kimble]

When I read the first draft of the Explanatory Memorandum, my thoughts were that lawmaking can be extremely complicated and that the drafting sometimes takes further reading. The clear message on what we want to do through this SI and the earlier instrument is that we want to safeguard this country’s environmental standards. That simple concept sometimes involves fairly intricate matters, so I say to the most reverend Primate that I like and appreciate simplicity, but there are moments when we need to make sure that the law is produced in an intelligible and understandable form.

[Lord Deben]

Before my noble friend sits down—

[Lord Gardiner of Kimble]

I have not sat down yet.

[Lord Deben]

No. I was hoping to say something before my noble friend sat down.

[Lord Gardiner of Kimble]

I have not sat down but I think that we are starting to elongate this matter and I ought to conclude.

Ivory Bill

Lord Deben Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 12th September 2018 Lords Chamber

[Lord Gardiner of Kimble]

My Lords, the amendment tabled by the noble Baroness, Lady Jones, seeks to insert into the Bill a commitment that the Secretary of State would consult on extending the scope of the ban to include ivory from hippopotamus, walrus and narwhal as soon as practicable after Royal Assent. I am grateful to the noble Lord, Lord Grantchester and to the noble Baroness, Lady Bakewell of Hardington Mandeville, for their remarks.

As noble Lords will be aware, this matter was discussed at some length in the other place. I want to reassure the noble Lord and the noble Baroness of the Government’s intention on this point and to explain how the existing provision in the Bill may be applied. The Bill will prohibit the commercial dealing in living species of elephant—namely African and Asian elephants. Clause 35 provides a delegated power to allow the Secretary of State to extend the Bill to cover other ivory-bearing species through a regulation. We recognise concerns that, by banning the trade in elephant ivory, there may be an unintended consequence of trade displacement on to other ivory-bearing species, such as hippopotamus, putting these species at greater risk, as the noble Lord, Lord Grantchester has outlined. It may be appropriate to use this power to protect these species if the evidence gathered supports such actions.

The Government have committed in the other place and in a public announcement that the Secretary of State will conduct an evidence-gathering exercise—for example, a public consultation—on or as soon as practicable after Royal Assent. It is in the Government’s interest to launch this exercise within this period. However, we will ensure this does not impact our timetable to get the elephant ivory ban in place. The representatives from the conservation NGOs which gave evidence during Committee in the House of Commons emphasised that, at this time, the Government’s priority should be the ban on elephant ivory.

[Lord Deben (Con)]

If I may ask a genuine question, how easy is it for all these officers that we have been talking about to distinguish the ivory from which an artefact came? Is it difficult, or is it always simple?

[Lord Gardiner of Kimble]

I shall have to take myself on a course of expertise. If through use of this power it was deemed, because of the consultation and the evidence that we had, that other ivory-bearing species should be encompassed in some form of legislation—which would clearly come before your Lordships for affirmative resolution—there would definitely need to be some understanding on the part of the enforcement officers as to differentiation and whether certain other species should be added. However, I must not take myself down a route of conjecture, although it is very a very valuable and important point. Perhaps after the enactment I should undertake myself some better understanding of the definition.

We should not act unless we have informed evidence—I think this is a point my noble friend Lord Deben would very much approve—so we can make a proper decision on whether the scope of the Bill should be extended to another species. As noble Lords will be aware, as a result of the government amendment in the other place, this delegated power has been extended from applying only to ivory-bearing species listed under CITES to applying to any ivory-bearing species. The CITES-listed species are currently narwhal, killer whale, sperm whale, walrus, and hippopotamus. The amendment brought all ivory-bearing species—for instance, the warthog—into the scope of the delegated power. All those species are therefore in scope of the delegated power and may, therefore, be subject to an evidence-gathering exercise.

As I have said, we have committed to carrying out an evidence-gathering exercise on or as soon as practicable after Royal Assent. To clarify an important point, and reassure the noble Lord, the delegated power also enables the Secretary of State to take action in the future. That is very important because of what your Lordships have already said about the possible unintended consequence of other species becoming poached because of the elephant ivory ban. For instance, a subsequent evidence-gathering exercise could be carried out on the scope of the ban if necessary. This is an important element of us ensuring that, on all ivory-bearing species, we will have the ability to act through this legislation, although this legislation before us today is precisely about the African and the Asian elephant.

I hope that, with the explanation I have given, the noble Lord feels reassured that the Government are committed to carrying out an evidence-gathering exercise on or as soon as practicable after Royal Assent, and that this will consider extending the scope of the ban to other ivory-bearing species. On that basis, I hope the noble Lord will withdraw his amendment.

Agriculture: Gene Editing

Lord Deben Excerpts

Tuesday 6th March 2018 Lords Chamber

[Lord Gardiner of Kimble]

My Lords, under the European Union (Withdrawal) Bill we will bring the EU regulatory framework into UK law. As I said, this matter is for consideration on a case-by-case basis. We already know that the John Innes Centre in Norwich, for instance, is undertaking work on oilseed rape. This is all about ensuring that the 15% to 25% of the pods that shatter are no longer shattered by gene editing. There are all sorts of ways in which we can gain enormous benefits from gene editing, and that is why I am encouraged by what the Advocate-General has said.

[Lord Deben (Con)]

Is my noble friend aware that gene editing plays a very important part in helping agriculture to fight climate change, and does he accept that we need to move fast on that if we are to meet the needs that the Government have adumbrated in their Clean Growth Strategy?

[Lord Gardiner of Kimble]

My Lords, I agree with my noble friend. The work undertaken in this country and around the world on a case-by-case basis could be immensely important in terms of climate change and hunger, as well as in dealing with disease and pests in animals and plants. We in this country believe that we should advance these techniques.

Water Supply Licence and Sewerage Licence (Modification of Standard Conditions) Order 2017

Lord Deben Excerpts

Thursday 9th March 2017 Grand Committee

These three statutory instruments form a small but important part of the overall regulatory framework, which also includes primary and secondary legislation, licences and statutory codes. I beg to move.

[Lord Deben (Con)]

My Lords, I rise merely to pursue a continuing degree of pressure on the Government not for what is in these statutory instruments but for what ought to be in them. We in Britain have a system that enables us to regulate the charges for connection—I notice that in effect it is referred to here under “Connection charges”—but connection itself is statutory. That means that even though a water company is not a statutory consultee, it can be required to provide connections when such a connection significantly overloads the provision of sewerage or allows the building of homes in places where such building should never take place.

It is some time—two years, I think—since the Committee on Climate Change sub-committee that is dealing with preparing ourselves for the immediate effects of climate change pointed out that it is an unacceptable situation that, first, the water company is not a statutory consultee and, secondly, it has to do something that is clearly contrary to our interests when it comes to flood prevention and dealing with adaptation to climate change. I know that my noble friend the Minister will say this is neither the place nor the time to do this, but if I do not go on reminding the Government that there has to be such a place and a time then it will not be done—and it needs to be done. It is a pity to take up parliamentary time for what is, frankly, a pretty unnecessary series of crossing “t”s and dotting “i”s when there is so much more to be done if we are to make the changes that the whole world, irrespective of party, religion or any other device, believes to be necessary. I am very sorry that the department has still not come forward with proposals in this area.

[Baroness Parminter (LD)]

I shall come to the aid of the noble Lord and say that it is an absolutely appropriate time for this to be raised. He will be aware that Defra is undertaking a review of sustainable urban drainage, so if we cannot raise this issue now in advance of the review, when can we raise it?

We have raised this issue frequently: in the Housing and Planning Act last year, when discussing automatic connection rights; and noble Lords will know that we have been addressing this issue rather more recently in the Neighbourhood Planning Bill. It is an absolutely fundamental issue that underpins not only the building of houses that are sustainable in the future but addressing the water shortages that we will face, given the challenges of climate change and population growth in the foreseeable future.

Will the Minister say a few more words about the likely timing of the department’s review to ensure that it is in advance of the Adaptation Sub-Committee’s forthcoming review in May? If it is not, that will be a seriously detrimental step. While, as the Minister said, these are small measures pertaining to delivering better solutions for our water industry, we must look at the bigger issues around automatic connection and sustainable urban drainage and, in the future—I hope this will be in the White Paper—a Bill on abstraction. If those things are not addressed, the Government are seriously failing in looking at the water challenges of the future.

Deregulation Bill

Lord Deben Excerpts

Tuesday 3rd February 2015 Lords Chamber

It is blindingly obvious that there is a need for comprehensive reform of our licence, taxi and car system. This is why the Government asked the Law Commission to look at the whole area, which it has done. If the Government will not wait for the primary legislation that the Secretary of State says is needed in this area, can they at least make safeguarding women and vulnerable groups their priority in this matter, and accept the amendments or bring forward their own to achieve these objectives? I beg to move.

[Lord Deben (Con)]

My Lords, it is in the knowledge of this House that I very often find myself on the same side as the noble Baroness, but on this occasion I suggest that she is wrong, because she is unbelievably out of date. A good deal in this Bill is out of date as far as what is happening to the private hire and taxi business. One would have thought, from these amendments, that modern technology had not ever entered into the world. If you travel by certain companies, which shall be nameless, you are safer than you have ever been before, because they know exactly who you are, exactly who the driver is and exactly what the route is, and they can check these things. That makes people much safer. They do that without any regulation at all, without any local authority and without any of the people who know best entering into the discussion.

It is called the market. It works extremely well and it is much safer. I just hope that my noble friend will not be moved from the current situation, except perhaps to remind those who wrote this part of the Bill that it is already out of date because the technology has moved on. That does not mean that I am not entirely supportive of it, because it is better than what went before. But these are old fashioned proposals that have been put down as amendments. They will not achieve what they suggest, and it would be good if we could be a bit more digitally savvy when we come to find a way through the clear issue that the noble Baroness has put forward, which is the real desire to protect passengers—women in particular, but not just women—from the dangers that arise. I just wish that we did not sound a bit as if we did not know what was happening in the world outside.

[Baroness Howarth of Breckland (CB)]

My Lords, I do not think that the noble Lord lives in the same world that I do, where many people are not digitally savvy. In some rural places in the north, they travel in taxis which appear out of the blue and feel extremely unsafe. I say that before saying to the noble Baroness that I hope this is not a matter of political process. I hope it is something where we think about those things which matter to this Government, which are safety and choice. I know that choice means that you have a range of options—I think that the noble Lord was indicating that we are moving towards that—but should we not wait for the Law Commission’s report, so that issues such as changes in digital technology can be taken on board and that we might recognise that the situation is not the same right across the country?

In many of my roles, I travel all over the UK in taxis. When I choose to travel by a taxi, as a consumer I expect that what I telephone for will turn up. Having worked in the vulnerable adult and child protection area for many years, I know that alternatives might turn up in which I or the child whom I want to be transported might well not be safe. We want to be absolutely sure when we make such a choice—as simple consumers, we have a right—that what we have asked for turns up at the door or we know that it is an alternative so that we can make an alternative choice.

Equally high on the agenda is safety, particularly as we have had so many situations up and down the country, and we await reviews and more inquiries about the protection of children and vulnerable adults. This is a measure where you could really make a difference and listen and look again at these issues, rather than looking at it simply as a deregulation issue.

The Minister said earlier that this legislation is about getting rid of unnecessary burdens. I absolutely agree, having worked in a number of fields where there are such unnecessary burdens, but I do not think that this proposal is either unnecessary or burdensome. It is quite straightforward that if people want to provide a service they should be licensed.

The noble Baroness mentioned the situation in Rotherham, the report on which highlighted significant concerns in relation to taxis. That is quite recent—so the world out there is not safe. We have also had reports that many disabled and elderly people find it very difficult to deal with digital technology. Where I come from, in a large rural area, the only way of travel for some disabled and elderly people to their hospital appointment or somewhere else is by taxi because the bus comes twice a week. It is not a luxury; it is an essential way of travelling. They want to know that the taxi that turns up at their door is a taxi in which they will feel safe. Even if the contractor is safe, we know the anxieties that elderly, disabled and sick people have in terms of looking after themselves. Therefore, they have to be absolutely safe.

I only hope that if we have another child abuse inquiry, or an inquiry where something has happened to a vulnerable adult—God forbid, but that is the world out there—the Government will not find themselves in difficulty because they failed to take note of these voices of caution. It is only caution, because there are ways of thinking through this matter so that we do not reduce the capacity for business but we ensure that people are safe.

--- Later in debate ---

[Lord Harris of Haringey (Lab)]

My Lords, the noble Lord, Lord Deben, in his stirring defence of the market and its role as a solution to all of the problems that occur, makes a compelling point. However, he also went on to talk about the changes that have happened because of new technology, suggesting that we therefore were safe as a consequence. We are only safer if the company holding and using that information is reputable and operates in a reputable fashion. In fact, you are opening up an enormous area of vulnerability because if somebody, for example, uses a particular firm where all this is electronically recorded, the precise movements are therefore on the record. If that firm is not responsible or, for example, does not maintain proper security, the vulnerable person is made even more vulnerable by that information being available. The noble Lord is of course right, under circumstances in which the company is reputable. There are enormous additional safeguards, because the precise route, the nature of the driver and everything else is on record; perhaps as a consumer, the person concerned has those data. However, that presupposes in the first instance that the company is reputable and has gone through an appropriate process.

[Lord Deben]

I entirely agree with the noble Lord. The point I am trying to make is that the very issue he is raising is covered neither by the Bill itself, nor by the amendment. It just makes us sound as if we are out of touch with what is actually happening. We ought, perhaps, to think again—not now, but in the future—about how to bring this into line with modern technology.

[Lord Harris of Haringey]

My Lords, the noble Lord, in his intervention, has made precisely the point I wanted to go into—that is, because these issues are not adequately addressed, the Government therefore need to think again. There is an opportunity to think again, because the Law Commission is looking at precisely this issue at the moment, but the Government, for reasons best known to themselves, have brought forward these proposals in advance of that Law Commission consideration. Surely the sensible thing, therefore, is for the Government to withdraw all these clauses so that we can wait for the Law Commission to come forward with clauses that would no doubt meet both the free market and the technological expectations that the noble Lord, Lord Deben, has.

At the moment, we are faced with a position where the Government are actually weakening the safeguards and are not recognising the context in which private hire firms are now operating. That is neither sensible nor acceptable, particularly if, by waiting for the Law Commission, we could have a more comprehensive and suitable solution.

The whole point about the subcontracting issue is that individuals assume—maybe they are naive to do so—that they are dealing with the firm whose number they know and are related to. They do not realise that that business could be passed on to somebody else. That might meet the needs of somebody getting off a train at 5.03, but it does not necessarily meet the needs of everybody. You at least should have the right to know that that has happened or the process that has taken place. That is why these amendments are important. Actually, the best thing of all would be for the Minister, when she replies, to say that the Government understand these issues and that perhaps what they are trying to do is not quite workable, then withdraw the clauses in their entirety at Third Reading—I do not suppose she could do that today—so that we can wait for the Law Commission to look at all these issues in the round.

Deregulation Bill

Lord Deben Excerpts

Tuesday 28th October 2014 Grand Committee

[Lord De Mauley]

My Lords, my noble friend’s Amendments 19 to 22 seek to introduce measures that reflect the valid concerns of landowners and farmers about the impact that claims for rights of way can have on their businesses, and about the costs of dealing with such claims during due legal process.

I am aware that there are concerns about the potential effect on some landowners of applications to record a right of way, particularly about multiple applications in an area or even on a single property. An application fee has been suggested as a solution to this issue. However, the introduction of such a fee or charge would be highly contentious. Ministers specifically asked the rights of way stakeholder working group to look at the impact of applications to record a public right of way, particularly at multiple applications, and what measures, including a fee or charge for an application, might be introduced to mitigate this perceived problem. The group agreed to report back to Ministers in the following terms:

“The problem of multiple applications could be an acute one in some cases but it is not widespread and there is little prospect of coming up with a solution, particularly on application charges, on which the full range of stakeholders could agree”.

However, the group’s view was that measures already agreed as part of the reforms package will in any case alleviate most of the problems. The first measure is to raise the threshold for applications. A local authority would be able to reject applications that did not meet a basic evidential test, effectively eliminating spurious or speculative applications. We are proposing to apply this retrospectively, as agreed by the stakeholder working group, by means of the transitional regulations provided for in Clause 27(7), so it would apply to any existing applications that have not yet resulted in an order.

The second enables newly discovered rights of way to be diverted and/or reduced in width before being recorded. This would be by agreement between the local authority and the landowner, with no scope for the agreement to be thwarted by objections. It is possible that this could also be applied retrospectively through the transitional regulations, thus reducing the overall administrative and cost burden of the procedures for recording rights of way.

Taking each of the proposals in my noble friend’s amendment in turn, the proposition to introduce a time limit on applications for an order to modify the definitive map is not as straightforward as it may appear. While it is possible to envisage such a measure for applications that are based solely on evidence of recent use, most rights of way applications are concerned with recording a right of way for which there will be both user evidence and historical documentary evidence, which may not come to light until many years after a landowner makes a statutory declaration under Section 31(6) of the Highways Act 1980.

[Lord Deben (Con)]

Could my noble friend explain why it is reasonable for documentary evidence, unaccompanied by usage evidence, to come into discussion many years after an application has been made? This is a matter of history and should remain so. It is surely not an acceptable argument against my noble friend’s amendment.

[Lord De Mauley]

My Lords, I said that there will be both user evidence and historical documentary evidence. Let me continue and try to go some way towards satisfying my noble friend. The time limit on the claiming of town and village greens introduced by the Growth and Infrastructure Act 2013 is often cited as a precedent. However, this fails to recognise that the legislative framework relating to public rights of way is different from that of town and village greens. Most notably, a green is not created until it has been registered as such whereas public rights of way already exist in law, regardless of whether they are recorded on the definitive map. The recording process is simply ascertaining something that already exists. Rights of way can come into being though a variety of mechanisms, not just a qualifying period of use. In addition, rights of way can be diverted or extinguished to accommodate development whereas town and village greens cannot.

The stakeholder working group discussed the question of a time limit on applications but has not yet been able to reach consensus on it, despite a willingness to try. However, the group suggested that developments on Section 31(6) deposits should be monitored, following recent amendment to the provisions by the Growth and Infrastructure Act 2013, to evaluate the scale of the problem over time. We intend to continue to do this in collaboration with the group.

The proposed amendment to Section 31 of the Highways Act 1980 appears to be linked to the proposal to introduce a time limit for applications. However, the amendment appears to provide that the presumed or deemed dedication of a public right of way on the basis of 20 years’ use cannot have taken place unless someone has made a valid application to add the right of way to the definitive map.

I am not entirely clear if that consequence is intended but, if it is, it would prevent the local authority from recording the right of way on the basis of evidence that it has discovered itself. It would also no longer be possible to establish the public right of way through a court declaration. If this were to be the case, there is an argument that it would create an incentive for users of rights of way to make more applications to ensure that in these cases the presumed dedication had taken place.

Introducing a fee for an application for an order to modify the definitive map would be at odds with the whole basis of the legislative framework that has been in place since the National Parks and Access to the Countryside Act 1949, under which local authorities are charged with recording all the public rights of way within their areas and asserting and protecting the public’s right to use them. The fundamental problem with this proposal is therefore that, in the main, applications are made not for the benefit of the individual applicant but in the public interest. In addition, it is worth affirming that local authorities are already funded for this statutory duty through the revenue support grant. Even if there were no formal application process, if someone provided a local authority with evidence of the existence of a public right of way, the authority would still be statutorily obliged to consider whether to make an order.

The amendment seems to recognise this fundamental flaw in the proposals and seeks to remedy it by seeking to charge a fee even where evidence is submitted without a formal application. This seems unworkable, though, as I do not see how a fee can be charged when the person submitting the evidence is not making a formal application and receives nothing tangible as a result of their actions.

The final proposal seeks to amend the existing form of application for an order to modify the definitive map, which is set out in regulations, by requiring the submission with the application of a statement of truth. There is a case for strengthening the quality of user evidence to accompany applications for an order to modify the definitive map, but we do not believe that further regulation is needed to achieve this. We intend to bring about improvements in the quality of user evidence but through non-statutory means, as part of the review of existing guidance that will be required to implement the reforms package. In addition, we will be looking at extending the new preliminary assessment of applications to cover the quality of user evidence as well as documentary evidence. Moreover, it is already possible for rights of way inspectors to require evidence to be given under oath at inquiries.

Not only do the amendments proposed here go considerably beyond the finely balanced package of reforms agreed by the group but the proposed amendments on charges for applications to modify the definitive map, and on time limits for such applications, are highly contentious. They risk jeopardising the hard-won stakeholder consensus behind the proposed package of rights of way reforms.

My noble friend Lady Byford asked for specific information about costs. I am afraid that they are not collated centrally. I hope that she will understand that.

My noble friend Lord Deben asked why claims should be made many years later. Highway law is predicated on the fundamental principle, “Once a highway, always a highway”. However, the 2026 cut-off date that we are working towards, and which is a key element of the stakeholder working group package, will eventually close off the possibility of recording a right of way on the basis of historical evidence. On the basis of everything that I have said, I hope that I have persuaded my noble friend to withdraw her amendment.