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on the same side as the noble Baroness, but on this occasion I suggest that she is wrong, because she is unbelievably out of date. A good deal in this Bill is out of date as far as what is happening to the private hire and taxi business.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be moved from the current situation, except perhaps to remind those who wrote this part of the Bill that it is already out of date because the technology has moved on.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.

Water Bill

Lord Deben Excerpts

Tuesday 25th March 2014 Lords Chamber

into the supply system, so that they cannot bypass the undertaker. I beg to move.

[Lord Deben (Con)]

My Lords, I declare a past interest as a former chairman of a water company in this country and I sit on the board of one on the continent of Europe. I hope that my noble friend will take the remarks of the noble Earl, Lord Selborne, very carefully because there is a tendency to think of water as if it is like any other utility. Of course it is not because water is different, wherever you take it from, and it will be under bigger pressure than ever before because of the effects of climate change and of demand increases.

It is often possible in a small area to provide a small programme of water supply at a lower price because it is being tailored particularly and for very narrow demands. We are going to have to find better ways of sharing water supply in any case because of what is happening in this country, so the point that my noble friend Lord Selborne raises is very important. I have read carefully my noble friend’s comments about the Bill. None of us wants to reduce the amount of competition which the Bill provides, but I hope that the Minister will give some reassurance which goes beyond merely saying that Ofwat has the powers to deal with this. That is because I share my noble friend’s doubts that Ofwat has those and whether those powers would stand up in law—certainly, whether they would stand up were the law part of the very valuable European legal structure under which we operate. Thank God for the European Union, or we would never have the water supply which we have today. Our water would be much less clean and we would have much lower standards. We owe a great deal to our membership of the European Union on this, as on most other things.

However, on this particular issue we have to ensure that the Bill does not put us into a position in which de-averaging—one of the ugliest words in the English language—becomes a serious problem. I hope that the Minister will be able to reassure me that the legal situation is fully covered because I, too, think that there is sufficient precedent to make anybody reasonably concerned.

[Lord Grantchester (Lab)]

My Lords, I declare my interests as a farmer, thereby living in a rural area. Like the noble Earl, Lord Selborne, I am concerned with the effects generally on rural areas. While there are risks, I am not sure that this is the case here. We support the introduction of competition into the non-domestic market and take the issue of de-averaging very seriously. The noble Lord, Lord Deben, has spoken about how we must, indeed, be assiduous in making sure that price averaging is maintained as far as possible. However, we are satisfied that Ofwat has all the necessary regulatory tools to enable it to limit the effects of de-averaging.

Competition can also be about bringing innovation to the market in services and introducing efficiencies. However, we remain concerned that these amendments, which have been tabled by the noble Earl, Lord Selborne, might allow incumbent suppliers to constrain the development of future markets, thereby reducing the benefits that competition could bring.

Thames Tideway Tunnel

Lord Deben Excerpts

Wednesday 24th July 2013 Lords Chamber

[Lord De Mauley]

My Lords, I thought I had addressed that question when I answered the noble Lord, Lord Berkeley. Thames Water does not avoid paying tax. HMRC’s capital allowance regime allows companies to delay—not to avoid—paying corporation tax, based on how much they invest. Capital allowances are simply the allowed amortisation of an asset for tax purposes and they exist to encourage companies to carry out crucial investment. The mechanism enables tax to be paid over the lifetime of the asset. If capital allowances did not exist, that would mean either less investment or higher bills for customers.

[Lord Deben]

Does my noble friend accept that this is an old-fashioned and unacceptable answer to the problem? It is like the Three Gorges dam: it is not the way to do it. Will he please undertake that before any public money is put into this scheme he makes sure that better schemes, which may not be so convenient for the water company concerned—I declare an interest in the water industry—but are more environmentally sensible than this wholly out-of-date proposal, are thought of by the Government?

[Lord De Mauley]

My Lords, while I agree with my noble friend on many things, I do not agree with him on that. After years of work by Governments of both hues, we do not consider that there is a viable, cheaper solution that would simultaneously address the current sewer overflow problems relatively swiftly for the foreseeable future and deliver value for money.

Horsemeat

Lord Deben Excerpts

Thursday 14th February 2013 Lords Chamber

[Lord De Mauley]

That is quite a mouthful, my Lords. On the first point, the FSA oversees a rigorous, risk-based system of checking by local authorities. More than 92,000 tests were carried out in 2011-12. The FSA has assured Ministers that the recent machinery of government changes have not impacted on its surveillance and testing. On the health issue of people being allergic to live horses, I am not aware that this translates into the dead horsemeat arena. I am reliably informed that there are no risks to health unless the meat is contaminated with bute. We covered that issue in connection with the previous Statement. I am amazed at the noble Lord’s suggestion about my right honourable friend’s attitude to Europe. He is in Europe today, discussing the matter with his European colleagues in a very collegiate fashion. The noble Lord can rest assured.

[Lord Deben]

May I remind my noble friend that we in this Chamber are in Europe? May I also underline the previous comment that this is the moment for the Secretary of State to remind the country that if we want to protect our food chain, we have to do it from within the European Union, playing our proper part in it?

[Lord De Mauley]

My Lords, I agree with my noble friend that we are in Europe. My right honourable friend is of course in The Hague. Perhaps I should have said, “continental Europe”. He is not only co-operating but leading the way in helping Europe to tackle this problem.

Food: Waste

Lord Deben Excerpts

Tuesday 12th February 2013 Lords Chamber

[Lord De Mauley]

Very droll, my Lords. I can assure the noble Lord that when products such as those that I think he is referring to are tested, or are part of an ongoing investigation, they will be held securely and when ready to be released the products will be disposed of appropriately. Of course, if it is safe and appropriate for a product to go to anaerobic digestion rather than incineration or landfill, I hope it will. Needless to say, products that are not fit to be sold will not find their way back into the food chain.

[Lord Deben]

My Lords, I declare an interest as chairman of Vision 20:20, which is concerned to do something about this. Is it not time that we banned this material from landfill? It is seriously dangerous to create methane. Banning it would enable us to insist upon much wider recycling of that which is wasted.

[Lord De Mauley]

My Lords, we have committed to reviewing the case for restrictions on sending particular materials to landfill over the course of this Parliament, including looking specifically at textiles and biodegradable waste. We are focusing on collecting the evidence. Our experience from working on wood has shown us that a good understanding of the data, waste streams, markets and other issues are vital to making informed decisions. Before making proposals on restricting any particular materials, the Government will need to be content that that is the best-value way of moving material up the waste hierarchy and that the costs to businesses—and, indeed, to the public sector—are affordable.

Public Bodies Bill [HL]

Lord Deben Excerpts

Monday 7th March 2011 Lords Chamber

[Lord Deben]

My Lords, I hope very much that we maintain the more than 9 per cent of the country which is so protected. However, I do not suggest that the national parks should always go on in exactly the same way and that the elected Government should not interfere with them in any way. For four years I was responsible for the national parks. I do not think that anybody could have criticised the way in which I sought to protect the countryside. However, the national parks are a problem because in many ways their structures do not meet today’s needs. It is perfectly true that you could suggest that Ministers may not behave perfectly but to seek to protect a section of the population and more than 9 per cent of the land to the extent that no one can propose necessary alterations is unacceptable. Such a situation has arisen only once before in connection with the church. I much prefer the church to be in that position, as long as it is the true church, but that is a different issue. I say that in the presence of the right reverend Prelates. It is difficult to defend the argument that a certain organisation should be immune from government concern and the necessity for the Government to deal with the nation as a whole.

A national park, which will be nameless, seemed to me to represent neither the people it was supposed to represent nor the people who lived in its area. As Secretary of State there was nothing I could do to protect them against the pretty extreme decisions that the relevant national park authority took. We have to have a balance here. The way in which Ministers have explained how they intend to use this provision leads me to believe that we have the right balance. It is not acceptable to believe that the only way you can protect this area of Britain is by exempting a particular structure from any kind of debate. All that this provision seeks to do is to give the Government the opportunity to represent the generality of the population’s relationship with the particularity of the national parks.

I therefore hope that Ministers will not give way to these proposals but will seek of course to give maximum independence to the national parks. However, in the end, Ministers have to uphold the interests of the generality of the public and it seems unacceptable to have a system which excludes them from doing so. Having been in that position, I believe that I was not able properly to protect people in certain national parks from the way in which institutions operated, because they were so independent that there could be no second choice. That is not acceptable in a democratic society, particularly when a national park authority is not directly elected or when the people concerned are not in that position.

I very much hope that Ministers will accept the good offices and good grace of the noble Lord, Lord Judd, but accept also that many people who live in the national parks are hoping for a proper way in which the fiat of a national park authority could, at least at some stage, be questioned by those who are elected. I therefore very much support this part of the clause.

[Lord Berkeley]

My Lords, it is interesting to follow the noble Lord, Lord Deben. My interest is in the Norfolk Broads, rather than the national parks. I note that in the coalition agreement the Broads Authority was not included in the same bracket of potential changes.

My interest in the Norfolk Broads came from having the privilege of chairing a Select Committee when the Broads Authority brought forward a private Bill to change its structure. It was interesting listening to the different petitions made over a number of days. There was the challenge of balancing the conservation and navigational issues, and of balancing the interests of those who wanted to drive motor boats at high speed and those who wanted to sail in comparatively narrow areas. The most important issue that came out of that evidence was that all the people who petitioned had the interests of the Broads at heart. Most of them, but not all, lived locally and were prepared to accept a structure and compromise that gave them as much of what they wanted as they recognised was reasonable. That represents a much better way of managing an area such as the Norfolk Broads than doing it by central government. However, we can probably debate that later.

I asked the Broads Authority whether it had been consulted by the Government about these potential changes. It was very brave to put its answer in writing, which stated that the authority had not had any detailed discussions with the Government. That is rather sad, actually. Surely the whole point of these potential changes is that the Government should consult the people involved. The authority is very concerned about its inclusion in Schedules 3, 5, 6 and 7. That is a pretty wide range of options that cannot give the authority much comfort as to where it will go. Its feeling, which I fully support, is that it would not mind if its name was changed to the “Broads National Park”, but that that would change the emphasis of its objectives and how they were implemented. Not only that, but the conservation budget has to be kept separate from the leisure budget, and there are special arrangements for navigation officers and so on. The authority was also concerned about the governance procedures and worried that the Government would be getting into too much detail. There was also the potential for changes to the reports and accounts process.

I have not heard anything so far that indicates that there would be benefit to the inclusion of the Broads Authority in any of these schedules. If it has to be in one, it believes that Schedule 3 is the least bad. The Broads Authority spent a lot of effort putting through the private Bill. It cost time and money, much of which came from its users. Why should it not be allowed to get on with what it does pretty well rather than having yet further uncertainty and changes? The Minister may have some different ideas about this, in which case I should be very pleased to hear them.

--- Later in debate ---

[Lord Foster of Bishop Auckland]

My Lords, I support the amendment and I am very grateful to the noble Lord, Lord Inglewood, for the time that he has given to researching the legalities. I am not qualified either to support or to challenge these but I am most grateful to him. I am grateful, too, that he mentioned the Zurbaráns. My noble colleague pronounces it differently —I think a member of the Royal Family would agree with him—but, none the less, I call them Zurbaráns.

I have a great regard for the Church Commissioners. I would not agree with all the remarks made by my noble friend. I have had the great pleasure of serving with four Bishops of Durham, all of whom lived in Auckland Castle, which was part of my constituency for 26 years. It was a great joy to work with each of them. Indeed, I was a trustee of Auckland Castle for more than a decade and gave a great deal of my time to trying to reduce its financial burden on the Church Commissioners. We had considerable success during that period, before the trust was disbanded only last year.

The reason I support the amendment is that we are not arguing against the fiduciary responsibilities of the Church Commissioners, but we believe that they should also have a responsibility to pay due regard to national, local and regional heritage. After all, King John stayed at Auckland Castle in 1203, so I gather. The bishops of Durham were always prince bishops. Indeed, the county of Durham described itself as the land of the prince bishops. They were very powerful people indeed in those days and colossal figures in the whole political, social and economic life within the county of Durham and the wider authority.

I have been discussing this matter with the Church Commissioners for 15 years. On three occasions they have sought to sell the castle and the paintings, and on three occasions we have managed to dissuade them from doing so. On the last occasion, the campaign was ably led by bishop Tom Wright with the support of the Bishop of London, to whom the right reverend Prelate referred, and ultimately with the support of the Church Commissioners. I am very grateful to him for what he said and for the spirit in which he said it.

The commissioners have not always taken the same view. There was a period 15 years ago when they wanted to sell off all the bishops’ palaces as quickly as they could, but I think that reflected the position of a single commissioner. They departed from that view and have taken a much more sensible view over about the past decade. Now they are in discussion with Durham County Council and the group chaired by the Lord Lieutenant of Durham, of which I am a member. We are very pleased to be discussing this matter with the Church Commissioners.

However, it would be enormously helpful if the Church Commissioners had a duty to pay due regard to national and local heritage. After all, the Zurbaráns have been there for 250 years. They were bought for £150 by the bishop to celebrate the changing of the law in this place to extend the civil and political liberties of the Jews. What a wonderful thing he did 250 years ago. In the north of England we celebrate the great fact that we had such a progressive bishop, and we have had several since then. The bishop wanted to celebrate this deeply unpopular step among society at large by buying the Zurbarán paintings and extending the long dining room of the castle in order to hang them there. They have hung there ever since. We are enormously proud locally of the castle and of the Zurbaráns. The commissioners need to take all that into consideration.

I am still hopeful that we can come to a sensible conclusion on this issue. I am very grateful to the noble Lord for giving me the opportunity to speak in support of the amendment.

[Lord Deben]

My Lords, I shall not keep your Lordships' House long but I want to make a further point. The Church of England is in a very real sense the guardian of the nation’s ecclesiastical treasures. It received them in circumstances which would be inconceivable today. We all have an interest in this. For many years I sat on the Ecclesiastical Committee as an Anglican and then as a Catholic. That change was perfectly reasonable because the Ecclesiastical Committee of the two Houses is there to ensure that decisions made perfectly properly by the Church of England do not detract from the interests of Her Majesty’s subjects as a whole.

The problem with the argument put forward by the right reverend Prelate is that it seeks to suggest that the Church of England is not the Church of England but a sect that is able to use its resources for its particular interests at a particular time. I warn the right reverend Prelate that his argument is very dangerous because his presence in this House is earnest of the fact that the Church of England is not thought by our society to be merely a sect. I have to admit that I left the Church of England because I believed that by making choices of a theological kind, it had changed—

[The Lord Bishop of Leicester]

Will the noble Lord agree with me that the argument I have been adducing is that the Church Commissioners have a responsibility to use the assets the church has acquired historically in whatever way they judge to be in the best interests of its service to the whole nation. That is precisely the basis of the argument for certain disposals; those wider interests should be borne in mind in the management of the church’s assets.

[Lord Deben]

The right reverend Prelate is making a judgment that I am suggesting is in fact, on this occasion—probably only on this occasion—erroneous. The fact is that the Church Commissioners are making a choice about how the historic property of the Church of England should be used in today’s world without, frankly, any thought of either tomorrow or yesterday. The Church of England has a duty to remember the interests of the whole church. This money will be applied to a number of charitable purposes, but the disposal will deprive our society of some very valuable things.

I hope that the right reverend Prelate will allow me to use a biblical comparison. Many people criticised Mary Magdalene for using valuable ointment on the feet of our Lord. He said very clearly that they were wrong in their judgment. My problem with right reverend Prelate’s argument is that I have heard it before. When I was a member of the General Synod of the Church of England, I argued that the assets of the church that protected the pensions of the right reverend Prelate and others should, in fact, be applied only to socially responsible investments. The secretary of the Church Commissioners got up and said, “We apply them using the very best advice of the City of London”. I said, “I thought the church was supposed to lead and set the example, not blame the City of London or suggest that the City can make moral judgments”. My noble and right reverend friend Lord Harries took the Church Commissioners to court on this issue and I am sad that he did not win. However, the Church Commissioners have changed their views on this.

This is the second reason why the right reverend Prelate is wrong, because if the Church Commissioners can invest, not for the best return on their money but on the basis that they will invest only in things that are proper for the Church of England to invest in, the church is making a judgment, not about what it can make the most money out of, but one which comes from its Gospel doctrines. I have to say that the idea that you could sell and allow to be taken—because that is what will happen if the position cannot be changed—from the walls of that great house a memorial to a moment in history when the Church of England stood up for the Gospel doctrines in a way which was remarkable for that century would be a manifest betrayal of the Church of England’s duty to look after the interests of the whole nation, rather than to seek to make an immediate profit for the use of a particular attitude and a particular church. That is not the role of the Church of England. This money is going to be spent not to protect interests in which all of us can join but to protect those of a no doubt very noble but particular position of the Church of England.

--- Later in debate ---

[The Lord Bishop of Leicester]

My Lords—

[Lord Deben]

I shall give way to the right reverend Prelate but I shall just finish this one point. The Church of England has to learn that, if it is to continue to have a place in our society, it has to show a generosity of spirit which it has not shown in this debate. It has not yet understood that it is the guardian of something that it did not buy. A bishop bought these pictures, and a church with which it is no longer connected built those great palaces. The Church of England has a duty to respect the past. It has a duty to pass it on to the future and not to say to today’s generation, “I’m very sorry, it’s nothing to do with us. We can sell this, use the money and it will go”. It cannot do that and still claim the privileges for which I have fought, and will continue to fight, even though I am not an Anglican. However, every time it does not understand what my noble friend Lord Inglewood was saying, it undermines the establishment of the Church of England.

[The Lord Bishop of Leicester]

I wonder whether the noble Lord can help me with the criticism that he seems to be levelling at the Church of England as being irresponsible in its custodianship of the heritage that it holds. I find that a quite extraordinary charge and it is one that I do not think has been substantiated by anything that the noble Lord has said.

In my diocese, I am the custodian of 300 medieval churches. It is an extraordinary heritage experienced by every diocesan bishop right across the land. Tonight, we are discussing whether the Church Commissioners should have responsibility for deciding how best to house the diocesan bishops of today and tomorrow. A number of references have been made to our history, some of them to the 12th and 13th centuries. I am sure it will not have escaped the notice of your Lordships that circumstances today are very different from those of the 12th and 13th centuries. You simply cannot manage a built estate today on precisely the same principles as applied then. There are different considerations and many pressures on the Church of England and the Church Commissioners. Some of those pressures include many people arguing that in an age of austerity it is inappropriate for bishops to be housed in castles and palaces. That is also a consideration that needs to be weighed. It is not reasonable to say that the Church of England is somehow, in a cavalier manner, disregarding its past and future responsibilities. I made precisely that point in my remarks. It has to weigh all of those and walk a tightrope between its responsibilities to its heritage, to the wider community, to the nation and to the gospel.

The noble Lord quoted the story of Mary Magdalene pouring precious ointment over the feet of our Lord. That is an important example, but the question for this House to resolve tonight is who is best placed to interpret that tradition, the Church Commissioners and the Church of England, established under Parliament by law, or the Secretary of State? I suggest that the present arrangements protect that interpretation more satisfactorily than whoever happens to be the Minister in charge from time to time.

[Lord Deben]

I promise not to hold your Lordships' House any longer, so I shall reply specifically to that. If I felt that the Church of England had carried through its necessary duties in a way that was commensurate with its great heritage, I would not be supporting the amendment. If the argument of the right reverend Prelate were made by anyone else, no one would take it seriously. If anyone said, “I am very sorry. I am now running a business and it is really very difficult for me to keep this house as it is”, people would say, “I’m afraid that is your responsibility; that is what happens if you have been given the house; you have to look after it properly”. It is all right arguing about the churches, but you cannot make any money out of the churches.

[Lord Lester of Herne Hill]

I am a Jewish atheist and, therefore, have no special interest, but I regard what the right reverend Prelate the Bishop of Leicester has said as totally cogent and convincing. I believe that the question he has asked has not been addressed by the noble Lord or by the noble Lord, Lord Howarth: who is to decide, the church under the separation of church and state, or a Minister? Unhesitatingly, I agree with every word that the right reverend Prelate has said. When I listen to noble Lords talking about palaces, I am reminded of the absurd and pompous discussions we had about judges’ lodgings and the notion that High Court judges could not be judges unless they were insulated from the public and lived in those amazing country houses. This is exactly the same argument; it is reactionary and I do not believe that the law of charity or the other mechanisms do not adequately protect the public interest.

[Lord Deben]

I say to my noble friend that I have never claimed that bishops should live in these palaces. I do not want them to live in these palaces. The noble Lord, Lord Howarth, thinks that, but that is not my argument. My argument is that the Church of England has a specific role in our society which involves accepting that it has a duty of care of that which it largely has received and did not itself create; someone else created it and it was handed on. The fact is that the Church of England has failed. Of course, it does not sell the churches; no one wants to buy medieval churches; it sells the things it can make money out of. Therefore, I unhesitatingly say that it will be very much better for the Church of England if a Minister were able to remind it of its duty, not just to the moment, not just to the future, but to the past, and its role, dependent on the fact that it is the Church of England; and if it forgets that, many of us will have to change our minds about its place here and in the establishment.

[Viscount Eccles]

My Lords, I do not want to detain the House for a long time and I shall not. My noble friend Lord Deben has gone too far, as he did when he did not renew me as chairman of the Royal Botanic Gardens Kew. He came to a very bad judgment about that and I entirely support the right reverend Prelate the Bishop of Leicester in his thesis.

I make one practical point about the Zurbaráns in Auckland Castle. The Church Commissioners are responsible for £5 billion worth of financial and property assets. The income from that funds 16 per cent of the church’s expenditure. The other 84 per cent comes, largely, from the congregations of the church and from, as the right reverend Prelate said, appeals for repairs and appeals for lead for the roof which needs renewing and so on. I think that the Church Commissioners and the church should take account of two things as they consider the position of the Zurbaráns. They need the support of their congregations. I do not think that it is certain that they will get £15 million for the Zurbaráns. The last time that this came up, as the noble Lord, Lord Foster of Bishop Auckland, will remember, the Bowes Museum got an estimate from the market—not from Christie's or Sotheby's—and quoted £6 million, not £15 million or £20 million, which I think was the Sotheby's quote. So there is an issue about the risk which the Church Commissioners are taking with these pictures, which has nothing to do with the romantic story of Bishop Trevor, and that one of the pictures is a copy by Mr Pond for 24 guineas and the other pictures cost 21 guineas each. That is a very romantic story that has all the connotations of the disabilities of the Jews and all those things.

However, if the congregation in the north-east supported a solution which meant that the Church Commissioners could add on, shall I say, £12 million to £5 billion, you could say that that is likely to be a good judgment, not a bad one. With respect to the noble Lord, Lord Howarth, I do not think that the church has to hang on to every asset. One could suggest that it sells the divorce papers of Henry VIII from Catherine of Aragon, which sit in the library in Lambeth Palace. I do not know how much they would make, but I would guess quite a lot of money.

We should not get tremendously excited about this. It is a practical issue, as the right reverend Prelate the Bishop of Leicester has presented it to us. It is full of practical judgments, but the church needs the support of its congregations. I say rather quietly that in the north-east, there is the Dean of Durham—I remind the House that there is no Bishop of Durham at the moment. Durham Cathedral has an appeal out now. Are the Church Commissioners absolutely certain that they will not lose by raising £12 million and having an income of £360,000 a year—the Church Commissioners’ assets yield 3 per cent—because congregations will say, “If you can do this and that, we are not going to give you so much money every Sunday or when you make an appeal”?

Producer Responsibility Obligations (Packaging Waste) (Amendment) Regulations 2010

Lord Deben Excerpts

Wednesday 17th November 2010 Grand Committee

[Baroness Quin]

My Lords, again, I begin by thanking the Minister for his explanation of the regulations and for bringing them forward today. They are in many ways a continuation of an existing policy and approach, and derive from EU obligations. As the Minister explained, the targets needed to be updated for the immediate future. In responding for the Opposition, I simply raise a few questions that are largely stimulated by the Explanatory Memorandum. We know that consultation has taken place on the regulations, and I ask the Minister about the level of interest in the consultation and the overall responses to it. Is he happy about how extensive the consultation was and whether those who will be affected by the regulations heard about it and had a fair chance to give their views?

The Minister was uncharacteristically uncharitable yesterday at Question Time in referring to consultations under the previous Government. In my modest experience as a Minister, consultations were very important in arriving at and even changing government policy. It would be interesting to hear how effectively the Minister rates the consultation process that took place on the regulations.

At paragraph 7.3 of the Explanatory Memorandum, mention is made of the targets being set higher to offset the exemption for small businesses. Were any problems created through that; were there any specific areas of difficulty? I am not sure what proportion of SMEs are covered by the regulations. Does the Minister consider that the burden that is now on SMEs through the renegotiation of the regulations is reasonable?

In paragraph 7.6 of the Explanatory Memorandum, the Government talk about longer-term targets being set. I would be grateful if the Minister could give us an idea of the timetable for that process. In paragraph 7.7, mention is made of the revenue that can be raised. It states:

“Reprocessors and exporters are not compelled to spend the revenue in any specific way”.

Was any specific obligation on the spending of that revenue ever considered? Does the Minister have any further information about that?

In paragraph 7.10, the Government say:

“Most of the changes will have a negligible impact on businesses”.

I am happy to accept that that is the case, but since “most” is not all, it would be interesting if he could give us any information about what seem to be the most significant impacts of the changes.

Paragraph 7.11, to which the Minister referred, states that there is to be:

“The removal of the requirement on reprocessors and exporters to be independently audited”.

When I first read this I felt some concern, because independent auditing requirements are often extremely important. However, I understand from a later point in the Explanatory Memorandum that the regulators were happy with this change. None the less, I would be grateful if the Minister could tell us whether the regulators have any outstanding concerns about that. I realise that this may not be easy to answer, but can he say whether this requirement for independent auditing happens elsewhere in the EU, given that we are talking about EU regulations?

My final question is fairly basic but important. Can the Minister assure us that nothing in these regulations will affect negatively our recycling targets and the other environmental commitments that we have entered into? We want to be reassured on that point.

Once again, I thank the Minister for the way in which he introduced these regulations and for explaining the large element of continuity in them, which certainly seems to be in evidence.

[Lord Deben]

My Lords, I apologise for not being here for the Minister’s speech, except for his excellent final paragraph, but I was caught in the Chamber, having intervened on what turned out to be a rather controversial occasion. Politeness meant that I had to remain there until it had finished. I should also declare an interest—two interests, really. I was the Minister who invented these regulations and drew up the environmental regulations that were accepted by the European Union. This is unusual, because these regulations were created by Britain and France together to avoid the interference in trade that had otherwise occurred. Therefore, the regulations are permissive in the means by which we meet the ends. It is a very British concept. I also declare an interest as chairman of Valpak, which is the largest of the organisations that help businesses to meet the obligations under the regulations. It is a not-for-profit organisation set up by British industry and covers about 65 per cent of those who have to meet the regulations. I declare an interest, but perhaps I also declare knowing something about how these things work, which is not easy because they are somewhat complicated.

I have to say that there is a real and fundamental disagreement with the way in which the Government have decided to proceed. Britain has managed to become not the worst operator of recycling—as the noble Baroness knows, we have not been very good in our recycling record—by having the most permissive system that you could possibly have. It is very competitive and we have managed to do this probably more cheaply than any other country in Europe. Last year, it cost British business roughly £180 million to meet the obligations. It is likely to have cost German business about £1.8 billion. That is the difference in the efficacy of our systems; this is not a heavy burden on our businesses. Indeed, we actually have a positive advantage, because we run the system so effectively. I have to say that that is because we went in for a good capitalist system—it is competitive. Anyone who provides services has to compete with everyone else; if you do not provide or buy the evidence of recycling at the lowest possible cost, they do not come to you, they go to someone else. There is a real reason for this.

--- Later in debate ---

[Lord Henley]

It is the noble Lord, Lord Deben. I think the noble Lord, Lord Demon, might be someone rather different. However, that might be for another life of my noble friend.

[Lord Deben]

I hope not.

[Lord Henley]

As far as I am aware, that was not the case. I shall write to the noble Baroness in due course about that.

The noble Baroness then asked about the waste review—again, a matter raised by my noble friend Lord Deben—and when it would come out. Our intention is to publish it in April of that year. April might turn out not to be a suitable month because, as the noble Baroness will know, there are local government elections on 5 May. It might therefore have to be published on 6 May, but I cannot give a precise date other than an assurance that it will be before June.

On independent auditing, again I can give an assurance that, as I made clear in my opening remarks, we are keen to try to reduce the burden on all businesses. So far as I am aware, the regulators were perfectly happy. I am not aware of any concerns. We will continue, as we have said in the past, to make sure that we strive to meet all our recycling targets, and our targets post-2012 will be considered as part of the review to be published in 2011.

I turn to the points made by my noble friend, and again I pay tribute to him for, as he reminded us, inventing these regulations, getting them through with the support of the French—something I hope we will be able to do more often in the future, but we are all learning new tricks at this stage—and getting them agreed. I am also grateful to him for stressing their efficacy and the competitiveness of our system. What my noble friend is saying in effect is that our targets for 2011-12 are not ambitious enough. The simple answer to that is that we will have the review and we want to make sure that we get everything right before we move on.

[Lord Deben]

I understand my noble friend’s view, but this is a continuing system. If you decide to stand aside for a relatively important period, as this would be—if my noble friend can tell me that it will be for only a year I shall be happier—the fact of history is that it takes you several years to catch up if you discover that you do want to raise the targets. As I cannot imagine that anyone in the coalition would want to lower the targets, it might be better to do this as we have done it for the past 12 years.

[Lord Henley]

I can see my noble friend’s argument. In some respects we are continuing with that line. Perhaps I can offer him some encouragement in another field in this area. One of the other drivers of these things is the landfill tax. It will continue with its escalator, which is due to go on up to 2015, at which point I think it will reach £80 a tonne. It is certainly a driver for all those involved in waste when considering how to handle waste. What happens to the tax after that, as my noble friend is perfectly well aware, is not a matter on which I can comment. No doubt colleagues in the Treasury will look at the efficacy of that particular tax because it is one of the most successful taxes that has ever been created in changing behaviour.

My noble friend also said that he has been listening to those who advise him and that he wants the Government also to listen to them. He said that if he was wrong he would come to me, as he put it, covered in sackcloth and ashes and admit it. If we are wrong, I see no reason why we cannot amend things later, but in the mean time we want to get the waste review right. Once we have done that we can look at these issues again.

[Lord Deben]

Can my noble friend assure me that nothing will stop him—let me put it as delicately as that—coming back next year with a revision, or does he really mean that the arrangements for the waste review will mean that it will be at least two years before he can change this?

[Lord Henley]

I cannot give my noble friend an absolute assurance because we want to consider the results of the waste review before we come to decisions. He will know that Governments can do a great deal of things as and when they wish, particularly after publishing a review. I certainly cannot give an assurance that we will do something. All I can say is that we might, if it was necessary. I would then come to the noble Lord in sackcloth and ashes to say “Mea culpa” and whatever else he wished me to say. I am not saying that we will do this; I am saying that it is always a possibility.

[Lord Deben]

Of course my noble friend cannot say that he will do it; indeed, that is not what I asked him. I asked him whether, if it turned out that it were necessary, he would do it. I am sure that he would. My question now is: if it were necessary, could he do it in the time, or could something in the circumstances make it impossible? If nothing in the circumstances would make it impossible, I am happy to rest on his good assurances and he need not say “Mea culpa” to me.

[Lord Henley]

I can never give an absolute guarantee; it would have to be a guarantee given by me at this stage. All that I am saying is that I believe that it would be possible if necessary. I might be wrong, but my noble friend will have to rest on that assurance. The important thing is that we think that it is right and proper to get these things sorted out, as we are doing now, for 2011-12, then publish our waste review and then take things forward and make further decisions thereafter. I know that my noble friend says that the price of glass has collapsed. We have seen that in the past and it has gone back up again. We have seen that with other recyclables. I think we can cope with that. These are not the only drivers in this field; as I mentioned, there is also the landfill tax. I do not believe that we face the problems that my noble friend suggests.

I hope, therefore, that the Committee will accept that at this stage it is right and proper that the regulations go through, and that we will consider them again in the light of the review, which will be published in the spring of next year.