Wednesday 21 October 2009
[Mr. Clive Betts in the Chair]
Private Landlords (Local Regulation)
Motion made, and Question proposed, That the sitting be now adjourned.—(Mr. Ian Austin.)
Private landlords have been a feature of big cities for as long as big cities have existed in this country and other countries. People such as Peter Rachman are part of the vocabulary and folk memory of urban working-class communities. Virtually all working-class people from the inner cities have tales to tell of bad landlords and of what has happened to their families. However, what happened in the mid-1990s in Manchester and other northern cities—it was primarily northern cities—was a particularly malevolent variation on the theme of bad landlords exploiting poorer communities.
During the recession of the early and mid-1990s, the price of houses dropped, and that was particularly true for terraced houses in small towns and larger cities. Many drug dealers then used their excess disposable income to invest—if that is the right word—in terraced housing. Many of them had a business plan, which went something like this. They would buy one property in a row of terraced houses in what had previously been a decent and often long-established neighbourhood. They would then put in friends or tenants of a particularly rowdy and antisocial nature. Sometimes, those tenants would form shebeens, although they were often just deliberately and knowingly antisocial, and that drove other people out of those streets. As the value of houses dropped in the recession, more poor tenants came into the area. Eventually, these landlords ended up owning most of the street, and their income would be paid out of the benefits system. They did not look after the houses or the area—there were lots of complaints to local councillors and MPs—so there was a real possibility that the public purse would again have to pay for those houses when compulsory purchases came along.
When I was first elected to the House in 1997, this blight was affecting north Manchester—my hon. Friend the Member for Manchester, Central (Tony Lloyd) is also here, and he will know that the same was true in east Manchester. At the time, I believed that we required the regulation of private landlords, but before I get on to selective licensing and regulation, let me make an aside. To understand the problems of urban regeneration and of supporting private housing, council housing and registered social landlords, we have to understand some of the drivers that have led people to leave long-established areas. If the Government do not understand such crucial factors, they could waste money trying to regenerate areas.
Having been elected, I was keen to pursue proposals to register every private landlord. Private landlords had the ability to make people’s lives absolutely miserable and to destroy whole neighbourhoods, and the evidence showed that they had done that in certain areas. If we insisted on licensing people who sold alcohol—I can think of many other licenses as well—I could see no reason why we should not license people who rented property to others to make them responsible for the way in which they did that.
Interestingly, in the past 12 months, Rugg and Rhodes have proposed a similar solution to the problem of private landlords in their report “The private rented sector: its contribution and potential”. They have proposed light-touch regulation that encompasses the whole private rented sector, and having experienced selective licensing schemes, the problems associated with them and the resources required to maintain them—I will come to those later—I think that improving the system introduced in the Housing Act 2004 is probably a better way forward than regulating the whole private housing sector.
I was bound to say at some stage in my contribution that although there are bad private landlords, there are, of course, also good ones, and I want to focus on improving the regulation of private landlords to deal with the problems that have been created.
There are good landlords in Castle Point, but the problems in the private sector there are quite different. Landlords are reluctant to take on people on housing benefit as tenants, and Julie Rugg found that there were problems in that segment of the housing market. The issue of housing benefit and tenants is very complex and will need careful handling. Will the hon. Gentleman ask the Minister to set out what the Government will do to resolve the problems that he has eloquently annunciated and the problem of private landlords who refuse housing benefit tenants, as in Castle Point?
The hon. Gentleman makes an interesting point. When I started trying to persuade the Government to regulate private landlords, although I did not use quite those words, the then Housing Minister wrote to me to say that the Government were not prepared to regulate private housing, because that would damage the private rented sector in London and the south-east and lead to homelessness. I found that answer unsatisfactory. Although I would not deny that those are the facts—and the hon. Gentleman makes the point about his constituency—I did not see why the Government should not deal with the problems of many northern cities and smaller ex-industrial towns because the south-east had a different economy and different problems.
I carried on trying to persuade the Government. When Lord Falconer of Thoroton became the Housing Minister, I showed him around some particularly difficult areas in my constituency. That led to the provisions in the 2004 Act. Interestingly, it took seven years, from when the Labour Government were first asked for it—although the problem had existed since the early 1990s—to get legislation saying that someone should be a fit and proper person to be a private landlord, and to give tenants in the relevant areas certain rights. It was another two years before, in April 2006, certain provisions came into force and could be used for selective licensing. In fact, a further two years later, in late 2008, because of complications and difficulties that I shall come to, only seven authorities in the United Kingdom had taken up the scheme. I do not believe that was because the schemes are bad. It is because of the mechanisms to implement the scheme.
The Housing Act 2004 was welcomed across the board, because it was sensitively and well thought out. The one group of people to oppose it was the Residential Landlords Association, which said that
“selective licensing officially identifies an area where there is low demand for property, usually with problem families and a history of anti-social behaviour, where nobody wants to live.
And few areas will recover from that level of official negativity from their own local authority. It’s as close to being formally declared a ghetto as you’re likely to be.
No control is proposed for other types of occupier in mixed residential areas—such as tenants of housing associations, social housing, third party housing or owner-occupiers. So to single out private landlords shows grossly unfair double standards.”
That opposition completely misunderstood the Government’s response, which was a recognition of the fact that certain areas were being dragged down by private landlords who put antisocial tenants in them at a cost to the public purse, and that there was no remedy available to the local authority to deal with it. Selective licensing schemes were the only mechanism or tool given to them.
My hon. Friend is making very thoughtful comments. The real issue in the areas that he and the private landlords’ representatives talked about is not even the cost to the public purse, but the cost to the good residents whose lives are made intolerable by the behaviour of a small minority of bad tenants, and the landlords who fail to deal with that. The stabilising of an area for the many good residents is fundamental, and the approach that my hon. Friend describes is vital to the re-establishment of people’s ambition to live and settle in those areas.
My hon. Friend’s observation is accurate, but the annoying thing is that although the real destruction and cost, which are difficult to quantify, are inflicted on people, that happens at a cost to the taxpayer, which must be wrong.
When the 2004 Act came into force the Government did not publish the statutory guidelines, so Manchester, which was one of the first authorities to try to implement the scheme, had to consult using Cabinet Office guidelines. They are fine; there is nothing wrong with Cabinet Office guidelines on consultation, but no guidelines were provided by the relevant Department—I cannot remember what it would have been at that time, because the name changes so often. Manchester city council consulted, and the very first area was in the constituency of my hon. Friend the Member for Manchester, Central. There was also consultation in two wards in my constituency. Statistics from the responses to the consultation included the fact that 71 per cent. of people wanted intervention and 90 per cent. wanted landlords to intervene when their tenants were bad, which is one of the responsibilities that the registration scheme gives landlords.
The hon. Gentleman makes a fair point, and the burden of most of what I am saying will be the time that the process takes: setting up and implementing selective licensing schemes, finding private landlords—whether they are good, bad or indifferent—getting them registered and monitoring the schemes. It is a complicated proposal.
There are 10,708 properties in the area in my constituency that has a selective licensing scheme, the Harpurhey and Lightbowne area, and it is estimated that 16 per cent. of them are owned and let by private landlords. At the start of the scheme it was possible to make contact with only 84 per cent. of those landlords, and at that point 68 per cent. were easily given licences, but it is difficult to find out where properties are let to tenants by a private landlord if that landlord does not want to tell anyone. Often it is necessary to rely on the information given by local residents associations when there are problems. In the area I mentioned, the excellent Trinity residents association works closely with the council and the registration and enforcement teams, to deal with particular properties. I am not bringing case work here—I am too long in the tooth to want to bring case work before hon. Members—but they find properties where the tenants have caused a nuisance and the council goes through the lengthy procedures to try to get the landlords to conform and deal with the tenants, or, if they will not do so, to fine them. Extensive fines are available to the council if it is proved that the landlord is not complying with the legislation.
I want to finish by talking about the time factor. I have, I hope, a reputation as a localist. The schemes that have been set up are working. There are five and a half posts in Manchester in which people are employed to carry out the schemes, and they are improving the life of local residents, albeit slowly. It took nine years to arrive at the schemes, and it takes a long time to set them up. The Department says that it takes six weeks, but the evidence from Manchester city council is that from consulting and trying to initiate a scheme it takes the Department twice as long as that—13 weeks—to respond. My real question to the Minister is what the Department knows that is not known in Manchester, Sheffield, Salford, Burnley or wherever else the schemes are working. What is it adding to the process? Now that the schemes are up and running, and working well, why are they not completely delegated to the local authority? That would speed up the process and would be very helpful. However, there is some dispute; I put that point to the Minister for Housing, my right hon. Friend the Member for Wentworth (John Healey), and he acknowledged the fact.
I put a second point to my right hon. Friend at a meeting last week. It is simply this. The officials at Manchester City council say that the legislation makes it clear that selective licensing areas are to come to an end after five years. My right hon. Friend said he would consider delegating such decisions to local authorities, particularly those that had experience of the scheme and showed that it was working well and could be extended.
Many who participate in the residents associations of Manchester are deeply concerned that the selective licensing areas are to last only two or two and a half years more, and that private landlords are still trying to evade them. It takes time to do the interviews and to identify people, and the belief among residents is that some of the worst landlords are trying to hold out until the scheme finishes once the five years are up.
My right hon. Friend the Minister for Housing said that the scheme could be extended. I would be most grateful if my hon. Friend the Minister would confirm that today. It would put the minds of many of my constituents, and those of my hon. Friend the Member for Manchester, Central, at ease if that was so. The worst thing they fear, given the effort they have put into identifying the bad landlords, is that they will be laughing down their sleeves and saying, “Well, you might have stopped me being a nuisance now, but we can soon go back to how we were before.” Without selective licensing areas there is no legal means of compelling landlords to manage their properties satisfactorily or to take action against nuisance tenants. That is the crux of the matter.
I hope that I have explained properly that, because it is intense, the selective licensing scheme works better than a national scheme, but it needs to be delegated to local authorities. The case is made that, where problems continue, the areas should be allowed to continue with the selective licensing scheme until those problems are solved—not just for the five-year period—and it is no longer necessary. That is the answer to the Residential Landlords Association. The scheme is not stigmatising areas; it is trying to improve them. I look forward to my hon. Friend’s reply.
I am delighted to follow the hon. Member for Manchester, Blackley (Graham Stringer)—I think I should call him my hon. Friend. In bringing this important subject to the House and dealing with it as he has, he shows that he is in touch with the needs of his constituents, and has been for many years. He shows how caring he is as an assiduous constituency Member.
Helping people on housing benefit to get decent homes so that they can move on and become more self-reliant—it is possible for some; for others, it is not—is also a problem in my constituency in Essex, although the market there is quite different from that in Manchester, as the hon. Gentleman said. Over recent years, there have been specific problems. The private rented sector is growing. On one hand, people cannot sell their houses: there has been a bottleneck for a number of years, which is now starting to work its way through, and house sales are starting to increase in my constituency and in others. At the same time, people are having difficulty finding mortgages. They have to be earning enormous sums to afford mortgages on the loan-to-value rates being demanded by the various mortgage companies. As a result, more people are renting, and there is a greater supply of rented property. The problem is one that the Government need to consider carefully.
There are a number of matters to consider. First, I congratulate the Government on their action over the last year to bring forward more social housing. My constituency needs at least another 200 social housing units, but where they are to come from I do not know. The private sector is reluctant to let to those on housing benefit. That is a great shame, as it pushes such people into specific areas where, as in Manchester, problems start to arise of antisocial behaviour, bad neighbours and suchlike. I have such areas in my constituency, particularly on Canvey island, and I deal with them weekly with the help of the council and the police. Indeed, I am visiting people in one of those areas on Friday.
I thank the Government for trying to bring forward more social housing, but I want them to go even further. I want councils to be more able to build social housing and let it themselves. Coming from this side of the Chamber, that comment may seem strange, but I have been consistent on the subject in my time as a Member.
One problem with rented private accommodation is safety. The Electrical Safety Council recently issued a warning about the risk of electrical wiring systems. My early-day motion 2105, which is on periodic electrical testing and inspection, calls on the Government to make inspection “compulsory for rented accommodation”, particularly in private rented accommodation.
I am not a regulator. We have to get the balance right. We do not want to turn people away from becoming private landlords, or to make the hurdles that they have to jump higher. Nevertheless, the landlords themselves have a part to play. If they maintained the houses that they rent in good condition and did the necessary work quickly and properly, I would not be making this call, but unfortunately they do not. I therefore call on private landlords to accept their responsibility to ensure that their properties are maintained in a safe condition. The responsibility must first lie with them, but if they do not accept it the Government will have to move to ensure that private rented accommodation is safe.
You will be aware, Mr. Betts, that I was not intending to speak this morning, but I was tempted to my feet to make a couple of points. I imagine that most MPs received an e-mail from David Knight of Channel 4 yesterday, inviting them to take part in a documentary. We are being asked to live on a council estate in social housing for seven or eight days. It seems a long time, and my constituents may not want me to be away from the tiller for that long. Channel 4 seems to think that it would be a good way to engage the public, and to gain an insight into tenants’ lives—how they deal with the problems of poverty and antisocial behaviour, a lack of mobility, unemployment and disability, and how they face the fact that they may become trapped in an environment where they are afraid.
People on one of the estates on Canvey island have come to me year after year. I had to deal with the same problem tenants in 2006 and in 2007, and I wrote to the council again in 2008, asking for them to be moved away. They are still there. We know what they are doing, and how they do it, but the police cannot act without evidence. We have asked for CCTV, but tenants are wary of being named because they will be targeted and will come under even more pressure from the bad tenants, who never seem to be moved on.
Channel 4 may be on to something really important. Perhaps it can do a great service for those who are trapped in the revolving door of poverty, antisocial behaviour and poor housing. Highlighting the problem will be a good thing. I am sure that all Members here and their families have themselves lived through difficult times. Over many years, we, as Members of Parliament, have experienced the difficulties of our constituents, so we do not need to learn what is happening; we know what is happening. We need to find solutions, and I look to the Minister to provide some.
I congratulate my hon. Friend the Member for Manchester, Blackley (Graham Stringer) on securing this timely and important debate. I do not want simply to run over all the many points that he has made. He has set out a very clear picture of life not just in Manchester but in large parts of the north of England and the industrial midlands. My hon. Friend the Minister will recognise many of the things that have been said, and I think that you, Mr. Betts, will understand from your own constituency the descriptions that my hon. Friend the Member for Manchester, Blackley has put forward.
The reality of my constituency is as good a place to start as any. East Manchester, to which my hon. Friend referred, was probably the first area where the selective licensing process was brought into operation, and it is not hard to trace the reason. East Manchester went into very serious decline with the collapse of industry in the Thatcher years. We saw the decimation of the industrial base in that part of the city, and a dramatic change in the composition and social demography of the area.
The housing stock in the area was overwhelmingly classic northern English terraced properties. Some were owner-occupied, and a considerable number were owned by housing associations, which, at the time, played a disastrous role in the decline of the area. They had grand schemes to grow their stock without any real sense of how to provide for that stock. That led to a huge number of voids among housing association stock. The private landlords, who were already there in significant numbers, increased in that period. Some of them were perfectly good landlords who wanted to maintain both their properties and decent relationships between their tenants and the wider community.
To say that there is a link between poverty, certain types of housing, housing benefit and bad behaviour is simply not true. The overwhelming majority of people in east Manchester lived, and wanted to live, perfectly decent lives. The pressure for change came from not the Government at the time or the local authority, but the type of residents’ groups to which my hon. Friend referred. Those are the people who said to me, “We need something to deal with the small minority of rogue tenants.” Although the numbers of such tenants were small, they could do enormous damage to the community in those areas. That narrow and specific focus was the driver for the type of legislation that was brought in.
My hon. Friend was absolutely right to say that bringing in such legislation was a long, slow, painful process—from 1997 to the passing of legislation in 2004 and its implementation in 2006. It took far too long. The ambition was not complicated; it was fairly straightforward and obvious. The sad thing is—I am glad that the Minister does not suffer from this—that if the focus and the way of viewing the world is only ever through the lens of the south-eastern housing market, it will always get things wrong for places such as Manchester, the west midlands and Burnley. In that sense we must recognise that policies must be different for different parts of the country. There may be parts of London that have similar features to the north, so within those terms, my hon. Friend’s request that we recognise the need for the process to be selective is very important.
Let me deal with the east Manchester of today. In 1997, it was an area people wanted to leave. They used to tell me, “We want to get out. We do not want to live here any more.” Those who had the money or the opportunity to leave for other reasons, such as different types of tenancy becoming available, would get out. People who were left in the area were those who, for different reasons, were hanging on grimly. Sometimes they owned properties that had collapsed in value, due to the collapse of the local housing market. They were very good people who felt, quite rightly, embittered by what had happened. They felt that the public process—the public authorities, the council and the Government—had not helped them.
Therefore, east Manchester in 1997 was an area that people wanted to abandon. The long-term future for the whole community was touch and go, but then this Government came to power and invested huge sums of public money in the regeneration process. The area is now totally transformed and is unrecognisable compared with what was once there. That is a tremendous success because people now want to come into the area—it is a very different kind of area. However, there are still some features that mean we require the maintenance of the legislation.
On Sunday, I was talking to a number of people in east Manchester. One owner-occupier told me that he had lived in the area since the 1970s. He had wanted to get out in the mid-1990s but was now very happy with the area, although there were still problems. Huge numbers of terraced houses still exist in the area, as do private landlords. There are many good private landlords—that is always worth repeating—but the bad private landlords, or possibly even worse, the indifferent private landlords are the problem. They may live 200 miles away and see ownership of the property only as a form of cash generation, and have no sense of responsibility. Such landlords are often the root of the problem, and they still exist.
There is still a huge turnover of people in different types of tenancy in that part of my constituency. The underlying reality is that from time to time, tenants are moved in—sometimes they are owner-occupiers—who do not respect the rights of their neighbours, and we need a proper and sufficient legal process to deal with them.
My conclusion is the same as that of my hon. Friend. We need two things from the Minister. One is a commitment to look at the operation of the legislation as is. Although it works, it is cumbersome and complicated and it can be refined and made much simpler. As the hon. Member for Castle Point (Bob Spink) said a few moments ago, when we deal with the difficult neighbour—whether they are tenants of a social landlord, in council or housing association stock, or a private tenant or an owner-occupier—we need legal structures that allow rapid and effective intervention. Preferably that will be by giving the offender sufficient and clear warning in the first place that action will be taken. The action should be sufficient to ensure that, where appropriate, the tenant will be moved on.
The licensing scheme is part of that process, but it is not the only thing. We have other legislation to deal with such issues. The Government rightly brought in antisocial behaviour orders and different sorts of legal mechanics. The licensing of private landlords, which reminds the landlord of their own duties, is very important. Such measures were never about double standards. Controls exist to make the social landlord operate—although not always—in a responsible way. To bring the private landlord into that frame of reference is a sensible and reasonable thing, so we need to look at the operation of the relevant legislation to make it less cumbersome and more efficient, and its operation a lot quicker.
The second thing that my hon. Friend the Member for Manchester, Blackley is right to ask for is some certainty about the continuation of the legal process. We need that certainty. My area is emerging every day, every week and every month from the terrible situation that it was in 10 or 12 years ago. If it is to continue to emerge from that situation, we will need that type of legislative control for some time to come. When the five years are up, the legal process will not be finished and my area will not necessarily be totally stabilised, so local people will still need to know that those legal powers exist. We need certainty about the ability to go beyond the period of five years.
Of course, in the end the most important thing is that this type of control should be delivered locally. There is no logic whatever in Whitehall, despite all its great benefits and so on, being the driver of the process. Sometimes, even the town hall can be a long way away from the communities that my hon. Friend and I represent, although we have a good and competent council that reflects on the needs of local communities. We must ensure that the power to maintain the process is kept at local level, both in terms of implementation and timing—let us unfetter it to ensure that it is effective.
I want to begin by congratulating the hon. Member for Manchester, Blackley (Graham Stringer) on securing this debate. I am surprised that it is not better attended, because issues relating to the management of private sector housing are important to every right hon. and hon. Member in the House. I think that it would be a struggle to find a Member of Parliament who had not discovered that a considerable part of their casework involved dealing with the types of issues that the hon. Member for Manchester, Blackley and his neighbour, the hon. Member for Manchester, Central (Tony Lloyd), raised during their contributions to the debate.
The hon. Member for Manchester, Blackley spoke specifically about the issues of bad landlords and the impact that those issues can have on entire communities, rather than just on particular individuals who are struggling with badly maintained property, which was a point that the hon. Member for Manchester, Central picked up. I must admit that I have encountered similar issues in my own constituency, usually with an overcrowded house in multiple occupation whereby the house ends up with lots of rubbish in the front garden and there is lots of noise. Such problems almost always seem to be associated with overcrowding issues.
The hon. Member for Castle Point (Bob Spink) spoke about the problems that he has seen in his own constituency relating to people on benefits trying to gain access to decent quality private rented sector housing, which is a point to which I want to return later in my contribution. In his opening remarks, the hon. Member for Manchester, Blackley said that of course it is not the case that not all landlords are bad landlords, and that much of the quality of housing in the private rented sector is very good. It is worth beginning with that point. MPs always end up with their views on this issue being skewed, because what always comes through their doors are complaints about the private rented sector. We see people who have problems with badly maintained property, and we have to deal with the issue of problem neighbours, but most people do not come to see their MP about problems with their landlord because they do not have problems with their landlord. It is worth placing on the record the point that both the Rugg review and the Government’s response to that review highlighted the fact that something like two thirds of people in the private rented sector are quite satisfied with their property.
It is also worth placing on the record the importance of the private rented sector, particularly at the moment, as people are struggling to gain access to mortgages. It is inevitable that the private rented sector will play a bigger part at present and I think that it is healthy for the housing market overall that it does so. It is not a good thing to have a model that is focused wholly on affordable housing to rent in the social sector and on home ownership. There should be a better balance that includes the private rented sector. Indeed, when we talk about mixed communities and developments that are sustainable, we often focus on affordable housing for rent, low-cost home ownership and privately owned property, whereas private rented property should play an important role in those communities and developments.
Similarly, the hon. Member for Castle Point made a point, based on his experience in his constituency, about the difficulty of gaining access to affordable housing for rent. He said that the private rented sector ought to play a bigger part in providing housing for people who languish on waiting lists. In my constituency, they often languish on such lists for at least a decade. The hon. Members for Manchester, Blackley and for Manchester, Central both spoke about local selective licensing issues in their constituencies. They made very powerful points, as they said that there is no need for Whitehall to try to run those schemes. They can work very effectively on a local level, because they are designed to meet particular local needs. Both hon. Members made very powerful points about why those schemes have to be time-limited and I hope that the Minister will give them good news in that respect. Such time-limited schemes appear to be a very sensible way to try to deal with the type of local problems to which both hon. Gentlemen referred.
The Government have recently proposed a national registration scheme, which is the type of scheme for which the hon. Member for Manchester, Blackley has been campaigning. It is perfectly sensible that someone should know who their landlord is, or at least they should be able to find out who their landlord is. I do not see any reason why a landlord should not have to register their home address. Some of the frustrations that people experience in trying to deal with casework, either as a councillor, a Member of Parliament or as someone in a citizens advice bureau, when they are trying to deal with individuals who have difficulties with properties in a poor state of repair, stem from the problem of establishing direct contact with a landlord, who might be working through a managing agent.
There has been a wider debate about the extent to which the private rented sector should be regulated. In principle, I am quite sympathetic to some of the proposals in the Rugg review about a points-based system. However, I am quite anxious about how local councils are able to police such a system when they are already struggling to police issues related to HMOs through their enforcement processes. Local authorities around the country simply do not have the resources to police such a points-based system.
The registration scheme that was mentioned by the hon. Members for Manchester, Blackley and for Manchester, Central is, of course, different from the proposed national registration scheme, because the council in Manchester is right behind the scheme in the city, has signed up to it and wants to run it in the particular way in which it has been set up. That is very different from having a national registration scheme that is imposed everywhere as a one-size-fits-all solution. Inevitably, such a national scheme would run into difficulties if a local council did not experience the type of problems to which the two hon. Members referred, or if the scheme was badly designed or, as I have said, local councils simply did not have the resources to deal with such problems.
One point that was raised in the Rugg review was whether or not we should regulate agents and set criteria for the quality standard to which landlords must sign up before they sign up with an agent. By doing so, some of the burdens of regulation could be removed from local authorities. In their response to the Rugg review, however, the Government did not respond to that point, so I hope that the Minister will refer to it in his speech.
Having said that, regulation is not the only way to drive up standards in the private rented sector, and I want to make a few other points, both about issues that I was disappointed that the Government did not consider in their response to the Rugg review and about some recommendations in the review that they have implemented. First, on tax changes, it is not sensible that landlords should be able to realise the benefit of improving their property only when they sell it. It is much more sensible for them to be able to realise that benefit by offsetting the money that they have spent on such improvements against their income tax, rather than having to wait until they sell their property. The Government have sidestepped that issue and said that the Treasury will keep it “under review”. I wonder what that means—perhaps the Minister could tell me.. Does it mean that the issue is under active review or that it is stuck on a shelf to be considered in 10 years’ time?
The second thing that would clearly make a significant difference to the quality of housing in the private rented sector would be making it cheaper to undertake major repairs. A cut in the VAT rate for renovation and rebuilding would make a significant difference and enable landlords to improve the quality of their property. One thing that the Government have done, through the Homes and Communities Agency, is begin a process of trying to see how we can increase the amount of private investment in the private rented sector. Proposals to increase that type of investment are very sensible, if long overdue. Many of experts in the field have been arguing for a number of technical changes to real estate investment trusts, which might make a difference to the amount of private investment coming into the sector. In particular, they have argued for changes to the amount of money that needs to be redistributed to shareholders. Do the Government have any response to that?
Thirdly, the hon. Member for Castle Point raised the issue of access for constituents on benefits. It is an enormous problem that I suspect all hon. Members have met. The main reason why most landlords do not particularly want to take tenants on housing benefit or a local housing allowance is not quality; it is that they are terrified that if the tenants’ income fluctuates, their ability to pay rent will stop, perhaps for an extended period, while the local authority decides what to do with the tenant’s application. Having benefits suspended can take an awfully long time to fix, during which time rent is not paid.
Some local authorities have introduced schemes to deal with issues of access arising from the need to give deposits and pay rent in advance, but usually those schemes focus only on people whose need is an absolute priority or who are classed as statutorily homeless, so the vast majority of people who are on a very low income and languishing on housing waiting lists have no chance of accessing them. A number of schemes are out there to address such problems. The most interesting one is a fast track scheme in the south-east that is a mixture of underwriting and advice. The scheme pre-approves would-be tenants for local housing allowance. Hon. Members will realise that tenants cannot obtain approval for local housing allowance unless they have a contract in place, and cannot obtain a contract unless their landlord understands how much local housing allowance the tenant will obtain. In partnership with the local authority, the scheme works out the tenant’s level of housing allowance by going through their income and then, through the underwriting scheme, by paying a small fee—a tiny portion of what a deposit would be, let alone a deposit and rent in advance—the tenant can guarantee that the landlord’s rent will be paid, regardless of whether the local authority suspends their benefits or they default on paying rent.
The scheme addresses a lot of problems with access to the private rented sector. Most importantly, it has an impact not just on the individual, who can then access property, but on landlords with higher-quality properties who were previously unwilling to take people on benefits and are now willing to do so. The race to the bottom that tends to occur in the private rented sector is halted in areas where the scheme operates. Because people on benefits get access to properties higher up the ladder, the landlords at the bottom with very poor-quality properties are left without anybody to rent them to, which creates an incentive to improve the quality of the properties. It is an interesting scheme. As we are discussing local management, I encourage local authorities to consider it and decide whether they want to be involved in the scheme or whether they could work with local businesses to introduce similar schemes in their area. Local regulation of the private rented sector is not simply a matter of licensing; it is also about improving quality in the local area. Local councils have a role to play, but Government could do a great deal with the tax and financial changes that I have suggested.
I join other hon. Members in congratulating the hon. Member for Manchester, Blackley (Graham Stringer) on securing this important, valuable and timely debate. All of us, representing as we do constituents in different parts of the country, have had experience of some of the difficulties that can arise in the sector.
It is important to recognise—I am glad that it has already been said—that the majority of private landlords are responsible, do a good job and contribute valuably to the mix of housing tenure in this country. It is important at the outset of such discussions to put the issues into that context, otherwise historical images can sometimes unfairly skew the reporting.
That said, it is of course necessary to ensure that standards are maintained. It is important, therefore, that whatever system exists is both proportionate and targeted. It is also right, as hon. Members have done, to put the debate into the context of some of the broader issues that arise in our more stressed communities. I note the point raised by the hon. Member for Castle Point (Bob Spink) about the difficulties that can arise with behaviour on some estates. That does not apply simply to the tenants of private landlords; many of us across the board encounter that issue, and it is important that it is tackled.
I take the point made by the hon. Members for Castle Point and for Brent, East (Sarah Teather) about the difficulties of access to accommodation for people on benefits. It will chime with the experience of many hon. Members here. It certainly strikes me that there is some perversity in a system in which constituents of mine who qualify for benefits, on the face of it, have difficulty just getting into the system so that their deposit can be made available and they can enjoy a degree of security to assure their responsible private landlords that they will be able to pay. They have to contend with a pretty rigid bureaucracy. Although it is not directly the Minister’s responsibility, I know that he will take that point back to his colleagues.
I find it strange that, for example, more than one individual in my constituency has come along whose circumstances have undergone virtually no change, as far as one can see, but who has had, in the course of a year, about three contradictory calculations of their benefit entitlements. When they try to pursue the matter, they are referred not to the local office in Bromley, where they could have day-to-day contact, but to the rather distant one in Stratford, which is the other side of the river and a long way away. They are told to ring a helpline, which generally gives them a recorded message, and they do not get a response. It is a frustration for vulnerable people. I think that Members from all parties would want to ensure simply that things work better within the available parameters.
To return to the licensing system, there are some interesting questions about the way forward. I note the point raised by the hon. Member for Manchester, Blackley about the need to deal with specific areas and the philosophy behind the initial intention, and I know that the hon. Member for Manchester, Central (Tony Lloyd) supports it. Our view is that any approach should be proportionate and sensibly targeted. I do not have an issue with that. I had a pleasant trip to Manchester, for obvious purposes, not too long ago, but I am conscious that despite the changes visible in the centre of Manchester areas of difficulty remain, as in London.
Against that background, I want to ask the Minister about the Rugg review, to which reference has been made. I notice that the review’s consultation had a couple of questions relating to selective licensing against criteria beyond those that exist at the moment; for example, in areas with low energy efficiency or health and safety ratings. That is fair enough, but my experience is that a lot of stakeholders have said, “It’s difficult to answer that fully when we don’t have the best available evidence base.”
In particular, what has happened to the report commissioned by the Building Research Establishment? The Department for Communities and Local Government said that it would be published back in April. The purpose of the report was specifically to evaluate the various forms of licensing, but we have seen nothing of that. It seems strange to move on to the Rugg review without first having published the BRE report to provide an evidence base. That was the whole point, and it is the best starting point. Has the Minister seen the report? Why has it not been published, and when will it be published?
As far as one can see from the statistics available, there is a patchy pattern to how local councils are using their current power. As the hon. Member for Brent, East said, it might be a question of resources, or there may be a number of underlying reasons, but it gives further grounds for wanting the best evidence base from the BRE report. The length of time taken seems to have varied. Given that we all agree that the approach should be both targeted and proportionate, it is striking that according to the figures that I have seen—this comes from the DCLG’s 2008 regulatory simplification plan—just 107 licence applications have been refused so far in England, but the system has cost landlords alone £87 million, and on top of that there must be costs to the local councils. We ought to be sure that we are getting the best possible value and that the system is as targeted and proportionate as we would all like. Will the Minister examine whether it is working as efficiently and cost-effectively as possible?
I accept that we should look for ways to improve access to funding for the private housing market. I endorse the comments of the hon. Member for Brent, East on real estate investment trusts. What is the Government’s view on that point?
I believe that we are at a stage where we can sensibly review these matters. Will the Minister assure us that whatever the Government’s proposals, they will maintain the principles of proportionality and targeting to ensure that help is given where it is appropriate? The interventions must not bear disproportionately on the private rented sector, because it provides flexibility and is likely to produce more flexibility in the future.
My experience and that of many hon. Members is that people require different kinds of tenure at different stages of their housing journey. As a student and a young lawyer, I lived in private rented accommodation before getting my foot on the housing ladder. That is a pattern that many people recognise. We support the bridging of the gap by encouraging intermediate forms of tenure that get people into a housing purchase mode more easily. However, there is still a valuable and important role for the private rented sector.
The role played by the private rented sector varies from place to place, and a one-size-fits-all model is not appropriate. My constituency is in a London suburb, where there are two types of private rented accommodation. The old terraced accommodation in the centre of Bromley would be recognised by other hon. Members who have spoken. However, there is also private rented property at the opposite end of the scale. People who come to the UK to work in the City of London on contracts of only two or three years often want to live in the traditional suburbs. A one-size-fits-all model is therefore not appropriate.
I hope that the Minister will deal with my points in his response.
It is a pleasure, as always, to serve under your chairmanship, Mr. Betts. Given your expertise on this issue, I am pleased that you are sitting up there and not down here asking me difficult questions.
I congratulate my hon. Friend the Member for Manchester, Blackley (Graham Stringer) on securing this debate. Anybody who listened to his speech will recognise his expertise on these matters. He should be congratulated for the determination with which he has fought to tackle poor housing throughout his political life and for the impact his campaigning had on the Housing Act 2004.
I am grateful for the contributions of other hon. Members. My hon. Friends the Members for Manchester, Blackley and for Manchester, Central (Tony Lloyd) set out in stark detail the impact that bad landlords have had in Manchester. The situation they describe is unacceptable. We should not tolerate bad landlords exploiting the poorest people in Britain. They make the lives of their tenants and others in the community a misery, while lining their own pockets with housing benefit. I have no hesitation in saying that we should be determined to drive such people out of the market.
The hon. Members for Castle Point (Bob Spink) and for Bromley and Chislehurst (Robert Neill) raised the problems that their constituents who receive housing benefit have in finding accommodation in the private rented sector. As the hon. Member for Bromley and Chislehurst said, that is the responsibility of the Department for Work and Pensions, which has been improving the administration of the system to make payments more reliable. In the past, delays have led to landlords not wanting to let to tenants in receipt of housing benefit. Landlords can choose whom they let to, and that is a business decision. Many landlords specialise in letting to people in receipt of housing benefit, although some are prevented from doing so by their mortgage conditions. I am happy to meet the hon. Member for Castle Point to discuss the matter in more detail.
With her customary eloquence and expertise, the hon. Member for Brent, East (Sarah Teather) discussed the contribution that the private rented sector makes to the economy. I welcome her remarks on the Rugg review. Decisions on VAT are a little above my pay grade, but I will pass on her comments. I will write to her about real estate investment trusts. The hon. Member for Bromley and Chislehurst asked about the BRE report, which will be published shortly along with further guidance on licensing of houses in multiple occupation.
This has been a great opportunity to debate the need for local regulation of private landlords. It is timely, as we are considering the responses to our consultation on the proposals we put forward earlier this year, following the Rugg review, on improving standards and professionalism across the sector. This is also an opportunity to look at the role of local authorities in licensing privately rented properties and exercising enforcement powers.
There are almost 3 million private tenants in this country. The private rented sector is vital in providing choice and flexibility at all levels of the housing market. We want to encourage a system that retains the flexibility for those living in the sector and that embraces greater professionalism without creating unnecessary burdens on landlords. We want a professional, high-quality private rented sector that is aware of its responsibilities to tenants and the wider community, while retaining the freedoms and flexibilities it needs to grow.
Achieving the right level of regulation is crucial if the sector is to operate effectively and successfully. The system of assured and assured shorthold tenancies in the Housing Act 1988 was designed to achieve a fair balance between the rights of landlords and tenants. However, problems in the sector remained, particularly in relation to the management of the poorest quality stock, which is often occupied by the most vulnerable tenants. That led to the changes in the 2004 Act for which my hon. Friend the Member for Manchester, Blackley campaigned.
The problems with the poorest-quality stock can have a significant and devastating impact on the quality of life for those who live in poor neighbourhoods. Through the 2004 Act, our strategy was to improve health and safety and to tackle the main abuses in the system. It introduced a range of initiatives to improve management standards and the condition of privately rented accommodation. In bringing forward the legislation, we took a measured view on the appropriate amount of regulation for the sector and empowered local authorities to act to secure decent standards on a statutory and voluntary basis.
The 2004 Act introduced the mandatory licensing of larger, higher-risk HMOs. Landlords who manage properties of three or more storeys that are occupied by five or more people who form more than one household require a licence from the local authority. We targeted those properties because HMOs—particularly larger ones—are often in poor condition and represent a high risk to the safety and welfare of the occupants. The 2004 Act provides for two forms of discretionary licensing: additional HMO licensing and selective licensing of all privately rented property in a designated area.
Where local authorities have identified problems with management and property condition, they have the discretion to introduce additional HMO licensing schemes to cover smaller HMOs, which do not meet the mandatory HMO licensing criteria. Local authorities may also introduce selective licensing schemes to cover all privately rented property in areas that suffer from or are likely to suffer from low housing demand or that suffer from significant and persistent anti-social behaviour—precisely the problems identified by my hon. Friends the Members for Manchester, Blackley and for Manchester, Central in their contributions.
So far, approval has been given to two local authorities to operate additional licensing schemes and to 11 local authorities to operate selective licensing schemes. Those schemes mean that local authorities can impose conditions on licences, such as requirements for licensed properties to be occupied by a specified maximum number of occupants, and ensure that adequate amenities are in place. In addition, private landlords will need to be identified as being fit and proper in terms of their suitability to manage the property. A breach of a licence condition is an offence subject to a fine of up to £5,000 and, if a licence has not been obtained, managing or letting a property that requires one could result in a maximum fine of £20,000.
My hon. Friends have clearly worked closely not just with my predecessors and the Minister for Housing, the right hon. Member for Wentworth (John Healey), but with Manchester city council in implementing the licensing provisions in Manchester and in obtaining the approval of the Department for Communities and Local Government to operate selective schemes in Harpurhey, Bradford and Gorton wards. My hon. Friends have successfully demonstrated that their schemes fit with the overall strategic approach on tackling problems in the local private rented sector, and I congratulate them and the city council on their work.
On the question of where the balance of decision making should lie in relation to central and local government, I want greater flexibility across the range of services that our Department oversees, and greater freedoms and flexibility at local level. My hon. Friends will know—they been intimately involved with discussions on this—that Manchester, as well as other local authorities in the region, has further proposals to extend licensing to other areas. My Department is working closely with the Association of Greater Manchester Authorities to develop a protocol framed within existing legislation in order to ensure an efficient and effective approval process for future licensing schemes.
There were two specific questions about that, one of which was why should we not completely delegate those powers to local authorities. The nature of consent regimes means that they are constantly under review and we would therefore not rule that out. While the regime is relatively new, it is important that the Department is able to check that the proposals comply with the criteria set out in the legislation. My hon. Friend the Member for Manchester, Blackley also asked whether I would confirm that licences could be extended if necessary. As he said, approval schemes last a maximum of five years, but I can confirm that licensing schemes can be extended and that they continue in force after their initial date if problems are still manifesting themselves. I hope that he will be satisfied with that assurance.
I am extremely grateful to the Minister for that response—indeed, that is what the Minister for Housing told me—but the advice I am getting from officers in Manchester city council is that such an extension is not possible without changes in primary legislation. Will my hon. Friend expand a little on the basis on which the time period could be extended? Again, I thank him for the commitment he has given.
I do not want to be prescriptive. We want to work with my hon. Friend and his colleagues at Manchester city council to enable them to tackle the problems in those areas. Although we must ensure that licensing schemes are operating in line with the criteria set out in the legislation, we want to learn from what is happening on the ground, what he sees happening locally and the experience of local authorities, such as Manchester city council. My right hon. Friend the Minister for Housing and I look forward to continued discussions with my hon. Friend, Manchester city council and other local authorities on the issue.
The fundamental point is that if the advice my hon. Friend the Member for Manchester, Blackley has received from our local authority is right and there is a need for change in primary legislation, we must have certainty about the direction of travel, as we are obviously now some way into these licensing schemes. I do not expect the Minister to give an answer this morning, but will he consider whether we need legislation? Perhaps he will write to those who have taken part in the debate to confirm that point. Clearly, if primary legislation is needed, we should all look for a vehicle through which that change could be made.
Of course, I am happy to write to Members and set out the matter in more detail. The advice I have been given indicates that schemes could be extended. I will consider the matter and come back to Members with more information.
The hon. Member for Castle Point raised issues about safety in the private rented sector. The Housing Act 2004 introduced the housing health and safety rating system—HHSRS—under which local authorities can make a risk assessment of the likely impact of property condition on occupants of privately rented accommodation. If hazards are identified, the local authority has a duty to take the most appropriate action in relation to the hazard. In the most severe cases, it can issue prohibition orders, the effect of which would be to close all or part of a property. Private landlords who fail to comply with such notices can be subject to a fine of £5,000.
Although I expect local authorities to take a robust approach to the tools and powers available to them to tackle management standards in the private rented sector, we are keen to ensure that they see the provisions of the 2004 Act as a way of developing partnerships with good landlords. Doing so will enable them to play a full part in meeting housing need through raising both the physical standard of the property and the management standards. That is particularly necessary because we are concerned about the most vulnerable tenants.
The hon. Member for Brent, East raised the issue of deposit schemes, which is one of the other key measures in the 2004 Act. The requirements are for landlords to protect their tenants’ deposits in a Government-authorised scheme. Those arrangements are designed to safeguard the interests of both landlords and tenants, and to ensure good practice in deposit handling, so that when a tenant pays a deposit and is entitled to get it back, he or she can be assured that that will happen.
As I have mentioned, through the 2004 Act, the Government have acted to tackle the areas of greatest risk within the sector. Although the measures in that Act started to drive improvements, a range of bodies, including the Law Commission, Shelter and the citizens advice bureaux, continued to express concerns linked to proposals for further change. Against that background of progress on the ground and ideas for further improvement, we decided to commission an independent review of the private rented sector from Julie Rugg and David Rhodes of the university of York. As has been said, that review was published in October 2008 and highlighted the positive aspects of the sector: most landlords are good and the vast majority of tenancies begin and end with no issues arising for either party.
However, the review also identified weaknesses. Although most landlords are well-intentioned and deliver a good service, some simply do not view themselves as landlords. A minority are ill-intentioned, often deliberately exploit the most vulnerable and allow antisocial behaviour to become rife, as has been said in the debate. The review also found that local authorities are not always able to focus their resources to enable them to use the extensive enforcement powers in the 2004 Act against the worst landlords.
The Government’s response to the review for consultation, which we published in May, sets out our ideas for major changes to further improve the private rented sector. We have been very encouraged by the positive reaction to the proposals, having received more than 250 responses. We are now considering those responses and will publish the results of the consultation in November.
Let me go through the main measures that make up our proposals. First, we propose to introduce a national register of every private landlord in the country to increase protection for both vulnerable tenants and good landlords. Landlords would need to include their registration number on all tenancy agreements, and they could be removed from the register if they failed to comply with the required standards. A register would enable us to identify bad landlords and to get them out of the market if they were unwilling to improve their behaviour.
Secondly, we propose full regulation for private sector letting agents. Letting and managing agents have a vital role in the private rented sector but do not currently need market expertise or professional credentials, while tenants and landlords have no realistic redress when things go wrong. To tackle those problems, the Government propose to set up an independent regulator to oversee all letting and managing agents.
The third proposal is for improved complaint and redress procedures for tenants. For the first time, the Government will look to set up a mechanism whereby tenants are able to register official complaints about substandard landlords. If those complaints are upheld, landlords might be removed from the national register. Fourthly, we propose that there should be greater local authority support for good landlords, as well as action against poor-performing landlords.
Our proposals will provide greater support for landlords and letting and managing agents, alongside better consumer protection for tenants. Local authority enforcement activity will be enhanced and more focused, and local authorities will be encouraged to create local lettings agencies to better facilitate tenancies in the private rented sector for those in housing need, including housing benefit recipients. Local authorities will also be encouraged to ensure that their staff receive training to help them to resolve issues between tenants and landlords and to sustain successful tenancies for some of the most vulnerable members of the community.
Alongside our proposals for a national register of all landlords, we want there to be improvements in professionalism, and encouragement for those who aspire to higher standards. The most obvious way of doing that is through access to accreditation schemes. For several years, many local authorities have run successful schemes for their landlords, offering training and sharing good practice and experience through forums, as well as having a clear quality kitemark for potential tenants. I know that Manchester city council operates such a scheme, which gives tenants assurances about the standard of service that they can expect and gives landlords who belong to the scheme a market advantage.
In conclusion, we are confident that the package of measures I have described will be key to securing the improvements in quality and professionalism that we seek. They represent a sensible balance between providing support for good landlords and providing the tools that local authorities need to deal with poor landlords. Support for the sector is ever more important in the current financial climate, which has underlined the vital role that the sector plays in providing for the housing needs of a wide range of households. We are grateful to all those who have responded to the review, and to all hon. Members who have taken part in today’s debate, for their constructive input to the ongoing process to drive up standards in the private sector. We will continue to develop our proposals and take them forward in the next few months.
I want to raise an issue concerning the Planning (Listed Buildings and Conservation Areas) Act 1990. The problem is best illustrated by explaining to the Minister the plight of residents of the Moor Pool estate in the heart of my constituency. The estate is an early example of a garden suburb. The aim was to build an estate of modern, well-built houses of various sizes, which would attract a cross-section of the community, based on co-partnership principles. At that time, Birmingham was plagued by slum dwellings, typified by the back-to-backs, which came about as the city developed rapidly as an industrial centre. John Nettlefold, the then chairman of the Birmingham housing committee, wanted to demonstrate that there was an alternative way forward, and so he turned to the principles of the garden city movement.
The Moor Pool estate was not intended to house a particular employer’s work force, as was the case with Bournville and Cadbury’s, but was to serve Harborne and Birmingham in general. It has 500 houses, a community hall with sports amenities, open spaces and allotments, and it has remained almost intact for more than 100 years. English Heritage has described it as
“very significant architecturally and historically”,
and as an “exceptional survival”.
Over the years, people have bought their own properties on the estate, while others are still tenants. Indeed, some tenants are relatives of the first occupants in 1907. The estate has changed hands, too, from owners who cared for the fabric of the community and ensured that it was maintained, to the current owner, Grainger plc, which clearly does not share that approach. Grainger’s annual report of 2007 is amazingly explicit about how it views estates such as Moor Pool with regulated tenancies. It says that they give
“predictable vacancies and therefore sales as our tenants get older.”
“On vacancy we sell the properties to realise both the discount (which we call reversion) and any house price inflation from the date we originally bought them. We therefore realise high margins on sale.”
The report also observes that
“these properties are typically unmodernised and appeal to first-time buyers and those hoping to create value on renovation. This keeps them in demand.”
For Grainger, ownership of the estate is not about maintaining a community, but about waiting until tenants die so that it can sell unrenovated properties at high margins. That is what it is doing. The results of years of neglect are there for everyone to see in the communal areas such as garages and allotments. To add insult to injury, Grainger has made a planning application to fill in with new build. Despite the coherent and united opposition of local people and their residents association, which is supported by English Heritage, the planning application for 12 houses has been granted by Birmingham city council.
Something has gone wrong. I am concerned about the future of the Moor Pool estate, about the process involved in granting the planning application, which seems to have given no regard to local opinion, and about the future of other conservation areas. The continued attempts of local residents to protect the estate seem to have failed. The estate was granted conservation area status back in 1970, and one of the first issues that I got involved in as an MP was supporting residents such as the late Ken Abbott in attempting to obtain the enhanced protection that an article 4(2) direction seemed to offer. After years of pushing Birmingham city council, the direction finally came into place in December 2006. Alas, however, the protection is limited; above all, it does not apply to new developments.
We thought that the Planning (Listed Buildings and Conservation Areas) Act might come to the rescue. Section 71(1) clearly states:
“It shall be the duty of a local planning authority from time to time to formulate and publish proposals for the preservation and enhancement of any parts of their area which are conservation areas.”
That meant that Birmingham city council had a statutory obligation to produce a character appraisal, but as for the question of when this should happen, the Act tells us only that it has to be “from time to time”. The character appraisal matters, because it determines how planning applications should be considered. The appraisal was particularly important in this case because of the added requirement, under the legislation, for publication and public consultation. The strength of feeling on the Moor Pool estate in opposition to the plans is palpable, and it could not have been ignored by the council if it had been expressed through the character appraisal process.
I invite the Minister to comment on the following points. The case officer who recommended approval for the building of 12 new houses in the heart of the Moor Pool estate said in his report that he noted section 71, but that the words “from time to time” indicate that an appraisal may not always be in place. He also referred to English Heritage’s guidance, which states:
“Ideally, an appraisal should be prepared prior to designation; but, for many existing conservation areas, this will not have been done.”
The case officer said that his planning solicitor did not therefore consider that there was an absolute duty to carry out an appraisal before conservation area designation. He went on to say that the solicitor did note, however, that planning policy guidance 15, “Planning and the Historic Environment”, requires local planning authorities to set out their policies for conservation areas in their development plans. He also acknowledges that Birmingham’s unitary development plan refers to character appraisals in paragraph 3.27, “Conservation Areas”, which states that
“Character Appraisals and Management Plans will be prepared for all of the City’s Conservation Areas.”
That is clearly an ongoing process, as it is at Moor Pool, where work on the appraisal and management plan is progressing.
We have received confirmation that a commitment from Birmingham city council to prepare appraisal and management plans for all its conservation areas does exist, but I wonder how it would define the word “progressing”. Is it progressing after 39 years of being a conservation area; progressing after 19 years of having had a statutory duty; or progressing three years after the application of an article 4(2) direction? What speed of progress does the council have in mind? I cannot resist recalling the opening passage of “The Hitchhiker’s Guide to the Galaxy”, in which the Vogon constructor fleet descends on earth to destroy the planet and the commander points out to the complaining earthlings that the planning application had been available on Ursa Minor for at least 50 of their earth years.
Despite contacting both the chief executive of Birmingham city council and the leader of the council, Councillor Mike Whitby, who incidentally is one of the three local councillors representing Harborne and the Moor Pool estate, we still do not have a firm date for the character appraisal. That also raises the question of the role that local councillors can and should play in that process. Planning is and should be a local decision. With regard to the Moor Pool estate, Councillor Whitby could have argued that he did not think that it was appropriate for him to comment on a planning application, which I would have been perfectly prepared to accept. However, that argument simply does not hold, given that only six weeks ago, he found it appropriate to object to the opening of a new café bar on Harborne High street. He also chaired the Moor Pool conservation area appraisal and management plans steering group in December 2006, even though it would have been perfectly all right for it to be chaired by the head of conservation. There was therefore plenty of time and opportunity for local councillors to speed up the process and get the character appraisal done in time, but that clearly did not happen.
English Heritage also objected to the development. In its judgment, a key aspect of the estate’s character was that many of the spaces were of good quality, and should be treated as an integrated system in the consideration of development proposals that affect them. In July this year, Grainger’s application was approved by the council and its planning committee. Conservation area status, objections from English Heritage and overwhelming objections from the local community—none of it mattered. The builders won and the people lost.
The process also highlighted a number of what I will call stock excuses used by the planners to support property developers. The argument goes something like this: the Government have a clear policy to increase the housing supply and want to encourage the use of brownfield sites in cities. Even back gardens are defined as brownfield sites, so any local authority faced with a planning application by a developer, even if it is in a conservation area, is caught between a rock and a hard place. They have a duty to increase housing stock and so have to say yes. If it is in a conservation area, they simply describe it as permitted development. Would the Minister respond to that point, because that should not be the case? In particular, does she agree that the law could be strengthened by the following proposals: that an article 4(2) direction should apply to all aspects of properties in a conservation area, unless specifically excluded, and not just to those visible from the highway, waterways or open spaces; and that there should be a mandatory requirement for character appraisal to be completed within 12 months of the introduction of an article 4(2) direction, with only limited and defined planning applications being determined in the meantime?
The next argument I came across is as follows: while local authorities have the power to reject planning applications, it is difficult and expensive to do so. The developers appeal, eventually get their way, and the council wastes taxpayers’ money by refusing in the first instance. One local councillor went even further and suggested, “If you turn too many of those down, you’d soon find yourself being personally charged for the costs.” Would the Minister confirm that a councillor properly exercising his or her function when considering a planning application does not run the risk of being personally charged with the cost of an appeal? Objectors should have the same right of appeal as applicants. Planning officers and committee members make mistakes, so it is not equitable that only the applicant can appeal against the decision.
The planning application that was approved by Birmingham city council included development on, and the consequent loss of, allotment spaces, for which there is an acknowledged demand. The application was granted, despite the fact that it has no regard for the council’s unitary development plan and was contrary to its cabinet decisions of 29 June, which fully supported the measures of the Sustainable Communities Act 2007, which included a concern to increase local food production by, among other measures, allowing more allotments, and that was pointed out to the planning committee at the time. Would the Minster not agree that it is perverse for a planning committee to arrive at a decision within a matter of days that is contrary to its council’s own policies?
Where do we go from here for the Moor Pool estate? The residents have been failed by the council, which did not prepare a character appraisal in time, despite having more than 19 years to do so, that would have constrained a planning application. The council claims to have a clear commitment to produce character appraisals for all its conservation areas, but so far it has done so for only nine of its 28 conservation areas. The council can clearly do that quickly if it wants to, as it did with the application for Digbeth. In the case of the Moor Pool estate, it seems that even if the leader of the council himself chairs the steering group, nothing much gets done. I urge the Minster to look again at the 1990 Act. Surely it cannot be right and equitable for an Act to impose a statutory duty without being more specific about when that duty should be performed—“from time to time” is just not good enough.
I congratulate my hon. Friend the Member for Birmingham, Edgbaston (Ms Stuart) on securing the debate. The historic environment is a very important subject indeed, and one that is at the heart of the Government’s planning policy. I also commend her for the active interest she takes in the historic environment within her constituency, particularly with regard to the Moor Pool estate. It is, as she rightly says, an early example of that peculiarly 20th-century manifestation, garden suburbs, which can be extremely charming and deserve to be conserved.
As she will know, I cannot comment on the specific problems that the residents of the Moor Pool estate are having with Birmingham city council. Individual and specific planning issues, such as the one she has described extremely well and so forensically today, are a matter for local government rather than national Government. I believe that that is right, because accountability for planning decisions must rest at the local level—in other words, with the council that takes the planning decisions. That accountability is exercised through the ballot box, and it is right that it is exercised through the local rather than the national ballot box. In other words, people have to live with the consequences of their decisions locally.
However, I can give my hon. Friend the legal context within which Birmingham city council must operate when making those decisions, which is a matter for national Government. As she will know, that context is changing. On 24 July this year the Government issued a consultation paper on our new planning policy statement for the historical environment, and I urge her to submit as part of that consultation the points she has so ably made today. Her points about timing are absolutely crucial: one can have a duty, but if it does not have to be exercised for 39 or perhaps even 49 years, what is the point of it?
The new planning policy statement is designed to replace the present PPG15 on this subject, and also PPG16 on archaeology and planning. As those policy guidance documents were first issued in 1994 and 1991 respectively, the importance of the consultation on the Government’s first new policy statement for 15 years cannot be overstated. My hon. Friend’s Adjournment debate is consequently very timely.
As my hon. Friend knows, the main legislative measures for protecting conservation areas are set out in primary legislation, some of which she mentioned. Under that suite of legislation, local planning authorities have a duty to determine which of their areas have architectural or historic interest, to designate them as conservation areas, to formulate and publish proposals for their enhancement and preservation and, most importantly—going back to local accountability—to put proposals to the public whom they serve so that their views can be taken into account.
There are other measures which, for the sake of brevity, I shall skip over—I know that my hon. Friend is aware of them. Taken together, they include not inconsiderable obligations and ensure that a mechanism for protecting conservation areas is in place.
My hon. Friend accurately raised concerns about the progress being made on character and management appraisals—in this case, by Birmingham city council. They must be raised and dealt with locally, but they could also go into the consultation on the new measures that the Government are in the process of putting forward. Again, I shall glide over some of the extra stuff in my brief.
There are more than 9,000 conservation areas in England. They contain a wide range of buildings and places of architectural or historic interest. Again, it is very much a matter for local decision making which areas should be designated as having special interest, and how best they should be preserved and conserved, particularly as there are as many as 9,000.
May I also put on the record that the local residents’ association prepared much of my speech and has done a great deal of hard work? It has put up an amazing case of objection without being heard properly. We were told that the record of having management and appraisal plans for only nine out of 28 conservation areas was not unusual, and that a vast number of local authorities with conservation areas are really dragging their feet on coming forward with proposals. Would the Minister like to comment on that, or would she drop me a note if she does not have figures on hand?
I would like to comment on the active role that the residents’ association is taking, for which it is to be commended. I urge it to exercise its democratic duty and rights, and submit something to the consultation.
There is no statutory obligation to have character appraisals, although English Heritage recommends one prior to designation and as frequently as needed thereafter. I urge that that, too, be included in a submission to the consultation. Obligation is very much locally defined, so again this is a local problem and local pressure is needed to get the definition included.
As I said earlier, central Government intervene in individual cases involving conservation areas only in those rare instances where there are implications of more than local interest—for example, an area such as Stonehenge, which has huge national implications. We try, as far as possible and for all the reasons I have given, to leave matters to local decision making, because local people know best what suits them.
The Government’s approach to conservation areas is based on positive management of change, so that the particular special interest and character—my hon. Friend outlined that so well in respect of the Moor Pool estate—that led to an area being designated in the first place is not harmed. If a planning authority is considering taking a decision that could affect a conservation area’s special interest, it is vital that it engage local opinion. That is a legal requirement but also a requirement of good management and, most importantly, of democracy. That is what democracy is about—the people, the demos, deciding.
Central Government recognise that local planning authorities are under a variety of pressures—in some cases, competing pressures—to deliver on several fronts. They must address the housing shortage, provide the infrastructure to support new housing and meet the challenges of climate change. Those are difficult demands, even in easy economic times. They are even harder in difficult economic times.
There has been a radical shake-up of the planning system in recent years. In response to my hon. Friend’s question about the article 4(2) direction, we keep permitted development requirements under continual review and can certainly consider her request, which is interesting. Again, I urge its inclusion in the response to the consultation.
The 2007 planning White Paper—I had the pleasure of serving on the Committee that led to the Planning Act 2008—was followed by the Killian Pretty end-to-end review of the planning application process, which was much needed. I hope that those changes have made the system better able to meet present and future challenges, but it is important that meeting challenges be not undertaken at the expense of protecting the historic environment. Until three weeks ago, I was the Minister for culture and heritage, and I have a strong personal and professional interest in the preservation of our heritage.
The publication of the consultation draft of the new PPS confirms the Government’s commitment to conservation of the historic environment. When it is finally produced, it will be a much more focused document that will set out core policy principles on how the planning system should take account of the historic environment. It will be supported by draft guidance produced and prepared by English Heritage. The guidance is being consulted on at the same time, as part of the consultation package.
The principles that guide the new PPS are brigaded under the three Government objectives for planning for the historic environment: we have to apply the principles of sustainable development to proposals involving the historic environment; we have to conserve and, where appropriate, enhance England’s heritage assets in a manner appropriate to their significance; and we have to contribute to knowledge about and understanding of our past. Those three good principles will guide the new PPS, which will also emphasise the need to establish the significance of an historic asset. I can see that being useful regarding the need for character appraisals. Significance is defined as the value of the place to this and future generations because of its heritage interest, whether archaeological, artistic, architectural or historic. It is only when the significance of the asset has been established that sensible policies can be devised to conserve the asset, and sensible decisions taken on proposals that might impact on its significance. The draft PPS recognises that establishing significance is particularly important for larger historic assets—conservation areas or world heritage sites, such as Ironbridge or Stonehenge—because their different elements make differing contributions to their significance.
The consultation period runs out on 30 October, so I have given my hon. Friend and the residents’ association just a small window of time in which to prepare their arguments and put them into a consultation that will shape policy for the next decade.
I should like to leave my hon. Friend with the following messages. Planning for the historic environment is a Government priority that is underlined by the concern and care that we are putting into the new PPS. The legislation is there to help preserve and enhance conservation areas already in place. Most importantly, the onus is on each local planning authority to devise the policies needed to ensure the protection of its conservation areas. Those authorities have a continuing obligation to do this, because proper protection does not begin and end with the designation of an area: it is a work in progress. Planning authorities must involve the local community when developing suitable policies and determining planning applications. Only by doing this can a true sense of ownership and a true sense of place be achieved.
I wish my hon. Friend the very best of luck.
English Libel Law (Parliamentary Proceedings)
[Mr. Roger Gale in the Chair]
I am pleased to have secured this debate, which deals with some important issues: parliamentary privilege, the reporting of Parliament, the use of prior restraint in actions relating to libel and, indeed, confidence, the use of so-called super-injunctions that impose restraint on the reporting of the existence of such injunctions, the extent to which public interest is engaged when such injunctions and super-injunctions are issued, and the general approach of libel laws in particular, bound up as they all are. I draw the Chamber’s attention to my membership of the international board of Article 19, which campaigns for press freedom around the world.
In the run-up to this debate, I convened helpful meetings with The Guardian and Carter-Ruck solicitors, which several hon. and right hon. Members in the Chamber—as well as Members not here—attended, and we had a useful discussion. I record my gratitude to those people who came to those meetings from Carter-Ruck and The Guardian. I particularly thank The Guardian for its assistance in providing me, other hon. Members and members of the public with background details of the case. I also thank Carter-Ruck for acceding to a request to provide us with the correspondence from its point of view between the dates of the initial injunction and the second injunction.
It may be useful to run briefly through the chronology of events that led to last week’s point of order, and of which we are all aware. I will not go into them in detail, because other hon. Members may wish to do so—and I know that many of them want to speak—so I shall try to keep my comments as brief as possible. An injunction was issued by Justice Maddison on Friday 11 September, effectively preventing The Guardian from publishing what it had—a copy of the Minton report relating to the alleged impact of Trafigura’s dumping of toxic waste in the Ivory Coast. I imagine that it had a number of other documents as well. Not only was that injunction issued but it had a super-injunction aspect, which meant that it was effectively anonymised, and the respondents were prevented from reporting the existence of the injunction itself. The application was pursued and extended on 18 September. Things changed on 12 October, when The Guardian wrote to Carter-Ruck, which was acting for Trafigura, alerting it to the fact that a series of written questions had been tabled by the hon. Member for Newcastle-under-Lyme (Paul Farrelly), and indicating that it wanted to publish them, either because they were in the public domain or—and I am not giving The Guardian’s view here—because they should not be covered by the injunction itself, being the reporting of parliamentary proceedings.
Carter-Ruck solicitors wrote back on 12 October, objecting to the publication. They stated that the matter was not urgent, and their view that the questions themselves had not placed the contents of the Minton report in the public domain, so that certainly should not be covered. They also stated in a letter to Mr. Speaker their view that publishing the parliamentary questions would place The Guardian in contempt of court, because of the order that prevented—injuncted—the publication of the existence of the injunction, which was the subject of the parliamentary questions tabled by the hon. Member for Newcastle-under-Lyme.
Extended correspondence over the next two days between The Guardian and Carter-Ruck resulted in agreement that a variation to the order would be sought to exclude reporting of parliamentary proceedings. By that time, The Guardian had been prevented on at least one occasion from publishing what it wanted to publish, which was at the very least the existence of the parliamentary questions and what they contained. A number of things flow from that, and I want to cover them briefly. The first is whether an injunction can prevent a matter from being debated in Parliament and/or the reporting of matters in Parliament. The second is whether Carter-Ruck’s approach in its correspondence was appropriate to what many hon. Members believe to be the position—that the reporting of Parliament should be freely, truthfully and fairly reportable without any intervention or restriction by the courts or any other party. The third concerns super-injunctions, their frequency, and whether judges are considering the wider public interest when granting injunctions or super-injunctions. The fourth is whether libel laws in this country are too wide, a matter to which the Lord Chief Justice no less referred yesterday.
I am grateful to the hon. Gentleman—I might call him my hon. Friend in this cause. We were here a few months ago, and sadly nothing has advanced. If the Government had treated the issue more seriously, perhaps we would not be where we are today.
In past years, people who sought to gag Parliament or were held to have behaved inappropriately in relation to Parliament were brought before the Bar of the House and in some cases sent to prison. Do we not need to see Carter-Ruck’s partners before the Bar of the House to apologise publicly for this attempt to suborn parliamentary democracy? The threat was withdrawn only after press publicity. Something very serious has happened. The Government will not act to clean up libel law; perhaps we can do so as parliamentarians.
I congratulate the hon. Member for Oxford, West and Abingdon (Dr. Harris) on his birthday, as I understand that he is 44 today. More importantly, although this debate is about libel, I understand that the injunction was not in libel, but in confidence and privacy law. That is entirely judge-made, and has never been subject to statutory debate in the House. Does the hon. Gentleman agree that we should have proper statutory provision if we are to have privacy and confidence law at all, and we should not simply leave it to the judges to develop these super-injunctions that have pernicious effects way beyond reporting in Parliament?
A strong case can be made for that, and certainly parliamentary action is needed. While case law is being settled and developed, it is wrong that Parliament should be silent in the matter. I say that with no disrespect to judges. This area of law is complex, various rights must be balanced, and the right approach must be taken to convention rights. There is greater and greater concern out there that the courts are not dealing fairly with the matter. I suspect that both sides, but particularly defendants—those whose free speech is interfered with—are not happy with the current situation. Part of the point of this debate is to urge the Government to review the law in this area more widely than they have done so far. I recognise that they have completed a consultation on costs in defamation actions which impinge on defendants’ ability to afford to defend themselves, and on single publication rules relating to the internet. However, concern goes far deeper than that, and all of this is subject to forensic examination by the Select Committee on Culture, Media and Sport, of which the hon. Member for Maldon and East Chelmsford (Mr. Whittingdale) is Chairman. We all hope that the report makes clear recommendations in that area, and I hope that the hon. Member for Hendon (Mr. Dismore) will have some relief in that respect. However, in responding to that report and this debate, the Government should be in no doubt of the wide unease among parliamentarians, the media and free speech organisations that the balance of the judge-made law in respect of these matters is wrong at the moment.
I turn briefly to the conduct of Carter-Ruck. It ought to be said—the company has always been willing to make it clear and to talk about it to us when asked, and also volunteered to meet us—that it was not its intention during any of this actively to prevent the reporting of parliamentary proceedings. That is Carter-Ruck’s position. One can accept that at face value. The question is whether what it said in its letters to The Guardian, and indeed what it wrote in its letter to the Speaker, is consistent with that. Essentially, it said that because there was no exemption for reporting parliamentary proceedings in the order made by the judge, The Guardian would be in contempt of court—the implication being that serious penalties would flow from that—if it were to report parliamentary proceedings.
Carter-Ruck did not at any point caveat that with a paragraph stating, “But of course, we understand that no court could or perhaps would ever seek to enforce a contempt action against someone who reported parliamentary proceedings fairly and truthfully.” It is the absence of that caveat that could be said to make it look at the very least that it was seeking to intimidate The Guardian on the basis of a threat of being in contempt if it published parliamentary proceedings. Such a threat would, of course, be extremely effective against most defendants, especially those who do not have the means or the legal resources of The Guardian.
In effect, failure to point out to a defendant that, of course, if it is the view that parliamentary proceedings should not be prevented from being reported, or could not be prevented, letters from a well-resourced law firm acting on behalf of a well-resourced client would have a chilling effect. It is also fair to say that The Guardian was in doubt about its own legal advice on the matter.
That gives rise to my first question for the Minister—and for everyone in the House, including Mr. Speaker. Is it the case, in the Minister’s view, that a court could ever take action for contempt of an injunction that did not mention the reporting of parliamentary proceedings and therefore did not give any apparent exemption for reporting parliamentary proceedings in a fair and truthful way? If that is the case, and the Lord Chief Justice went quite far yesterday in response to a question by saying that he could not envisage circumstances in which it would, that is not the certainty to which people are entitled in law.
I hope that the Minister will be able to give the Government’s view of whether that is settled, and if so on what authority it is settled; and if there is any doubt, it being such an important matter, that she and the Government would be willing to consider introducing legislation, or allowing the opportunity for legislation, to make the position absolutely clear. We cannot afford for there to be any doubt or debate, as the only people who benefit from that are the lawyers who are asked for their opinion.
First, I ought to declare an interest. Some years ago, I benefited from the services of Messrs. Peter Carter-Ruck and Partners in a case against the BBC.
Is it the hon. Gentleman’s case that no agreement can be reached between parties through the courts of this land to keep a matter confidential? It is my understanding that from 18 September, The Guardian consented to the order, but that it is right for Parliament to be able to overturn an arrangement arrived at in the courts, particularly at the behest of an hon. Member who happened to be a journalist on one of the newspapers concerned?
First, I should point out that The Guardian contests whether, or the extent to which, they accepted the order made on 11 and 18 September. Secondly, we are not talking about the ability of a Member of Parliament to overturn a court order. We have sub judice rules that apply. The hon. Member for Newcastle-under-Lyme was able to table his questions within those rules, presumably because they were nowhere near breaching the rules or because of the particular skills that he exercised. That is not the same as stating that the intention, or the intended effect, was to overturn the order, which was at least in part about the publication of the contents of the Minton report. I understand that the legal case to which the Minton report was said to be legally privileged was settled in September, before the hon. Member for Newcastle-under-Lyme tabled his questions. That should be the end of that particular matter.
The key thing is whether we are to have clarity on the point. I ask the Minister whether, in the interim, all court orders that injunct against publication or the passing on of information should make it clear, in what I might call a template, that they do not affect the fair and truthful reporting of Parliament, so that there can be no doubt and no costs incurred in clarifying the matter, and no chilling effect caused by assertions to the contrary. That would be useful.
It is important to deal with the question of super-injunctions. Some people would argue that it is wrong that any injunction should be kept secret, saying that the gagging should itself be made public even if the content of what is to be gagged is not, as it is in the public interest. I do not take that view. I am not an expert, but it does not seem wise to say that the point of an injunction—for example, for privacy of confidential medical information on an individual—could be frustrated by the reporting of the fact that an injunction exists.
It does not necessarily follow that every injunction founded on personal privacy or confidence should be the subject of a super-injunction. Indeed, I know of examples of private individuals having an injunction to prevent the reporting of something. However, as the Lord Chief Justice made clear yesterday in a good example relating to the seizure of assets in a fraud case, there will be cases in which the public interest is clearly served by an injunction restraining publication of its existence. Indeed, there may be cases in which it is arguable, when there is no clear public interest, that the overall balance of private interests is clear. Nevertheless, it seems to me that some cases are currently subject to super-injunctions, particularly in respect of libel, where they are inappropriate; and they may be being granted inappropriately because there is no clear public interest argument for those who wish to be free to publish the existence of the injunction.
The default must be that the public should know about such prior restraint when it is deemed to be appropriate. I would be grateful if the Government clarified their view. Do they believe that the position on super-injunctions is fine and dandy, or do they accept at least that there is a case for the matter to be considered? I believe that senior judges would argue that it is difficult. One has to sympathise with their position, as in the middle of the night—or at least outside the working day—they are sometimes asked to make quick decisions, and default on the side of confidentiality. Such injunctions are extremely restraining of free speech, and there is a concern.
I also ask the Minister whether she accepts that there is a difference with gagging generally but especially libel, between an individual seeking to assert a right—for example, to privacy under the Human Rights Act 1998 or the European convention on human rights—and a corporation doing so. There may well be a public interest in seeking to restrict the reporting in a way that public authorities cannot, but private corporations can. It seems to me that the balance there is wrong.
The other point that I wish to raise is a general concern about the impact of English libel law. It is noteworthy that the Lord Chief Justice said yesterday—I do not quote him directly—that if London is the libel capital of the world, something should be done about it. I hope that I do not misquote him; I do not have his words directly to hand. There is widespread concern. The right hon. Member for Rotherham (Mr. MacShane) secured a debate on that subject a few months ago. Serious concerns were raised then, but in a number of cases since, there has been no reassurance that that is not the case.
Some matters are sub judice—I will be very careful about what I say here—but there is widespread concern about the ability to discuss scientific matters and the nature of the evidence base from, on the one hand, doctors and writers who are interested in the subject and, on the other, those who are promulgating treatments, whether conventional or alternative, and who have an interest in seeking to make claims that could be challenged by scientists. There is widespread concern that such actions are restrained by the reach of the English libel laws. There is a lack of a public interest defence—the burden of proof is placed on the defendant, not on the plaintiff—and there are issues of cost, which the Government would say that they are seeking to deal with. I should be grateful if the Minister accepted that there is a case to be made—and I hope that the Select Committee is investigating this—to show that our libel laws are wrong.
Dr. Ehrenfeld, who is American, was sued in this country by someone from another country for the publication of a book that was mainly published outside this country and sold very few copies. For London to be used in that way cannot be the way forward. There are other examples as well, and there is widespread concern in the writing community. English PEN, Index on Censorship and Article 19 are all concerned about such matters.
I urge the Minister in her response to give us some reassurance that the Government are alive to those concerns, and that they recognise that the case law that has built up in this area may not be appropriate for the sort of freedom of speech that we want to see. There is an argument, and clearly there are grounds, for some protection of reputation, confidence and privacy, but it is time that Parliament had a chance to have a say in such matters, particularly at a time when the reporting of parliamentary coverage of those things has been under threat. It is a curious and unsatisfactory situation, in which Parliament appears to be caught in the crossfire, without ever having a proper chance to debate such matters.
My final question relates to the ongoing problems of English libel law in respect of Trafigura. My understanding is that “Newsnight” is being threatened by the lawyers for Trafigura, Carter-Ruck, if it repeats an allegation against Carter-Ruck that deaths were caused by the dumping of toxic waste in Ivory Coast, even though in 2007 Hansard reported the Transfrontier Shipment of Waste Regulations laid by the Department for Environment, Food and Rural Affairs before Parliament, and a memorandum of explanation to those regulations stated:
“The recent example of the release of toxic waste in the Ivory Coast leading to the deaths of a number of people and the hospitalisation of thousands underlines the risks involved in the movement and management of waste.”
How can it be that that can be in Hansard, yet there are still threats of legal action against “Newsnight” if it reports the very same wording that is used in there? That cannot be right. Although there are powerful interests at stake, there is a public interest in the fact that there was a settlement made—hundreds of millions of pounds paid over in that settlement—and yet the public in this country are not allowed to know some of the contents of those news reports. We have a responsible media by and large in respect of such matters, and it is about time that English libel laws and English laws in general caught up with that fact.
Before we proceed, let me make my intentions known. I intend to call the first Front-Bench spokesman at half-past 3. There are nine Members in the Chamber looking as though they might wish to contribute, so brevity is the order of the day.
I congratulate the hon. Member for Oxford, West and Abingdon (Dr. Harris) on securing this debate. To say that it is timely is an understatement. I also congratulate Mr. Speaker for strongly exercising his discretion in allowing this debate to go on in the face of objections by the now even more infamous firm of libel lawyers, Carter-Ruck.
I am a former journalist, which has been mentioned, with Reuters, The Independent on Sunday and the Observer, which, of course, is owned by the Guardian Media Group. I am also a member of the Culture, Media and Sport Committee, which is producing a report on press standards, privacy and libel. I do not want to pre-empt that report, but I want to make a few remarks, having tabled the parliamentary question last week which revealed the existence of this super-injunction obtained by Carter-Ruck on behalf of the oil trader Trafigura.
Will the hon. Gentleman tell us how he came by this information that The Guardian was about to publish? Is he aware that Carter-Ruck knew nothing about his question until it received a fax from The Guardian? Was he in cahoots with The Guardian, having been formerly employed by the Guardian Media Group?
Strangely enough, I anticipated that question from the hon. Gentleman. As a former journalist, I would never reveal my sources. The issue has been alive on the internet for weeks for people to see, but not the British newspaper-reading or television-watching public. The Chairman of the Select Committee—I am glad to see him in his place—and I were at a media lawyers’ conference a week last Friday. When I was talking to people, this latest super-injunction was one of the hot topics of the day. It was not difficult to discover that the injunction was in place.
The injunction suppressed the internal Minton report into the toxic oil waste dumping and the reporting of the injunction. There was also a further level of secrecy. Trafigura was granted anonymity by the court, and its name and that of a subsidiary were replaced on the injunction’s title by a random set of initials, RJW and SJW. Ironically, that further level of secrecy may have been Carter-Ruck’s undoing. I was aware of the injunction but not of the full anonymous title. My question only named Trafigura and Carter-Ruck and not The Guardian. I assume that the Table Office Clerks doing their usual rigorous sub judice checks simply could not find the injunction and, therefore, the question was accepted. That prompts the question of what might have happened if the injunction had been found, and if the courts could have informed the Clerks that the injunction was in place because of the secrecy. I might return to that matter in my concluding remarks.
What is really important here is that last Monday legal advice on both sides, The Guardian’s counsel and Carter-Ruck for Trafigura, agreed that the scope of the injunction would have prevented the media from reporting the question as part of the proceedings of this Parliament. That was an extraordinary state of affairs—that this conclusion could be reached notwithstanding common and statute law that enshrine qualified privilege for the media reporting of Parliament in a free society.
Equally extraordinary is the statement by Carter-Ruck in its letter to Mr. Speaker last week, which said that
“when the order was made (and endorsed by the High Court) none of the parties or the court had in contemplation the possibility of this matter being raised in the UK parliament. If they had, the Order may well have been formulated in such a way as to allow for such reporting.”
How magnanimous and generous of them!
The injunction has been published in full on the website of The Guardian—without my collusion—and on my own website. It has also been circulated by the hon. Member for Oxford, West and Abingdon. The circumstances in which it was issued are important. It was granted in the High Court on 11 September by vacation duty judge Mr. Justice Maddison, who has no known specialism in media law. The Guardian was given just a few hours’ notice of the hearing and no time to marshal a defence. Was the injunction drafted by the judge or the clerks of the court? No, it was very helpfully presented to the judge by Carter-Ruck—presumably run off in standard form from a file of precedents of “super-injunctions” that the High Court has granted before.
What this affair shows is that orders, injunctions and super-injunctions, which have been developed from sparing use in cases involving individual privacy, are being granted all too often, easily and pre-emptively on the grounds of confidence to big corporations or powerful figures seeking to avoid embarrassment. Of course, all the arguments, including that of “public interest”, can be aired in court at a full trial, challenging the injunction. However, here is the rub: the costs are simply enormous and the likes of Carter-Ruck know that full well.
The Guardian estimates that challenging the Trafigura injunction at full trial might have cost as much as £300,000. Private Eye in an earlier case involving Michael Napier had £500,000 on the line if it had lost its challenge, which, thankfully, it did not. So money for multinationals and the likes of Carter-Ruck is no object, but it is for the likes of The Guardian, which is currently making redundancies. Could a newspaper such as that, a very responsible newspaper, justify spending that sum of money even as a matter of principle? I would argue not. That is where the effect of such injunctions lies. What this affair shows, too, is that aggressive lawyers such as Carter-Ruck are given too much freedom of manoeuvre by the courts. They draft the injunctions themselves, and that says almost all I need to say. They are out of control—in this case, so much so that they overreached themselves by trying to put themselves above freedoms that have been time-honoured since the 1688 Bill of Rights, and, indeed, above the law. They are unquestioned and unfettered, and in instances such as this we would have not the rule of law but the rule of lawyers, backed up by expensive legal threats that are as predictable as clockwork, and that are often made to hon. Members of the House going about their business without the protection of privilege in the House.
In this case, however, Carter-Ruck has clearly received a bloody nose; so much so that last Friday, having already caused so much further embarrassment to its clients, it backed down and consented to the reporting of the Minton report after all, and the injunction, because of the rights asserted in this House, crumbled. By the way, the Minton report was freely available overseas and on the internet, which makes a further mockery of the Court’s decision to grant the injunction in the first place. However, this is just one case, and one battle does not win a war. It is really important to have proper reform of these procedures in the courts, and I would welcome the Minister’s comments on that when she winds up.
So far, I welcome the confirmation by the Secretary of State for Justice and Lord Chancellor that he is addressing this issue and will be meeting newspaper and other media editors. I particularly welcome the statement that the Lord Chief Justice made yesterday on his concerns about the way these injunctions are being issued and his view that parliamentary privilege should not be constrained in any way. However, it is important that these sentiments are followed through in practice. One of the other benefits of this affair, of course, is that there are now plenty more people watching, and I am sure they will be only too ready to alert Members of this House to what they feel are abuses against Parliament’s privileges and the right of the public to know.
This case highlights one other important issue for the House. Parliamentary privilege cannot be seen to be something that just lies in textbooks and is taken for granted, and yet is eaten away at all the time by over-confident lawyers such as Carter-Ruck. Our time-honoured rights are only as strong as their assertion, and in the last 10 days they have been strongly asserted in this House; importantly, because of our separation of powers, they were reasserted yesterday by the Lord Chief Justice.
However, there are issues for the House to resolve, or at least to clarify, regarding its own sub judice rules. That goes back to the question that I raised earlier: what would have happened if the Table Office had been advised of the injunction or been unable to find it, and had left the parliamentary question in limbo? There is a technical but important argument about when court proceedings are active in terms of the House’s rules. Carter-Ruck, in seeking to prevent this debate from happening, sought to argue that the existence of the injunction itself means that proceedings are active. Of course, The Guardian, which was not resolved to go to full trial because of the cost, would argue the contrary: that an injunction is a finite action and no proceedings are under way.
I hope that Mr. Speaker and, indeed, the Ministry of Justice and the Leader of the House will take a look at the rules of the House. Of course, application of those rules is subject to the discretion of the Speaker or that of a Chairman. However, it would be perverse, following this affair and the controversy it has caused, if the parliamentary Clerks, on whom we rely for so much advice, became more conservative in their approach to the questions they accept for tabling. In newspaper terms, the Speaker is the editor, who always has the final say, but the parliamentary authorities—the Clerks—play the role of the newspaper lawyer. All of us who have been involved in journalism know that there are media lawyers who want to help get a story out, however difficult that may be, and those who prefer not to take too many risks if they can help it.
I will draw my remarks to a close. Mr. Gale, with your permission and discretion I was going to try to use this debate to finish off this perverse injunction for good, in the public interest, by reading into the record some of the damning extracts from the Trafigura report. Thankfully, after last Friday that is no longer necessary. Instead, I just want to conclude with a quote from a lawyer who appeared in front of us at the Select Committee on Culture, Media and Sport, with Mr. Gerry McCann, the father of young Madeleine McCann, who disappeared so tragically in Portugal. It was in large part the press behaviour in the McCann case that prompted the Select Committee inquiry that Mr. McCann appeared before. I will quote just one part of the evidence from the lawyer who accompanied Mr. McCann:
“I am primarily a claimant libel lawyer, but I am a huge fan of newspapers. I think they perform an extremely valuable role in our society. I love reading them.”
Those are the words of Carter-Ruck’s Adam Tudor, who was advising Gerry McCann but who is also the Carter-Ruck partner advising Trafigura.
Because of the costs involved, without MPs using traditional rights of privilege and without the Speaker asserting those rights, the British newspaper-reading and TV-watching public would not be aware of a report commissioned by a multinational oil trading firm that is scathing of its own safety practices in dumping toxic waste in a very poor part of Africa. I hope the Minister will assure us this afternoon that those rights will be upheld in the face of assault from the likes of Carter-Ruck and the clients whom they actively recruit to use our libel and judge-made confidence laws and our courts.
As has already been said, the Select Committee on Culture, Media and Sport, which I have the privilege of chairing, has been conducting a lengthy inquiry into press standards, privacy and libel, and we hope to publish our conclusions shortly.
During the course of that inquiry, we received evidence about the chilling effect on journalism of the use of conditional fee agreements and about the tension between articles 8 and 10 of the European convention on human rights and how that has led to the growth of a body of privacy law in this country without Parliament ever having properly legislated in that area. We have also received evidence on libel tourism, which has been referred to—indeed, we met Dr. Rachel Ehrenfeld. We have looked at whether corporations should be able to sue for libel and whether the offence of criminal libel should remain on the statute book, and we have also looked at the use of super-injunctions. Those are all wider questions than this debate, but I hope that the report, when we publish it, will provide an opportunity for a much wider debate in the House on the need for reform of our libel laws.
During the course of the inquiry, we took evidence from the Lord Chancellor, the Master of the Rolls, editors of newspapers and a very large number of media lawyers, acting both for plaintiffs and for defendants. As well as the formal submissions that we received from media lawyers, we have also been in receipt of several letters from solicitors’ practices that relate to our own proceedings, and which touch on parliamentary privilege. I shall refer to two such letters. The first was from a solicitor’s practice questioning whether it was appropriate for two members of our Committee to participate in a particular session that involved taking evidence from a newspaper, and referring to the code of conduct for Members of Parliament. When we took advice on the matter, we were advised by Speaker’s Counsel that the letter in itself verged upon improperly interfering in the proceedings of the Committee’s work.
The second letter challenged the Committee’s right to accept from a witness written evidence that included repetition of allegations that had been subject to libel proceedings. On the advice of Speaker’s Counsel, I responded to that practice, quoting article 9 of the Bill of Rights. I must say that I then received a response from that solicitor’s practice, which said:
“You refer to Article IX of the Bill of Rights, but I assume - please forgive me if I am mistaken - you have the Human Rights Act 1998 in mind.”
I did not reply. Speaker’s Counsel replied and he made it clear that the reference was to article IX of the Bill of Rights, which he quoted:
“the freedom of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament”.
He went on to quote the judgment in Prebble v. Television New Zealand, in which
“the Judicial Committee of the Privy Council noted that the law had long been settled that the interest in ensuring that the legislature can exercise its powers freely on behalf of its electors with access to all relevant information was an interest which must prevail.”
I will not quote the whole of that judgment, but it absolutely confirms the absolute privilege of Members of Parliament, and indeed of those giving evidence to Select Committees. The importance of Select Committees is that privilege does not just cover their members but also people giving either written or oral evidence to them.
That seemed to be the end of the matter, although I am still slightly concerned at another letter that I received from the Clerk of the Journals, who said:
“A key aspect of privilege protecting freedom of speech in Parliament is that the freedom is exercised responsibly. If it is not, there is a risk of damage to the reputation of the House and of undermining that freedom itself. There is always a danger that an individual, criticised under the protection of privilege, will go to court complaining that they have no right of reply. This is not a theoretical point - it has happened before the European Court of Human Rights in the case of A v UK...Although the judgment supported freedom of speech in Parliament it did raise issues about the protection of the rights of individuals.”
There is still a question about this area and perhaps it is something that the Minister would like to address.
However, this particular debate relates to the reporting of proceedings in Parliament. It had seemed to me, until the written question tabled by the hon. Member for Newcastle-under-Lyme (Paul Farrelly), that the law was pretty clear. A question has arisen as to whether proceedings in Parliament put a matter in the public domain. We have seen the advent of televising, and most of our sessions have been televised and streamed on the web. Indeed, during the recess, the BBC devoted an entire day to the proceedings of my Committee’s inquiry—the broadcast lasted for about eight hours, which probably tested the patience of even the keenest observer. There is, therefore, no question but that what is said in a Select Committee is now in the public domain.
Despite that, the hon. Gentleman’s experience has flagged up the question of whether an injunction should apply to proceedings in Parliament unless it is specifically varied to allow parliamentary proceedings to be reported. What has concerned me, particularly in the two meetings organised by the hon. Member for Oxford, West and Abingdon (Dr. Harris), is not just that it was the view of Carter-Ruck that a variance would be required for The Guardian not to be in contempt if it published information about the existence of the parliamentary question, but that that also appeared to be the view of The Guardian.
We now have a copy of the letter sent by The Guardian to Carter-Ruck, which mentioned the fact that the question had been reported by The Spectator, on Guido Fawkes’s website and, indeed, by the leader of the Liberal Democrats on his website. The letter says:
“In light of these developments please can you confirm by 12pm today to a variation of the order that will allow our client to publish information about this parliamentary question.”
Until now, my understanding has been that that did not require a variation of the order and that the publication of proceedings in Parliament—whether a question on the Order Paper or evidence given to my Committee—would be covered by privilege, and that any injunction or attempt to enforce one would be thrown out on that basis. It is therefore extremely worrying that not only the solicitors for the plaintiffs, but The Guardian’s in-house lawyer appear to think otherwise. That is a matter of deep concern to Members of the House, and I hope that the Minister will address it.
By way of a declaration of fact, I should say that I have had four successful claims against newspapers for libel, but that was in cases where what was said was untrue, damaging and not privileged. As I understand it, there is not really a question of whether what is in the Minton report is untrue. To say that hydrogen sulphide in low concentrations is easily detectable, but that at high levels it is not and leads to death is a matter of chemical and biological fact.
We have to remember, of course, that it is the population near Abidjan who are the real sufferers. Although the parliamentary issue and the newspaper issue are important, the reason why such waste dumping is illegal throughout the European Union is that it is dangerous, and replicating some kind of refining process on board a ship on the way to Africa is wrong—no one tries to defend it. However, I think that I am right in saying that Trafigura claimed after the second settlement that the waste
“could at worst have caused a range of short-term, low-level flu-like symptoms and anxiety.”
All that is contradicted by the Minton report, which is available at https://secure.wikileaks.org/wiki/Minton_report:_Trafigura_toxic_dumping_along_the_ Ivory_Coast2C_14_Sep_2006.
Three years on from the report that Minton and colleagues were able to produce within a week of being asked what was likely to have happened, I am not sure on what basis the injunctions were sought or what other court proceedings the injunctions were linked to. If it turns out that no serious proceedings would follow, other than the injunctions, we are talking purely about a matter of confidentiality and/or privacy, and actually just embarrassment and, possibly, commercial cost to the principals.
That said, I can believe that the judge and the applicants—the solicitors for Trafigura—obtained an order that they did not expect would cover Parliament. Indeed, they did not even think of Parliament, and that may be understandable. What is clear, however, is that from the day that Trafigura’s solicitors wrote to the Speaker and to all Members of Parliament, they knew that it did cover Parliament. They did not put their hands up and say, “We’re going to withdraw it straight away.” They waited another day and took instructions before trying to go along with The Guardian to vary the terms of the injunction. Even then, they did not drop the injunction.
I therefore want to make a request, although I am not sure whether I should make it to the Minister and/or the judges and/or the House authorities, including the Speaker. Every injunction in the High Court and every secret injunction should be logged in the High Court so that we no longer get the reply, “We don’t know how many injunctions there are.” If we do not know how many there are, we do not know what they are. If there is no central register of injunctions, it is time that there was. There should also be a notification of all injunctions that make an injunction secret; otherwise, how can people check whether they exist.
When I intervened on the Prime Minister a week ago, I said that in cases that involved children or that involved not just national security, but grave national security, some kind of inhibition on what people say or—where something has been said—on what is reported is appropriate. I am sure that there are House rules covering that, which would make the Speaker, in effect, the super-editor of Hansard.
The senior judges should get together, preferably in the open and without waiting for a Law Commission report or even for Select Committees, other than the one that my hon. Friend the Member for Maldon and East Chelmsford (Mr. Whittingdale) has spoken about. They should say that the super-injunction process will be rolled back and used only when it is absolutely essential—not just when it is desirable, not just when people ask for it and not just when a newspaper agrees to it, but when there is some overwhelming reason why it should exist. I do not think that would happen in cases of libel, because there is a pretty good process for post-act claim.
We should get away from the idea that a newspaper is a defendant. A newspaper is a respondent. What we are talking about is not a criminal act at the moment. As far as I understand it, we are talking about civil actions.
There are many other things that I should like to say, but the key one is this. Health and safety issues—as this case was in its foundation—should not be secret. In aviation, we are perfectly used to having reports of near-misses. If there is ever an air crash, there is an investigation, and the same thing applies on the railways. The number of people put at risk by Trafigura’s actions was enormous and swamps all the deaths that we have had in aviation in a year. The processes involved are so well known that they were barred not only in this country, but in Europe.
We must share information, and newspapers and the media have a responsibility to make available to all what is known to a few. If we do not establish that principle, those of us in this House will not just look pretty stupid, as we have until now on this issue, although we have made a recovery, but we will fail those for whom we are supposed to be working. We will end up with worse situations, with more people getting away with things for longer, and we will fail to save the lives or improve the well-being of those for whom we should feel responsible—the citizens not just of this country, but of other countries around the world.
Let me say at the outset that I yield to no one in my enthusiasm and support for parliamentary privilege. It is an absolutely vital tool, which enables all of us in the House to carry out our ancient constitutional duty of addressing the grievances of our constituents. It allows us freely to do that without being intimidated by powerful vested interests of whatever sort—perhaps the powerful interests these days are the press, who are in the van of the campaign to support parliamentary privilege.
I make no comment on the report about Trafigura’s activities, for I do not know about them. I came here simply because I read the Carter-Ruck letter on my way to the House yesterday, and it raises serious issues. My hon. Friend the Member for Worthing, West (Peter Bottomley) is absolutely right to say that the Minton report clearly raises matters of huge concern to all of us as parliamentarians. My hon. Friend the Member for Maldon and East Chelmsford (Mr. Whittingdale), who is struggling, with his Committee, to try to define how to frame a law of privacy in this country, is in my view up against the most enormous challenge. I wish him well in trying to find a way through.
I want to raise one question: to what extent this House should be able to disrupt commercial arrangements that are the subject of resolution in the courts. It is no more, no less than that. When I read the letter of Carter-Ruck’s yesterday it concerned me that, as I understand it, the hon. Member for Newcastle-under-Lyme (Paul Farrelly)—I am very happy for him to intervene if he wants to put me right—tabled a question that clearly had some bearing on the injunction, which I understand The Guardian consented to. It seems to me that we have to allow commercial parties—and in this case a newspaper is a commercial party—to resolve differences by reference to the court, if necessary: clearly, a last resort.
My hon. Friend is making his point reasonably, but it is worth pointing out that the PEN and Index on Censorship briefing, which is available today, but which he may not have seen, gives a full chronology. It is not clear exactly what court issues still had to be determined, other than the injunction itself.
As I understand it, the substantive proceeding had not been set down. The hon. Member for Newcastle-under-Lyme mentioned the costs—£300,000, I think—of going to a substantive hearing. That is clearly a huge amount of money and I am bound to say, making a political point, that I recognise that The Guardian does not have a lot of money, which is why it has closed down offices of the Aldershot News in my area: it has sucked them dry to fund The Guardian itself, which does not make money, whereas my local newspapers, and many others around the country, did. We need to consider whether, having failed in the court to obtain its desires, it then resorted to other means.
I understand that the court made an anonymity order because it appeared to it that
“publicity revealing the identity of the Applicants is likely unfairly to damage the interests of the Applicants”,
and that that was accepted by The Guardian. I also understand that the view of leading counsel for The Guardian was that the effect of the order as it stood would be to prohibit The Guardian from reporting the hon. Gentleman’s question, and that therefore it required variation. It would appear to me—I may be wrong—that there is a certain amount of agreement between the parties as to how the court proceedings should be resolved.
I think it entirely legitimate for this House to be able to say that in exceptional circumstances there are overriding issues that affect our constituents and the wider public interest, and which require us to intervene. This may be one such case—I do not know; but I think that we have, as a House, to consider fairly carefully the number of times we might think it right to interfere in decisions of the court, whose job it is to try to reconcile the differences between the parties. In this case the court clearly found that making an injunction was the right thing to do.
Clearly, from what has happened this week, it is not only Parliament that shares these concerns, but the Lord Chief Justice, the most senior judge in the land. Has the hon. Gentleman read his comments of yesterday—it is very rare that the Lord Chief Justice issues a press release—on super-injunctions? What is the hon. Gentleman’s view about the concerns that the Lord Chief Justice has raised?
No, I have not read the comments of the Lord Chief Justice, and will happily do so, in order that I may be better informed. However, there has always been a perhaps uneasy relationship between the legislature and the judiciary and it seems to me that this is one area in which that has been exposed. It may well be that the case is such as to raise issues on which there should be more opportunities for Parliament to intervene, but I think we have got to be fairly careful to ensure that we allow the law to have its role, where it can examine the cases that come before it, perhaps in more detail than we are able to do, and decide what is, in its view, the best way to proceed.
The fact is—this is what came out of the letter that Carter-Ruck sent to all of us, and it stood out to me—that The Guardian has got form here and has on a number of occasions, not just this occasion, got Members of Parliament to stand up in the House and make statements under privilege, which enable The Guardian to repeat them in the paper the following day.
My hon. Friend makes an extremely good point and I am happy to sit down now. I hope that I have made my point and that the hon. Member for Newcastle-under-Lyme will take it in the spirit in which I have made it. I shall certainly have a look at the suggestions of the Lord Chief Justice.
I am very grateful to my hon. Friend the Member for Aldershot (Mr. Howarth) for enabling me to have a brief shot at this debate.
Article 9 of the Bill of Rights was not a matter of light spluttering on our constitution. It followed on a century when the authority of the Executive—power controlling the courts—could stop or threaten people who spoke freely. It is followed by the Americans in the articles attached to the constitution, in their Bill of Rights, almost to the letter. It is fundamental to freedom of expression and the constitutional development of our own country. Anyone who believes in freedom must know that the concept of prior restraint is a very sensitive and difficult area, but the principle that underlies it is “publish and be damned”.
In our moderate world we normally look carefully into such things, but I have also had a conversation with a former Lord Chief Justice—about anonymity of witnesses. That was developed in the courts, where now an application can be made for witnesses to be held to be anonymous, so that defendants are not necessarily aware of who is accusing them. I said, “Why that was not picked up? We have been told that there are 300 cases outstanding now in which as a routine matter there is an application for anonymity of witnesses.” He said, “Well, I didn’t know about it. There is no way of tracking it.” That was a question on which my hon. Friend the Member for Worthing, West (Peter Bottomley) made a very good point. We now have the east European-sounding Ministry of Justice, but does it monitor what happens in the courts, if the judges are not in a position to monitor it?
Developments are going on that strike profoundly at our sense—certainly my sense—of liberty. How many prior restraint orders in non-national security cases are being granted? That should be recorded and the intent and purpose behind it should be examined.
I should declare an interest. I am a parliamentary co-chairman of the Campaign for Freedom of Information. One of the major issues in our country was to find out who was polluting rivers and causing noxious wastes. That was shrouded by section 2 of the Official Secrets Act. No officer who knew about a pollution could necessarily put it in the public domain. This is about the public domain. Mature democracy must know what is happening in its courts so that it can make judgments. How can we reason but from what we know?
Thanks to the hon. Member for Newcastle-under-Lyme (Paul Farrelly) and the hon. Member for Oxford, West and Abingdon (Dr. Harris), who also sits on the Joint Committee for Human Rights, we have had the opportunity to express some of our concerns adequately—respected Members of the House present here have done so moderately, much more moderately than I ever conceive of—and to strike out and stand up for principles fundamental to the workings of a free society. I expect the Ministry of Justice to monitor the case closely.
The principle is enunciated that, certainly on the Floor of the House of Commons, there should be no question of restraint. I remember when Lord Rooker—then Jeff Rooker, Member of Parliament for Birmingham, Perry Barr—raised a subject that caused great concern to a number of Members in the House. He got it wrong, unfortunately for the individual to whom he referred. He made the most gracious apology for his mistake, but without the ability to raise such issues, as this one was raised the other day on the Floor of the House of Commons by way of a question, we are lost. We need to know in order to be able to regulate and have an opinion on the development of our society and laws.
This is an important matter in both constitutional and legal terms, and I am pleased that my hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris) secured this timely debate. We have always known, and been proud of the fact, that we have the right to speak our mind in Parliament without fear or favour and without consequences outside this place. That is enshrined in the Bill of Rights, and it is an important right. We also believed that a battle was fought and won in the late 18th and early 19th century to ensure that proceedings in this House were made available to the British public—originally against the views of many in this House. It was protection against Parliament, not others, which sought to fetter the reporting of Parliament. Nevertheless, that battle was won. That is what is in question today.
I am pleased that we had meetings with The Guardian and with Carter-Ruck. It clarified a lot of issues for me. I did not realise initially, for instance, that the action was not a defamation action but was based on confidence and that it had been held before a commercial rather than a libel court, so the honourable Justice Maddison perhaps had less experience of that field of work.
I also had not realised that the initial super-injunction made no attempt to fetter the discretion of Parliament—it was a catch-all injunction as to the terms under which it could not be reported—but that The Guardian later questioned whether it could report proceedings in Parliament in the context of the order, and was told that it was Carter-Ruck’s firm opinion that The Guardian could not, that it would need a variation, and that to do so would be contempt of court.
As we know, various things happened after that. I tabled an urgent question on the day, and there was a great deal of action on Twitter and blogs around the nation, for which I am grateful. Points of order were raised, and on that day, the application for confirmation of the injunction was withdrawn.
The key question is whether the Carter-Ruck lawyers were right that such an injunction could apply to the reporting of parliamentary proceedings. It is interesting that the Guardian lawyers acquiesced in that view and thought that it might have substance. I have my doubts. I am not a lawyer, but I have read the Parliamentary Papers Act 1840, which appears to be the crucial legislation. It is written in the style of 1840s Acts, but I will read part of it:
“It shall and may be lawful for any person or persons who now is or are, or hereafter shall be, a defendant or defendants in any civil or criminal proceeding commenced or prosecuted in any manner soever, for or on account or in respect of the publication of any such report, paper, votes, or proceedings by such person or persons, or by his, her, or their servant or servants, by or under the authority of either House of Parliament”—
I think that covers the case in point—to apply to the Speaker or the Clerk of the House for a certificate that such a report is a report authorised by Parliament.
If that is presented to the court,
“such court or judge shall thereupon immediately stay such civil or criminal proceeding; and the same, and every writ or process issued therein, shall be and shall be deemed and taken to be finally put an end to, determined and superseded by virtue of this Act.”
That seems to show pretty conclusively that the legal advice was wrong, but perhaps I am wrong and there is something that I do not understand about it.
The second issue is whether such super-injunctions are right in any case. That point has been made by my hon. Friend the Member for Oxford, West and Abingdon and others. The idea that we have somehow lost the principle of open court, and can now not only stop the publication of a particular piece of information by prior restraint but prevent from being known even the fact that it has been before a court, seems a very suspect legal development of recent years, and I question it.
The third element is whether companies have the right to that protection of privacy in any case. I understand that article 8 of the Human Rights Act 1998 provides for the right to reputation, but how does that apply to a corporate body? How does it apply to a company that appears—as alleged—to have acted in a totally disreputable way? How can it be right that that is considered a matter of privacy and subject to prior restraint? It worries me that a jurisprudence, not just in libel but in confidence, is developing without recourse to Parliament. It is effectively translating defamation into a tort of negligence, to some extent, but it is certainly developing in a way that encourages the application of prior restraint super-injunctions. That is a key concern. Are we in Parliament satisfied that the laws of libel and privacy should be developed by judges rather than by statute? My answer is no. We need to look at it.
The Minister will respond to some of my questions, some she may pass on to others. First, I would like the Speaker of the House to make it plain that he will certify under the Parliamentary Papers Act 1840 anything written within parliamentary proceedings under any circumstances whatever, so that there should be no question of an injunction applying to parliamentary papers. Secondly, I want the sub judice provisions, which are at Parliament’s discretion, not to be defeated by prior injunction. Again, that is a matter for the Speaker.
I want the Minister to make a declaratory statement that the provisions of the Parliamentary Papers Act 1840 still hold, that it is the right of people in this country to know what happens in their Parliament and that the Lord Chancellor will hold to that right, so that every judge and solicitor out there hears that declaration. If that is not sufficient, I want a protocol in every single injunction that says, “This will not, of course, apply to parliamentary proceedings.” In that way, there will be clarity.
If none of that succeeds, we need changes in statute law. It is such an important matter of principle that we cannot afford to allow the legal lottery system to affect which judge hears a case and under what circumstances. The matter must be beyond peradventure. I hope that we will return to the provisions at a later stage and reconsider them. The Select Committee report may be exactly the right vehicle to encourage that debate, and we will want to participate fully in it.
What we should not stand by and allow is any diminution of the rights of Parliament, not because we are pompous parliamentarians but because the rights of Parliament are the rights of citizens in this country. If we allow them to be diminished, we are not serving our country and our people correctly.
First, I must declare an interest as a barrister. I congratulate the hon. Member for Oxford, West and Abingdon (Dr. Harris) on securing this debate. He has been proactive on this issue over a number of years and many hon. Members admire his effort and tenacity.
My hon. Friend the Member for Worthing, West (Peter Bottomley) touched on the detail of the Trafigura saga. It was an appalling set of circumstances. That said, however reprehensible Trafigura’s actions, it had every right to come to our courts to seek a remedy and every right to instruct a law firm. The right hon. Member for Rotherham (Mr. MacShane) went over the top in criticising Messrs. Carter-Ruck for taking the case. Trafigura had every right to come to our courts and Carter-Ruck had every right to use our procedures.
Carter-Ruck should have been more careful in what it said in its correspondence. For example, its letter to Mr. Speaker of 14 October said:
“In response we pointed out that the threatened publications would breach the terms of the injunction Order and indeed that, absent a variation to the Orders, would place The Guardian in contempt of Court. That being the case, we sought The Guardian’s confirmation that they would not so publish.”
Carter-Ruck should have included the caveat that nothing that the court had said could prevent the reporting of parliamentary proceedings. It was a mistake not to do so.
In the letter that The Guardian wrote to Mr. Speaker the following day, Mr. Rusbridger pointed out:
“Carter-Ruck could have replied to the effect that they had no intention to gag parliamentary reporting and that they had no objection to us doing so.
Instead, their letter unequivocally asserted that the Guardian would be in contempt of Court and sought an immediate undertaking that we would not publish.”
There was certainly an error on the part of Carter-Ruck and it is a great pity that the caveat was not in the letter.
Carter-Ruck’s letter to the legal department of The Guardian on 12 October, which discussed the public domain and anonymity, stated:
“It is not obvious to us that the reporting of this written question on the Parliament website places the existence of the injunction in the public domain. That is a matter which we wish to consider and take instructions on.”
Carter-Ruck could have rung up any one of about 8,000 barristers who would have given it the answer. I find that somewhat bizarre.
I turn to Mr. Justice Maddison’s injunction and the super-injunction. As a number of hon. Members have said, at the stage of the initial injunction, none of the parties imagined that the publishing of parliamentary proceedings would arise. It would be helpful if the Lord Chief Justice spoke to the judge in question. There is now a much more open relationship between Parliament and the judiciary. Perhaps the Lord Chief Justice could find out what the judge’s reaction would have been had one of the parties raised what would have happened if the terms of the injunction and its contents were discussed in Parliament or were the subject of a parliamentary question. Perhaps the Minister could facilitate such a discussion.
I agree with my hon. Friend the Member for Worthing, West that super-injunctions should be used only as the last resort. They are being used far too frequently. The Lord Chief Justice should issue tighter guidelines on super-injunctions. The qualification in Mr. Justice Maddison’s original injunction that resulted in the so-called super-injunction is pretty far reaching. Page 3 of the order makes it clear that there would be draconian consequences for anyone involved in proceedings who let the identity of the applicant—Trafigura—be known to anyone. Such far-reaching injunctions should be used only in rare cases.
I have not seen the transcript of evidence. The order states:
“Upon it appearing to the Court (i) that the action is one likely to attract publicity,”—
for goodness’ sake, it was always going to attract publicity. It continues:
“(ii) that publicity revealing the identity of the Applicants is likely unfairly to damage the interests of the Applicants”.
I would have thought that in all such cases publicity is bound to damage the interests of the applicants. They go to court in the first place to prevent something from being published because they are concerned about previous actions and events with which they were involved. What is the Minister’s view of super-injunctions? Can the Lord Chief Justice issue tougher guidelines to the judiciary on the use of such injunctions before we consider passing legislation?
I am grateful to the hon. Gentleman for his remarks. I urge him and other hon. Members to think carefully about whether we should pick on super-injunctions as the particular problem. If the purpose of the injunction is to protect confidentiality or to prevent libel, and the reporting of that injunction frustrates the point of it because the internet is used, the real problem is the initial injunction. My argument, at least in part, is that there should be a higher threshold before injunctions granting prior restraint are granted, especially in libel cases. The public interest should be more of a key consideration for judges. We should not pick on just the super-injunction aspects.
I quite agree. That could be the subject of a debate lasting many hours. The Culture, Media and Sport Committee will consider the matter. I did not touch on it because I wanted to cover super-injunctions, which have been discussed by a number of hon. Members. I would like the Minister to comment on super-injunctions. We cannot expect her to solve the problems with libel law in this country in 10 minutes, but I hope that she will answer the point about super-injunctions.
My hon. Friend has made his point very well.
In my two remaining minutes, I wish to say a little about parliamentary sovereignty. Can Parliament ever be gagged or muzzled? The answer, manifestly, is no. Parliamentary privilege is one of the cornerstones of our ancient democracy. It is a vital part of Parliament’s sovereignty as the highest court in the land. Without it, we would not be able to hold the Executive to account or stand up for our constituents.
The hon. Member for Somerton and Frome (Mr. Heath) gave us a fascinating history lesson on the reporting of Parliament. Of course, everything in Parliament has to be reported. With television and radio, nothing that is said in Parliament will ever go unreported. Cynics would say that the best way to keep a secret would be to announce it in the Chamber, given the interest that some of the parliamentary press take in parliamentary proceedings.
On the sub judice rule, we have Clerks to advise the Speaker and the Chairmen of Committee and Westminster Hall sittings, such as you, Mr. Gale. It was open to the Clerks in the Table Office to point out to the hon. Member for Newcastle-under-Lyme (Paul Farrelly) that his question could have been subject to the sub judice rule. They decided not to do so. Perhaps the correspondence we are discussing has given Mr. Speaker an opportunity to clarify how the sub judice rule affects parliamentary proceedings. A number of recent cases have troubled me. In some cases, Mr. Speaker has been advised to shut the Member up and in others, the Member has been allowed to speak about a case or proceedings that affect his or her constituents. We need clarity on that point.
I hope that the Minister will be robust and brave and say without any equivocation or doubt that Parliament cannot be fettered in this way. I hope she makes it crystal clear that no court order in the land can delay or interfere with parliamentary proceedings or the reporting of them. As my hon. Friend the Member for Aldershot (Mr. Howarth) mentioned, with the rights and powers that hon. Members have come responsibilities and duties. All hon. Members must be incredibly discerning and responsible when it comes to exercising those rights and privileges, which is why judgment, common sense and statesmanship are the order of the day.
I will do my best to be robust and brave, but I accept the view of the hon. Member for North-West Norfolk (Mr. Bellingham) that I will not be able to solve the libel laws in the next 10 minutes.
My right hon. Friend the Secretary of State for Justice is very much a parliamentarian—a parliamentary figure—and he will take on board every single issue that hon. Members have raised today. In that sense, this debate is only part of something that will continue, and I want to go through some of the areas that we have already started to process and some of the other issues as quickly as I can.
The hon. Member for Aldershot (Mr. Howarth) had not heard what the Lord Chief Justice said, so I shall read it into the record:
“I should need some very powerful persuasion indeed–and that, I suppose, is close to saying I simply cannot envisage–that it would be constitutionally possible, or proper, for a court to make an order which might prevent or hinder or limit discussion of any topic in Parliament. Or that any judge would intentionally formulate an injunction which would purport to have that effect.”
Those are extremely strong words from the Lord Chief Justice, and I want to put it on the record that I go beyond the phrase “very powerful persuasion” and say in response to the hon. Member for North-West Norfolk (Mr. Bellingham) that it is not possible to fetter Parliament and parliamentary discussion.
I was just about to come to article 9 of the Bill of Rights. I am astonished that lawyers around the country are not aware that there is a difference between article 9 and the European convention, and so on. However, perhaps this will be an opportunity for them to be educated in that respect. Article 9 makes it clear that parliamentary questions, both oral and written, are proceedings in Parliament, and they are protected by absolute privilege. Article 9 provides that
“proceedings in Parliament ought not to be impeached or questioned in any court”.
It can hardly be clearer. That means that MPs and Peers receive absolute protection from court proceedings for things said or done when engaged in their parliamentary duties. As the hon. Member for Maldon and East Chelmsford (Mr. Whittingdale) said, that is also the case for witnesses who give evidence before Select Committees.
The reporting of parliamentary proceedings, like that of judicial proceedings, is protected by qualified privilege, which centres entirely around fair and accurate reporting—in other words, the material can be published, provided that it is fairly reported. In particular, reports that are motivated by malice would not be protected by privilege. Any reporting of Parliament that is fair and accurate is protected by that privilege. Mention was made of the sub-judice rule.
I will be quick because I think the Minister is about to move on. What she says is helpful, but it is not a cure for the problem, unless she envisages that this debate and her remarks will be read by every lawyer and, indeed, every judge. Will she or her colleague suggest a cure for the problem that either provides a template or states something further than what she has just said, so that the matter can be put to rest in all future cases?
I am going to come to some of the things that need to happen in future.
The sub judice rule is an expression of the ability of the House to restrain Members who, in exercising the absolute privilege of freedom of speech, might offend the House. It also protects the administration of justice, so that, while the courts cannot restrain parliamentary debate, Parliament in turn refrains from airing matters in proceedings that are active and awaiting adjudication in the court.
On the issue of the super-injunction, again, the Lord Chief Justice made reference in his remarks yesterday to occasions when that is useful. The intention is for a super-injunction to be used where there would be a detrimental effect on cases that have national security implications or perhaps on child protection issues—I think that the Lord Chief Justice gave a simple example in relation to fraud. We are very concerned that super-injunctions are being used more commonly, particularly in the area of libel and privacy. The Secretary of State for Justice has already asked senior officials in the Department to discuss the matter with lawyers from the major newspapers. We are also involving the judiciary in a consultation. We are looking specifically at how the use of super-injunctions has had an effect and what we therefore need to do on that.
The hon. Member for Maldon and East Chelmsford raised the issue of criminal libel, and I should say that, as we speak, the Coroners and Justice Bill is going through the other place. We have tabled amendments to the Bill that will abolish criminal libel in terms of defamatory, seditious and obscene libel, along with the offence of sedition, which the hon. Member for Oxford, West and Abingdon mentioned on the Floor of the House when the matter was debated there. We are removing those obsolete offences from the statute book.
We have also recently published a consultation paper on the effects of the multiple publication rule. As has been referred to during the debate, we are also about to set out a response to the consultation we have done on controlling costs in defamation proceedings and what further steps are needed. Our commitment to freedom of expression is clear, but as the hon. Member for North-West Norfolk said, it is not an absolute right. Freedom of expression has duties and responsibilities attached to it, including the protection of the rights or reputations of others. In that context, it is important that people have an effective right to redress through the law of libel, where their reputation has been damaged as a result of the publication of defamatory material.
In the short time available to me, let me respond to some of the issues that have been raised. Yes, I will certainly take back to both the Secretary of State for Justice and the Lord Chief Justice the message that it might be appropriate for further guidelines to be sent out to the judiciary and that we need to consider whether or not defamation has to be tightened up in any other way. The hon. Member for Somerton and Frome (Mr. Heath) asked me to declare whether the Parliamentary Papers Act 1840 still holds. Yes, it does—I make that statement as clearly as I possibly can.
Concerns have been expressed about libel tourism, and we had a debate about that not very long ago in Westminster Hall. Of course, the only way in which an English court can hear such a case is if it can show that it has sufficient grounds for jurisdiction. I will not go into the detail of the Brussels regulation because, frankly, we will all lose the will to live. The Justice Secretary gave evidence to the Select Committee on Culture, Media and Sport during its inquiry, and we will, of course, take seriously any recommendations that the Committee makes that would apply to the courts or to the Ministry.
I am grateful to hon. Members for raising the issue, particularly to the hon. Member for Oxford, West and Abingdon (Dr. Harris). I do not believe that the debate stops here. I will ask my right hon. Friend the Secretary of State for Justice, the Leader of the House and the Speaker to come together to look at how we can reinforce what we know to be true of the rights and proceedings of Parliament. Although I cannot decide the business of the House, I hope that, at some point in future, we will be able to come back to the House with definitive responses to the different questions that have been raised. Finally, parliamentary privilege is an old and important right, and it is one that we should guard absolutely.
As ever, it is a pleasure to serve under your chairmanship, Mr. Gale. I hope that we will give you an easy time over the next half hour. I am not sure that I would express the same sentiments to the Minister, because I have a few hard questions for him. However, I am grateful for the opportunity to bring before the House the hugely important issue of the difficulties faced by the textile sector at the moment, particularly in my constituency, and I shall raise issues to which I hope the Government will respond.
Sitting suspended for a Division in the House.
The textile sector is a huge and important part of Britain’s manufacturing economy, but there is sometimes a tendency for people to talk it down. I am absolutely not in that camp. I think that British textiles remain at the forefront of the industry and are among the finest anywhere in the world, particularly the sector that I represent—the Scottish cashmere industry in my constituency in the borders. We have some of the finest and best-designed textiles to be seen anywhere. The cachet of Scottish cashmere is such that the knitwear from my constituency features in major designer collections year after year. That is not a recent phenomenon; it has happened for generations.
In Hawick, Selkirk and Galashiels in my constituency, thousands of people’s livelihoods depend directly or indirectly on the success of the cashmere industry, and they are rightly proud of the heritage that it represents. They are also still confident about its future, and I share that confidence. Research carried out by Scottish Enterprise a couple of years ago highlighted that there are more than 40 companies in Scotland involved in cashmere, most of which operate internationally. They have about 4,000 direct employees, about 50 per cent. of whom are based in the borders.
The textile sector generally, and the knitwear part of it on which I focus this afternoon, has had decades of the fiercest competition. We in the south of Scotland are not newcomers to the pressures of globalisation such as the supply of yarn from China, the increased manufacturing competition—albeit at a different end of the fashion scale—from China, and the fact that customers are based in all parts of the world.
The industry has not hidden behind protection or looked for easy assistance in the past, but this sector and the group of companies within it are now under serious pressure, like so many other manufacturers across the United Kingdom. The companies that I am talking about have survived because they have continually exceeded their customers’ expectations, have reinvented their manufacturing processes and have achieved world-class service standards. If someone needs two jerseys to be knitted and in Manhattan by Friday, it is just about possible to have that done in the borders today and to have it there on time. Very few parts of the world can offer that level of service, but my constituents and the companies that I represent do that week in, week out. A company does not get to be a fixture in Bond street in London, or on Fifth avenue if it is behind the curve, and none of those companies is in that position. But—a but was inevitable—I have identified three major and specific areas of challenge in which I believe the Government should get involved and offer support.
The first area is finance. Through no fault of their own, many of those companies face the most serious credit crunch that they have ever experienced. Often, they are family companies that go back for generations, that are used to managing their finances carefully and used to the pressures that their product design cycle and customer payment habits have forced on them. Orders are placed in spring, and companies begin to make up orders later in the year, making huge investments in stock and wages over summer and into autumn. Then, the customer gets the goods, and it can be 90 or 120 days before the cash comes back. Cash is always at a premium for those businesses, but right now, as in so many areas of business, suppliers are shortening their terms of credit, and customers are extending theirs.
Meanwhile, the banks have taken the opportunity provided by the recent chaos to introduce charges for things that nobody ever previously imagined they could charge for. The reduction in competition has meant that the costs of banking finance have increased enormously, assuming that it can be obtained at all. That is a big issue with many banks. I hope that when the Minister responds, he will give specific examples of companies that are getting support through the various Government schemes. I have to tell him that my discussions with senior figures in all the local companies that I represent have revealed a terrible mismatch between Government policy and expectation about what the banks are doing, and the reality on the ground. The Government must look into that gap, find out what is going on and make the lending happen.
A second problem that I did not expect, which has become a huge issue for my local companies, concerns the behaviour of energy suppliers. I have been staggered to find, on more than three occasions in the past six months, that energy suppliers—each time a different one—have been demanding huge security deposits from companies before agreeing to continue their supply of electricity or gas. I am talking about figures of tens of thousands of pounds being imposed on companies that are not in a position to pay them. Those companies do not have poor track records on payment: they have honoured their bills and received their electricity and gas reliably, without any issues. Again, there has been a change in behaviour among the major players in the market, with tens of thousands of pounds being demanded and premium rates being charged. As if demanding a security deposit were not enough, advance payments have also been demanded on many occasions.
I raised that, privately, with one of the energy Ministers, who has now moved to a different Department. He was sympathetic privately, and I would be interested to know to what extent the Minister here today finds that behaviour to be common across the country. If it is news to him, I hope that he will urgently go back and insist that both his Department and Ofgem look at how those companies are behaving.
A third area of concern relates to skills, which are at the core of all those businesses. To witness the hand stitchers, see the skills in the weaving sheds, as I have done countless times over the years, and see the years of experience that go into finishing goods, is to realise the almost magical quality that is required, for example, in understanding how much to wash a cashmere sweater before it is ready to take to the client. That might not depend simply on training—perhaps there is something magical about it. Those skills are precious and need to be retained. Right now, when many companies are struggling, the cost of training is a major issue for them.
It is deeply unfortunate that, into that mix, the doubts about the future of Skillfast-UK have come to the fore. The sector skills council responsible for the textile industry, as is well documented, is now appealing against the decision to disband it, although I am yet to find out formally the outcome. The Minister wrote to one of my constituents recently about that issue—I shall refer to that letter in a moment—stating that he could not announce anything. I wonder whether he will be in a better position to do so today. I am not picking up the baton on behalf of Skillfast-UK, but I do want to know what will happen if it no longer exists, because if it goes, what will replace it? Leaving the textile sector without that support will be a damaging decision in the industry’s hour of need.
The issue of skills has been raised by many Members for many years with different Ministers. Alongside that, I will mention two other issues: country of origin labelling and passing off. It is of great concern to my constituents and the textile companies that the country of origin labelling is not adequate enough to allow us to show that the goods produced in my part of the country are produced in Scotland, or even in the UK. It is too easy for others to pass off their goods as having been made in Scotland, and that has been batted backwards and forwards between us and Europe.
I am looking this afternoon, as a minimum, for an assurance from the Minister that the Government will vigorously continue to pursue that issue and take action to ensure that the right powers are in place for trading standards authorities and others to tackle passing off. To suggest that something is made in Scotland when it has been made several thousand miles away is clearly unacceptable. It is a fraud on my constituents who make the garments and on the customers, many of whom are from overseas and come to Scotland to buy them.
In the summer I had a meeting with the Minister and my constituent, Ken Pasternak, to whom the Minister has recently written. I would like to put on the record some of the issues Mr. Pasternak raised in his letter, in particular the issue of export credit insurance, which, if made available, would substantially help textile companies by reducing some of the risk that the banks fear there is in manufacturing, particularly in textiles.
I am afraid that the Minister’s response did not go down terribly well with Mr. Pasternak, who, as the Minster will recall, is a gentleman of direct language—I will not repeat what he said when we spoke about the issue a few days ago. The suggestion that the Government are monitoring the situation cuts no ice with businesses that are struggling here and now, and I fear that some of them are in a fragile state and may suffer accordingly. Mr. Pasternak also highlighted the need to put ourselves on a level playing field, particularly with regard to the support packages that have been made available to Italian competitors. Again, that was brushed aside in the Minister’s response, but I am afraid that I did not see a strong argument for the decision to sidestep the issue. If our main competitors within Europe are getting that support, it is hard to argue that we should somehow do without it. Mr. Pasternak also raised the issue of tax credits for samples production and for innovation. I apologise if I missed it, but I did not see much of a response to that in the Minister’s letter.
I hope that I have made clear how serious the problem is. Yesterday, Lochcarron of Scotland announced the closure of its knitwear operation in Hawick, putting 38 jobs at stake in my constituency. The management hope, as do I, that they will be able to get jobs for them in Hawick, or certainly elsewhere in the sector, and that the business in Selkirk will continue profitably. That is a reminder that businesses are having to make tough decisions right now and that things are very difficult indeed. I hope that the Minister has noticed that I have not stood here and asked for lots of money this afternoon, or for the Government to write big cheques. However, I have asked them to exercise the powers that they already have and which they need to use more vigorously, and I hope that the Minister will do that.
It is a pleasure to appear before you for the first time as a Minister, Mr. Gale. I congratulate the hon. Member for Berwickshire, Roxburgh and Selkirk (Mr. Moore) on securing the debate. I would like to start by apologising formally to him for the delay in writing to Mr. Pasternak following the meeting we had in the summer; that was quite unacceptable. I was unaware that he had not been written to before, so I am sorry that the letter arrived with him only last week.
The hon. Gentleman is a strong and powerful advocate for the textile industry, and I know the area he represents very well. He has eloquently set out the importance of the industry to his constituency. Of course, the textile industry is an important part of Britain’s manufacturing base. I fully take on board its importance and fully recognise that times are very tough for it indeed, as they are for most industries at present. As with all industries, textile manufacturing in the UK is reinventing itself, and the hon. Gentleman referred to the innovation of the textile industry in his constituency and the way it has been able to change, developing from a cottage industry at its inception hundreds of years ago and through the industrial revolution of the 19th and 20th centuries, which saw a massive textile industry develop in the UK as a whole.
Although the industry has of course reduced in size in recent years as intense competition from Asia has hit it hard, it has, as he described, moved up the value chain and specialised in high-quality, niche products or high-tech “technical textiles”. That is a journey that most UK sectors in the globalised economy have made, moving up the chain and focusing on quality. That change is vital to the textile industry’s continued competitiveness. While the sector is not as big as it once was, I fully accept that it is an important part of the UK’s manufacturing base.
For the Government and for me personally, manufacturing is extremely important. We are still the sixth largest manufacturing country in the world. Manufacturing employs 3 million people directly in this country, contributes £150 billion to the economy and accounts for half of Britain’s exports. It is responsible for 75 per cent. of our business research and development. The textile industry is part of that industry and deserves Government support. Of course, economic development in Scotland is a devolved issue, and I understand that the hon. Gentleman and representatives of the industry in Scotland have ongoing contact with Scottish Ministers as well. I believe that John Swinney, the Cabinet Secretary for Finance and Sustainable Growth, will be attending the Scottish textiles annual conference tomorrow.
The Scottish Government offer a wide range of support to the textiles industry through Scottish Enterprise, Highlands and Islands Enterprise, Scottish Development International and Skills Development Scotland. It includes innovation and investment grants such as regional selective assistance grants and the Scottish Manufacturing Advisory Service, a resource that has recently been enhanced significantly to ensure timely and specific company support for all manufacturing businesses, including those in the textiles sector.
Those companies availing themselves of the Manufacturing Advisory Service, which has a track record of providing practical advice to improve capabilities, efficiency and productivity, report real benefits from the process. Indeed, Peter Scott & Co. Ltd, which is run by Mr. Ken Pasternak, to whom we have referred, is one of the companies that has benefited from Scottish MAS advice. I understand that after receiving advice, on-time delivery improved from 52 per cent. to 91 per cent. in just three months.
The Scottish Enterprise textiles team is working closely with the industry through the National Textiles Forum and the industry steering group on a programme of activity to support the textiles industry through these challenging times. More widely, manufacturing will play a key part in helping us to rebuild growth across the UK. That is why we have specific help in place for the manufacturing sector. Our manufacturing strategy brings together £150 million of support in the medium term, and will help business to access increased skills and technology support, and to be successful in entering new and emerging markets.
I am conscious that many textiles companies are relatively small businesses. It is vital that small and medium-sized enterprises are helped during a period of economic downturn, as their survival in the current economic climate will be crucial to maintaining employment and economic activity in the short term, and to providing growth as we look towards recovery.
Co-ordinated action is being taken by all relevant Government Departments and agencies in providing real help for business now. Some of the different measures that the Government have introduced include securing legal commitments that will ensure that over the 12 months from March 2009, the Royal Bank of Scotland and Lloyds will lend, on a commercial basis and subject to demand, an extra £27 billion to businesses. Barclays and HSBC have made an additional £6.5 billion of business lending commitments, and an enterprise finance guarantee scheme that will secure up to £1.3 billion of additional bank loans to small firms with a turnover of up to £25 million has also been introduced. So far, £880 million-worth of eligible applications from more than 7,700 firms have either been granted or are being processed or assessed.
The Government have also introduced a £75 million capital for enterprise fund—£50 million directly from the Government, which is augmented by £25 million from the banks—to invest in small businesses that need equity. So far, fund managers have made offers totalling more than £56.4 million to 37 businesses.
Yesterday, the UK Export Credit Guarantee Department launched a letter-of-credit guarantee scheme to assist UK exporters by boosting the availability of short-term export finance. The new scheme should provide further help to UK exporters, particularly smaller companies that export to emerging markets, which is where letters of credit are most used and where new opportunities can be found.
Over the past year, we have also been working to give help to business to ensure that the UK’s productive base comes through the recession. We are focused on how we can rebuild growth and are looking at our strengths and capabilities to determine how we can position ourselves to grow in the long term. The central remit of the Department for Business, Innovation and Skills is to invest in growth and to help build for the future. Earlier in the year, we published our strategy in “New Industry, New Jobs”, which builds on new ideas to ensure that SMEs are able to grow when the upturn comes, and makes the case for continued investment in innovation and new technologies.
Turning to the specific points raised by the hon. Member for Berwickshire, Roxburgh and Selkirk, I represent a manufacturing constituency myself, and many SMEs in my constituency have been encountering the kind of difficulty that he described. I am well aware of the disappointment, to put it mildly, that is felt in many parts of business and by many individual company and business owners at the attitude of the banks and the line they have been taking.
The Department has a “help for business” team, which has been dealing with many cases that MPs have brought forward. The team has worked with banks to try to resolve particular difficulties relating to specific companies. I availed myself of the service before I became a Minister and have done so since. I have found that its efforts have been greatly valued by many of the companies that approached the Department. If the hon. Gentleman is aware of any companies that wish to avail themselves of the service, he should by all means bring them forward, and the Department will do its best in those individual cases to make contact with the banks and try to take matters forward.
I am grateful to the hon. Gentleman for the point that he made about energy companies, the deposit scheme and up-front payments. The issue had not been brought to my attention before, but I am concerned by what he said. I shall go straight back to the Department and look into it, liaise with other Ministers who may be aware of it and see what the regulator has to say about it. The matter does cause me concern, and I am grateful to him for raising it.
On Skillfast, I am afraid that I cannot give the hon. Gentleman further information. Unfortunately, he received the letter from me only recently, as I said earlier. The Government have not at this stage reached a decision on whether Skillfast should be offered a new licence to continue as a sector skills council, but I expect that Ministers will reach a decision soon.
I have again taken on board the country-of-origin point that the hon. Gentleman raised, which has often been raised in this House in many different contexts. Of course, because of the particular value and style of the products we are discussing—textiles, particularly Scottish textiles—this is an important issue, and I assure him that I will do all I can to take the matter forward. It is extremely important that a distinctive and great British product such as Scottish textiles should be protected fully and should not be undermined by the country-of-origin problems or passing off that he described.
I am grateful to the hon. Gentleman for putting his case to me and for securing this debate. He raised several issues, some of which I shall investigate further because they affect businesses not just in his constituency but right across the country. I am determined to do all I can in my role to assist particular businesses and sectors. I assure him that I regard the Scottish textile industry, which is so firmly based in the borders, as an innovative industry with a great product. It is an industry that exports around the world and an industry for the future, and the Government are determined to do what they can to continue to support it.
Fostering Services (Ofsted Supervision)
I am grateful to have the opportunity, granted by Mr. Speaker, to raise this matter, which is important to my constituent and to me. At issue, in essence, is the conduct of successive regulatory bodies in respect of fostering and the fact that, early on in this case, as I will explain in a moment, regulators seemed to get off on the wrong track and have simply not been able, for various reasons, to get back on track since. The impact of that is that my constituent, to whom I will refer as Ms A throughout this debate to preserve her anonymity, has not been able to secure justice. She certainly does not have peace of mind and her livelihood, and that of her partner, as a foster carer is constantly in jeopardy as a result of the failings of regulators in the past and the inability of the present regulator to set things straight. Although the issue has been long-running, it can be resolved and at the end of my comments I will say what I think we can do to bring it to that conclusion.
Let me give a brief history of this long-running matter. It starts in 2002 with the inappropriate placement of a child by an agency working, at the time, with the local authority in Northamptonshire. I will not go into the details of the inappropriate placement, because the Minister will have it on file. Attempts were made to deal with the issue in an entirely sensible, low-key way, without engaging other organisations, but they did not succeed. The Fostering Network recommended to my constituent that she should make a formal complaint about what had happened, not just to remedy her own situation but to try to ensure that similar things did not happen to other foster carers in the future, which was reasonable. Indeed, at the time it was recommended that the services of a mediator should be engaged.
The agency in question acted aggressively to that approach and instead of trying to resolve the matter it decided to set out on a review of my constituent’s registration as a foster carer. That meant, in the end, that the matter was referred to the National Care Standards Commission, the regulator for fostering services at that time, which initiated some investigations. The first two investigations were poorly done and I advised my constituent to go for a final, third-stage review, which she did. That review fully upheld her complaint. I emphasise “fully”, because that is important. The review criticised the agency and suggested that its fitness to operate should be reviewed—not the fitness of my constituent the foster carer, but the fitness of the agency that made the mistake—and called on the NCSC to remedy its procedures, which had also let my constituent down.
The mediator performed a strange role. He wrote reports about my constituent, despite the fact that he had never met her. Furthermore, he turned out to be working for the agency and was, in fact, trying to help the agency secure its own ongoing registration. I do not believe that the mediator brought in to deal with the case ever had an objective view of what was going on.
We had some positive responses from the third-stage review, as we expected. Northamptonshire, the authority involved in the initial mistake, issued my constituent a full apology and that was the end of the matter with that authority, as far as she was concerned. The role of Warwickshire, which was also involved, was referred to the local government ombudsman, who ruled fully in my constituent’s favour and, again, apologies were given to my constituent, and disparaging comments in the authority’s records were removed as a result of the ombudsman’s ruling. Those are examples of good outcomes, which should have flowed from the third-stage review, but the regulator—the third leg—carried on regardless and did not heed the review’s recommendations.
During the process, the regulator became the Commission for Social Care Inspection, which was the next party in this saga, and it was ultimately forced to review its conduct in the matter only because I raised it in an earlier Adjournment debate, in September 2004. That should have been the end of the matter, because it should have brought about a resolution in respect of the behaviour of the regulators, but it did not. Like the agency, the CSCI, for reasons that I have never been able to fathom, also turned the tables on my constituent and, in the end, published a report that was critical of her, not a report on itself. That report contained scores of inaccuracies and ignored evidence that had been submitted by my constituent.
My constituent saw the CSCI draft report before publication and so did I. I told CSCI not to publish the report until it had corrected all the inaccuracies it contained. I also told CSCI that it should only publish a report that was evidence-based. It ignored me and my constituent and published the report anyway. The report is damning to my constituent’s reputation, which is why I am still pursuing the case.
Today, seven years on from the original incident, quite a lot of people involved in the early stages have moved on and are not part of the story any more. The agency has morphed into another organisation and has almost disappeared from view. But what remains today are inaccurate, disparaging comments about my constituent littered throughout the reference files of local authorities who commission fostering, and of the regulator—often placed there by the regulatory bodies and by others who have not listened, not read and not absorbed the evidence given by my constituent and who have still, to this day, not heeded the recommendations of the third-stage review.
I have recently turned to Ofsted, which is now the third regulator that I have dealt with, to try to get a resolution. I was initially encouraged, because Ofsted sent officials to visit my constituent at her home. They spent a long time with her and went over all the case history in great detail. I have seen a video version of that encounter and know how thorough the officials were. They were sympathetic and took away a list of things to work on so I thought that finally we were getting to where we needed to be to resolve the matter.
Ofsted’s meeting with my constituent took place in January. Months passed and we heard nothing, so I decided in May to contact Ofsted to find out what was going on. I asked if it was following up the matters that it had agreed, with my constituent, to pursue. I asked what was the conclusion of its study of the transitional orders, which it said that it would look at to see how it could pick up the case, which previously was not Ofsted’s—it was with other regulators. I also asked, “How are you getting on working with local authorities and others to cleanse records of documents that should not be there, because they are inaccurate and unfair to my constituent?” I asked it to do those three things.
I eventually received a response on 2 July from Christine Gilbert, the chief inspector, which I have to say is inadequate. It says:
“decided that it was not appropriate for us to take any action because CSCI had completed their investigation into her concerns…and there was nothing new in the information that we received.”
That is completely irrelevant. Of course, there is no new information, because we are trying to resolve an issue that now has some history. To come back after all that and say that there is no new information totally misses the point about why we are asking Ofsted to try to resolve this long-standing issue.
The letter from Christine Gilbert also declares that Ofsted has no powers to order the correction of personal information held by other organisations. It suggests instead that my constituent goes to the Information Commissioner and the Information Tribunal. Ofsted knows that we have tried that route, so to come back and suggest it again is, frankly, irrelevant. I understand that the Information Commissioner’s office does not have the power to tell local authorities to remove documents or amend them. It has the power to discover them and to publish them, but not to do what we need. I am afraid that the response has not been adequate.
My constituent is a foster carer of impeccable character. She has been persistent and determined in pursuing a remedy, and I know that has rubbed some people up the wrong way, but why should she not be persistent and determined when she is still the victim of injustice? She has constantly been let down by organisations that we thought were supposed to help, resulting in her livelihood as a foster carer remaining in jeopardy. As I said to my hon. Friend the Minister, the matter can be resolved, and that requires three things, which I hope the Minister agrees can be done.
First, Ofsted should forget about the letter that it sent me, look again at all the evidence that it has, and issue an apology to my constituent for its response and the inadequacy of its predecessor organisations. Secondly, I really believe that Ofsted is capable of working with the local authorities involved to help them to remove from their records the documents that should not be there because they are wrong, inaccurate, unfair to my constituent, and contain information that the third-stage report shows is not correct. What should remain on record are statements that are factual and evidence-based. What should not be on anyone’s record is the opinion of an interested party who decided to take on my constituent rather than remedying the wrong. Thirdly and finally, I believe that Ofsted has the power to interview and intervene with the key individuals who are still, to this day, commenting on the matter, and to encourage them not to do so and not to repeat opinion, but to rely only on fact. Ofsted has the power to do all those things.
My constituent’s seven-year nightmare—she is a committed, professional foster carer—could be brought close to an end today if my hon. Friend the Minister would agree to those three things. Not only would that be an extremely satisfactory outcome for her, it would help to restore confidence in the role of regulators on whom all foster carers, at some point, may come to rely.
I welcome you to the Chair, Mr. Gale. It is a pleasure to serve under your chairmanship.
I congratulate my hon. Friend the Member for Warwick and Leamington (Mr. Plaskitt) on securing this important debate. He has campaigned on the matter for some time, and it is a reflection of his diligence, professionalism and commitment that he has pursued it in the House for many years. He referred to his Adjournment debate on the matter in September 2004, and it is a credit to him that he is still pursuing the case on behalf of his constituent.
Like my hon. Friend, the Government recognise the critical role that foster carers, youth workers and many others play in giving children the emotional support and resilience that they need to succeed, and the security and continuity that they will come to rely on as they grow up. Our starting point, and the fundamental principle that we must address, is that every child should be brought up in safety with the opportunity to succeed to the very best of their ability, at the same time recognising that we often rely on achieving that principle and objective through the incredible support and dedication of foster carers such as my hon. Friend’s constituent.
We can always do more, and we must not be complacent. Complacency should never be allowed to creep in, especially in relation to looking after vulnerable children and providing support and help to the foster families who help us to achieve that. I am acutely aware of that, and the case that my hon. Friend raises only emphasises the importance of getting things right first time, every time. He is absolutely correct to highlight the fact that foster carers should be given full and frank details of the children who are admitted to their care. He will be aware, as I am, of the disappointing results of the Fostering Network survey, which found that only about half of foster carers reported that they were given the information that they needed to look after children in their care safely. That was, in essence, the starting point of my hon. Friend’s constituent’s concerns.
The situation was not acceptable and the Fostering Network survey’s findings are not acceptable. I cannot excuse that, and I want the problems to be improved. That is why we issued a letter to all directors of children’s services, and chief executives, making clear the importance of sharing with foster carers information about children placed with them. As my hon. Friend knows, the letter stresses the point that foster carers should be provided with sufficient information about the child’s needs. That should be in addition to relevant information about the child’s previous history, behaviour and experiences to ensure that the foster carers can best meet the child’s assessed needs and to keep the foster child and others living in the same household safe from harm. I know that that is a particular concern for my hon. Friend. The information should be provided to the foster carer before the child is placed or, in the case of an emergency placement when all the information may not be immediately available, as soon as practicable.
My hon. Friend in his professional way mentioned three issues, and I shall address them in turn. He asked whether it is acceptable for Ofsted to have a year zero approach, and about Ofsted issuing an apology on behalf of previous regulators. He asked about the removal of data concerning his constituent and anything that disparages her reputation, which is incredibly important to her as a professional foster carer, and he also asked about Ofsted investigating people who are still misrepresenting the case and offering opinion rather than empirical evidence. I shall deal with each in turn.
On Ofsted taking a year zero approach to such cases, when it took over responsibility for regulating independent fostering agencies from CSCI, it was agreed that when an investigation into a registered provision or any enforcement action was ongoing at the time of transfer, Ofsted would take over the case. It was also agreed that in the case of a complaint about action taken by the previous regulator it would retain responsibility for concluding any investigation. I assure my hon. Friend that there was never any prospect of Ofsted washing its hands of ongoing cases. His comments today demonstrate that Ofsted had a productive meeting with him and his constituent. I know that he is disappointed by the letter that he received from the inspector, but my understanding is that Ofsted decided that it was not appropriate to take action.
CSCI had completed its investigation into Happen Fostercare some time before the transfer and crucially—this is a key point—there had been an independent third-stage review, to which my hon. Friend referred. I understand that the review was conducted by Judy Downey and concluded in March 2004. I have read the Hansard report of my hon. Friend’s previous Adjournment debate on the matter, when my hon. Friend spoke very strongly. I understand that the detailed report reached some important conclusions—I think that was the phrase he used—not least of which was a vindication of his constituent, particularly her reputation. That is important.
A large file of information—my hon. Friend alluded to it today—was provided to Ofsted in May 2007. I am told that Ofsted looked at that carefully to see whether an investigation could be carried out, but its decision was that such an investigation should not be opened. At the time, Happen Fostercare had been sold to Fostering Solutions, and the individuals about whom my hon. Friend’s constituent had concerns were no longer connected with the company.
My hon. Friend mentioned that last year Ofsted was approached with concerns about incorrect statements being made about the outcome of the CSCI investigation into his constituent’s complaint being published on the Happen Fostercare website and circulated to local authorities. I am told that Ofsted visited my hon. Friend’s constituent and explained the limits of its powers. I understand that following the visit, Ofsted reviewed the matter and again concluded that nothing in its remit allowed it to investigate Happen Fostercare, particularly—this is an important point—as the agency had been sold to Fostering Solutions.
My hon. Friend asked whether Ofsted should issue an apology, a question that was raised in the Adjournment debate in 2004 and again, most eloquently, this afternoon. He will appreciate that it is not for me to apologise on behalf of Ofsted. That must be a decision for Her Majesty’s chief inspector. However, if it would help—I hope that it does, as I respect my hon. Friend a great deal for bringing the case to the House again—I undertake to ask Ofsted to respond to the serious issues that he raised today and to make the inspector’s reply available to him.
One of the key factors that has emerged from the 2004 debate and today’s debate is what Ofsted is doing to improve inspections to ensure that such things do not happen again.
Before my hon. Friend moves on—has he moved on from the cleansing of the records?—I will return to the subject. From what he has said, it remains the case that documentation is being accessed by local authorities that are considering fostering placements that refers to my constituent, and it contains statements and comments about her that are untrue and unfounded and are clearly contradicted by the outcome of the third-stage review. I hope the Minister shares my concern that it is not fair or just to my constituent for that to continue. How can we ensure that those records are cleansed of statements that should not be there? How can we ensure that the records that relate to this case are purely factual?
I reassure my hon. Friend that I had not moved on. We are dealing with important matters to do with data and information.
My hon. Friend mentioned a number of times the need to cleanse data files from a variety of sources. I have made inquiries, and I am assured by Ofsted that it does not hold any information that places his constituent’s livelihood in jeopardy. As for the important point about local authorities, I am confident that it is outwith Ofsted’s remit. The advice that my hon. Friend has been given about the Information Commissioner seems appropriate. I can check that again and I would be happy to correspond with my hon. Friend on the matter, but Ofsted has no power to instruct local authorities to cleanse their records of data. That would be a matter for the commissioner. Again, if my hon. Friend wishes it, I would be more than happy to consider the matter one more time, but I am confident that that is appropriate.
I am keen to do anything I can to help my hon. Friend and his constituent with what must be an incredibly distressing matter. My interpretation of the facts, after discussion with my hon. Friend and having read the previous Adjournment debate, is that the local authorities concerned seem willing to help in whatever way they can. If it would help, I can try to see whether that is possible. However, as a result of the powers given to Ofsted by the House and Parliament, I believe that it would be more appropriate to go through the Information Commissioner.
On a similar note, my hon. Friend said that individuals are still misrepresenting the case. Again, I reiterate that, as set down by the House and the other place, Ofsted does not have the remit to investigate individuals who are not part of registered and regulated provisions. Only if a setting is registered can it investigate in order to establish compliance with national minimum standards and regulations. I reiterate the point about raising concerns on personal data with the Information Commissioner, which is an appropriate response, but I am more than happy to reconsider the matter.
We want to move forward and try to ensure that everything is right first time and every time—an important principle. I mentioned the quality of Ofsted inspections and improving the inspection regime. Ofsted now reports on the outcomes for children and young people, making them more child-focused. It issues additional guidance to inspectors to ensure that they use the same criteria when making inspection judgments. It is also increasing the accessibility of its pre-inspection questionnaires, so that they are clearer, easier to use and available in symbols, which enables a wider range of children to express their views.
In addition, I am aware that further work is under way to improve the inspection framework for fostering services. My Department is helping by consulting on the revised national minimum standards, which are more focused on outcomes for children; they are also clear about the need to share information with foster carers that relates to children’s backgrounds.
As I have outlined, the Government place huge value on the army of good foster carers, who do so much to improve young lives and to inspire and safeguard children. We have done much to support them, as I outlined earlier, and wish to continue working with stakeholders to determine what more we can do to help in the local recruitment of foster carers. As my hon. Friend pointed out, if we are to attract people into foster caring and retain our existing foster carers, we need to make sure that they receive the right support.
The White Paper “Care Matters” set out our plans for improving the training of and support available to foster carers. We must continue to do everything in our power to build on that good work, in order to ensure that foster carers feel valued and appreciated for the incredible work that they do, so that young people everywhere have the same opportunities and rights to enjoy their childhood in safety.
I applaud my hon. Friend for what he is doing on behalf of his constituent, but I fully agree with him that this issue has taken far too long to resolve. I shall do all in my power under the regulatory regime provided by this place to ensure that my hon. Friend’s constituent can find closure on the matter, ensuring that her reputation as a foster carer and a professional is not besmirched. I shall do all I can to work with my hon. Friend to ensure that that happens. Again, I congratulate him on securing this debate. Hopefully, but after far too long, we can seek resolution.
Question put and agreed to.