Report (1st Day)
Clause 1: Health and safety at work: general duty of self-employed persons
1: Clause 1, page 1, line 6, leave out subsection (2) and insert—
“(2) After subsection (2) (which imposes a general duty with respect to health and safety on self-employed persons) insert—
“(2A) Nothing in subsection (2) shall preclude the Secretary of State from making regulations exempting self-employed persons carrying out certain activities from the provisions of subsection (2) or from specified regulations thereunder where it can be shown that their work activities pose no potential risk of harm to others.””
My Lords, in moving Amendment 1, I shall speak also to Amendment 2. The purpose of these amendments is to ensure that any changes to health and safety legislation affecting the self-employed do not stray more widely than those recommended by Professor Löfstedt and that the prescribed description approach currently in the Bill is removed. They further seek to ensure that the process for constructing and implementing regulations is fit for purpose and require them to meet certain criteria, something which has eluded government attempts so far.
In his report, Reclaiming Health and Safety for All, Professor Löfstedt recommended that those self-employed whose activities posed no potential risk of harm to others should be exempt from the general duties of the Health and Safety at Work etc. Act 1974. This is notwithstanding that it is generally acknowledged, including by the professor himself, that the current duties do not overburden the self-employed and that any requirements in such situations would be minimal in terms of time, cost and enforcement effort by the HSE and local authorities. But the Government accepted this recommendation, asserting that Europe adopted a more proportionate response on such matters and that it would remove unnecessary concerns over the perception of heavy-handed enforcement. Given the minimal benefits which would flow from implementing the recommendation, and the risk of confusion which any legislative change could engender, we and many others have argued for making no change—for the status quo—and this remains our preferred position. Nevertheless, we have to accept for the time being at least that this is not the position adopted by noble Lords in Committee.
The task as we see it now is to constrain the primary legislation and require a robust process for secondary legislation to see that the professor’s recommendation can be accommodated without the prospect of wider exemptions from health and safety legislation being adopted by default, mistake or otherwise—in other words, as the CBI recommends, going back to square one.
There have been two attempts to implement a Löfstedt approach so far, each falling short. The HSE’s original formulation was consulted on in August 2012 and, despite receiving support from only a minority of consultees, was included in the draft Deregulation Bill. It proposed exempting from general duties those who did not put others at risk at any point in the normal course of their work but specifically did not exempt those in high-risk industries. The Joint Committee reported on the large amount of evidence presented to it on this proposal and the scope for confusion that it would cause. The Government determined on a different approach, which was to bring forward a prescribed list of high-risk work activities where that group of the self-employed would not be exempt from health and safety legislation but all other self-employed people would be. This was said to make matters clear, robust and easy to understand, although that has proved to be far from the case. This approach basically turned Löfstedt on its head and although it was argued by some in Committee that he was accepting this, that is not so. I have circulated his letter on this matter to those who spoke in that debate. He said:
“The proposed Government list of dangerous jobs that would not be exempt from health and safety law is the opposite to what I proposed and it is something that I do not support. The danger with the proposed list is that self-employed individuals who are not on it will be exempt even if the jobs that these individuals do are in actual fact rather dangerous and unsafe”.
Moreover, this changed approach also runs counter to the original advice of the HSE sector experts that relying wholly on a prescriptive approach to determine exemptions would lead to unacceptable consequences. On the HSE’s own admission, the draft regulations which list the proposed inclusions would leave many excluded although involved in activities with injury rates statistically higher than the average. The suggestion that this does matter because they would carry on as at present is frankly not tenable.
The HSE consulted on the second draft regulations between 7 July and 31 August 2014 but the responses have only just been placed in the public domain, a couple of days before Report. Why so long and when will we get the Government’s response to that consultation? While consultees agree that there was some clarity in the use of definitions of work activities, most considered that overall it would be difficult for the self-employed to determine whether they were exempt. The range of criticisms and adverse comments is extensive and significant. Will the Minister tell us whether the HSE considers it safe to proceed with these proposals?
Comments on the general principles of the proposed exemption reiterated many of the earlier and familiar criticisms: the proposals are based on a misconception that health and safety regulation is unnecessary and burdensome; the proposals go well beyond Professor Löfstedt’s recommendations; a list of prescribed activities will never be fully inclusive; the self-employed will need assistance to understand the regulations and are unlikely to research complex, cross-referenced regulations to determine whether they are exempt; there is a risk that the self-employed will assume that they are exempt from the legislation; and confusion will abound when the self-employed might have duties for some activities but not others.
There were many very specific comments which illustrate the lack of precision in the descriptions of some of the 32 prescribed categories. These include, for instance, whether the inclusion for working with asbestos was sufficiently broad, clarity on the definition of diving, the complexity and detail around work activity involving chemicals, the application of the carriage of dangerous goods provisions, and whether the provision of health and social care included activities such as tattooing and skin piercing.
Overall the TUC says that the definitions are too general, too complex and simply do not reflect the nature of the work that self-employed people do. Responses from trade associations point out that the definitions are complex and will fail to achieve the simplification required. There will be additional burdens on business to communicate the requirements and educate their contractors. The CBI says:
“In short, the new exemption will be costly to implement without bringing the intended benefits. The potential business burden associated with introducing this new exemption—originally intended to reduce a burden—will be substantial”.
It calls for the Government to return to square one and do a thorough review into what the legislation should look like to achieve the Löfstedt aims. The EEF holds to its view that a prescribed list of activities can never be fully inclusive or the definitions sufficiently precise. It says that the legislation is not fit for purpose. Local authorities have pointed out that self-employed persons in low-risk activities are already not inspected because of the national local authority code. A raft of professional organisations concerned with occupational health and safety, including IOSH, RoSPA, IIRSM, Safety Groups UK, the Royal Society for Public Health and others, have all criticised the approach, saying that it will cause dangerous confusion, increasing the risk of work-related injury, illness and death.
Faced with the scale of the concerns reflected in those consultation responses, it would be foolhardy for the Government to proceed as planned. Will the Minister tell us now what the Government propose to do? If they want time to consider and need a pause, then, frankly, our amendments give them the opportunity to do so. They keep alive the Löfstedt concept but set down the rigorous tests required for it to be implemented. Having said that, we have no doubt that the right thing to do is to give it up. But if we do not amend the Bill today, we are giving the Government the green light to implement what has been exposed as deeply flawed and deeply dangerous. They must not be allowed to play fast and loose with our health and safety system. I beg to move.
My Lords, it is important to place on the record and clarify some of the misunderstandings that took place in Committee. At the beginning of the discussions on the Bill, the Government prayed in aid, with a great deal of enthusiasm, the recommendations of Professor Löfstedt, who is professor of risk management at King’s College London. That enthusiasm became less and less as Members of the Committee challenged some of the statements contained in the proposals. Certainly, my noble friend Lord McKenzie challenged them on a number of occasions.
In Committee on 21 October, the noble Lord, Lord Curry of Kirkharle, said:
“I was in contact with Professor Löfstedt in the past week. He has seen the wording of the Bill and appears to be very content with it”.—[Official Report, 21/10/14; col. 568.]
It is important that we set the record straight: Professor Löfstedt is not in the least bit happy. My noble friend has already quoted from his letter. To save time, I will quote a small additional bit. He says that,
“the proposed Government list may increase injury and death in the workplace something that I never intended with my original recommendation”.
It is very serious that there has been a misunderstanding about the authoritative recommendations that were claimed to be behind this proposal. I agree with my noble friend: it will increase confusion; it will add complexity to the Health and Safety at Work etc. Act; it will add burdens to the conscientious self-employed who want clarification about their obligations; and it is a charter for cowboys. I urge the House to support the amendment.
My Lords, it is very noticeable that when people such as those from the Federation of Small Businesses are asked, “Where is the evidence that more people ought to be excluded?”, they say, “It is not a question of particular evidence; it is a question of perception”. Something rings a bell in my mind when somebody says, “It is not the evidence; it is a question of perception”. As somebody once said, what about changing the perception? I think that is where we are at the moment. Indeed, that is where the Government and the employers do not want us to be—to look at the evidence.
Instead, there are lots of crocodile tears and lots of red herrings dragged across the trail. One red herring is, “They do it in Germany”. Well, they do lots of things in Germany. In the one minute I have available, I say to the Government that if they would like to start citing Germany and give us the whole employment package that they have in Germany, we on this side will vote for it. I put that proposal; perhaps the Government would like to agree to it.
Finally, there is a trend in Britain today, whether or not it is being deliberately promulgated—that makes it sound like some sort of conspiracy theory, but I do not go in for conspiracy theories because we are often at the receiving end of them. But if there has been an increase in self-employment, it is hard to reconcile with the idea that it is very difficult to be self-employed now because of all the red tape. Anyway, on one side there has been a vast increase in self-employment, if we can get our brains around that. On the other side, there are a number of people who do not have contracts of employment. That is partly a question of whether, ex hypothesi, in a static labour market there are a greater number of people in work. But on the employed side of the labour market, which is the vast majority, the quality of the contracts of employment is being reduced bit by bit.
One of the great advances since the war has been to improve the quality and content of the contract of employment. If you were to interview a random group of self-employed people and a random group of people with good contracts of employment, a lot of people who are self-employed would turn out to have some sort of relation to the employed but with a subcontract in the middle whereby they are not really self-employed—they are on something which does not give them a contract of employment with four weeks paid holiday and all the rest of it. Will the Minister therefore comment on the fact that it is very desirable that the good-quality contract of employment terms are a benchmark for the self-employed, and that this is not a further means of endeavouring gradually to wear away a benchmark on which we in this country have always been able to rely?
My Lords, the Health and Safety at Work etc. Act 1974 transformed the safety landscape for all people at work. For the first time, it told everyone at work, “You are responsible for safety”. The Government’s proposals concerning the self-employed are a step backwards, telling some people, “Don’t worry, you are not responsible if someone gets hurt”.
Those who know the world of work are telling the Government that they have got it wrong. The Government have told them that the cost of regulation will be reduced, but they know that the cost of regulation pales into insignificance against the cost of accidents. The CBI and the EEF know it and, as my noble friend Lord McKenzie said, have both told the Government that the self-employed exemption in its current form is not fit for purpose.
What will be the cost of ignoring the significant warning of Professor Löfstedt? He is worth quoting, because he has analysed the possibilities. He has said:
“The danger with the proposed list is that self-employed individuals who are not on it will be exempt even if the jobs that these individuals do are in actual fact rather dangerous and unsafe. In other words the proposed Government list may increase injury and death in the workplace”.
The Government proposals, in their present form, will carry a cost: not in money, but in lives. This amendment will help to prevent that.
My Lords, I should declare an interest as being the chairman of the United Kingdom Accreditation Service, because it is from that perspective that I want to speak to the noble Lord’s amendment. It is by virtue of that role that I am familiar with the intentions of Professor Löfstedt when he compiled his report and with the concerns that lie behind the amendment. Equally, I am familiar also with the thinking that has gone into the way in which the Bill, and particularly this clause, are drafted.
I firmly believe that accredited certification of occupational health and safety management systems could support almost every scenario. It could certainly support and benefit the status quo; it could certainly support and benefit the approach that Professor Löfstedt has proposed, which is one of positive exclusions. Equally, and probably importantly in terms of the House’s consideration of this amendment, it could also support and benefit the clause in terms of positive inclusions.
Accredited certification can provide the regulator with an authoritative assurance that the businesses concerned have good health and safety policies, procedures and controls in place. It allows organisations to earn recognition for their efforts to manage their own health and safety obligations. Accredited certification could act as a safety net for those industries, businesses and professions which may be excluded from the Act. In other words, if in doubt whether a business, profession or an industry should be within the ambit of the Act, one can safely err on the side of deregulation by putting in place a system of voluntary or mandatory accredited certification to underpin safety standards.
The accredited certification would be carried out against the recognised standard for occupational health and safety management—that is, BS OHSAS 18001—which is soon to become more formally recognised by the international standards organisation through its adoption as ISO 45001. The certification bodies would need to be accredited by the United Kingdom Accreditation Service, ensuring their competence to carry out the certification.
There may be concerns that a management system approach may not be suitable for very small businesses. However, the standard is flexible enough to be adopted by all sizes of organisation. Alternatively, size limits could be introduced whereby all businesses in a sector above a certain threshold would be required to comply.
Certification to BS OHSAS 18001 is now widely available in the United Kingdom. Some 40 certification bodies are accredited by the United Kingdom Accreditation Service to offer certification to the standard. It is estimated that more than 10,000 businesses are now certified as complying with the standard, and that figure is growing.
BS OHSAS 18001 was developed by a range of organisations specialising in health and safety management, certification and end-user businesses. It was co-ordinated by the British Standards Institution, the national standards body for the UK. The standard would bring immediate benefit in workplace safety to the status quo. It would bring benefit to the approach that Professor Löfstedt proposed. Most importantly, it would certainly benefit and support Clause 1.
My Lords, this clause has emerged out of a series of consultations during the past four years. As the noble Lord, Lord McKenzie, remarked in his very detailed and constructive speech, the first consultation took place in 2012 on the principle that there should be a list of undertakings prescribed in regulations that are excluded from health and safety law. That did not find large favour in the consultation. The most recent consultation has not found very large favour for the Government’s current proposals. We are finding it difficult to satisfy all those concerned. I note that the noble Lord did not quote the Federation of Small Businesses’ response to the current consultation, which is a good deal more favourable that those that he did quote. On the question of the current consultation, it took a certain amount of time; we had a lot of responses to the consultation and we had to put them all together. It has now been published and the Government will, of course, consult and consider what their response should be. We very much hope that we will have time to consult further and return to this issue before we get to Third Reading.
The Health and Safety Executive has, of course, been actively engaged in this entire process over the last four years; I stress that it is very much part of the process of policy-making. We all share the underlying purpose, which is as it should be, as the noble Lord, Lord McKenzie, suggested in his speech, a lessening of health and safety burdens on those self-employed who are not at risk and are highly unlikely to put others at risk from their activities. That is what Professor Löfstedt suggested in his earlier report; it is part of the German system. To the noble Lord, Lord Lea, I say in passing that there are many parts of the German system of employment, training and employment protection that we would very much like to take on board. I am happy that this Government have indeed taken us a good deal further down the road towards apprenticeship training than their predecessors. There are other aspects—including some aspects of the Meister system, now that I have begun to understand that—which are clearly restrictions on trade and which we do not wish to follow. However, one cannot ever take an entire model from one country and put it into another.
There are other areas over which I have spent some time arguing with German policymakers over the years; the idea that, just because a system has worked since the 14th century, one should maintain it at all costs, is not always an idea that one wishes to promote. I was one of those involved in the British side of the argument over the Reinheitsgebot, which the noble Lord might remember. It was to do with the purity of beer and was passed in about 1351. However, we will leave the German dimension aside and return to the current issue. We apologise that the consultation document has only just appeared. The Government will respond as soon as we are ready and we hope that we will have more to say on this before we reach Third Reading.
The issue at stake is which side one takes in reducing the burden, and whether to make a list of those, as this proposal suggests, whose activities are at greater risk of putting others in harm’s way from the way they are conducted—those involved in construction or a range of other activities that involve interaction with others. Professor Löfstedt prefers a system in which there is only a prescribed list of those activities that are exempted from the current health and safety regulations. The argument that we have been having through two series of consultation has been about how one defines “low risk” and “high risk”. This is an area, after all, on which one can spend a great deal of time, having a large number of consultations without meeting consensus. I regret that we have not yet reached an entire consensus.
The noble Lord’s first proposed amendment reverses the effect of Clause 1, so that all self-employed persons continue to owe a duty under Section 3(2) of the Health and Safety at Work etc. Act unless regulations are made to exempt them from that law, whereas the Government’s proposals exempt them unless they are on another prescribed list. This approach, we argue, would increase confusion for the self-employed because there are a plethora of low-risk activities that would need to be captured to ensure that the regulations were as extensive as possible. Furthermore, each of these activities would need to be appropriately and carefully defined. This could create further uncertainty in the law and make it unwieldy for the self-employed to comply with. This is part of what the Federation of Small Business was saying in its response to the current consultation.
The noble Lord’s second amendment seeks to impose various conditions upon the making of regulations before self-employed persons can be exempt from Section 3(2) of the Health and Safety at Work etc. Act 1974. The amendment would require an independent review to be conducted and considered by both Houses before the regulations can be brought into force. We do not consider this necessary. The Government amended Clause 1 in Committee so that regulations made under the power that it creates are subject to the affirmative resolution procedure before they come into force. This provides Parliament with an adequate opportunity to scrutinise and debate the list of prescribed activities to ensure they are fit for purpose.
The conditions which the noble Lord seeks to impose on the regulations can already be considered by both Houses as part of the affirmative resolution procedure if, indeed, Parliament considers those factors to be relevant. Additionally, the proposed prescribing regulations contain a commitment for their review and for a report to be published after five years of making them. That report will seek to assess the extent to which the intended objectives of the proposed change have been met. Given the safeguards already in place, the Government do not consider that a further independent review of this alternative proposal would be of any benefit.
It is imperative that self-employed persons, especially those involved in conducting high-risk activities, understand when health and safety law will continue to apply to them after this legislative amendment is made. For the reasons I have already given, we do not consider the noble Lord’s amendments to be the best way of achieving that. They are unnecessary and overly burdensome. After all, the purpose of the Bill is to reduce unnecessary burdens. The clearest and simplest way to achieve this change is by having a list of prescribed high-risk undertakings together with guidance produced by the Health and Safety Executive which will make it clear and unambiguous to those who continue to owe a duty under the Health and Safety at Work etc. Act.
I repeat: the Government are currently considering the comments just received following the 2014 consultation on the draft regulations already produced. These raise a number of important issues which the Government will consider further before Third Reading. In that context, I hope the noble Lord will feel able to withdraw his amendment.
My Lords, I thank noble Lords who contributed to this short debate. My noble friend Lady Donaghy put the matter straight about Professor Löfstedt’s views. My noble friend Lord Lea spoke about the danger of building proposals on perceptions rather than proper evidence. I thank my noble friend Lord Jordan for providing the historical context of health and safety, and the cost when it goes wrong. The noble Earl, Lord Lindsay, broadened the debate a bit around the accreditation processes. I am sure we would have scope for a fuller debate around that issue. As I understand it, he argued that its application could be to an inclusive, exclusive or status quo proposition.
I understand that the Government are finding it difficult to get this right. That is why two rounds of consultation have not succeeded in doing that. We argue, given the complexities and difficulties in trying to get it right, that leaving it as it is would be the far better option.
I should point out that the first consultation did not provide much support for the noble Lord’s amendment. The second consultation criticised the Government. I merely remark that we are struggling in this area. That is, of course, why we are considering it further.
I am not sure that the noble Lord’s assertion about the first consultation not supporting our position is right. It does not necessarily depend upon a prescribed list of any sort. The key point about our amendments is that they are linked to clear criteria that have to be satisfied before any change could be introduced. There are criteria around not increasing burdens and bureaucracy, representing demonstrable improvement on existing legislative requirements, and clarity and precision as to whom they apply. The two amendments sit together. The consultation that has just been gone through proves how difficult it is to have a list of high-risk activities. I struggle to understand what changes the Government could make to that process or outcome to make it fit for purpose. That is not just my view; it is the view of a raft of people who know health and safety and business far better than I do, the CBI included.
Can I specifically understand where the Government are on this? The Minister said that he was hopeful the Government would be able to come forward with something before Third Reading. I am not quite sure what that something is. Will it be a policy statement, revised draft regulations or further amendments to Clause 1? I am not sure quite what he has in mind. His answer will determine what we do with this amendment. In any event, whatever the Minister is going to bring back, I hope that it can be agreed now that this would not preclude a further round of this at Third Reading under the provisions in the Companion. Can the Minister say something further about what he hopes to bring back before Report?
I only had a chance to read the consultation document on Friday and we are at a very early stage on that so it is very difficult to say precisely what we will conclude. I merely wish to say in the most constructive way possible that we are considering our response. We have three weeks before Third Reading and that gives us some time to consider further.
I am grateful for that—and I meant Third Reading, of course, not Report. Is the noble Lord saying that we will have a chance possibly for some discussions in the interim and, if not, a chance to consider this further when we get to Third Reading? It is quite important that we have that commitment from the Government on the record, whichever stage it reaches.
My Lords, of course I am very happy to discuss this between now and Third Reading. I am not in a position to say what the Government will conclude from their consideration of the current consultation document because we are at a very early stage, but I am very happy to promise to consult further.
My Lords, I am not quite sure why the Government are so pressed on this matter because that consultation finished some five months ago. I note that the Minister has been less than clear on whether, if we are not satisfied with what happens in the interim, we would be able to return with amendments at Third Reading. It would be helpful if the Minister could give me an assurance that he would facilitate that; if he cannot, we have another decision to make.
I recognise what the noble Lord is asking me to do. At this stage, I am afraid I cannot give him the absolute assurance he requires, but I am certainly willing to have further consultations, and the Government will be very happy to carry on on that basis.
The Minister is not making it easy. I know it is not his job to make it easy. We are trying to see a way forward to avoid voting prematurely, in a sense, if the issue has not been completed. If the Minister is saying that he would be happy for us to come back at Third Reading with a proposition, if we need it, depending on what the Government do in the mean time, that would be helpful. If he is saying that he thinks that the processes in the Companion would preclude that, then we have another decision to make.
Amendment 1 withdrawn.
Amendment 2 not moved.
Clause 2: Removal of employment tribunals’ power to make wider recommendations
3: Clause 2, page 2, leave out lines 15 to 21 and insert “omit from “reducing” to the end of subsection (3) and insert “an adverse effect on the complainant, or a serious adverse effect on any other person, of any matter to which the complaint relates.””
My Lords, I shall move Amendment 3—which is in my name and the names of the noble Lords, Lord Lester and Lord Hunt, and the noble Baroness, Lady Thornton—in the absence and at the request of the noble Lord, Lord Lester, who is currently recovering from heart surgery. I am glad to be able to report that he is doing well, but there would be no better “Get well soon” message that we could send him than to accept his amendment today.
Clause 2 amends Section 124 of the Equality Act 2010 to remove the power of employment tribunals to make recommendations to employers in cases where there has been a finding of unlawful discrimination, harassment or victimisation but the claimant no longer works for the employer. These are commonly referred to as “wider recommendations”. Its effect will be that, in future, an employment tribunal will be able to make a recommendation aimed at preventing or reducing the adverse effect of the discrimination on only the claimant in the particular case. In 2013, a BIS survey of employment tribunal applications found that only 16% of claimants in discrimination claims were still working for the employer against which they made their claim. This means that the effect of Clause 2 will be that in 84% of discrimination cases the employment tribunal will no longer have power to make recommendations to employers to take steps to improve their practices to avoid discriminating against other employees. This will be a significant reduction in the powers of employment tribunals.
Amendment 3 would remove the provision in the Bill which takes this power away from tribunals, thus preserving employment tribunals’ current power to make wider recommendations following a finding of unlawful discrimination. The power to make wider recommendations is of strategic importance for employees and employers. So far as employees are concerned, even when, as in the great majority of discrimination cases, the employment relationship has broken down and the employee has left the employer’s employment, they can help prevent or reduce future discrimination and are an effective way of tackling systemic issues and practices. So far as employers are concerned, recommendations are an important way of helping employers who have discriminated to improve their practice. An employment tribunal hears evidence about the circumstances in which the unlawful discrimination occurred and is thus well placed to identify steps the employer can take to rectify any discriminatory practices. Recommendations also offer an important means by which employers can learn from their mistakes and help avoid future discrimination claims.
The power to make wider recommendations is criticised on four grounds: first, that they impose a burden on employers; secondly, that the power is little used; thirdly, that there is no evidence that wider recommendations are effective in changing employers’ practices; and, fourthly, that there is no means of enforcing wider recommendations.
As regards burden, the impact analysis attached to the Government’s consultation on reform of enforcement provisions in discrimination cases suggested that this provision, when operating as expected, will affect only between 0% and 3% of employment tribunal cases, which, it suggests, is likely to result in 17 cases a year. It is hard to maintain that this will constitute an undue burden on employers and business. Moreover, by limiting the cases in which wider recommendations could be made to those where the discrimination, harassment or victimisation has a serious adverse effect on persons other than the person bringing the claim, Amendment 3 addresses criticisms that the wider recommendations power imposes a disproportionate burden on business.
On the point that the power is little used, perhaps it is too early to tell, as it has existed only since 2010. However, on the basis of a review of over 400 employment tribunal judgments issued between December 2012 and September 2014, the Equality and Human Rights Commission concluded:
“Given the benefits to employers and employees which can result from wider recommendations, concerns that the power is little used should be addressed by encouraging employment tribunals to actively consider whether a wider recommendation should be made … not by removing the power”,
As regards effectiveness, recommendations mainly concern the provision of training for managers and a review of policies or procedures. I might draw attention to a number of cases, but in order not to detain your Lordships too long I will mention just a couple. One case concerned where a disabled woman was denied a reasonable adjustment that should have been made for her. The employment tribunal ordered that within six months,
“line managers and human resources are to receive adequate training on understanding and implementing the Respondent’s disability leave policy and to ensure that the policy is properly communicated to employees as is appropriate in the circumstances”.
In another case, the Ministry of Defence was found liable for both direct and indirect discrimination in its handling of the promotion prospects of an RAF group captain. The employment tribunal commented that it was shocked that senior personnel were not fully competent in, nor apparently had they been trained on, codes of practice in respect of the Equality Act or the predecessor legislation. The tribunal made a number of recommendations including: first, that all personnel involved in promotion and recruitment should have training in equality and diversity as set out in the Equality Act and the code of practice; secondly, that decisions of the appointments and promotions board should be recorded in writing, with reasons clearly explained and these should be retained for at least 12 months; and, thirdly, that the resolution of the service complaints procedure should not be unilaterally suspended pending the outcome of an employment tribunal complaint. I submit that those are not inappropriate recommendations for an employment tribunal to make with a view to improving the employment practice of the employers with whom it is concerned, and that the effectiveness of its decision would be substantially diminished if it did not have the power to make such recommendations.
On enforcement, it is perfectly true that the employment tribunal does not have power directly to enforce the carrying out of wider recommendations. However, the Equality and Human Rights Commission reviews all employment tribunal cases where there have been findings against employers, prioritises cases where there have been wider recommendations and works with employers to secure the implementation of such recommendations.
Finally, it must be said that the Government’s approach on these matters is not entirely consistent. From 1 October 2014, the Equality Act 2010 (Equal Pay Audits) Regulations 2014 require an employment tribunal to order an employer who loses an equal pay claim to carry out an equal pay audit unless specified exemptions apply. These audits require, among other things, that employers develop an action plan, with a view to ensuring that they do not fall foul of equal pay policies in the future. I submit that this is the better approach, the right approach and the approach that should be similarly followed with regard to wider recommendations. Precisely the same considerations apply, and it is hard to see why tribunals should not have the sort of powers in relation to the making of wider recommendations that they have in relation to the ordering of equal pay audits.
This matter was considered in Committee when an amendment to delete Clause 2 entirely was judged an amendment too far and was rejected. However, I submit that the more surgically crafted amendment of the noble Lord, Lord Lester, deals with the issue that we are considering in a more proportionate way and, as such, is deserving of your Lordships’ approval. I beg to move.
My Lords, I declare my interest as vice-chair of the All-Party Parliamentary Group on Equalities and the other interests recorded in the register. I am sure that the whole House will join the noble Lord, Lord Low of Dalston, in sending our very best wishes to my noble friend Lord Lester of Herne Hill as he recovers from surgery. My thanks are redoubled because my participation in this debate was demanded by my noble friend, who pointed out to me what I had said in the debate on the Equality Bill in 2010. Some of your Lordships may wish that their words were not so remembered, but the encyclopaedic mind of my noble friend Lord Lester suddenly pointed out to me—in these words, I think—that, “Our Government are doing something the opposite of which you argued so forcefully in 2010”. He reminded me that I had urged then that,
“not only should due regard be paid to eliminating discrimination but that there should be a much more proactive element”.—[Official Report, 27/1/10; col. 1492.]
I spoke on what is now section 124 of the Equality Act 2010, when, as shadow Chancellor of the Duchy of Lancaster, I pointed out the deficiencies in the then clause.
In many ways, the noble Lord, Lord Low of Dalston, has just repeated what I felt was a brilliant summary of the criticism of Clause 124, expressed by both government and business representatives. He gave four telling points. Against that background, I can well understand why my noble friend wishes to remove the power of employment tribunals to make recommendations to employers and other respondents in cases where there has been a finding of unlawful discrimination, harassment or victimisation but where the claimant no longer works for the employer.
There is a better way, which I tried to suggest at the time to the Labour Government, but, sadly, they refused to listen on that occasion; I hope that the Opposition are listening carefully now. We need to retain but clarify the power in Section 124. I very much hope that noble Lords will agree that there is a need for reform rather than abolition. Those are the circumstances in which I put my name to the amendment tabled by my noble friend Lord Lester of Herne Hill.
There are, however, problems. Undoubtedly, this was discovered by the then Labour Government. I think that the noble Baroness, Lady Royall, dealt with the matter from the Government Benches at that stage. As the equality and diversity commission has pointed out, this amendment could lead to a tribunal having to hear additional evidence and argument in order to decide whether the adverse effect of the discrimination on those other than the employee bringing the case was serious. I have no wish to cause such complications.
My noble friend has already proved himself to be so amenable that I think that the noble Lord, Lord McKenzie, has gone away to recover, as I cannot see him in the Chamber. My noble friend, assisted by the clerks—who I hope might assist us once again—bent over backwards in trying to find out how Section 124 could be further improved, particularly to avoid the risk I mentioned and to address the criticisms—those four key issues—which have been so clearly set out. The noble Lord, Lord Low of Dalston, sought to deal with them, but the criticisms remain. They concern the way in which the wider recommendations power has been used to date and its effect on businesses. One way to tackle the issue would be to limit the power of the tribunal so that it cannot recommend a respondent to take steps which are disproportionate. The commission has suggested that that might be a way forward. It also recommends that Section 124 be improved by making a failure to comply without reasonable excuse an unlawful act for the purposes of the Equality Act 2006.
In previous debates, I have urged that a clear enforcement mechanism should be introduced. I repeat what I said in the Chamber on a previous occasion, as these words were repeated to me by the noble Lord, Lord Lester. Speaking from the Conservative Benches, I said:
“Of course we believe that the provisions must be enforceable. If an organisation has been acting illegally and subverting the equality provisions, it should have to obey the recommendations”.—[Official Report, 27/1/2010; col. 1470.]
Of course, the Government did not pay attention. The noble Baroness, Lady Royall, said that it would be inappropriate to introduce enforcement powers. However, we have to think about introducing to or leaving on the statute book a power with no enforcement mechanism at all. I hope, therefore, that my noble friend will come forward with the answer. I can hardly wait to hear his speech.
My Lords, first, I endorse very warmly the amendment moved by the noble Lord, Lord Low, and supported by the noble Lord, Lord Hunt. They make a powerful case. I hope that, after also hearing from my noble friend Lady Thornton, the Minister will be persuaded to give some ground, as what they say is very compelling indeed. However, this may be a little academic given the fact that there has been an 80% reduction in the number of cases brought to employment tribunals since the charges were imposed by the Government last year. It seems to me that we are seeing the whole system being rather rapidly eroded. I hope that the Minister, in reporting back to his colleagues about the outcome of this debate, whatever it may be, will invite them to look again at the status of employment tribunals, and the great reduction in cases being brought, to see whether they intend to allow this nearly 50 year-old provision to wither on the vine, because that is the impression that is being widely—and, I think, rightly—inferred from the history of what has happened over the past year or 18 months.
My Lords, it is very nice to be back discussing equalities matters opposite the noble Lord, Lord Hunt. He did a brilliant job helping to put the Equality Act 2010 on the statute book. We were very pleased to work with him at that time. I join the noble Lords, Lord Low and Lord Hunt, in wishing the noble Lord, Lord Lester, better and well for the future.
The noble Lords, Lord Low and Lord Hunt, have explained perfectly well what the issue is: in future an employment tribunal would only be able to make a recommendation aimed at preventing or reducing the adverse effect of the discrimination on the claimant in the case. That would mean that the potential to reduce discrimination against the employer’s wider workforce would be lost in the majority of cases. The EHRC has powers of enforcement on employment tribunal decisions. It was very clear on this in its evidence to the Joint Committee scrutinising the Bill. It said that it strongly disagreed,
“with the proposal to remove employment tribunals’ wider recommendation making powers”.
It said that,
“it is too early to judge the effectiveness of the power which has been in force only over the last three years. The available evidence suggests that the power has been used proportionately, and that there are important clear benefits for all concerned (including employers and employees) in exercising the power to clarify necessary remedial action, and this helps to prevent further discrimination and to reduce litigation”.
This power has not been in place long enough for evidence to suggest that it is either a burden on business or not effective enough. Those are both arguments that the Minister has used in the course of these discussions.
On these Benches, we regard these amendments as very important. We believe that we have to continue to address the concern that the law should be effective not only in providing redress for victims of unlawful discrimination, harassment and victimisation, but in preventing those unlawful acts from occurring, and in helping employers to comply with their duties. I will give one example that illustrates very well the importance of this law. Last year, the Metropolitan Police had to pay a female firearms officer who featured in Scotland Yard’s Olympic poster campaign damages of £37,000. Those damages were levied by an employment tribunal after she was bullied and victimised for being black. The tribunal branded Scotland Yard as “malicious” and “vindictive” in its treatment of Ms Howard and told the Met to review all internal complaints of discrimination made since 2009. I stress that. I have no idea whether the Met has carried out and complied with that recommendation. I hope that it has and that it is taking remedial action, because it was heavily criticised at the time.
The point is that the tribunal’s power to make these wider recommendations is under threat from the Deregulation Bill. If the Minister wants to take this amendment away and come back that is fine with us. But this is very important and I think that it is the right thing to do.
My Lords, the Minister is not going to take this amendment away and come back. It is a very kind offer to make. We had an extensive discussion on this clause in Committee. The Committee voted by quite a substantial majority to retain it. What we have here is an amendment that is offered as a compromise but which seems to the Government to make the situation a good deal more complicated.
What we have in Clause 2 at the moment is a straightforward repeal of the requirement on tribunals to offer non-enforceable recommendations on wider issues. It does not reduce or abolish the right of tribunals to offer comments on particular cases and it certainly does not lower what they can do in this overall area. It does, however, simplify the position. By contrast, the amendment offered by the noble Lords, Lord Lester and Lord Hunt, would lead, we argue, to a more complicated system for tribunal recommendations. It would reduce the protection for claimants and set up more complex arrangements for tribunals. It would allow a tribunal to make a recommendation if it thought that it would completely obviate—not just reduce—the adverse effects evident from the case. That is a much higher standard of proof for the complainant than we require under the present system or that would be required following the repeal.
I will comment briefly on the general issue from the Equality Act. This was intended by the Government to be a light-touch element in the very large number of tribunal cases. I understand that there have been around 1 million employment tribunal cases in total, of which around 10%—100,000—were discrimination cases. Some 3,000 of these discrimination cases were successful and in 40 of them there were recommendations. Therefore, we are talking about a very small number. The range of recommendations includes the question of equal pay where there is a requirement for equal pay audits, which is enforceable. An equal pay audit ordered by an employment tribunal is a precise and mandatory requirement with sanctions for non-compliance to advance equal pay in the small number of organisations where a breach of equal pay law has been found and it is also a direct transparency measure as it has to be published.
By contrast, wider recommendations in discrimination cases are effectively discretionary for employers and do not have to be made where an employer loses a discrimination case. Wider recommendations are generally broad-brush proposals; for example, a recommendation that human resources staff undergo equalities awareness training. These are non-enforceable recommendations about training, company culture or a range of other areas that are made by tribunals that may not themselves be very closely aware of the culture of the companies concerned. They are recommendations from the outside.
The noble Lord, Lord Hunt, suggested that, although the amendment is in some ways defective, he would like the Government to take it away and improve it. The amendment, even if modified as the noble Lord proposes, would, in our opinion, result in a quite complex and heavy set of requirements. These could mean, for example, that tribunals might be required to consider wider recommendations in a very large number of cases while quite minor omissions by employers, such as failing to train a manager or to update a diversity statement, could become unlawful acts under equality law. I regret, therefore, that the Government have to decline the invitation to take this away and improve the quality of the amendment.
Our repeal will not prevent tribunals from making non-binding observations on employers’ practices. These could reasonably include the type of points mentioned by the noble Lord, Lord Low, in specific cases. For all employers, losing a tribunal case and having to pay compensation, which our repeal will not affect, itself concentrates employers’ minds and persuades them to learn from their mistakes. The lack of enforcement already there means that they have to take them into account.
The noble Lord, Lord Hunt of Wirral, also talked about introducing the word “proportionate” into the legislation. As someone who struggled in the EU balance of competences review to define “proportionate”, I am conscious that it opens a large door to lawyers and that it is very difficult to discover precisely what proportionality means.
The noble Lord, Lord Beecham, raised the question of the introduction of fees and I recognise that that is of course a serious point. He will in turn recognise that the Government are struggling to contain public expenditure. It is important to emphasise that the Government have been careful to ensure that fee waivers are available for people of limited means in order that they are not excluded from seeking redress in tribunals. The Government have committed to reviewing the introduction of fees, although of course it will be for the Government after the next election to take on that review. We are considering the scope and timing of the review and will bring forward our plans in due course.
I hope that that provides sufficient information to persuade the noble Lord, Lord Low, to withdraw the amendment. The House did support the Government’s repeal proposal at Committee stage last autumn and I stress that we proposed a straightforward repeal of an unenforceable power that creates a perception of burden and unfairness.
My Lords, I am grateful to the Minister for his reply and I am grateful to all those who have spoken, especially to the noble Lord, Lord Hunt of Wirral, who I thought went out of his way to suggest ways in which there might be a meeting of minds between the proposers of the amendment and the Government. I am sorry that the Minister is not prepared to respond more flexibly to the invitation from the noble Lord, Lord Hunt, to be flexible, which I am afraid does not give us a lot of room for flexibility on our part, although we might well have shown it had the Minister agreed to accede to the suggestion made by the noble Lord to make time for a further look at the amendment.
The Minister said that this is intended to be only a light-touch measure. I cannot see how more light touch it could possibly be. He gave us the statistics showing that there were 1 million tribunal cases over the period he referred to, of which 100,000 were discrimination cases. Some 3,000 of those cases were successful, and in only 40 cases were wider recommendations made. It is hard to see how this could be more light touch than that. You cannot say that the tribunals have been abusing this power.
The Minister went on to suggest that there is no need for such a power by dismissing as immaterial or unimportant the sort of cases in which it has been used. He said that it had been used in minor cases such as the failure of a company to train a manager. Well, I am not sure how much less minor it is possible to be than failing to train your managers properly. He also suggested that our amendment would make the situation worse. I cannot see that because it seeks simply to reinstate the position as arrived at in the Equality Act. It does not seek to be more draconian than that or more burdensome on employers. I think I showed in moving the amendment that it is hard to argue how the use of this power, as it has been used, constitutes a burden on business and employers.
No one in the House or even in the country is more expert on these matters than the noble Lord, Lord Lester, and I am sure that we are all extremely sorry that he is not able to be present today to give us the benefit of his wisdom. However, I am perfectly sure that he would not be moving an amendment of this kind if he did not think that it was a useful component of discrimination law and the light-touch enforcement thereof. In crafting it, the noble Lord sought to be compromising and to move a less drastic amendment than the complete removal of the clause as was attempted in Committee. This is a different approach. It is perfectly open to the House to support the amendment. It is not constrained in that matter by the discussions that took place in Committee. For all these reasons, I want to test the opinion of the House.
Clause 11: Private hire vehicles: sub-contracting
4: Clause 11, page 8, line 22, at end insert—
“(e) the person who made the booking has consented to their booking being sub-contracted to a second operator.(1A) A licensing authority may exercise all its powers over a vehicle licensed as a private hire vehicle or taxi if it is operating in their area, even if the licence was issued by another licensing authority.”
My Lords, these two amendments are both modest and simple. They concern consumer rights and customer safety. The right is that of the person booking a cab to know who will be turning up, whether it is the person whom they expect or someone else, that it is done with their knowledge and permission, and that if there is subcontracting, there is an audit trail of it. I would be grateful if the Minister could explain how many subcontracts might take place in one order for a cab and how that might be recorded.
The amendments seek to mitigate the risk of subcontracting by requiring the consent of the hirer before a booking can be passed on. They also propose allowing a licensing authority to exercise its powers over a licensed private hire vehicle or taxi operating in its area, even if the licence was issued by another licensing authority.
We would have preferred the Government not to have proceeded at all with these clauses. There is still time for them to withdraw them, do the sensible thing and wait until the Law Commission’s full report can be taken forward instead of the pick and mix approach, which we believe is not based on what is safe and what is best for customers. We believe that customer safety could be undermined as, currently, only the licensing officers from the licensing authority where a vehicle and driver are registered have the power to take enforcement action.
In Committee, the Minister suggested that these Benches were against reform. That is not so. We are very much in favour of accessibility. More taxis being available for everybody is a good thing, particularly for those who are disabled. It is about how that is done. We on these Benches are not alone in our worries. Indeed, the Secretary of State for Transport said on the radio over the weekend:
“One of the things the Government has done is ask the Law Commission to look at the whole issue of licensing taxis and it is something that they have reported to us on and the Government are due to respond shortly. It will probably need, will need, almost certainly need primary legislation”.
The Minister for Transport, Claire Perry MP, held a seminar on increasing safety for women on public transport on 20 January. She said:
“The Department for Transport makes personal safety considerations a part of”—
in this case—
“all future rail franchise awards”.
We agree with her and, indeed, the Secretary of State.
Can the Minister assure the House that the same test of personal safety has been applied to these deregulatory reforms for taxis? If she cannot, I hope that she will consider accepting the amendments or bringing forward some of her own that do so. If she again prays in aid, as she did in Committee, that this is a similar regime to that which operates in London, I will ask her to consider that there were more than 111 rapes and sexual assaults between October 2011 and April 2013 where the indicated offender was a taxi or private hire driver in London. The Brighton and Hove taxi companies wrote to us and were vociferous in their opposition to this proposal. They say:
“Please can we move away from the pious, myth-making NONSENSE that the London Taxi system is the best in the world”,
and point out that it is as much in need of the reforms proposed by the Law Commission as the rest of the country. They also point out that there were three assaults in the same period in the whole of Sussex.
The Law Commission has recommended that licensing authorities have the power to enforce standards in respect of out-of-area vehicles, which would be crucial for safety. The public, particularly vulnerable passengers such as women or disabled people, may call specific operators because they feel that that operator is both reliable and safe to travel with. This reform means that the public will lose the right to choose which operator they travel with, if someone calls operator A—their preferred choice—and operator B turns up. Amendment 4 stipulates that an operator must have the consent of the person making the booking before their booking is subcontracted and that there will be cross-border reinforcement. Indeed, in a letter from the Minister in December 2014 to Bryan Roland of the National Private Hire Association, she suggested that the Government were already thinking about this matter. I do not know the outcome of that thinking, but I sincerely hope that we are pushing at an open door here.
Noble Lords may have received a brief, as I did, from the Licensed Private Hire Association, which states:
“The Suzy Lamplugh Trust, (The Safety Charity who campaigned for Licensing in London alongside the LPHCA) agreed that restrictions on the ability to subcontract were inappropriate”.
It goes on to state:
“This was agreed by Sir George Young, Minister Glenda Jackson and Dr Jenny Tonge from the main parties”.
Leaving aside the promotion of my honourable friend Glenda Jackson MP, I asked the Suzy Lamplugh Trust for its view on this matter. This is what it said to me today:
“As a trust we have no objection to the principle behind the aims of this clause”—
I agree with that—
“often a risk to the public’s personal safety is a lack of safe transport, and any measure introduced to alleviate that is welcome”.
That is absolutely right. It continues:
“However under current regulation a licensing authority does not have the enforcement powers of vehicles and drivers operating outside their licensed area. The Law Commission’s report, published after these clauses were added to the Deregulation Bill, proposed extending the enforcement powers of all licensing authorities to deal with vehicles and drivers licensed in different areas. The proposals made under Clause 12 have not been made in conjunction with the Law Commission’s recommendations and therefore do not make adequate provision to allow licensing authorities to ensure the safety and practice of their drivers. Until there is a proposal to extend these powers and to introduce and enforce a robust audit trail to ensure the ability to trace bookings and their journeys we will be unable to support the proposal”.
Taxis and minicabs are a vital part of our public transport system, They are vital for the elderly, disabled and those unable to drive, and are relied on to get young people, students and women home late at night. Councils regulate taxis and minicabs to ensure that vehicles are safe and conduct yearly checks to make sure that drivers are fit and proper to carry passengers, but we know that this system is open to abuse. In Milton Keynes, a man previously convicted of sexual assault was granted a minicab licence after a local councillor affirmed that he was of good current character. An inquiry into the child sexual exploitation in Rotherham concluded that taxis and minicabs were a major feature of sexual exploitation cases there. Ten different women and girls in the town had allegations against one firm alone.
It is blindingly obvious that there is a need for comprehensive reform of our licence, taxi and car system. This is why the Government asked the Law Commission to look at the whole area, which it has done. If the Government will not wait for the primary legislation that the Secretary of State says is needed in this area, can they at least make safeguarding women and vulnerable groups their priority in this matter, and accept the amendments or bring forward their own to achieve these objectives? I beg to move.
My Lords, it is in the knowledge of this House that I very often find myself on the same side as the noble Baroness, but on this occasion I suggest that she is wrong, because she is unbelievably out of date. A good deal in this Bill is out of date as far as what is happening to the private hire and taxi business. One would have thought, from these amendments, that modern technology had not ever entered into the world. If you travel by certain companies, which shall be nameless, you are safer than you have ever been before, because they know exactly who you are, exactly who the driver is and exactly what the route is, and they can check these things. That makes people much safer. They do that without any regulation at all, without any local authority and without any of the people who know best entering into the discussion.
It is called the market. It works extremely well and it is much safer. I just hope that my noble friend will not be moved from the current situation, except perhaps to remind those who wrote this part of the Bill that it is already out of date because the technology has moved on. That does not mean that I am not entirely supportive of it, because it is better than what went before. But these are old fashioned proposals that have been put down as amendments. They will not achieve what they suggest, and it would be good if we could be a bit more digitally savvy when we come to find a way through the clear issue that the noble Baroness has put forward, which is the real desire to protect passengers—women in particular, but not just women—from the dangers that arise. I just wish that we did not sound a bit as if we did not know what was happening in the world outside.
My Lords, I do not think that the noble Lord lives in the same world that I do, where many people are not digitally savvy. In some rural places in the north, they travel in taxis which appear out of the blue and feel extremely unsafe. I say that before saying to the noble Baroness that I hope this is not a matter of political process. I hope it is something where we think about those things which matter to this Government, which are safety and choice. I know that choice means that you have a range of options—I think that the noble Lord was indicating that we are moving towards that—but should we not wait for the Law Commission’s report, so that issues such as changes in digital technology can be taken on board and that we might recognise that the situation is not the same right across the country?
In many of my roles, I travel all over the UK in taxis. When I choose to travel by a taxi, as a consumer I expect that what I telephone for will turn up. Having worked in the vulnerable adult and child protection area for many years, I know that alternatives might turn up in which I or the child whom I want to be transported might well not be safe. We want to be absolutely sure when we make such a choice—as simple consumers, we have a right—that what we have asked for turns up at the door or we know that it is an alternative so that we can make an alternative choice.
Equally high on the agenda is safety, particularly as we have had so many situations up and down the country, and we await reviews and more inquiries about the protection of children and vulnerable adults. This is a measure where you could really make a difference and listen and look again at these issues, rather than looking at it simply as a deregulation issue.
The Minister said earlier that this legislation is about getting rid of unnecessary burdens. I absolutely agree, having worked in a number of fields where there are such unnecessary burdens, but I do not think that this proposal is either unnecessary or burdensome. It is quite straightforward that if people want to provide a service they should be licensed.
The noble Baroness mentioned the situation in Rotherham, the report on which highlighted significant concerns in relation to taxis. That is quite recent—so the world out there is not safe. We have also had reports that many disabled and elderly people find it very difficult to deal with digital technology. Where I come from, in a large rural area, the only way of travel for some disabled and elderly people to their hospital appointment or somewhere else is by taxi because the bus comes twice a week. It is not a luxury; it is an essential way of travelling. They want to know that the taxi that turns up at their door is a taxi in which they will feel safe. Even if the contractor is safe, we know the anxieties that elderly, disabled and sick people have in terms of looking after themselves. Therefore, they have to be absolutely safe.
I only hope that if we have another child abuse inquiry, or an inquiry where something has happened to a vulnerable adult—God forbid, but that is the world out there—the Government will not find themselves in difficulty because they failed to take note of these voices of caution. It is only caution, because there are ways of thinking through this matter so that we do not reduce the capacity for business but we ensure that people are safe.
My Lords, I regret that the noble Baroness, Lady Thornton, has not split this amendment into two parts, which it is quite possible to do, because I am fairly certain that a person who has made a booking would not on average ask the taxi company where the taxi was coming from. It may be that they envisage—rather like, I suspect, my noble friend Lord Deben—that, when they book a taxi online, they will get a questionnaire, one of the questions in which will be whether they consent to the taxi coming from another local authority area. That is all very well, but I live in Taunton—not Yorkshire, like the noble Baroness over there.
Breckland, I apologise: the west, shall we say.
On occasions, I use taxis. I ring up—sometimes from a train, sometimes from London—and the taxi company says, “Yes, you will have a taxi arriving at 5.03, or whatever the time is, to meet your train”. Even when I get into that taxi, I do not know whether it comes from, say, Exeter, or rather closer in Devon, which is another local authority area. Quite honestly, I do not care. However, I care about the second part of the noble Baroness’s amendment, which says:
“A licensing authority may exercise all its powers over a vehicle licensed”,
in another area. In other words, I want my taxi to be safe: I do not want the wheel to fall off, the bumper to fall off or whatever it happens to be. To that extent, I go along with proposed new subsection (1A) in Amendment 4, but I cannot go along with proposed new subsection (1)(e).
My Lords, the noble Lord, Lord Deben, in his stirring defence of the market and its role as a solution to all of the problems that occur, makes a compelling point. However, he also went on to talk about the changes that have happened because of new technology, suggesting that we therefore were safe as a consequence. We are only safer if the company holding and using that information is reputable and operates in a reputable fashion. In fact, you are opening up an enormous area of vulnerability because if somebody, for example, uses a particular firm where all this is electronically recorded, the precise movements are therefore on the record. If that firm is not responsible or, for example, does not maintain proper security, the vulnerable person is made even more vulnerable by that information being available. The noble Lord is of course right, under circumstances in which the company is reputable. There are enormous additional safeguards, because the precise route, the nature of the driver and everything else is on record; perhaps as a consumer, the person concerned has those data. However, that presupposes in the first instance that the company is reputable and has gone through an appropriate process.
I entirely agree with the noble Lord. The point I am trying to make is that the very issue he is raising is covered neither by the Bill itself, nor by the amendment. It just makes us sound as if we are out of touch with what is actually happening. We ought, perhaps, to think again—not now, but in the future—about how to bring this into line with modern technology.
My Lords, the noble Lord, in his intervention, has made precisely the point I wanted to go into—that is, because these issues are not adequately addressed, the Government therefore need to think again. There is an opportunity to think again, because the Law Commission is looking at precisely this issue at the moment, but the Government, for reasons best known to themselves, have brought forward these proposals in advance of that Law Commission consideration. Surely the sensible thing, therefore, is for the Government to withdraw all these clauses so that we can wait for the Law Commission to come forward with clauses that would no doubt meet both the free market and the technological expectations that the noble Lord, Lord Deben, has.
At the moment, we are faced with a position where the Government are actually weakening the safeguards and are not recognising the context in which private hire firms are now operating. That is neither sensible nor acceptable, particularly if, by waiting for the Law Commission, we could have a more comprehensive and suitable solution.
The whole point about the subcontracting issue is that individuals assume—maybe they are naive to do so—that they are dealing with the firm whose number they know and are related to. They do not realise that that business could be passed on to somebody else. That might meet the needs of somebody getting off a train at 5.03, but it does not necessarily meet the needs of everybody. You at least should have the right to know that that has happened or the process that has taken place. That is why these amendments are important. Actually, the best thing of all would be for the Minister, when she replies, to say that the Government understand these issues and that perhaps what they are trying to do is not quite workable, then withdraw the clauses in their entirety at Third Reading—I do not suppose she could do that today—so that we can wait for the Law Commission to look at all these issues in the round.
My Lords, I have great sympathy with what the noble Baroness, Lady Thornton, said about the need for people to feel safe in taxis, and with what the noble Lord, Lord Harris of Haringey, just said. However, I do not believe that the clauses weaken these aspects of the Bill. Clause 10 does not water down enforcement, policing or the responsibilities of local authorities. Local authorities can and do check the suitability of drivers. There is nothing to stop them sharing information with police. They do so already and they still will be able to do so. There is no change in the frequency of disclosure checks, for example.
As I said in Committee, it is worth bearing in mind that Clause 11 allows huge benefits from subcontracting for provincial taxi operators that are not available at the moment to taxis—except those in London. It allows better response times, reductions in dead mileage, subcontracting to trusted subcontractors when there is a sudden problem—in the event of a breakdown, for example—and more efficient deployment of vehicles. I gave examples in Committee of operators who must currently travel 50 miles to pick up someone to go two miles and then come all the way back again, and of vehicles that return empty from airports and hospitals, or that have to leave passengers in the lurch when there is a breakdown or accident outside their area.
All the subcontracting made possible in this clause is already possible for London. Operators are allowed to subcontract there. I do not see why it is not possible to make a level playing field. No one, not even the Suzy Lamplugh Trust or the Local Government Association, has suggested that there are peculiar problems arising in London as a result of subcontracting. Sure, there are problems in London, as elsewhere, but operators are still required to keep records so that there is an audit trail. Quite simply, it is already an offence to subcontract to an unlicensed operator. It is clear that there is an issue to be dealt with, but it is not dealt with by interfering with Clauses 10 and 11.
My Lords, I understand the good sense of legislation taking account of the modern digital world in which we live. However, in the present context, relying on that for safety and security has two major problems. One has already been mentioned, that many older people—who are among the most vulnerable—are not particularly good at this. That is a generational thing that will change but it is the reality now. Secondly, we are talking, significantly, about areas of the countryside where—we are reminded once again today—there is not adequate digital provision. To assume that every house isolated in the countryside has a proper online service so that it can book taxis in this way rather than by the old, traditional method of telephone is simply a mistake—at the moment.
For a moment, I thought your Lordships would have a very enjoyable debate with no opportunity for me to speak. Let me start by responding to the issue of why we are moving clauses ahead of our response to the Law Commission and—undoubtedly, some time in the next Parliament—primary legislation dealing with the much broader issues of the changing world of private hire and taxis. That is a huge area and there is significant work yet to be done.
There are two reasons for going early with these clauses. The first is safety. I point out to the noble Baroness, Lady Thornton, that subcontracting within a licensing district is permitted for everybody and has been for years and we know of no issues arising from it. In London 10 years ago this place and the other place agreed to subcontracting across districts to help deal with the problem of unlicensed cab drivers behaving in a criminal way and putting the public at risk. The noble Baroness, Lady Thornton, gave some numbers for sexual assaults in London but the category she described included unlicensed drivers as well as taxi drivers and licensed private hire drivers. Unlicensed drivers have been the real problem within London. Permitting subcontracting so that someone calling up a company can be assured that a car will come and get them instead of being told, “Sorry all our cars are taken”, makes them far less tempted to get into an unlicensed cab crawling along the street attempting to get their business. That was the driver behind subcontracting in London and those who talk to people with experience of this in London will recognise that it has indeed been helpful in increasing safety. However, one sexual assault is always too many: we have to be vigilant and there is a great deal more to do.
One of the reasons I support moving ahead with this is my own experience of being out in more provincial areas, calling every number I could find for local taxi firms and finding not a single car available. This happened to me when I was going to visit a friend in a nursing home in a country area. I was very glad that it was not dark, that I was not standing there with several small children and that it was not pouring with rain because I think that had an unlicensed cab come by and offered me a lift I might well have been desperate enough to take it. That is not a situation we want. This measure is largely designed to make sure that there is a car available when someone calls a reputable licensed operator.
The other thing I want to clarify—I think there is real confusion over it—is subcontracting from an operator in one district to one in another district. Each operator has to be licensed in their own district and each of them can give the job only to a driver and a vehicle that are both licensed in their same area. So if you call an operator in District A and they give the job directly to a driver, both the driver and the vehicle have to be licensed within that area as well as the operator. If Operator A were to subcontract to an operator in District B, as would be permitted under this change in legislation, then Operator B could give the job only to a driver who is also licensed in District B with a vehicle licensed in District B, so the chain of accountability remains. I want to make that clear because it seems there has been incredible confusion.
Can I just ask the Minister an honest question of clarification? In this age of technology, why can the person who has called the taxi not be told—because that is all that is being asked—that there is a different company coming and make the choice at that point that that is what they want to happen?
Let me move on to exactly that issue because it refers to the first part of Amendment 4. We looked at this very seriously because consent is attractive. First, we looked at the existing situation. As I said, subcontracting across districts in London has been going on for a decade. We have never heard—and we genuinely asked around as much as we could—of anyone complaining that a car came to get them which was not from the firm that they called. You call the Yellow cab company in your area, and a cab from Sun arrives to pick you up. We have never found any complaints that people were not asked for their consent before that happened. So the question arises: is there a problem? Again, within individual districts, subcontracting has been permitted for as long as anyone can remember. We have not had any complaints and cannot find anybody saying “I wasn’t asked before the subcontracting happened within this licensing district”.
Then we looked at the practical application. The big companies—my noble friend Lord Deben underscored this—could probably handle it quite easily. For people who go to a website or an app to book a cab, some additional lines somewhere in the terms and conditions would probably cover the consent issue—not that I have ever met anyone who has ever read the terms and conditions. The burden will fall on small companies which rely on the telephone. When we first started to look at this, I was quite hopeful that a casual question such as, “Do you mind if we need to bring in a cab from another area?”, would do, but in this day and age, to be legally secure, in effect the operator would have to read out something very like those six or seven lines you would find in the terms and conditions. I suggest that would drive everybody batty. Small companies do not have legal staff on hand and creating that and having to say that routinely every time would be an imposition, particularly when we can identify no problem.
We want to make sure that small companies have flexibility. This brings me to the second reason why we have adopted these clauses because it is particularly important. It is that these are changing times. Small players will be able to create collaborations with other companies in another district to be sure that they will have a larger pool of companies. Their reputation is on the line and the original operator is always on the line for the booking. Having that greater reach of cars gives them the ability to compete against the big boys who, I suspect, would like to see many of them out of business. I am grateful to my noble friend Lord Ridley for enumerating the many other business benefits—not running empty cars et cetera. It is particularly important for small players to have that flexibility, and it is another rationale for bringing this forward ahead of the Law Commission.
I have covered some of the reasons why we are concerned about the consent language. It appears attractive on the surface, but when we looked at it, it was becoming an impossible burden, particularly on small players. The enforcement clause raised more questions. First, it is only with regard to a vehicle. We currently have that chain of accountability—operator, licensed vehicle licence, driver licence—within the same enforcement authority, which is important. This clause deals only with the vehicle licence. It also fails to recognise the reality on the ground—I am sorry; I have forgotten which noble Lord made this point. Local authorities can delegate enforcement powers on this issue to other local authorities. With increased subcontracting, which will primarily be across the borders of neighbouring districts, we would not be at all surprised if various local authorities decide to collaborate or to delegate enforcement powers. That has some economies for them and will streamline enforcement.
At the moment, cars constantly cross district lines. It is quite possible that the car you get into is taking you shopping in another licensing district or to see Aunt Sally in another licensing district, so local authorities are very used to having to deal with the fact that cars are coming from other licensing districts and to communicating with the licensing district for enforcement purposes. Therefore they have experience in this area and deal with it on a regular basis. I therefore suggest that we do not have a particular problem here, and that what has been presented is a rather clear and narrow power that, frankly, would not contribute very much to effective enforcement.
The noble Baroness keeps saying that there is no problem here. Why then, for example, do the student unions all say that their agreements with local taxi companies will be undermined and that they have problems? Those campus universities have huge problems with taxi companies going from one district to another and with the accountability of those companies. The noble Baroness knows that, because she will have received the same information that I did from Warwick, Coventry and Huddersfield.
I point out to the noble Baroness that she is describing a situation that exists today. I cannot answer to the individual situations, but it may well be that with a subcontracting arrangement in place it would be possible to have more secure arrangements for these various universities, which presently go to operators that cannot do the subcontracting that I have just described. However, there are many misconceptions about the relatively small changes that we are making and the benefits that they offer.
These student unions are concerned about the safety of their students—that is their issue. The noble Baroness is dismissing those concerns and the safety issues that noble Lords have been asking her about. She needs to address the issues around safety here.
I absolutely accept that safety has to be the primary issue. I make the argument that you could see these measures as only enhancing safety by making licensed vehicles or drivers more available to a wider range of people, through subcontracting from one operator to another. This system was adopted in London because it added to the safety of the travelling public. We have not allowed the rest of the country to have that benefit, and it is time we did. Having read much of the material that has come to me, I agree that there are many misconceptions around the clauses we have brought forward. However, it is important for us to look at the reality and make sure that we make these relatively small changes. Eventually there will be a major piece of primary legislation, so it is important that we do not pursue the amendments that the noble Baroness has brought forward and that we understand the benefits that will come from the clauses that have been proposed to provide for subcontracting across districts in the private hire industry.
Before the noble Baroness sits down, can she just explain to the House clearly why the Government are pressing forward with these changes rather than waiting for the report from the Law Commission? If her argument is that that will be long delayed, can she tell us for how long it will be delayed?
I thought that I had explained that, but I will repeat it very quickly. Obviously, we are working on our response to the Law Commission. I have listened to this House today, and this will be a complex piece of legislation in the very much changing world of private hire and taxis, so it seems wrong to deny the public the benefits of simple changes that could be passed now. As I say, they both enhance safety and give flexibility and opportunity, particularly to the small players, who must live day to day. I see no reason not to take advantage of that possibility.
I thank noble Lords for this debate and for all their contributions. I agree with the noble Lord, Lord Deben, that technology has moved on—he is absolutely correct. However, the principle of safeguarding people is one that you would want to operate whatever the technology or lack of technology that is being used to order your taxi, whether you do that online or not. I thank the noble Baroness, Lady Howarth, for her contributions.
I need to be quite clear with the Minister that I have not said that we are opposed to flexibility. The Minister keeps putting this sally up, that we are opposed to the availability of more taxis. That is not the case; I have now said it twice on the record. In these amendments, we seek to ensure that people have a choice. The Minister dismisses the idea of consent in a very cavalier fashion; she says, in effect, “Consent is attractive, but we have looked at it and it is too complicated, so we are not going to go down that road”. Well, frankly, I do not think that is good enough. It is very important that people give consent as to whose cab they get into and when.
The Minister is right that local taxi companies will combine and provide a better service, and we want them to do so, but we need to ensure that it is done with the safeguarding of the travelling public in mind. That is what these very small and very modest amendments seek to do. I say to the noble Viscount, Lord Ridley, that we are not seeking to oppose these clauses. In fact, we are silent about Clause 10. We are seeking to make modest amendments to Clause 11 that address the issues of customer choice and the travelling public’s safety.
The Minister said that there were a lot of misconceptions out there. Well, frankly, if people are worried and have misconceptions, it is the Government’s job to put those to rest, and the Government have failed to do that. They have failed to make the student unions believe that their students will be safe with this legislation and failed to convince the Suzy Lamplugh Trust that this deregulation will make women safer. At the moment, the only things before the House are my amendments, which seek to do those things. I wish to test the opinion of the House.
Amendment 5 not moved.
Clause 17: Authorisation of insolvency practitioners
6: Clause 17, page 12, leave out line 6
My Lords, the Government’s new partial authorisation for insolvency practitioners would split the existing regulation of this quite tiny profession—some 1,350 who take appointments, according to the noble and learned Lord the Minister—into three. There would be company-only and individual-only insolvency practitioners, and some of course doing both. On the basis of no evidence, the Government have decided to dilute this very small but specialist profession. Amendment 6 would preclude the development of corporate-only licences.
The Government admitted to the insolvency practitioners’ professional body, R3, that Clause 17 was not being introduced to “fix a problem”. Indeed, the Government cited no evidence of undercapacity in the market, nor of complaints about the current system. Virtually all the insolvency practitioners consulted, and their major representatives, said that the proposal was a bad idea. The ICAEW’s consultation evidenced no support for the partial qualification. Indeed, the only body cited as being in support, the IPA, found that 61% of its respondents were against—they did not think that the proposals were a good idea.
According to the Government, it was only some of the IPA’s non-practitioner members who were in favour. More than that, having finally seen the IPA’s survey last week, I discovered that its questionnaire did not distinguish between individual insolvency-only licences, which we support, and corporate-only licences, about which we have grave reservations. So the IPA has no idea whether any of its respondents support the idea of practitioners undertaking corporate insolvencies without also being qualified in individual insolvency. Furthermore, despite finding that a majority of its respondents did not think it was a good idea, the IPA dismissed these views as being those only “of current licence holders”. Surely those are exactly the people who know what they are talking about.
Without Amendment 6, Clause 17 would allow insolvency practitioners to undertake corporate bankruptcies, which almost always also affect the financial status of individuals, with no qualification as to the latter’s needs. Indeed, insolvency practitioners often do not know at the outset of a case, particularly with micro-businesses, whether they are dealing with a corporate or personal insolvency—or, indeed, with both, given the involvement of personal guarantees and the nature of creditors.
It is strange that this Deregulation Bill will create three types of licence—rather than the current one—with new exams, oversight and monitoring. The assertion has been made, but with no evidence, that it will attract new entrants; the assertion has been made by the Government that IP fees will be reduced, without any evidence; and the assertion has been made that training costs will be reduced. Again, no evidence was supplied. This whole shake-up is on the basis, by the Government’s own estimates, that there will be only about 100 partial licences.
Furthermore, it is likely to be the large insolvency firms that train corporate-only practitioners at the expense of smaller insolvency firms, of which two-thirds do both corporate and personal insolvencies. More than 80% of smaller firms do not believe that they would get much benefit from lower training costs. Indeed, 90% said that they would not train a partial licence holder. Smaller firms are least likely to specialise and are therefore least likely to benefit from the change. So there is no help to smaller firms—just when the Small Business, Enterprise and Employment Bill is aimed at trying to help small firms.
Why have the Government dreamt up this clause? There is no evidence of a waiting group of would-be IPs dying to enter the market if only they could train simply in corporate insolvencies. Indeed, a number of firms have been reducing their workforce. The Insolvency Lawyers’ Association questioned the logistics of operating a two-tier mixed system, while R3 has serious concerns about the change. It considers that partial licences will have a negative impact on businesses and individuals seeking financial advice, and on the quality and competitiveness of the UK’s insolvency regime, which is currently rated one of the world’s best by the World Bank. Meanwhile the Institute of Chartered Accountants of England and Wales, the largest authorised body regulating insolvency practitioners—regulating, I think, about half the profession—opposes this partial insolvency licence system. It set out its reasoning to the Government a year ago. The Government, however, ignored that, despite the reputation and expertise of the ICAEW. The institute sees no need for partial licensing; it is unaware of any demand for it; and it does not consider that regulatory costs would be lower.
The ICAEW is also concerned that an insolvency practitioner with partial authorisation would not acquire the broad range of knowledge and expertise necessary to provide appropriate advice in a corporate insolvency. We also fear that the proposal would lower standards, given that Jenny Willott MP, the Minister in the Commons, said that the partial licence would,
“reduce a little the high bar on entry to the profession”.
As the ICAEW retorted:
“Reducing the breadth of knowledge required of IPs could be regarded as a lowering of standards”.
We are talking about people’s futures: whether jobs are to be saved or a company liquidated; whether individuals will be made bankrupt; whether creditors will get their money back; whether a company will be sold to someone who can retain at least some of the business.
The Institute of Chartered Accountants of England and Wales, which operates under a royal charter, works in the public interest. Given the potential impact on standards of practice that partial authorisation might have, it does not believe that the proposed reform would be beneficial to the public. The proposal to allow corporate bankruptcies to be handled by people who are unqualified in personal insolvency is misguided, unnecessary, criticised by the profession and other stakeholders and based on unsubstantiated claims. Apart from that, it seems a very good idea.
I urge the Government—even at this late stage—to think again, to listen to R3, the ICAEW and other specialists, and to accept Amendment 6. I beg to move.
My Lords, I am grateful to the noble Baroness for tabling this amendment. We have debated this matter in Committee and I met her and representatives of R3 a few weeks ago to discuss it. The amendment seeks to limit partial authorisation to personal insolvency. This debate allows the Government to set out why we believe that allowing specialised authorisation for insolvency practitioners for both personal and corporate insolvency is the right thing to do.
I recognise that this is a matter of considerable interest to those in the insolvency profession. However, there is a wider impact. The purpose of generally requiring insolvency practitioners to have certain qualifications and experience is that they are given significant powers by statute and it is important that there is confidence that they will use such powers appropriately. It is not to protect insolvency practitioners as a profession as such. It is important, therefore, that the barriers this places on entry—there is quite properly a barrier because of the statutory responsibilities and powers—are no higher than needed for the purpose. I think this was the context in which my right honourable friend Jenny Willott was speaking. The noble Baroness has not provided any evidence whatever that having separate authorisations for personal and corporate insolvency would in any way lower the standards in each of these disciplines.
Most insolvency practitioners are already qualified, usually as accountants, sometimes as lawyers. What we are discussing is what specific training and qualifications they need in order to act as insolvency practitioners. The amendment would allow specialised authorisation in personal insolvency but not corporate, so I will focus on why we believe that it would be helpful to allow specialised authorisation for corporate insolvency.
Opponents have said—as the noble Baroness herself did in moving her amendment—that there is no evidence of the need for change. However, there have been reports on the insolvency profession that have raised concerns about the level of competition in this profession. Two independent reports have noted failings in the current regime that result in fees being higher than they should be. We believe that partial authorisation will increase competition and place downward pressure on fees, which in turn could benefit creditors in the form of higher dividends.
The noble Baroness also referred to the member survey from the Insolvency Practitioners Association. She indicated that 61% responded that they did not think the proposals were a good idea. However it is important to put that response in its proper context. Opinions were broadly divided depending on the stage of the respondent’s career and the nature of the practice where they worked. A majority of more junior professionals considered the proposals to be a good idea—between 65% and 68%. A similar majority of those working in specialist practices thought the proposals a good idea. It may well be that if you are there—already in the tent—you might not see the need to change. However those who wish to enter the profession may well see a need for change. It is interesting that the more junior professionals thought that it was a good idea.
The argument has been put forward that large corporate firms will benefit from reduced training costs, giving them a competitive advantage over small firms, which will need to train fully authorised practitioners. To argue that such firms as the Big Four accountancy companies compete in the same market as small local practices is not really credible as regards corporate insolvency. Yes, businesses of all sizes may require insolvency advice, but your small family business does not ordinarily go to the big four firms when it finds itself in financial difficulties. Large corporate firms will benefit from reduced training costs if they wish to train specialists, and this is a good thing. It will make our UK-based global players that little bit more competitive when they go to compete for work in the international marketplace. Those who wish to specialise in corporate insolvency will be able to spend precious training time perhaps learning about more specialised disciplines, such as cross-border insolvency issues or wider restructuring complexities, rather than the intricacies of personal bankruptcy law which they may never need.
The concept of partial authorisation is essentially about choice. No one will be required to specialise but they may choose to if it makes sense for them. If a small firm’s business model and client base means that it operates as a boutique corporate specialist, it should be allowed to train corporate specialists. It should not be held back and subjected to unnecessary costs by the firm down the street which chooses to train only fully authorised practitioners.
We must also not forget those who pay the price if there are unnecessary costs to being an insolvency practitioner—it will be the creditors, themselves often small businesses. The noble Baroness, Lady Hayter, said that the changes would do nothing to help small firms. However, they will reduce the cost of training for applicants who wish to specialise, and savings on training and examination fees are likely to be of proportionately greater benefit to smaller firms of insolvency practitioners.
Concerns have been raised about corporate specialists who provide advice to directors of small businesses and do not have the requisite knowledge to advise both the company and the directors in their personal capacity. In order to be able to offer advice that does not give rise to unacceptable conflicts of interest, corporate specialists will need to possess a basic understanding of the wider insolvency landscape, including personal insolvency. We have, furthermore, already indicated—in Committee and when I met the noble Baroness and the representatives of R3—that officials will work closely with the Joint Insolvency Examination Board to ensure that specialists, both corporate and personal, will have a sufficient overview of insolvency and issues such as ethical issues to be able to act appropriately.
Insolvency practitioners are required to act in accordance with a professional code of ethics. The code is clear that practitioners should take reasonable steps to identify situations that may arise in the course of their work which could pose a conflict of interest, and then put arrangements in place to manage them. Giving advice to both the company and its directors in their personal capacity is one of the situations that could well pose a conflict of interest in many insolvencies. Granted, a practitioner acting for the company may offer some general advice on the personal affairs of the directors, but this should be basic information. We believe that this can be achieved without the need for a corporate specialist to spend many hours at considerable cost studying the finer details of personal bankruptcy.
We recognise that the numbers may be small—we are not running away from that and we are not overselling this proposition—but they must be seen in the context of the relatively small number of practitioners anyway. A more important point is that we should not insist on wider requirements than are actually necessary as this will increase costs which ultimately small businesses and others have to pay. In 2013, Professor Elaine Kempson carried out a review of the fees and found that the headline rates for insolvency practitioners could be as much as £800 an hour. These fees are paid for by creditors who receive dividends only after such costs have been paid. The then Office of Fair Trading also carried out a study of the corporate insolvency market and found that competition was not fully effective. As I said earlier, additional competition will place downward pressures on these rates and creditors will benefit in the form of increased dividends.
Let us not forget that many of those paying thousands of pounds for tuition are funding that from their own pockets, investing their time in necessary study. Removing the need to study and sit the exam for one of the current three exam papers would save close to £4,000 in tuition and exams fees, and this is what we will work with the exam body to try to achieve. Allowing specialised authorisation for both personal and corporate insolvency will provide choice for those who wish to enter the profession, reducing the time and cost to qualify without reducing necessary standards. This is an important industry which has a vital role to play in promoting rescue and helping to resolve intractable debt problems. I believe that our proposals are measured and proportionate and I therefore hope that the noble Baroness will not press her amendment.
I thank the noble and learned Lord for that response and for the meeting with representatives of R3. I do not mind the Government not listening to me, but they do not listen to R3, to the Institute of Chartered Accountants in England and Wales, or to all those who are practising in this area. I will say only two things.
The first is a point on fees and the idea that this is simply a matter of bringing more people in. I hae ma doots about that; it is about the big ones charging high fees. Indeed, in the Small Business, Enterprise and Employment Bill, the Government are going to abolish creditors’ meetings, which is the one point at which creditors can negotiate over those. Perhaps that might have been a better way of helping creditors achieve a better fee rate.
The only other point to make is this. I refer to the noble and learned Lord’s own profession of the law. As with doctors and accountants, everyone does general training before moving on to specialise. This is an important and fundamental way of understanding the environment, and it is strange to separate one profession away from it. I do not think that the barrier to entry should be lowered, which is what I fear this will be. As I say, the Government have failed to listen to those who know this industry, and they are clearly not going to change their mind tonight. On that basis, I beg leave to withdraw the amendment.
Amendment 6 withdrawn.
7: After Clause 23, insert the following new Clause—
“Applications for public path extinguishment of diversion orders: review
(1) Within two years of the coming into force of the rights of way provisions in this Act, the Secretary of State shall lay before both Houses of Parliament a report containing an assessment by Natural England’s Stakeholder Working Group on Unrecorded Rights of Way of how effective the right to apply provisions and the accompanying guidance have proved in getting local authorities to respond positively to applications for public path extinguishment or diversion orders.
(2) As well as looking at the overall effectiveness of the legislation and the accompanying guidance, the report shall include an assessment of any notable disparities between the various local authorities.”
My Lords, I should remind noble Lords of my farming interests, that I am a member of the CLA, and of the other interests that are set out in the register. Clauses 20 to 27 cover the “Use of land” where, thanks to the excellent work of the stakeholder working group on unrecorded rights of way established by Natural England, improvements have been made to the legislation before us. However, there are still some outstanding areas of concern. Amendment 7, which is supported by my noble friend Lord Skelmersdale, proposes that there should be a review within two years of:
“Applications for public path extinguishment of diversion orders”.
I moved an amendment in Committee that such a review should be carried out within one year, but on reflection I do not believe that that would have allowed adequate time to assess whether the proposed changes in the Bill had been successful or not. In Committee I was very grateful for the contributions made from around the Chamber by the noble Lords, Lord Rooker and Lord Cameron of Dillington, and the noble Earl, Lord Lytton, and by my noble friends Lord Cathcart and Lord Plumb, to name just a few. We debated the whole question of wider access for the public to farmland and, in some cases, through people’s gardens and close to their houses. I accept that philosophical differences were reflected in those contributions, but I have to tell noble Lords that for those families who are affected by such intrusions, this has proved to be distressing, to say the least.
I am grateful to the Minister, my noble friend Lord De Mauley, for arranging a meeting at Defra for myself and my noble friend Lord Skelmersdale at which we were able to debate this issue further. However, I understand that following a recent meeting of the stakeholder working group, the CLA has raised three further issues with the Minister to which it has not received a response. Is he in a position to clarify these matters as they reinforce my belief that an earlier review is needed? Perhaps I may quote the association:
“CLA remain concerned that the ‘right to apply’ does not provide a presumption that paths will be diverted away from gardens, houses and business, nor does the right to apply ensure a different outcome for the landowner.
“The legislation does not provide a means by which a farmer, for example, who wishes to put a gate on his drive to make his farm less susceptible to theft, or wants to put bollards to prevent illegal vehicles, can do this. He cannot apply to the authority for such a structure, and the authority, even if it is sympathetic would have to be extremely creative with current legislation, to satisfy such a request. Structures can only be requested if required for the control of livestock. The SWG recommendation that a clause be inserted allowing authorities to consider structures in a wide variety of circumstances was a pragmatic, deregulatory solution to a currently very regulated and constricted practice.
“There is also the issue of right to access in extremely intrusive areas such as through private gardens and yards based on memory of a path rather than hard evidence. It can only be right that any access or right of way should have to be based upon objective evidence rather than subjective opinion and memory. This is especially important given that there is no time limit within which claims can be made—thus claims can be made about very detailed routes which people claim to have walked 30, 40, 50 years ago.
“The Deregulation Bill presents an opportunity to ensure clear guidance for users, landowners and local authorities in what can be the very emotive issue of rights of way”.
In Committee, my noble friend Lord De Mauley quoted figures from research undertaken by the Ramblers which recorded that of the 1,200 diversion orders applied for, some 94% were granted without any objections, which is good. Of the remaining 6%, only 1% were not confirmed by the Secretary of State. But some of those were affected, and I have received evidence citing many examples from different counties around the country where great distress has resulted. In one case, an owner was subjected to an onslaught by the council, and it was feared that all that worry was one of the contributing factors to his later suicide. When speaking to his own amendment in Committee, my noble friend Lord Skelmersdale said that:
“The stress and the financial hardship involved in employing specialist lawyers, only to learn that one has virtually no legal rights, have led to illness, mental breakdowns and at least two suicides”.—[Official Report, 28/10/14; col. GC401.]
Noble Lords may be wondering why I am quoting these remarks. It is to reinforce my view that we need to bring the review forward, particularly if we are not going to see further changes to the Bill to address the three outstanding issues. Given that, waiting three years for a review is three years too long, but if the Government did not like my suggestion of one year, I hope that the halfway house of two years might be considered.
This is an important debate and again I thank the Minister for his courtesy in talking about these issues through the amendments we tabled in Committee. I beg to move.
My Lords, as my noble friend Lady Byford said, my Amendment 12 has been grouped with her Amendment 7. Not surprisingly, the scene has moved on in the long period since Committee, when there was a surprising amount of support for the series of amendments in my name which had the effect of a presumption in favour of a diversion or stopping up of a footpath that passes through the curtilage of a residential building, including the gardens and driveways of premises. In other words, those amendments were somewhat more restrictive than that in the name of my noble friend, which I supported at the time and, as noble Lords can see from the Marshalled List, still do.
Since then, strange things have happened and I have had reports of odd decisions made by footpath officers in local authorities, the worst of which was the refusal to annul a recent order dedicating a footpath through someone’s dining room. The council in question refused point blank to change its decision. It may be—I am sure my noble friend could tell me—that the officers are not allowed to do this under current legislation but they most certainly are under this Bill. That is one good reason for the Bill. Another local authority insisted that footpaths going through a farmyard barn, which has been in existence since well before footpaths were regulated, should be shown on the definitive map. It is not unlikely, in the modern age, for barns to be converted into housing, with the full agreement of the local planning inspector. Nobody seems to check whether a footpath goes through the old farmyard and thus becomes, potentially, a major inconvenience to the owner of the barn conversion. There is something wrong, somewhere.
It was for these reasons that I moved my amendments in Committee. Because it was a Grand Committee I could not press them, although at the time I was sure I would have been justified in doing so, such was the support from all around the Committee. My noble friend Lord De Mauley was far from keen on my approach and wished to stick to the formula in the Bill—namely, the right for the householder to apply to the local authority and, if necessary, appeal to the Secretary of State. This was backed up by a meeting which he kindly hosted shortly after Christmas, to which my noble friend Lady Byford has already referred. At that meeting, it was explained that the scheme in the Bill would take time to bed down among local authorities and the rank and file green lobby. The department wanted time for this to happen, for the curious reason that the consultation on the agreement of the footpaths working group had not gone wide enough. One rather wonders why the working group existed in the first place, but it did and it agreed changes to the Bill which the Government have been so reluctant to approve that they just have not done it.
I hope that I am not taking my noble friend Lady Byford’s name in vain when I say that both she and I are suspicious as to whether the scheme in the Bill, backed up by guidance to local authorities, simply will not work, however thorough the consultation is. Amendment 7, to which I have put my name, asks, as my noble friend said, for the department to produce a report on whether the scheme has actually worked or not after two years. I have to say that I consider the amendment to be very mild, even though it presumes that legislation will follow if the report is negative, although it does not say so. That, of course, means primary legislation, and it will be some time before that becomes law, even if it gets approval from the business managers.
Amendment 12 allows the Secretary of State a fall-back position, whereby, if the proposals in the Bill are not followed by local authorities, the Secretary of State can lay regulations to make rules according to which a local authority shall make decisions regarding the scheme. This will have two distinct advantages. First, it will reduce the number of appeals, which are likely to be much higher than the department currently envisages, because I suspect that most aggrieved applicants will appeal against the local authority decision on the basis that the latter has not followed the guidance. At the same time, it will cut out vexatious appeals because everyone will know what the rules are. In the event that this amendment finds favour with your Lordships, it would be necessary to have a further one at Third Reading specifying that the regulations will be by affirmative instrument.
Returning to my basic point, it is quite wrong for footpaths to oppress home owners by taking away the enjoyment of their close property and, to that extent, the Bill, imperfect as it is, may help.
My Lords, I spoke in Committee in support of the amendments in the name of my noble friend and I will do so again today.
I have three points. First, if you have a public right of way through your garden, you have lost your security, safety and privacy. Anyone can walk through your garden at any time of day or night. Their dogs may run loose, frightening your children, fouling your garden, chasing your pets and even killing your chickens or cats, but there is little or nothing you can do about it. You may be subject to theft or vandalism. Secondly, it costs several thousand pounds to divert a path, but it costs absolutely nothing to object to it. This increases the cost to the applicant dramatically, often beyond their reach. We should be trying to make it easier for the applicant. Thirdly, as my noble friend Lady Byford mentioned, the law as it currently stands does not allow home owners to apply for permission for gates or stiles. Without these, you cannot allow your pets to be left, or allow your children to play, unattended in your garden. This needs changing.
My honourable friend Tom Brake, speaking for the Government at Third Reading of this Bill, said:
“The Government acknowledge that for householders, farmers and others, an intrusive footpath can have a substantial impact on their quality of life or on their ability to run a business. We understand that while this is not a widespread problem, where it occurs it can cause severe difficulties, and in a significant number of cases people have been put through years of considerable inconvenience and stress”.—[Official Report, Commons, 23/6/14; col. 77.]
I could not agree more. I understand that, when the Bill was going through the other place, the Government were going to propose an amendment to rectify this but for some reason they did not. This House has a perfect opportunity to put that right.
My noble friend Lady Byford has also mentioned the concern that there is no presumption that the paths will be diverted away from gardens, houses and businesses. There should be. The Government say that there is guidance on this, but it is only guidance. Some councils comply with it, but too many do not. The answer is for the Government to put something in the Bill, and I hope that my noble friend will.
My Lords, legislation on public rights of way is complex, often archaic and certainly plentiful. I declare an interest as an owner of farmland in Cheshire over which there are a number of uncontentious footpaths.
In Committee, many of the issues behind the proposals in the Bill were examined. One of these was the question of procedures and costs involved in addressing the complexities highlighted by footpaths going through gardens and farmyards and alongside private homes, with the consequential privacy and safety concerns. I agree with the noble Lords that this is an important issue and the stakeholder group did address it. However, the measures in the relevant passage of the Bill should alleviate most of the problems. This is not to deny that there may be the further concerns to which the noble Baroness, Lady Byford, has drawn our attention.
In Committee, we were concerned that these measures and others should be subject to follow-up through a report to Parliament. They are, as I have said, very important measures and progress must be made. From the debate in Committee, it is clear that there are several channels of communication through which progress can be monitored and outcomes highlighted, and I am not sure whether there is a need for this proposed new clause to be in the Bill. The Minister at the time may find that a Written Statement would be entirely sufficient and satisfactory as a method of addressing this, but there may be others. The stakeholder working group can issue reports for deliberation. However, if progress is not forthcoming, then we shall certainly return to the issue.
My Lords, like my noble friend Lady Byford and the noble Lord, Lord Grantchester, I declare an interest as the owner of a farm across which there are public rights of way and, indeed, as a user of public rights of way myself.
We have considerable sympathy for those people, mentioned by my noble friend Lady Byford, who face problems with a public right of way that passes through their farm or garden and who feel that the system has let them down or conspired against them. Where these cases occur, people may indeed experience acute problems, but they are comparatively few and we should ensure that any changes we make to legislation are proportionate to the extent of the problem.
Rather unconventionally, I will go in reverse order, and turn first to Amendment 12, in the name of my noble friend Lord Skelmersdale. I understand that the intention behind the regulation it proposes is to enable the creation of rules prescribing how local authorities must make decisions on applications to divert or extinguish rights of way. We believe that the combined effect of our existing measures, which have cross-party support in both Houses, will make a significant difference and that we should not legislate further before seeing how these measures work out in practice. I will explain why that is.
There is clear agreement among stakeholders on the working group that the major difficulty for landowners is in getting local authorities to make a diversion or extinguishment order in the first place. Our plans to implement the right to apply for such orders are designed to overcome this. The right to apply will enable a landowner to make a formal application for the diversion or extinguishment of a public right of way. With that will come the right to appeal to the Secretary of State if the authority rejects the application or fails to act on it. Therefore, local authorities will no longer be able to ignore requests or dismiss them out of hand; they will be obliged either to make an order or to be prepared to justify their reasons for not doing so on appeal to the Secretary of State.
The right to apply will be extended to land-use types other than those for agriculture, forestry and the keeping of horses—for example, to private residential gardens. The right to apply will be supplemented by guidance that will effectively act as a presumption to divert or extinguish public rights of way that pass through the gardens of family homes, working farmyards or commercial premises where privacy, safety or security are a problem. I suggest that guidance such as this, which has been introduced though agreement among stakeholders, is far more likely to prove successful in practice, regardless of whether it has statutory backing.
I realise that there is the further hurdle of getting an order confirmed. However, my noble friend Lady Byford quoted my words in Committee to the effect that, according to Ramblers, which keeps accurate records of these matters, of the 1,257 diversion orders which have reached a conclusion in the last three years, 94% did not attract any objections. Of the 6% that did, less than 1% were not confirmed following submission to the Secretary of State.
In addition, the guidance will give authorities more scope to confirm orders made in the interests of the landowner in circumstances where a right of way may cause hardship because it goes through the garden of a family home, a working farmyard or other commercial premises where privacy, safety and security are a problem. In light of the guidance, authorities would have to put forward compelling reasons for not confirming an order in such circumstances.
We appreciate, and my noble friend will be the first to point out, that the numbers of orders confirmed without objections may fall under the right to apply. Each case will depend on the merits of the proposal. However, given the statistics I have outlined, we believe that the combination of the right to apply and the guidance will have the desired effect and that we should not rush to legislate before giving these measures a chance to work in practice.
I thank the Minister for giving way. The problem with this is that we have been hearing it for 40 years. I was chairman of something called the Spicer committee 40 years ago, which comprised the National Farmers’ Union, the Government and a whole lot of other bodies. We came up then with what we thought were solutions to try to make it easier for the applicant. Forty years later, we are still in the same position and still being told roughly the same stuff by the Government. This is why it is so difficult to believe what is coming out now.
I understand my noble friend’s point, but I hope he would be prepared to give the provisions in the Bill a chance. They are actually quite far reaching. With great respect to my noble friends, who have raised some important points, we are talking here about points which, in their eyes, would make yet further improvements. I think my noble friends acknowledged in their speeches today that there are already some good, positive changes in this Bill. I hope my noble friend would accept that.
Moreover, under the right to apply provisions, the Secretary of State will be the confirming authority for all disputed orders. The Government will therefore be in a prime position to promote implementation of the revised policy set out in the guidance by setting a clear precedent with any cases that come before the Secretary of State. In addition, the Government will work with rights of way officers, through their professional organisations, actively to promote to local authorities the existing guidance on diversion or extinguishment of rights of way which pass through gardens, farmyards or commercial premises.
To return to the amendment, the existing legislation on extinguishments and diversions, in Sections 118 and 119 of the Highways Act 1980, already sets out rules, which Parliament has debated and agreed, under which local authorities make decisions on applications to divert or extinguish rights of way. My noble friend’s proposed regulation-making power would, in effect, be a power to make new rules by delegated legislation and therefore without full parliamentary scrutiny. I suggest that it is highly unlikely that we would get stakeholder agreement to such a measure, knowing that this was the purpose behind the amendment.
Will my noble friend give way? I thought, or at least I hoped, that I had made it quite clear that, if my noble friend accepted my amendment—which, clearly, he is not going to—it would be necessary to have a Third Reading amendment to make these regulations by affirmative order. In that case, of course, they would have parliamentary scrutiny.
My noble friend makes a fair point.
It has been clear throughout the Bill’s passage that Parliament agrees with our view that that the consensus should be supported by keeping the rights of way package as it stands. I spoke to the stakeholder working group at its latest meeting and learnt at first hand that its overriding aim is to get the package implemented intact. We are determined that the consensus should not be put at risk by adding measures that have not been discussed with stakeholders and, of course, not consulted on.
Amendment 7, tabled by my noble friend Lady Byford, is intended to ensure that the Government review the success or otherwise of these measures after their implementation. That is an absolutely laudable aim and one that, in any event, would be a matter of good practice. However, although we agree with the aim of evaluating the effectiveness of the right to apply and associated guidance, I hope that my noble friend will agree that it would not be appropriate to use a deregulatory Bill to impose on the Government the statutory burden of making a formal report. That would run contrary to the aims of the Bill.
In the other place, the Government have already put on record that the stakeholder working group’s advice will be sought on the constitution of a review panel to advise on how well the reforms are working and whether any further measures need to be taken before the cut-off date. I am happy to put on record now that we will ensure that any arrangements to review the rights of way reforms will include an assessment, within two years of implementation of the reforms package, of how effective the right to apply provisions and the accompanying guidance have proved in getting local authorities to respond positively to applications for public path extinguishment or diversion orders.
The proposed assessment will include an opportunity for people to provide evidence to the stakeholder working group either through wider consultation outside the group or a call for evidence. The assessment will send a message to authorities that the Government are determined that the new policy should work and that if guidance does not bring about sufficient change, we will consider introducing further measures.
My noble friend Lady Byford returned to the issue that we discussed in Committee about the authorisation of gates. We recognise that an amendment to extend the powers to authorise gates and similar structures could be helpful to people with a right of way going through their premises or garden. The stakeholder working group discussed this at some length. While there was agreement about the proposal in principle, the group has not yet arrived at a formulation on which it could agree. Those measures have not, unlike the rest of the package, been widely consulted on and are therefore not necessarily agreed by wider stakeholders, whose views we also have to consider.
Concerns have been expressed by users of rights of way about the possible proliferation of gates and other structures across rights of way. Particular concern has been raised with me by equestrian groups in the stakeholder working group that I attended. They are worried about riders with disabilities who may not be able to dismount or who have difficulties in opening and closing gates without risk of injury to themselves or their horse. Since the House of Lords Committee stage of the Bill I have received correspondence expressing concern about the suggestion that the powers of local authorities to authorise gates should be further extended beyond those changes already being introduced by Clause 24.
My noble friend also raised the point about the right to apply not providing a presumption that paths will be diverted away from gardens, houses and businesses. We have covered that quite extensively. The guidance agreed by the stakeholder working group introduces a presumption that paths will be diverted away from houses and businesses. We believe that the guidance, combined with the right to apply, will have the desired effect. My noble friend also asked whether there should not be a time limit on making claims based on long use. The stakeholder working group has not been able to reach an agreement on that, but it will continue to keep it under review.
On that basis, I hope that my noble friend will withdraw her amendment.
My Lords, although I am grateful to my noble friend for his full response to my Amendment 7 and for his acceptance that the review should take place two years after the Bill becomes enacted rather than after three years, as was originally proposed, I will read Hansard carefully—but this is indeed welcome.
I still have some concerns about the important ongoing work by the stakeholder working group. We get such few opportunities of such legislation coming before us in Parliament, when we have a chance to try to make sure that practicalities are overcome if they possibly can be—although that is not always possible. I hope that the stakeholder working group will continue to work closely together to try to resolve some of these issues. They are not impossible to resolve. My noble friend Lord Cathcart said that it is costly to apply for diversions. I gather that unopposed diversions cost about £2,000, but those that are opposed cost more than £8,000 and can be dearer. We need to keep that in the back of our minds when we are talking in fairly general terms about something that was a problem 40 years ago, to which my noble friend Lord Spicer referred.
Although there are improvements in this Bill, which I have publicly acknowledged, there are still things that need addressing. If that cannot be done within the Bill, I hope that the words that my noble friend the Minister has given me today will fill me with confidence rather than suggesting that he thinks that I have got it wrong.
We have another stage. Other Peers have taken part in this short debate: my noble friends Lord Skelmersdale, Lord Cathcart and Lord Spicer, as well as the noble Lord, Lord Grantchester. The noble Lord has, as I do, footpaths across his land and we are happy to have them. Ours are not contentious, but there are people—and 1% is 1% too many—who are having a rough time, because the various interested bodies cannot get together to try to reach a proper outcome to something that I hope is not an insurmountable problem. It may seem a huge problem to those who want the right of way; and those who say that if they were to divert it, that would be of benefit to everybody. Perhaps the working group could attach a little more vigour to some of the outstanding issues.
I thank my noble friend and other noble Lords who have taken part in this debate, and, with my noble friend’s words saying that within two years there will be a review panel rather than a report, I beg leave to withdraw the amendment.
Amendment 7 withdrawn
Clause 25: Applications for certain orders under Highways Act 1980: cost recovery
8: Clause 25, page 22, line 32, leave out “or (3)(b)” and insert “, (3)(b) or (5)”
My Lords, government Amendments 8, 9, 10, 11, 13, 14 and 15 in this group are minor and technical in nature and do not make any substantive change to the policy of Clause 25 or Schedule 7. They make in fact the following changes.
One is a correction to new Section 54C(3) of the Wildlife and Countryside Act 1981, which is concerned with modification consent orders, to make any path or way resulting from such an order “maintainable at public expense” instead of making the surveying authority responsible for its maintenance. This small change in terminology makes the provision consistent with existing rights of way provisions and avoids creating any uncertainty among practitioners. There are extant provisions that enable diversion and extinguishment orders to be severed, where only part of an order is subject to a valid objection. Another change in terminology substitutes “parts” for “modifications” in these provisions. That is because “modifications” has a very particular meaning in relation to definitive map modification orders and is best confined to that context.
The final change is to enable the Secretary of State to decide which procedure to use in deciding appeals and objections on rights of way diversion and extinguishment orders. This will make the procedure consistent with that for recording rights of way. It will enable the Secretary of State to opt for the exchange of written representations rather than a hearing or public inquiry and avoid unnecessary and costly public inquiries where there is no justification for them.
My noble friends Lord Greaves and Lord Bradshaw have amendments in this group, but it is appropriate that they introduce them before I respond. I beg to move.
My Lords, the problem we are trying to deal with is the unauthorised use of green lanes by 4x4 vehicles and trail motorbikes. This problem is getting worse, making many rights of way impassable and creating an intrusive noise nuisance. Present legislation is entirely inadequate for dealing with this problem. Local authorities which are short of resources are unable or unwilling to commit to dealing with an outdated and burdensome situation.
When the Peak District National Park and other national parks were formed, the use of rights of way by 4x4 vehicles and trail motorbikes for recreational purposes was not foreseen. At present there is no simple way of dealing with this obstructive and noisy nuisance and some fresh way must be found to deal with a problem that prevents walkers and riders enjoying the countryside. The purpose of any new legislation would be to create a right of appeal where a highway authority fails to make a traffic regulation order that excludes motor vehicles from a byway open to all traffic, and other green lanes, where there is evidence that such an action is necessary. At present, local communities have no redress if their highway authority refuses to act.
New legislation is needed to establish the right-of-way status of 3,000 miles of unsealed, unclassified highways in England—the country’s green lanes. Under current legislation, in 2026 they are all destined to go into permanent limbo. That is because 2026 is the legal cut-off date for establishing rights of way under the CROW Act 2000. Those 3,000 miles of green lanes will become bridleways, footpaths or restricted byways. Motor vehicles will be able to go on using and damaging them. The new legislation we seek would not affect the current legislative framework for motorsports or other off-road use that takes place by landowner permission. I am not seeking to curtail that.
The Government have accepted that the destruction of the country’s green lanes by motor vehicles is a problem and that a solution must be found. They have now committed to setting up a stakeholder working group to try to find a solution. While this is a welcome first step, we should listen very carefully to the people who contributed to the previous debate, stressing that stakeholder working groups that cannot come to an agreement because of disagreement between the parties must somehow be made to make a majority recommendation so that the matter can be taken forward.
Attempts to date to solve the problem through voluntary measures have already been tried and have failed. The matter is becoming urgent for many reasons, not least the approach of 2026. The only way to save green lanes from destruction will be to legislate. But I would welcome hearing more from the Minister about the Government’s current thinking on the composition of the motor vehicles working group that they say will be set up. When will it start its work? What timeframe will it work to? What are its terms of reference? Will it be allowed to make majority recommendations? When can we expect to see full public consultation?
My Lords, I have added my name to Amendment 17. I declare an interest as a farmer in Somerset with rights of way on my land. Like the Minister, I am a great enjoyer of our rights of way across the country.
I will not repeat all I said in Committee about this being a deregulatory amendment, but it does have the potential dramatically to reduce the administrative work of the local highway authority while greatly simplifying the law and the lives of others. It also has the potential to reduce the onerous duty to repair the surfaces of all highways on the part of local highways authorities, which we know are extremely strapped for cash at the moment. The fact that most local highway authorities pay virtually no attention at all to their duty of repair on anything less than an adopted highway is no excuse for us not to try to minimise their responsibilities.
Anyone who has seen pictures of green lanes from all around the country, particularly the pictures of green lanes in the Lake District National Park that have been circulated recently, will be in no doubt that regular motorised traffic on those green lanes is not compatible with fair enjoyment of the countryside by walkers, bicyclists and riders. Something has to be done and the wrongful assumption that motorised vehicles automatically have rights on all those green lanes needs to be rejected. If they have rights, I and others believe that it is their responsibility to prove them.
I recognise that the Minister proposes the setting up of a motor vehicle working group in response to the amendment. I am sure that is not a way of pushing the whole issue into the long grass. I have every expectation that he will respond favourably to the amendment or at least its intent. I also realise that we have to tread softly, softly on this matter. All I would say is that this long-lasting sore on the face of responsible access to the countryside has to be firmly gripped, and soon; or, as the noble Lord, Lord Bradshaw, said, come 2026, which is just 11 years away, we will still find ourselves floundering around in the mud, both literally and metaphorically—literally on the ground and metaphorically, administratively in county halls—with no greater clarity than today. Defra has already acknowledged that the 2026 cut-off date cannot be met under the current circumstances—it is 11 years off and it cannot be met—due to the number of green lanes and the lengthy processes involved. We have to find a better way forward and this amendment, or something like it, is a very reasonable way of achieving that.
My Lords, I understand the rationale behind what the two noble Lords have said on the amendment but I would add a slightly cautionary note. Although we all enjoy walking on footpaths and we get irritated by bicycles, quad bikes, Land Rovers, et cetera, on paths that are not BOATs, there are those, such as disabled people, who are able to enjoy such footpaths only through the use of some sort of propelled vehicle. Although I readily understand that there is a need for control, I do not believe that it should be absolute and I look forward very much to listening to what my noble friend the Minister has to say on the working group that is proposed.
My Lords, I very strongly support Amendment 17. I thank the noble Lord, Lord Bradshaw, for putting it forward. It is constructive, public-spirited, responsible and sensible—just like the old Bradshaw’s timetables.
There is one caveat I want to make. There is an issue that we all have to face. Those of us who are able to enjoy remote and attractive areas must remember that there are very many people for whom this is not a practical possibility because of their physical condition. We all need to get our minds round the issue of how we can improve access for such people so that they are able to share in something that we all regard as precious. Of course, that has to be done by consultation and, if necessary, appropriate legislation and regulations, but it should be done in a sensible way, with the full co-operation and backing of the authorities that are responsible for a particular piece of land.
Having said that, the noble Lord put it in very moderate language but what he revealed is actually a nightmare. At times it can be described only as vandalism—if it were to happen in an urban area, there would be an outcry—despoiling and ruining decent, attractive countryside and making a hell for some people who are trying to enjoy that countryside in a quiet and peaceful way. In fact it can be quite a frightening experience for those who may be able—I count myself among those now—to just about make those areas, but who may have certain disabilities and so on which make them feel vulnerable. That is not least the case for those with loss of hearing, for whom the sudden noise and disturbance of these vehicles can be an unpleasant experience.
The issue is mainly about what is being done to places of special significance, scenically and in other ways. It is also about this “couldn’t care less” attitude—that it is left to somebody else to deal with and clear up, which is utterly selfish as well as being vandalism. We should all recognise that, and wish godspeed to the noble Lord’s amendment, because it is vital. I should of course declare an interest as patron and former president of Friends of the Lake District, and as vice-president of the Campaign for National Parks, but I assure you that the remarks I have made this evening come from the heart in terms of being a resident of one of the areas that has quite a number of beautiful things that can so easily be ruined and destroyed.
My Lords, I will add a few words on this amendment, because it is at the very heart of enjoyment of the countryside, and the contributions we have heard from around the Chamber tonight rather reflect the challenges that we place on our countryside. From the perspective of disability access, which my noble friend mentioned, it is hugely important that people who are not able to walk freely, or cannot get around in the way they used to be able to, have access to the countryside. But due to the sort of damage to the green lanes that my noble friend Lord Bradshaw was talking about, they would not be able to get through those anyway. In many cases the countryside is being ruined as the green lanes have become bogs, and the people that do it have very little regard for the enjoyment and pleasure of anybody else.
There are also landowners who are quite willing to open up areas of their own land and make it available to those who wish to follow the sport of 4x4s, who get a thrill from that sort of activity where it is well organised. But it is the result of the devastation that is caused to some of our most beautiful areas that we are trying to address within this amendment. I had not looked to speak in this debate, but I am moved to do so because if we are going to have another working group looking at it, there are clear aspects that need to be taken into account. It is not just a question of saying to people who enjoy the sport of 4x4s, “You can’t do it”, but that they can and that there should be areas in which they can do it; nor saying to people who are disabled who need to have motorised access to the countryside, “You can’t get through because we are going to ban everything”. There is a balance to be found in the way that this is looked at.
I do not know what the Minister’s response will be to this amendment, but I hope that he is able to give some words of encouragement to the setting up of the working group and that it specifically looks at separate issues, because it is all too easy to say, “That will cover the whole”, when it clearly will not. I will again listen with interest to what the Minister has to say on this, but I hope we clearly recognise the needs of those who would like to access countryside but cannot, and those who would like to use 4x4s in a particular manner.
One further thing to add to this debate is the whole question of the countryside and of our wildlife. Not too much takes place on that; I suspect that these issues have been driven aside. Another aside to add is that those of us involved in stewardship and single farm payments know very well where we have got the six-metre strips or whatever it might be. One is very careful as to what motorised vehicle goes over that at all because of the damage to the wildlife and its sustainability. I am delighted that this amendment has been raised, and I look with interest to the response we get from the Minister.
My Lords, would my noble friend accept another thought? As she said, she is a farmer but not a farmer on—for example—the Quantocks, or Exmoor, or further north in Cumbria like the noble Lord, Lord Judd, although I believe he is not a farmer; none the less he is a resident. They have to get around their land on some sort of vehicle, whether it is a tractor or a quad bike.
Indeed. I am so sorry I did not include quad bikes; they are a normal sort of motor vehicle that is essential to farming in many areas. We do not happen to have one on our farm, but we do not have the sort of access being debated this afternoon. My noble friend is quite right to reflect on how important that access is.
My Lords, the stakeholder working group is to be commended on finding and building consensus around the main interested groups to recommend the changes to the Bill as a package, to streamline the process, and to make quicker progress with less contention and confrontation, even though there may appear to be plenty of time until 2026, the cut-off date under the CROW Act 2000. We agree with the measures in the Bill as a balanced approach to speed up the process. We wish to retain the consensus and build on it. I am grateful to the Government for listening to our views and those of many others, reflecting on the proposals and coming forward with these further technical clarifications. We agree that the stakeholder working group must be retained following this excellent report, and its remit extended to experience more contentious, protracted issues. Indeed, in the other place, the Minister agreed to set this up.
The problem raised through Amendment 17 is one that needs addressing, but not in the context of this Bill. This is not to deny that there are issues, costs and damage created by the use of off-road all-terrain vehicles. However, they must be addressed in the context that 62% of byway traffic is due to land management and dwelling access, with the remaining 38% due to recreation. The damage done by this 38% cannot be denied, and the noble Lords, Lord Bradshaw and Lord Cameron, and my noble friend Lord Judd have highlighted this tonight. But 70% of byways are without drainage, and much damage can be done by farm vehicles, water erosion and poor maintenance. The stakeholder working group must be allowed to examine the issue to find solutions first, to be arrived at through dialogue, a process more likely to result in less conflict, more compromise and thus acceptance, reducing the need for enforcement. Ministers could then make better informed decisions. These measures relating to public rights of way will bring benefit to all interests—land owners, local authorities and the public, even with their competing interests.
My Lords, in what is an understandably contentious debate about the recreational use of motor vehicles on unsurfaced routes in the countryside, and particularly inside national parks, we are addressing similar issues to a debate we had in Committee. We sympathise with genuine concerns about the problems that can arise from the recreational use of motor vehicles on unsealed roads, encapsulated in Amendment 17 by my noble friend Lord Bradshaw. I have seen some of the pictures that the noble Lord, Lord Cameron, referred to. We agree that this is an issue which needs to be tackled and some means of resolution found. The Government’s published response to the Joint Committee’s report of pre-legislative scrutiny on the Deregulation Bill said as much, but also recognised that this Bill is not the right mechanism for doing so. The issue of recreational off-road motor vehicle use is an emotive and contentious one, where one person’s pleasurable pastime is anathema to another. The noble Lord, Lord Grantchester, said that by no means all damage to unsealed roads and tracks is by the recreational use of motor vehicles, and I broadly confirm the figures that he mentioned.
We believe that the best way to review policy on the recreational off-road use of motor vehicles is for it to be based on the stakeholder working group model. I am grateful to noble Lords who echoed those sentiments. That approach has proved to be successful, as demonstrated by the stakeholder consensus on the rights of way reforms package, of which the clauses in this Bill form the major part. This has resulted in mutually beneficial solutions being arrived at through dialogue and negotiation.
The Government plan to set up such a motor vehicle working group, with an independent chairman, as soon as possible after the Deregulation Bill has completed its passage. My department will work with Natural England to organise a secretariat, and it will invite stakeholders with the relevant experience and expertise to join the group. We propose to invite interested organisations to put forward their suggestions for suitable members. In response to my noble friend Lord Bradshaw’s specific question, I say that a key principle is that the group should contain a balance of interests across all sectors. We plan to have members who can represent the interests of national parks, areas of outstanding natural beauty, national trails as well as all the different types of users of rights of way.
Within such a group, recognised professionals can explore all the viable possibilities and their likely consequences. Resolutions arrived at in this way, based on agreement and mutual interest, are likely to result in less conflict and reduce the need for enforcement. Solutions will work best if based on compromise, and I have been assured by those representing the anti-vehicle groups that it is not their intention to change the legislation in relation to allowing motor vehicle trials and competitions. I welcome this approach, as I do the points made by my noble friend Lord Skelmersdale and the noble Lord, Lord Judd.
My noble friend Lord Skelmersdale raised a point about access for disabled people to the countryside. This is a complex issue with many different aspects, which is why it needs to be considered carefully by a working group and fully consulted on.
My noble friend Lord Bradshaw asked about timing. I have said that the stakeholder working group will start its work upon completion of the passage of the Bill. We will set a target time for the group to report. The original stakeholder working group took 18 months to report and I believe that a similar timeframe is realistic for this group to work to. I can confirm that a public consultation will follow the report.
While the group needs to have a clear remit, it will be invited to come up with its own terms of reference. I expect that it will look at all the issues in the round and include assessments of any economic and social benefits of the current recreational use of unsealed roads as well as an assessment of the costs and burdens. On that basis, I hope that my noble friend Lord Bradshaw will be prepared not to press his amendment.
Amendment 8 agreed.
Schedule 7: Ascertainment of rights of way
Amendments 9 to 11
9: Schedule 7, page 118, line 38, leave out from beginning to “(including” in line 43 and insert—
“(3) Where a modification consent order takes effect, any path or way, or any part of a path or way, which is shown in a definitive map and statement in consequence of the order or any special order combined with it under section 54B(5) is maintainable at the public expense”
10: Schedule 7, page 118, line 46, leave out “the” and insert “an”
11: Schedule 7, page 119, line 1, leave out from “effect,” to “and” in line 3 and insert “a path or way, or part of a path or way, would be maintainable at the public expense by virtue of subsection (3);”
Amendments 9 to 11 agreed.
Amendment 12 not moved.
Amendments 13 and 14
13: Schedule 7, page 138, line 19, leave out “modifications” and insert “parts”
14: Schedule 7, page 138, line 21, leave out “modifications” and insert “parts”
Amendments 13 and 14 agreed.
15: Schedule 7, page 138, line 42, at end insert—
“( ) In that paragraph, after sub-paragraph (4) (as inserted by sub-paragraph (4) of this paragraph) insert—
“(5) In the case of an order relating to England, the Secretary of State may, instead of affording a person an opportunity of being heard as mentioned in sub-paragraph (2)(b), (2A)(b) or (3)(b), afford the person an opportunity of making representations (or further representations) to a person appointed by him for the purpose.“(6) Where the Secretary of State acts under sub-paragraph (5) by affording a person an opportunity of making representations (or further representations) instead of an opportunity of being heard as mentioned in sub-paragraph (2)(b) or (3)(b), the reference in sub-paragraph (2) or (as the case may be) (3)(c) to the report of the person appointed to hear representations or objections is to be read as a reference to the report of the person appointed under sub-paragraph (5).””
Amendment 16 (to Amendment 15) not moved.
Amendment 15 agreed.
Amendment 17 not moved.
Clause 44: Household waste: de-criminalisation
18: Clause 44, page 37, leave out lines 28 and 29
My Lords, I shall speak also to Amendment 19 and in doing so remind the House that I am co-president of London Councils. It is on behalf of London that I shall speak this evening.
Clause 44 changes the penalties on a national basis for waste collection. It amends provisions in the Environmental Protection Act 1990 on waste collection and waste receptacles. It changes the system from one which was subject to a fixed penalty notice regime—that is, a system based on the criminal law—to one based on the civil processes of a penalty charge notice system. This change seems wholly proportionate and sensible, and I have no disagreement with it.
However, to make this a national system, two provisions have had to be put in the legislation to bring London into the whole pot; namely Clause 44(6) and Schedule 12. Both of those have had to be inserted into this part of the legislation to ensure that it is a national scheme. The reason is that London is already running such a scheme, based on the amended Environmental Protection Act and under the London Local Authorities Act 2007.
This system has been running perfectly happily. It is a decriminalised penalty notice system based on the normal penalty notice way of doing things. It has an appeals system. It is managed by a joint committee of London Councils. It has been the forerunner of what the Government are now trying to do. The system is now recognised by everybody who lives in London. I do not know whether people who are not involved in local authorities realise that it is not always easy either to identify somebody who is causing an infringement of the law or to make sure that they cough up when they are charged or recognised as having done so. As the system has been running perfectly successfully, London wants to stay that way.
My first reason for not wanting to see London included in the processes set out in the Bill, therefore, is that its system has been running perfectly well. The second is the bureaucracy that surrounds the Government’s proposals. There are four pages of legislation to tell enforcement officers how to issue a penalty charge notice. This is meant to be a Deregulation Bill, not a “pile it on high” Bill. With a penalty charge notice—as we all know, because we all get them from time—you receive it, you sigh deeply, you think about throwing it in the bin but, largely, you pay it because it tells you that if you pay up in two weeks you can do it more cheaply than if you wait for four weeks. If you feel really brassed off about it, you appeal. The process is neither very long nor very complicated, but there are four pages of legislation to introduce this new national system.
Before issuing the notice, the enforcement officer, who has nothing else to do with his time, will have to write a note to the intended to say that he is intended, or to warn him that he is going to, perhaps, issue a penalty charge notice. Then the person who is going to receive it has a right of appeal against the fact that it is going to come. Then, the officer has to issue a notice of an intent to issue the penalty charge notice, so in my calculation, we are now about eight weeks down the line. He then can have the penalty charge notice and he can put that; but the offender has the right of appeal to that as well. It is—in very few words—Byzantine. What system or local authority would want to get caught up in having to provide those processes? London certainly does not.
Why should London not continue to be exempt from that bureaucracy and why, having led the way for many years on a system which, as I said, has been recognised and well trialled, has it been scooped up into this scheme at all? It has been deliberately included: there is no question that this was a mistake. It has deliberately been included because of those two specific aspects of Clause 44(6) on page 37 and Schedule 12. That schedule runs to four pages of legislation as well, because it replicates everything that is on the four pages that we have before us.
Will the Minister, before Third Reading, sit down with us, or with London Councils, and with other Ministers, to see whether we cannot get this system changed, so that London is able to carry on doing what it is doing? It will not be doing anything that is not part of the national decriminalising system, because it has been doing that already. It would just like to carry on issuing penalty charge notices in a way that is simple to understand and that everybody can go along with. It really is an enormous mistake to try to bring London in; it is wholly unnecessary.
If the rest of the country wants to or has to conform to the legislation, so be it. In many, many occasions, under the London Local Authorities Act, London differs from other parts of the country. That is what that Act is about: to give London the ability to do things that it needs to do on the basis of London’s necessities. I ask the Minister to consider meeting us again to discover whether we cannot, before Third Reading, have London removed from this process. It will not do anything different from the rest of the country: it will be part of it, but it will do it in its own way. I beg to move.
My Lords, I support my noble friend Lady Hanham very strongly and very warmly. I have no particular London interest to declare now, other than that as a resident of London for many years. I was until last May, when I took voluntary retirement, a London borough councillor for 40 years and leader of the council for 13 of those years. If I learned anything from that experience, it was not to mess around with the waste collection system unless it really needed it.
The very simple question to the Minister is: why do the Government feel that London’s system—which, as far as I am aware, has worked extremely well for the last six or seven years and meets all the Government’s requirements in this Bill—is so in need of change that it requires what is in effect eight pages of primary legislation, if you include what is in the Bill and in the schedule, to correct it? What is so wrong with it? The current system is decriminalised and has an appeals system. In fact, it is working so well that there has never actually been an appeal on waste, but the system works well because it is the same or a similar system to that used for parking appeals. There have been just a few parking appeals over the years, so we can say that the system works well and would work well should there ever be an appeal within the waste system.
The other purpose may be to bring London into line with the rest of the country. Why is that necessary? As my noble friend said, there are many issues—two of which we will be discussing next week—on which London has different and separate legislation and provisions to those of the rest of the country. This is one that has existed since the 2007 Act. As we have said, it has worked well and I am not aware of any difficulties, although perhaps we might be about to hear them, so why not leave well alone? This is a system that is tried and tested, is working well and is hugely less cumbersome, time consuming and cost consuming than that proposed in the Bill.
If the Minister is not in a position to agree to these amendments tonight, may I echo the request from my noble friend that he at least agree to meet with us, try to understand our concerns and see whether we can, at least, reach a sensible solution that does not bring such lengthy, cumbersome and unnecessary burdens on London, which already has a much better system that is working? This is not deregulation; it is excessive regulation and does not belong in a Deregulation Bill.
My Lords, like the noble Lord, Lord Tope, I do not have any current London government interests to declare, although I was the founding chair of the artist currently known as London Councils, which was then called the Association of London Government, for five years. I was a London borough leader for a number of years and an elected representative in London for 26 years, and for two—or perhaps four—years I was chair of a London organisation called London Waste Action.
I find Clause 44(6) to be quite bizarre, particularly in a Deregulation Bill. What I understand has happened is that the Government looked for a model of deregulating some of the complexities outside London, found that London had a system that worked and decided to replicate something like it for the rest of the country. However, because of some natural desire in the relevant government department to make things more rather than less complex, which this Bill is supposed to stop from happening, they produced a system that is more complicated than the London one. Then, for ease of simplicity and universality—quite against the principles of localism and devolution, which we understood the Government were in favour of—they decided to impose this more complicated system on London, even though London has a system that works perfectly well.
I frankly do not understand the logic of this. The model that exists in London has emerged through a London Local Authorities Bill, which was passed into legislation by Parliament; it is a locally determined scheme that decriminalises the system and provides a system of appeals which, as the two noble Lords who have spoken have indicated, has worked well since it was introduced. The Bill before us would sweep it away and replace it with a more complicated system, which would necessarily introduce a degree of delay. The process that the noble Baroness, Lady Hanham, has described—of forming an intent, telling someone that you might have an intent, then telling them that you have had an intent and giving them an opportunity to make representations and an appeal at each stage—is unnecessarily cumbersome.
The reality is that we are talking about people who are dumping waste. They do so—I have watched it happen, taken photographs and tried to get something done about it. They turn up late at night with a van and they dump a pile of waste somewhere, on the assumption that local authorities will sort it out. The reality is that this is not a process where you need this incredibly complicated system to deal with it. You simply need to pursue those who are offending. What we will create as a result of the Bill is something that will be more bureaucratic and slower, will cost more and will go against the principles of devolution, because it was a system developed by London local authorities in the first instance.
Waste is a big matter—as the noble Lord, Lord Tope, said, “Never go against issues of waste”—and is the third-largest item of expenditure within local authorities. It is a massive part of the business of local government. Here we have a scheme that was developed by London local authorities and that is working well. Now the Government want to come in heavy-handed and against the principles of deregulation and devolution, and impose a complicated, overly bureaucratic and expensive system.
I am sure that the Minister will recognise that Clause 44(6) has crept in by accident, along with its accompanying Schedule 12, and agree to the amendment of the noble Baroness, Lady Hanham, and simply take them out of the Bill so that we can allow the current arrangements to continue. However, if he does not have the authority to agree that tonight, I hope that he will meet with the noble Baroness, myself and others who might be interested, along with London Councils, so that there can be a proper discussion about this before we get to Third Reading. It can then be remedied at that stage, either by the Government or perhaps by the noble Baroness, Lady Hanham, introducing a similar amendment and putting it to the vote.
My Lords, I can be brief because of the powerful arguments made this evening by the noble Baroness, Lady Hanham, the noble Lord, Lord Tope, and my noble friend Lord Harris. The points they made were extremely telling. It is incumbent now upon the Government and the Minister to try and answer why an approach that is non-localist and bureaucratic should proceed rather than the current arrangements under the London Local Authorities Act 2007. What is the problem with London that this seeks to solve? It is incumbent on the Government to say.
The Government’s focus on this area is all very well, but is it the right priority at the moment? The Minister will be aware of current figures for recycling rates that show that for England household recycling has pretty much flatlined, with a very small increase in the last figures that I have seen. There are real concerns that recycling rates could potentially decline. I would have thought that the Government should be more worried about that than tying up these bureaucratic arrangements that have been so roundly challenged tonight. I hope the Minister will be able to explain very clearly why the Government are where they are on this.
My Lords, I believe that there is broad political consensus that Clause 44 is needed to introduce a fair system of penalties related to household waste collection in England. This new system will treat individuals more fairly than hitherto and deal effectively with those whose behaviour has a negative impact on residents’ local neighbourhoods, such as leaving bin bags on the street for days on end.
The clause removes the current criminal sanctions available under the Environmental Protection Act 1990. The system we propose means that fixed penalties of between £60 and £80 will be available if a person does not present household waste as required and this causes a nuisance or is detrimental to the locality. The clause introduces a “harm to local amenity” test. Civil sanctions will be available to deal with behaviour such as putting waste out in a way that causes obstruction to neighbours, attracts pests, unreasonably impedes access to pavements or is an eyesore.
In Amendments 18 and 19, my noble friend proposes to retain a parallel system in London. We want to change the law so that only people causing real problems for their community will get punished—for example, people leaving bin bags on the street for days on end. The new test of causing harm to local amenity is designed to ensure this. My noble friend’s amendment would enable London boroughs to bypass this important safeguard. That would mean that if a London resident happened to leave a bin lid open or if someone threw the wrong rubbish into someone else’s recycling bin then the householder—that is, someone else—could be punished, in London.
We do not think it appropriate for people to be penalised for a first-time mistake or someone else’s careless action. They should be told what they have done wrong and have the opportunity to rectify their errors. Clause 44 introduces these changes to the Environmental Protection Act 1990. I am confident that this will not add significant burdens compared to how the current arrangements operate in practice. We know that many authorities already communicate well with their residents and seek to educate them if they have difficulties with collection requirements.
I am quite happy to do that. If I cannot do so during this debate, I will let the noble Lord know whatever information I can find for him.
Clause 44 would ensure that this best practice is adopted and that additional safeguards for the individual are available across all boroughs.
I understand that my noble friend is concerned that the process of issuing penalties will take too long. We need to get the balance right between protecting individuals’ civil liberties and dealing with behaviours which damage local neighbourhoods. We intend that this is reflected in legislation. Since the Deregulation Bill was first published in draft, we have amended Clause 44 so that local authorities will not have to issue multiple warnings to people who repeat the same behaviour of causing harm to the local amenity within a year.
We also believe in a fair and measured approach to penalties. A shoplifter committing a first offence may be issued with a £90 penalty notice for disorder. My noble friend’s amendment would levy penalties of £110 for mistakes and carelessness with Londoners’ bins. Clause 44 allows us to set the level of penalties at between £60 and £80 because we do not believe such mistakes and carelessness should be penalised more heavily than shoplifting. I understand my noble friend’s focus on London and know she would like the city to be treated as a special case. However, other cities in England have, for example, high-density housing, transient populations and student populations. I am sure she would accept that a proportionate, fair approach should apply throughout England.
My noble friend asked why the clause needed to be so wordy. We appreciate that the clause and the schedule are long and look complicated. There are two reasons for that. First, we want to be clear about the process that local authorities must go through as we do not want householders to be penalised for a first-time, inadvertent mistake. Secondly, we are looking to align two different systems, set out in the Environmental Protection Act 1990 and the London Local Authorities Act 2007.
To summarise, this clause as it stands will introduce the protection that a household needs from being punished for a simple mistake or for people throwing the wrong rubbish into someone else’s bin. It will align all of England with a sensible approach that keeps residents informed and levels of penalties proportionate.
My noble friend Lord Tope asked whether I would be prepared to meet him about this, and the noble Lord, Lord Harris, asked the same question. Of course I would be prepared to do that, but I would not want to raise any expectation that the Government will change their position on this. I ask my noble friend to withdraw her amendment.
Is the Minister able to answer the question that the noble Lord, Lord Harris, put to him about the number of prosecutions? As I understand it, he does not have that information to hand. The fact is that in the six or seven years of operating the scheme there has not been one single appeal against the issue of penalty charge notices. Would he conclude, as I do, that that suggests there have been very few issued and even fewer judged to have been unfairly issued?
My Lords, I originally put the question to my noble friend of whether he would be prepared to meet us. He said he will and I thank him for that. I will take up his offer as soon as we can so that we can try and get some sense into this before Third Reading.
I have stood in the same position as the noble Lord, Lord De Mauley, and I have at times thought that the brief in front of me was absolute rubbish. I have to say that I think that this falls into that category. This is not about one person putting a bit of rubbish into somebody else’s recycling bag. This is about bringing into the whole country a decriminalised system of enforcement of waste in relation to receptacles, dustbins and whether or not you put your rubbish out in plain bags. If the five pages plus five pages of schedule on this legislation are intended to amend the problem of one unknown person putting one bit of rubbish into another bag, I think deregulation has lost its meaning.
I will not say any more. I am extremely disappointed with the noble Lord’s response. London has its own legislation on many fronts and it always acts responsibly. It has led the way with the decriminalisation of waste collection and changes to the Environmental Protection Act. It is not just being unfriendly and prosecuting people unnecessarily. The whole nature of what I was concerned about in the noble Lord’s briefing has been misunderstood. I hope that that was what it was. I look forward to meeting him and we will make sure that that happens. In the mean time I will withdraw my amendment.
Amendment 18 withdrawn.
Amendment 19 not moved.
20: After Clause 52, insert the following new Clause—
“Nursery schools: inclusion in schools trusts
In section 18 of the Education and Inspections Act 2006 (alterations that may be made under section 19), omit subsection (4)(f).”
My Lords, as we know, with this Bill we move from waste to education to farms to taxis and now to schools and nurseries. Amendment 20 would enable nursery schools to become full members of trusts and Amendment 21 would ensure that co-operative schools could establish an industrial provident society, should it be desirable, so bringing co-operative schools into line with other kinds of co-operative organisations.
By way of background, I should say that the first co-operative trust school was established just over five years ago. Few would have anticipated the extent of their growth: there are now around 700 co-operative trust schools and that figure is expected to rise to 1,000 by the end of 2015. In other words, more than 250,000 pupils in England now attend co-operative schools. The values of co-operative schools are drawn from the global statement on co-operative identity, which is recognised by the United Nations and forms the basis of co-operative law throughout the world. The co-operative values of self-help, self-responsibility, equality, equity and solidarity, together with the ethical values of honesty, openness, social responsibility and caring for others, have been seen by governing bodies to resonate powerfully with their schools.
Moving to a co-operative model provides a framework in which everybody with a stake in the school’s success—parents, teachers, support staff, local community organisations and pupils—have the opportunity to be involved in running it. There is a growing recognition that working co-operatively helps to avoid duplication and distraction, allows school leaders better to focus on the effective leadership of teaching and learning and raises standards. The value of this kind of collaboration and partnership working between schools was recently examined by the Education Select Committee, whose report highlighted the benefits that collaboration between schools brings, in particular where it is on the basis of mutual benefit.
Examples of these trusts can be seen in Cornwall, where over 100 schools have become co-operatives and are part of 13 trusts. Most of these are geographically based clusters, enabling small village primary schools to be part of a learning community with a secondary school that most of their young people will move to. In Leeds, a significant proportion of the city’s schools are already in co-operative trusts and others are in the consultation process.
The remarkable growth in co-operative schools has happened despite, not as a result of, current government policy. This demonstrates that the models developed under the pathfinder scheme programme following the 2006 Act under the last Labour Administration are enormously attractive to schools.
The reason why these amendments have been put down and I proposed them in Committee is that there is scope within the Bill’s intention—to,
“Make provision for the reduction of burdens resulting from legislation for businesses or other organisations or for individuals”—
to correct two specific burdens on the development of co-operative schools and co-operative school trusts. The first amendment concerns nursery schools. Many co-operative networks and co-operative trusts are based on strong geographically based clusters. They have an all-through vision of education, raising achievement by supporting young people throughout their journey through the education system. Yet the 2006 Act excludes nursery schools from becoming parts of trusts. The amendment would correct this and, in effect, amend the 2006 Act.
Nursery schools are in many ways the most co-operative part of the sector, in relation to both their engagement with parents and carers and their pedagogy, as is reflected in the early years foundation stage. Enabling nursery schools to become full members of trusts or, indeed, academies would provide a vehicle for that parental and family engagement in early years to enthuse the trust to further develop the all-through vision of education essential for sustainable changes in achievement.
The second amendment seeks to amend the School Organisation (Requirements as to Foundations) (England) Regulations 2007 to ensure that schools are able to establish themselves as an industrial provident society, should it be desirable. Despite an all-party commitment to co-operatives and mutuals in the public sector, co-operative schools have had to work around existing legislation, as no provision is made in the relevant education Acts for schools to be established formally as co-operative societies as defined in the 2014 consolidation Act. The new clause seeks to amend this, ensuring that any future legislation provides a level playing field and a more understandable legal framework for co-operative schools—in other words, using the co-operative legislation that exists.
There is a question of the Government’s commitment to co-operatives, mutuals and social enterprises in this area. In a real way, they are disadvantaged because they cannot use the legal form that exists for co-operatives. This issue was first raised in the Commons during the first part of the discussion about the Bill. The amendments were withdrawn then on the basis that there would be discussions with the Department for Education. While Michael Gove was the Secretary of State, he was personally supportive of the proposals but said that the department lacked the expertise and resources to adopt the changes. Since his departure, there has been what you might call a decided lack of enthusiasm about the issue in the department. We are told that the department would like to work with co-operative schools to help with these proposals, but that has yet to happen. I am not hopeful that the Government will accept the amendments now, but I would like to see some sign that progress can be made in this important matter. I beg to move.
My Lords, the Government have been, and continue to be, supportive of the broad aims of partnership, collaboration and co-operation in education, as in other fields. I have been a long-standing supporter of the Co-operative movement and I was sorry to see its decline in the north of England over the last 30 or 40 years, just as I am glad to see that in many ways it is now reviving. I am a member and a regular user of the excellent Co-op shop in Saltaire and I was on the point of considering moving to the Co-operative Bank before its recent sad problems.
We all recognise that mutuals are model forms of enterprise that we need to extend across a whole range of fields. As I deal with elderly relatives, I think that we all need to work much more actively to develop mutual models for care homes. As far as schools are concerned, we know that partnerships between schools can be a powerful tool in raising standards and improving educational achievements for all pupils and we place great value on that.
The academies programme continues to deliver examples of schools working together in multi-academy trusts, which help to ensure success for everybody in those partnerships. These trusts pull together schools across both phases of education to work effectively as a family of schools. There are currently 260 multi-academy trusts which have both primary and secondary provision, so it is not simply primary schools working with primary schools and secondary schools working with secondary schools. We are promoting collaboration across the sector and we see the benefits across the educational landscape.
Outside the academies programme there are other examples of collaboration within the existing system, including sharing best practice in both teaching and school improvement strategies, and schools are able to share services and specialist provision. Therefore, we are very much in favour of the general principles attached.
Nursery schools are currently able to work with local partners and the wider community as well as to federate with other schools and early years providers, should they wish to do so. This sector has a diverse range of providers that facilitate parental choice and enjoy a high degree of autonomy. It is not clear to the Government what further educational benefits there would be in creating a separate category of nursery academy at this time. The vast majority of nurseries are not under local authority control. Local authority nursery schools are a relatively small part of that field.
Amendment 21 seeks to build on the existing opportunities open to schools to join and operate as co-operative trusts. Our continuing highest priority as a coalition is to ensure that all schools are good schools and we are keen to promote all aspects of good practice that support that, including the need for clear accountability. In particular, we want to ensure that schools have strong governance arrangements with clear accountability for educational standards. The current system allows a variety of school models to be established, including maintained co-operative schools and co-operative academies, which, as the noble Baroness stated, have been expanding in particular areas of the country, without weakening school accountability or adding complexity to an already complex system.
Why does adding provident societies to the sort of business forms that schools can have in legislation make anything more complex? It is not a complex question. It is a simple question; it is straightforward. We are just asking that co-operative schools can have the legal form that co-operatives have. That is all.
My Lords, we have been open to discussion and we are still open to continuing discussion on what precise forms are needed, but we want to be persuaded of the educational advantages of the changes that have been proposed and we would want to be assured of the advantages for schools before we were to support these very specific amendments. In line with the Government’s undertaking given in the other House to investigate the proposals—
My Lords, I take the point that the legislation does not specifically say that. I was in the process of saying that we are open to discussion. We offered to investigate the proposals further and my noble friend the Parliamentary Under-Secretary of State for Schools met interested parties to discuss their concerns last year. He also wrote to the noble Baroness in November last year, inviting her to provide evidence about the problems that these amendments would address and to meet to discuss the issue further. We regret that that meeting has not been held and we are still open to further discussions, but, in consequence, the position has not changed and he remains unconvinced of the educational benefits of the noble Baroness’s case.
The Government are determined to continue to remove the barriers and obstacles that prevent schools delivering the best education possible for their pupils and to promote flexible and collaborative ways of working such as the amendments are intended to promote. So far, more than 700 co-operative schools have been established and, as the noble Baroness said, there will be 1,000 by the end of 2015. We firmly believe that there are sufficient alternative options already available without needing to introduce these additional legislative changes, but we are open to continuing discussions about the obstacles that the noble Baroness and others clearly think still exist. In the mean time, and in openness to further discussions, I urge the noble Baroness to withdraw her amendment.
I thank the Minister. I know that he is sympathetic. Indeed, we shop at the same Co-operative store in Saltaire—and a very good shop it is, too. I have been a member of the Co-operative society in Bradford since I was 16 years old. I am grateful for the offer of further discussions and my Co-operative colleagues from the Commons and this House will certainly take the noble Lord up on that offer, because there are issues to do with equity, a fair playing field and recognition of different business types. I think that we would all agree that plurality in those issues is important. In the mean time, I beg leave to withdraw the amendment.
Amendment 20 withdrawn.
Amendment 21 not moved.
Consideration on Report adjourned until not before 8.36 pm.