House of Lords
Wednesday, 11 February 2015.
Prayers—read by the Lord Bishop of Worcester.
The Earl of Kinnoull took the oath, following the by-election under Standing Order 9.
Local Enterprise Partnerships
We have not made an overall assessment in quite those terms. It is early days, especially for the Local Growth Fund, which starts paying out in April. LEPs are locally accountable, but we have asked them to develop monitoring frameworks so we can access progress in the important areas of growth and skills. Of course, recently we also announced investment of a further £1 billion in local economies across England.
I thank my noble friend for her response. Since health is a primary concern among the public, it is somewhat surprising that the Heart of the South West LEP refused to assist the local FE college, working with one of the largest hospitals in Somerset, to develop a joint health and care career college on the basis that health was not one of its priorities. Does the Minister agree that that particular LEP should revise its priorities?
That is primarily a matter for the LEP, but we undertook a robust assessment of the strategic economic plan for each LEP in allocating the funding—both the £1 billion recently and the £6 billion last year. However, I am very pleased that the noble Baroness has brought this project to public attention, and that she will continue to discuss these claims with the local enterprise partnership. Like her, I live off the A303; the new road investment is changing the area, and the population is ageing. However, the decision on where these projects are focused is a matter for the LEP.
My Lords, would the Minister like to monitor LEPs countrywide and share my concern at the lack of women members of those organisations? Is she aware that only 15% of LEPs countrywide consist of women; that in Birmingham, for example, out of 18 members only three are women; and that out of 13 members of the Black Country LEP there are no women at all? Before she gets embroiled in too many specific projects, can she ask the organisation responsible for LEPs overall why there is such a deplorable lack of female representation?
I thank the noble Lord for raising the point, not least because I was discussing it only this morning. My right honourable friend in the other place, Greg Clark, is planning to write to LEPs about diversity. On diversity, gender is important, but so is having small business as well as large business.
My Lords, in my role as chancellor of the University of Birmingham, I have heard that the Greater Birmingham and Solihull LEP has been a great success. A bold decision was taken to place the local enterprise zone right at the heart of the city. Is the Minister aware of this, and does she believe that it creates high-skilled jobs and has been replicated around the country? On the other hand, in the spirit of the Government’s own partnership, Vince Cable, the Secretary of State for Business, said he was sceptical about whether local enterprise partnerships had been successful at all. What does the Minister have to say about that?
My Lords, I am delighted that the noble Lord mentioned the Greater Birmingham and Solihull LEP, because the total that it is receiving under the growth deal is £379 million. We think that local enterprise partnerships have huge potential. What they did in the past I am not sure, but certainly for the future lots of funding is going into skills, enterprise, transport and housing. They are bringing in business funding as well, and there is local matching—following the report by my noble friend Lord Heseltine, which the Government welcomed.
My Lords, does the Minister agree that the involvement of the third sector in local enterprise partnerships is very enriching? As that involvement is very varied across the nation, would she be prepared to monitor the involvement of, and the partnership with, the third sector, as part of an assessment of the progress of LEPs?
As I have said, the composition of a local enterprise partnership is very much a matter for the LEP, provided that it is business led and brings in local democracy with the local authorities. Otherwise, we draw on people who can help with growth and skills, and certainly there are those in the third sector who bring great strength to these areas.
My Lords, does the Minister share our concern about the decline in the number of apprenticeships for 16 to 18-year olds, when there are still areas of very high youth unemployment, and apprenticeship demand vastly exceeds supply? What contribution are LEPs making to encourage employers to offer apprenticeships? Can the Minister give examples of the most successful LEPs working with local authorities, small businesses and so on?
My Lords, as always, the noble Lord asks a very good and detailed question, and I will follow up in writing—but £125 million of the £1 billion growth deal recently announced is addressed to skills capital, and a further £26 million to particular apprenticeships. By bringing business and local authorities together, and by looking at growth and what is needed—skills represent a particularly important constraint—the LEPs can really help to achieve our ambition of having more apprenticeships, and raising the numbers from the 2.1 million that we have had in this Parliament to 3 million in the future.
My Lords, may I suggest that people write to Birmingham City Council and ask for details about how its LEPs are organised? As part of the team from European Union Select Committee Sub-Committee B, as part of our unemployment study, we visited Birmingham City Council and we also went out to some of the organisations funded by it and through the LEPs. That was quite revelatory. Of all the witnesses to that inquiry, those people were by far the best, and they had new ideas about how to get ex-cons and young people who had never had a job, and would not get out of bed to get one, into particular areas. Please let us not condemn a body such as Birmingham City Council, in view of the reality on the ground and the fact that the witnesses’ evidence was so good.
I thank my noble friend for drawing attention to all this and look forward to hearing fuller details. I do not think that any of us is condemning LEPs. There are always good and bad things about such organisations. My own view is that they are making a great drive forward in helping local people choose the projects we should support with government funding and matching funding from business and others.
My Lords, in the debate on the constitution will the Minister keep in mind the distinction between decentralisation and devolution? Decentralisation is superior to devolution in terms of local enterprise companies. I give the Minister an example. The SNP Government in Scotland abolished the local enterprise zone in my area, but not before I established a public-private partnership in 1998. Sixteen years later, 2,000 jobs have been created with gross value added to the local community of more than £500 million. The public investment in that is one-1,000th, at £500,000. Will the Minister bear in mind that we have no hope of rebalancing the economy if we do not keep in mind the merits of decentralisation and local involvement?
Voter Registration: Students
My Lords, the Government have no plans to legislate to require electoral registration officers or schools and colleges to provide for pupils to register to vote at school. EROs are free to arrange registration sessions in their local education establishments, and many already do. The Government have recently provided additional funding to encourage activities which promote the registration of young people among other target groups.
I note what my noble friend says, but, given the success of the initiative in Northern Ireland, is there not a case for having an independent evaluation to see whether it is worth using that scheme in the rest of the UK? The fact that 189,000 17 year-olds in college will turn 18 before the deadline shows even more clearly how we need to get the message across.
My Lords, we have, of course, evaluated the Northern Ireland experience. We were dealing with paper transactions then and we are now moving to online transactions. Since the beginning of February, there have been nearly 500,000 online registrations, so we are very much achieving what we want, and we look forward to seeing more coming. The Northern Ireland experience was useful at the time. However, it was not a great success in maintaining registration: that there was a very substantial drop-off after the first year of registration for 17 year-olds to the level of registration of 18 to 19 year-olds.
My Lords, first, I declare an interest as the chair of the All-Party Group on Voter Registration. When I asked the noble Lord, Lord Wallace of Saltaire, last week what the Government were doing to deal with the scandalous situation whereby, according to the Electoral Commission, 30% of 18 to 24 year-olds are not registered, he avoided answering the question, so I will give him another chance to do so today. What are the Government doing to deal with this serious matter, because from here it seems that they are doing very little to get these young people registered by 20 April to vote in the general election?
My Lords, the Government are doing a great deal. We have provided an additional £14 million over the last 18 months precisely to deal with help in those areas. Most of that has gone to EROs in local authorities, with the largest proportion going to those in areas with a substantial number of students. We have also just funded a number of groups, many of which work with young people and disadvantaged groups, to assist in this process.
My Lords, does my noble friend the Minister agree that it sends at best a very weak message to young would-be voters if we do not equip them while at school to take their place as citizens in a highly complex society? Will he do something about the steady decline in citizenship education?
My Lords, that is a different question. However, as the noble Lord knows, I strongly support that and have worked to support it in government. I point out that young people are increasingly online. One of the things that government and local authorities are doing is to provide links to registration when you go into GOV.UK. For example, we have links for those inquiring about student jobs or paying tax, those looking for higher education courses who need to find and apply, those looking for tenancy deposit protection, a careers helpline for teenagers and so on to make registering to vote easier and to nudge people into thinking about it.
My Lords, does the Minister realise that in many areas of the country his answers will seem very complacent? Much of the problem arises because for many young people it is the first time that they are registering. I will give another example, involving, admittedly, not a young person but my husband. Having moved, he was asked to go to the town hall with his passport to prove who he was before he was registered. Most people will never do that, and that is one of the reasons why individual registration is proving very taxing in some areas.
My Lords, I am extremely sorry to hear about the difficulties of the noble Baroness’s husband in having to demonstrate that he existed, and I look forward to hearing more offline. In the last two or three weeks, the number of people registering has risen considerably. Part of that has clearly been due to the extra publicity around National Voter Registration Day, and I give credit to those who organised it. However, all of us have to help in raising the level of interest. For example, I took part with candidates and spokesmen of other parties in a packed meeting at the University of York on Friday evening. Some students came up at the end and said, “We had not been thinking about voting so far, but now perhaps we will”. We all need to get out there to encourage young people.
My Lords, there is a real problem with student hostels, where a number of young people live together and the delivery of post to individual students is not the easiest thing in the world. What are the Government doing to try to address the problem of group registration?
My Lords, we have switched from group registration to individual registration, but the Government are working with the Student Forum, which brings together universities, student organisations and representatives of FE colleges, to raise awareness through a whole range of activities for students arriving in universities. There were pilots in Sheffield and Manchester linking registration at university with registering to vote—so we are very active in this area.
My Lords, I am grateful to the Minister for referring to last week’s National Voter Registration Day. As part of that, I went into Townsend School in St Albans with two dynamic members of Bite the Ballot, who were able to bring the whole thing alive in an interactive and very lively session. They handed out registration forms at the end and offered to take them back in—so they are already doing this sort of work. Have Her Majesty’s Government considered supporting that organisation and other similar ones that are already doing this work in a very creative way?
My Lords, I have played the game Rock Enrol!, and I hope that a lot of other noble Lords have done so, too. It demonstrates to young people how politics matters to them. I hope that that is going on all over the place. The Government have their own version of this, and Bite the Ballot has adapted another one. We are discussing with Bite the Ballot the question of support and we very much encourage what it and a number of other organisations are doing to bring young people back into being interested and involved in politics.
Public Sector Strikes: Union Support
My Lords, does my noble friend agree that public sector trade union bosses should not be able to hold working people to ransom over industrial disputes that have nothing to do with them? Should not public sector trade unions be required to demonstrate a balloted majority of more than 50% of their membership before being able to call a strike?
My Lords, we are very much committed to ensuring that people have the right to strike but it is important that this is balanced, so that everyone else’s right to get on with their daily lives is understood as well. The concept of thresholds is very interesting. There are certain public sector strikes where 11% of the membership have caused a strike, with very considerable inconvenience to the public.
My Lords, in the interests of balance, does the Minister agree that the legislation governing trade unions is already some of the tightest in Europe and that the level of strikes in this country is, I am glad to say, comparatively low? Does he agree that any further tightening of the noose of that legislation might lead to a growth in unofficial action?
My Lords, any responsible Government should look at a situation from time to time, certainly if we were to have strikes where the percentage of the membership voting in favour was 11% or 12%. We have a possible RMT strike coming up with under 25% of the union membership voting for strike action. This is a matter of concern for the public, and, I have no doubt, for the 75% of the union members who did not vote.
My Lords, does my noble friend recollect that when I was undertaking the changes to industrial relations law which brought about the most enormous change in our industrial relations, from the worst in Europe to the best, I resiled from putting in a requirement of the sort that is now being discussed because I could not believe that trade union leaders would be so irresponsible as to pull a strike on tiny numbers of their members voting for it? Therefore, while I agree that we should not act immediately, trade union leaders should take into account that it will become necessary to do so if they persist in this extraordinary behaviour in the public sector.
My Lords, I have the figures of 11% to 12% before me. These are very low figures. They show very often that we have strikes and inconvenience to the public when a huge majority of union members have decided either not to vote for the strike or not to vote at all. These are things that we should think about. We have a responsibility for the public sector—of course we do—but public sector workers have to remember that they are working on behalf of everyone. I think that large numbers of members of unions should be voting for strike action, rather than minorities.
My Lords, will the Minister accept that the hallmark of a democratic society is the right to strike, however inconvenient that might be from time to time? British unions—my eye catches the noble Lord, Lord Tebbit—are already among the most restricted in the western world in legal terms. The real problem with turnouts is the insistence on postal ballots to the exclusion of all other possible measures. As we just heard from the noble Lord, Lord Wallace, young people in particular tend to vote online more comfortably than by post nowadays. Rather than engaging in yet another rather tribal round of union bashing in the pre-election period, will the Conservative Party apply its mind to thinking about other means of balloting, rather than simply postal balloting?
My Lords, I certainly do not approach this as a political matter. We have in the public sector people who are very important to us all. It is not reasonable for a strike that causes huge inconvenience to people to be on the back of 11% of a union’s membership. Postal votes are increasingly popular. It is one of the ways forward for many people and I encourage it.
My Lords, I am sure that the Minister will acknowledge that there is not society-wide support for trade unions. Does he agree that this is as a result of many individual unions affiliating themselves to one political party? Does he think that it may be beneficial to the membership levels of those unions if they appeal to a wider section of society away and apart from the traditional political groupings?
My Lords, unlikely though it may seem to noble Lords opposite, I think that trade unions and the trade union movement have a very strong place in our national life. There have been difficulties, but I think that trade unions are institutions that have had many responsible members—of course I do. The whole issue is whether they have reasonable and responsible leadership on occasion; leadership should be shown. We could be about to have bus strikes where 21% of the union membership have voted for that strike.
My Lords, I point out that the settlement put in place by my noble friend Lord Tebbit— my good friend—has substantially stayed throughout many years of opposition and government. I hope that the leaders of the trade union movement will take note that strikes on very low turnouts are increasingly unacceptable. I also ask the Minister to look positively at ways in which voting could be extended beyond the postal ballot to reflect the modern age that we are in.
Adult Social Care Contracts
The new Care Act directs local authorities to put the well-being of people at the centre of all decisions about care and support. Commissioning high-quality social care is ultimately a matter for local authorities. We are aware of electronic marketplace systems that, together with professional judgments by authority staff, help to embody this well-being principle by prioritising quality above cost while achieving value for money.
My Lords, I am very grateful to the noble Earl for that thoughtful response. Does he agree that advertising a block of services in an impersonal way is entirely different from advertising a vulnerable individual, stripping them of their humanity and dignity? Would he be willing to take forward the point that he made about the legislation and examine whether these authorities are disregarding the duty placed on them by Parliament to carry out a proper assessment of need for each individual, to produce a care plan and to make sure that that care plan is related to the individual’s developing situation? Will he ask the Care Quality Commission to make unannounced inspections of these authorities to see whether they are complying with the law?
My Lords, I make it clear that the personal details of would-be service users should not be put in the public domain. The purpose of this system is to develop a tailored care plan that best meets the person’s needs and does not undermine their well-being. Where this has been done well, it has resulted in good-quality care while also, as I said, providing value for money for the taxpayer. We would not wish to make provision for spot checks of local authorities by the CQC but, where there is clear evidence that a local authority’s commissioning practices are leading to poor-quality care—which they should not be—the Secretary of State can order the Care Quality Commission to carry out a special review.
My Lords, the Minister will know that self-funders have been subsidising local authority places for decades. Have the Government measured what the impact of the increased cost on self-funders would be in the event that we were to go down the route suggested?
My Lords, whatever system is chosen for commissioning care in a local authority, there has to be a fair system for setting fees. We expect local authorities to comply with their legal duties to sustain a high-quality market of providers in their area, and that involves paying fair fees. That is a matter for local determination. It has to be because, in seeking an open market, as we do, we are also aware that local market conditions have to be taken into account.
My Lords, many service user-led organisations—for instance, the National Centre for Independent Living—provide a high quality of service. Does the Minister accept that in order to achieve high quality and high value, local authorities may have to pay a premium in the short term to achieve long-term cost-effectiveness? If he does, can he remind local authorities of this?
My Lords, the principle that the noble Baroness articulates is, I am sure, applicable in some areas. I hope that she will be reassured to know that the department has developed statutory guidance for the Care Act to support local authorities, including commissioning. The guidance to the Act directs local authorities to ensure that all packages of care and support that are arranged are good quality and do not undermine people’s well-being. Furthermore, the department will, with partners, be developing a set of commissioning standards which will help local authorities to improve their commissioning practices.
My Lords, commissioning of social care is changing fundamentally, not least because of increased use of individual budgets and integration with health commissioning. Does the Minister agree that it is time for the CQC to do a thorough review of the commissioning skills and capacities of local authorities?
I think that that would be premature. As I have said, we are developing statutory guidance for local authorities, as well as commissioning standards. We have no evidence to date that the process to which the noble Lord, Lord Laming, has drawn attention is leading to perverse results. If there is such evidence, we would be interested to hear about it. But until we are aware that there is a problem, I think that the noble Baroness’s suggestion is not timely.
My Lords, it is impossible to give generalisations. As I indicated, it will depend on what happens in a given local area. We know that it happens at the moment but, again, it is impossible for me to make a general statement about how much or how little it is happening across the country.
Local Elections (Forms) (Northern Ireland) Order 2015
European Parliamentary Elections (Forms) (Northern Ireland) Regulations 2015
Northern Ireland Assembly (Elections) (Forms) Order 2015
Parliamentary Elections (Forms) (Northern Ireland) Regulations 2015
Motions to Approve
European Parliamentary Elections (Amendment) Regulations 2015
Representation of the People (Scotland) (Amendment) Regulations 2015
Representation of the People (England and Wales) (Amendment) Regulations 2015
Motions to Approve
Freedom of Information (Designation as Public Authorities) Order 2015
Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2015
Motions to Approve
Francis Report: Update and Response
My Lords, I refer the House to the Statement made by my right honourable friend the Secretary of State for Health in the House of Commons, copies of which have been made available in the Printed Paper Office and the text of which will be printed in full in the Official Report.
The following Statement was made earlier in the House of Commons.
“With your permission, Mr Speaker, I would like to make a Statement on the Government’s response to today’s report on NHS whistleblowing by Sir Robert Francis, and on progress to date in implementing previous recommendations from his public inquiry into the failures of care at Mid Staffordshire NHS Foundation Trust.
I asked Sir Robert to carry out a follow-up review because of my concerns that, despite good progress in implementing his original recommendations, the NHS was still not making fast enough progress in creating an open and transparent culture in which staff feel supported to speak out on worries about patient care. As a result, I was concerned that changes are still necessary if the NHS is to protect patients properly by adopting a transparent, no-blame, learning culture as is common in other sectors such as the nuclear, oil or airline industries.
Sir Robert has confirmed the need for further change in his report today. He said he heard again and again of horrific stories of people’s lives being destroyed—people losing their jobs, being financially ruined, being brought to the brink of suicide and with family lives shattered—because they had tried to do the right thing for patients. Eminent and respected clinicians had their reputations maligned. There are stories of fear, bullying, ostracisation and marginalisation, as well as psychological and physical harm. There are reports of a culture of ‘delay, defend and deny’, with ‘prolonged rants’ directed at people branded ‘snitches, troublemakers and backstabbers’, who were then blacklisted from future employment in the NHS as the system closed ranks.
We, of course, recognise the high standards of care day in, day out in much of the NHS, and we know that many staff feel supported in raising concerns about patient care, with many dedicated managers going out of their way to address those concerns. However, the whole House will be profoundly shocked at the nature and extent of what has been revealed today. The only way we will build an NHS with the highest standards is if the doctors and nurses who have given their lives to patient care always feel listened to when they speak out about patient care. The message must go out today that we are calling time on bullying, intimidation and victimisation, which have no place in our NHS.
Before outlining the Government’s response to today’s report, I want to update the House on the progress made in implementing previous Francis recommendations. I have today laid in the House of Commons Library a report showing progress on all 290 recommendations originally made by Sir Robert, as well as the progress made in implementing other recommendations by Professor Don Berwick on safety, by the right honourable Member for Cynon Valley, Ann Clwyd, and Professor Tricia Hart in their complaints review, by Camilla Cavendish in her work on healthcare assistants and by the NHS Confederation on reducing bureaucratic burdens. The progress was recognised this morning by Sir Robert, who said that the priority that must be given to safety, compassion and quality of care is now better recognised and acted on.
I want to highlight the impact of Professor Sir Bruce Keogh’s review of hospitals with high mortality rates. The special measures regime that followed introduced the toughest and most transparent hospital turnaround regime anywhere in the world, with 19 hospitals—more than 10% of NHS acute trusts—having been put into special measures so far. Among the vast array of improvements since the start of the process, those trusts have recruited 109 additional doctors and 1,805 additional nurses, and have made 129 board-level changes. The independent research company Dr Foster estimated this week that excess deaths in those trusts had fallen by 450 in less than a year. That means that between them, they may have saved as many lives as some estimated were tragically lost at Mid Staffs between 2005 and 2009.
We have moved from a system that tolerated or denied high mortality to one that, while it is by no means perfect, seeks out problems, shares them with the public, takes action and saves lives. Today I can announce that the Care Quality Commission, Monitor and the NHS Trust Development Authority have published a new memorandum of understanding to enshrine and further improve the special measures process.
The other measures that we have introduced include giving the CQC, under its new leadership, legal independence and the legal powers that it needs for its chief inspectors to root out failure and highlight excellence. The chief inspector of hospitals has inspected more than half of acute trusts and will have inspected them all by the end of the year.
We have introduced criminal sanctions for those who wilfully neglect patients and those who provide false or misleading information. The new duty of candour for institutions and professionals means that when mistakes are made, patients or their families must be told. Fundamental standards are now in place to ensure that all providers are required to treat people with dignity and respect. All acute hospitals are now asking patients if they would recommend the care that they receive to friends or members of their family. That is being rolled out to other parts of the NHS, including primary care. Two-thirds of hospitals are now implementing the ‘name above the bed’ initiative to ensure that hospital care is better joined up. More than 200 organisations have joined the ‘sign up to safety’ campaign, which involves a commitment to halve avoidable harm and save 6,000 lives by 2017.
The entire NHS is now committed to patient-centred culture change as a key part of the ‘Five Year Forward View’ plans that were put forward by NHS England last autumn. In that plan, we recognise the important point that safe care and efficient use of resources go hand in hand: doing the right things first time in healthcare saves lives and money.
In respect of whistleblowing, the Government have taken significant steps to protect NHS staff, such as enshrining the right to speak up in staff contracts, amending the NHS constitution, issuing joint guidance with employers and trade unions, extending the national helpline to social care staff, and changing the law to make employers responsible if whistleblowers are harassed or bullied by fellow employees.
Today, Sir Robert makes it clear that there is more to do, and I am extremely grateful to him and his team for their work. He sets out 20 principles and a programme of action. I confirm today that I accept all his recommendations in principle and will consult on a package of measures to implement them.
The recommendations include asking every NHS organisation to identify one member of staff to whom other members of staff can speak if they have concerns that they are not being listened to. Drawing on the inspirational work of Mid Staffs whistleblower Helene Donnelly, those ‘freedom to speak up’ guardians will report directly to trust chief executives on the progress in stamping out the culture of bullying and intimidation that Sir Robert today says is still too common. We will consult on establishing a new independent national whistleblowing guardian as a full-time post within the CQC to review the processes that have been followed in the most serious cases where concerns have been raised about the treatment of whistleblowers.
Because too often the system has closed ranks against whistleblowers, making it impossible for them to find another job, I can announce today that the Government will legislate to protect whistleblowers who are applying for NHS jobs from discrimination by prospective employers. With Opposition support, those necessary regulation-making powers could be on the statute book in this Parliament.
We will provide practical help through Monitor, the NHS Trust Development Authority and NHS England to help whistleblowers find alternative employment. Those three bodies have agreed a compact for action on this issue, and will publish detailed arrangements later this year. We will ensure that every member of staff, NHS manager and NHS leader has proper training on how to raise concerns and how to treat people who raise concerns. As a vital last resort, the right of whistle- blowers to contact the press with any concerns they have must always be safeguarded, although it should not have to come to that. Today I will write to every trust chair to underline the importance of a culture where front-line staff feel able to speak up about concerns without fear of repercussions. In addition, Monitor and the TDA will write to trust chief executives today to ask them to ensure that all managers discuss these issues as a matter of urgency with those who report to them.
There must be consequences for trusts that fail to develop a culture of openness, so today I am publishing consultation options to ensure that where hospitals are found to have knowingly withheld information from patients, the NHS Litigation Authority can impose financial sanctions such as reducing the indemnity it offers against litigation awards. The final decision on how we implement these recommendations will be made after proper consultation with NHS providers, whistle- blowers and patient groups to ensure that we honour the spirit of what Sir Robert has recommended, and to avoid unnecessary layers of bureaucracy or financial burden. There is no reason for individual trusts not to get on with implementing Sir Robert’s recommendations right away, particularly in ensuring that staff have an independent person with whom they can raise concerns.
A further foundation of a safe and open culture is one where the NHS and the public have access to meaningful and comparable information about the performance of local NHS organisations. The new MyNHS website has already kick-started a transparency revolution by making the NHS in England the first healthcare system in the world to offer key, up-to-date safety information on every major hospital, including open and honest reporting, nurse staffing levels in every ward, and the number of falls and hospital-acquired infections. Some estimate that we have as many as 1,000 avoidable deaths in the NHS every month, so by the end of March 2016 the NHS will become the first healthcare system in the world to publish an annual estimate of avoidable deaths by hospital trust, based on case note reviews and the safety record of those trusts.
I will strengthen the accountability of trusts by asking the chair of every trust to write a letter to the Secretary of State by the end of May each year, outlining what measures they will be taking to reduce the number of avoidable deaths in their trust. In all cases we will make it clear that this is not a process of naming and shaming but one of learning and improving so that our NHS becomes the first healthcare system in the world to adopt system-wide the safety standards that would be considered normal in other industries. We must also better understand avoidable mortality outside hospital settings, and whether we can adapt the methodology to identify avoidable harm as well as avoidable death. I therefore announce today that the department will fund a national study to establish the extent of avoidable death in community settings, and the feasibility of developing locally attributable death rates.
We will be taking steps to hard-wire transparency into the health and care system, and I am publishing a transparency architecture with plans for further information to be released on MyNHS. That will include comprehensive reporting on the friends and family test, data on residential care home admissions, and a new balanced scorecard on the work of CCGs and health and well-being boards. The Care Quality Commission and the National Information Board have confirmed to me that, starting this year, they will report annually and in public to the Secretary of State and the Health Select Committee on the progress of the transparency architecture, and on any recommendations about how we can improve it. The Secretary of State will report to Parliament annually on progress, and today I am publishing for consultation changes that will enshrine that right in the NHS constitution.
One of the biggest causes of poor care is when no one takes responsibility for a vulnerable patient and the buck is passed. That leads to greater costs and numerous personal tragedies as people are passed unnecessarily around the system. The ‘name above the bed’ initiative has strengthened accountability in hospitals, as has bringing back named GPs outside hospitals, but there is still not enough clarity on the role of professionally accountable clinicians, particularly in community settings. Today I can therefore announce that the Academy of Medical Royal Colleges has agreed to develop guidelines for meaningful clinical accountability outside hospitals. It will publish its findings this spring, and before the end of the next financial year all CCGs will publish how many of their patients with long-term conditions are being looked after by clinically accountable community clinicians in the meaningful way the academy will define. Proper proactive care for our most vulnerable patients will not only reduce hospital costs but reduce avoidable harm and improve the quality of compassionate care.
We can fund the NHS with a strong economy, we can put in place new models of integrated care to support an ageing population and we can champion innovation, but if we do not get the culture in the NHS right, we shall never deliver the ambitions that everyone in this House has for our NHS. Today is about tackling that culture challenge head on so that we build an NHS that supports staff to deliver the highest standards of safe and compassionate care and that avoids the mistakes that have led to both unacceptable waste and unspeakable tragedy. If we succeed, we will be the first country anywhere to put its entire healthcare system firmly on the path to eliminating avoidable harm and death. Our NHS deserves no lesser ambition, so I commend this Statement to the House”.
My Lords, I am very grateful to the noble Earl for referring to the Statement in the way that he did. We welcome the Statement and its commitment to improve the culture around tackling poor care in the NHS. The Opposition endorse the principles in Sir Robert Francis’s new report and we will work with the Government to get them on the statute book in the remainder of this Parliament.
In 1998, the previous Government introduced the first legal protection for whistleblowers in the public interest disclosure legislation, reinforced in the NHS constitution in 2008. We see Sir Robert’s new principles building on those foundations. Our shared aim should be to create a climate in which any NHS worker feels able to raise concerns and confident that they will be listened to, that appropriate action will be taken and that they will not face mistreatment as a result. Today’s report establishes a number of new principles to which all NHS organisations should work. We fully endorse these. The call for support for whistleblowers worried about losing their jobs or finding alternative employment, and training in whistleblowing for all staff, is long overdue. Can the noble Earl confirm that this will apply equally to all providers of NHS services, including voluntary and private providers?
Let me turn to the recommendation for an external organisation which staff can approach for advice and support. In response to the first Francis report in February 2010, my right honourable friend Andy Burnham, when he was Secretary of State, established an expert group to update whistleblowing guidance. It reported in June 2010 and the then Secretary of State, Andrew Lansley, announced plans for a “safe and independent authority” to which staff can turn when their own organisations are not acting on concerns. Will the noble Earl say why little progress has been made since then and assure us that there will be no further delays now that Sir Robert has reinforced this recommendation?
Are the Government concerned by Sir Robert’s findings that the NHS culture might have got worse in recent years? As regards the cases he examined, he said:
“Many were relatively recent or current. This is not about a small number of historic high profile cases from a time when organisations might argue the culture was different. We had a significant number of contributions about cases in 2014”.
The report specifically references figures from the latest NHS staff survey, which shows that reports of bullying have increased from 14% of staff in 2011 to 22% in 2013. Over the same period, staff feeling unable to speak out about poor care, report errors or near misses has fallen from 98% in 2011 to 94% in 2013. Those figures suggest that things are getting worse and not better. Will the noble Earl comment on that and give the reasons?
This seems to underline the importance of any moves to improve culture being brought forward in the right sprit, supportive rather than punitive, so as not to reinforce the wrong culture and create a climate of fear. At the weekend, the Secretary of State proposed fines and jail sentences for failure to be open about poor care. We certainly support that zero tolerance approach but is the noble Earl not concerned that this might be perceived on the ground as creating such a climate of fear and therefore having the opposite effect?
I know that the Minister’s right honourable friend frequently quotes the airline industry as a model to be followed. I remind him that the experience in the airline industry has been to create a safe environment in which pilots can report near misses and untoward incidents so that the industry can learn from them. I urge the noble Earl to consider that whatever happens in the future, the encouragement to be open is not lost in this new approach.
Turning to Mid Staffordshire, we supported Sir Robert’s original recommendations and I certainly give credit to the Secretary of State for making progress on this since the report was produced and the recommendations were accepted. However, he will know that there are gaps where progress has not been made and that this is a concern when standards overall in the NHS are recorded to be falling and not rising. I particularly want to ask him about the long-standing need to reform the system of death certification. This goes back to Dame Janet Smith’s proposals which were embraced within the Coroners and Justice Act 2009 to make provision for the independent scrutiny by a medical examiner of all deaths that are not referred to by the coroner. Following successful pilots, Sir Robert Francis reinforced Dame Janet Smith’s recommendations. I was the chair of a trust which ran a pilot scheme, and I can testify to the effectiveness of having a senior consultant as the medical examiner looking at the case notes where deaths have occurred, informing patients, finding out where things have gone wrong and helping doctors to improve their practice. There is concern that the Government have shelved this proposal, and I hope to hear that that is not so.
Can the noble Earl set out a clear timetable for the introduction of medical examiners and comment on the arrangements in hospitals for reviewing case notes when patients have died? Over the weekend, the Government announced plans to introduce an annual review from a sample of patients. While that will definitely help us to develop a more accurate measure of avoidable deaths than the current mortality rates, does he think that it will go far enough? Should not the NHS learn from all serious failings, and will he give consideration to our suggestion that every death in hospital should be given an appropriate level of review?
We welcome the progress which has been made at some of the hospitals in special measures, but I want to ask the noble Earl about the use of mortality statistics. Is he aware that the graph on page 8 of the recent Dr Foster report shows that mortality rates at the Keogh trusts fell faster between 2006 and 2010 than between 2010 and 2014? Perhaps I may also refer him to the plans outlined by the Secretary of State to calculate the number of avoidable deaths for individual hospitals. They were described by Nick Black, a professor of health services research who has produced many of these ideas, as not having any meaning because of concerns about the robustness of the figures. Will he also acknowledge that a recent investigation by the Academy of Medical Royal Colleges into the use of hospital standardised mortality ratios as a means of comparing the quality of US and English hospitals has shown the method to be unreliable? He will know that Professor Jarman made a proposition that mortality rates between English and US hospitals were such as to cause concern about the UK position. The investigation demonstrates very clearly that the data are not comparable and cautions the use of a crude approach towards trying to judge institutions simply on the basis of HSMR statistics.
Finally, does the noble Earl agree that encouraging an open culture where whistleblowers feel secure in being able to raise issues of concern emanates from a culture that must apply throughout the system, starting at the top in his department and then through all the national regulators as well? If the national bodies feel that they are not able to raise concerns about government policy publicly and if the chief executives of NHS organisations know that if they make any public criticism, they will be penalised in one way or another by the system, is it any wonder that they then find it difficult to create a culture of openness? I urge the noble Earl to embrace fully what is being proposed today by acknowledging that if we are really going to grip the system, a culture of openness and of whistleblowing has to go right through the system and must include his own department, the regulators and NHS England.
In conclusion, we welcome the Statement today and we will do everything we can to ensure that the regulations the Government bring forward are able to go through Parliament before the election.
My Lords, I am grateful for the welcome and support that the noble Lord, Lord Hunt, has given to the Statement. I do of course agree that Sir Robert’s recommendations, which we accept in principle, build on the current safeguards for whistleblowers. But, as the noble Lord knows, Sir Robert did identify some important gaps in those safeguards which we must now address.
The noble Lord asked me a number of questions. First, he asked whether these provisions would apply equally to all providers of NHS services, including to the voluntary and private sectors. Similar provisions will certainly apply to the voluntary and private sectors. We will expect such providers to reflect on how Francis’s recommendations might apply to them, but we will also use the NHS contract in an appropriate way.
The noble Lord asked whether the Government were concerned about an increase in the number of whistleblowing cases over the last few years. There is evidence that safety and compassionate care have in fact improved in recent years. It is also possible that the new emphasis on openness and transparency may lead to more concerns being raised, which is a slightly counterintuitive effect of a better culture. We want to examine Sir Robert’s findings carefully and would encourage NHS organisations to do the same. But it is important to emphasise that however much improvement we see, we must never be complacent about how good the system is.
The noble Lord asked about progress in identifying an authority to whom whistleblowers could turn. I refer him to Sir Robert’s recommendations, which provide for local “freedom to speak up” guardians, who will report directly to trust chief executives and, crucially, to whom members of staff in an organisation can speak if they have particular concerns. There will be a new independent national whistleblowing guardian as a full-time post within the CQC, as a further safeguard in this process—a person who can understand what has happened in a given local case and refer back to that local organisation in an appropriate fashion.
I agree with the noble Lord that we want to achieve, above all, a supportive and learning culture. That is something emphasised not only by Sir Robert but by Professor Don Berwick in his review of patient safety issues. He is also right that if we go too far with a punitive approach to these matters, it could deter people from wishing to step forward. That is why we hope that we have the balance right in the legal provisions that we put through in the Care Act so as to ensure that, while organisations must always be on the line for the extent to which they have complied with, for example, the duty of candour, we do not put employees in a state of excessive fear, lest they refrain from speaking up when appropriate.
All the measures we have taken so far—the duty of candour, the new offence of wilful neglect, the fundamental standards that Sir Robert recommended, which will be coming in, and the fit and proper persons test—combine to shore up the system in a helpful way, without, we trust, making the NHS feel oppressed by regulation.
The noble Lord asked about death certificates. No, the policy has not by any means been shelved. The work is continuing. To be frank with him, progress has been slightly less fast than we would have wished, but the Government remain totally committed to the principle of these reforms. Further progress will be informed by reconsideration of the detail of the new system in the light of other positive developments on patient safety since 2010 and by a subsequent public consultation exercise. A number of recommendations in Sir Robert Francis’s Mid Staffordshire inquiry report refer to that reform of the death certification system. A new system of medical examiners has been trialled successfully in a number of areas across the country. The work of the two flagship sites in Gloucestershire and Sheffield has been continued and extended to operate a medical examiner service on a city- and countrywide basis at a scale that will be required for implementation by local authorities when legislation is introduced. We will be publishing shortly a report from the interim National Medical Examiner setting out the lessons learnt from the pilot sites.
The noble Lord, Lord Hunt, referred to the criticism voiced by Mr Nick Black on the way that we interpret statistics on avoidable deaths. The work that we have set in train builds on innovative work at the London School of Hygiene and Tropical Medicine, and we think it has the potential to enable NHS trusts to develop a better understanding of actually avoidable deaths. But we will continue to work with front-line clinicians, national organisations and academics to find ways to support trusts to understand better their levels of avoidable mortality and, crucially, to take effective action to reduce those levels.
The first Francis inquiry emphasised the importance of trusts looking carefully at their mortality rates as part of their overall scrutiny of safety measures. We believe that most, if not all, are now doing that but we want to do more to improve the data and their use to make improvements. I would just say to the noble Lord that we should not let the best be the enemy of the good. Imperfections in data should not get in the way of vigilant local scrutiny of those data, even though they may not be 100% accurate.
The noble Lord concluded his remarks with some questions about culture. In particular, he asked me whether I agreed that the culture of the system starts at the top. Of course, I agree with him fully on that. But I would just say to him that as a Government we have taken a conscious approach not to overemphasise poor care where it occurs but to expose it and to adopt a policy of transparency so that poor care as well as good care can be apparent to patients, the public and the system at large. We have given greater legal independence to the CQC. We want it to speak out without fear or favour, and it has indeed done that.
We believe it is right to confront poor practice where it occurs. The key, however, is to turn around those organisations that are found wanting, and the system of special measures has undoubtedly proved its worth, as the Dr Foster report recently made clear. There was an unequivocal finding in that report that the levels of avoidable mortality in most of the special measures trusts had gone down by a statistically significant percentage. There is undoubtedly a high degree of utility in the special measures process, painful as it may be to some organisations.
My Lords, will the Minister please say whether the proposals in the report relate to the provision of mental health services as well as physical health? The proposals are very much focused on hospitals. Secondly, review after review has shown that in a hospital the one group of staff who know better than anybody else what is going wrong are the junior staff—junior doctors and so on. In the work going forward, will the Government pay particular attention to junior doctors and non-clinical staff who are whistleblowers, and what happens to them? Finally, the report mentions the extension of this work to an examination of avoidable deaths in community settings. Will the Minister say who will be involved in that work and when we can anticipate a report on it?
We envisage that all NHS providers should be subject to whatever practical measures are agreed. We are not yet in a position to be prescriptive about what those arrangements should be. We will consult on how best to implement Sir Robert’s recommendations in the least burdensome way possible but in a way that fulfils his ambitions to the maximum extent. I totally take my noble friend’s point that junior doctors and non-clinical staff are often in the best position to judge the health and culture of an organisation. Indeed, I am aware that the CQC, when inspecting a hospital, often makes a point of convening a focus group consisting of junior doctors because it knows that there is a great deal to be learnt from that source. On community care, again, we have taken no firm decisions on how this will come about, but we wish to take the advice of those whose views we value.
My Lords, I welcome the Statement and congratulate Sir Robert once again on his most thorough analysis. I also welcome the long overdue proposed change in the law to make employers responsible if whistleblowers are harassed. Does the suggested new duty of candour mean that never again will we see gagging clauses in any NHS contractual arrangements? How long have gagging clauses been tolerated and what is the justification for them?
I am grateful to the noble and learned Lord. NHS guidance has consistently made it clear that, where confidentiality clauses are used, they should go no further than is necessary to protect the legitimate interests of both the employer and the employee. There are circumstances when a gagging clause is appropriate, but local policies should always prohibit the inclusion of confidentiality clauses in contracts of employment and settlement agreements that seek to prevent an individual making a disclosure in the public interest, in accordance with the Public Interest Disclosure Act. Such clauses are often referred to as gagging clauses. If such clauses were to be included in a severance agreement or settlement, they would be deemed void in any event. We have made it amply clear to NHS organisations where the boundary lies between those two types of confidentiality clause.
Is my noble friend aware that the question of patient safety, which is emphasised, is fundamental to all this? In contrast, the number of claims for medical negligence continues to rise—in the past year, it did so by 18%—and now costs the NHS well over £1 billion. Has the time not come to have a thorough review of how such medical negligence claims are handled and who is behind some of them? Perhaps it is ambulance chasers. In any case, is not arbitration possibly the way forward, such as happens in essence when a coroner looks at a difficult case?
My noble friend makes a series of very good points. We are, as he knows, extremely concerned about the rising level of litigation costs in the NHS. My department is consulting on proposals for how the duty of candour can be further incentivised by requiring trusts and foundation trusts to meet a proportion of the cost of negligence claims in cases where they have failed to be candid. We are also committing up to £35 million so that the NHS Litigation Authority can support trusts in implementing their safety improvement plans where those plans show a likely reduction in the number of higher-volume and higher-value claims over the medium to long term.
My Lords, I congratulate the Government on accepting this second report. The report states that staff working with vulnerable patients should be responsible. How will the Minister make this happen? Patients and carers should be listened to. They can become whistleblowers, but may feel that they will be branded as troublemakers. How can he stop this happening?
Making every employee responsible goes hand in hand with the duty of candour—the feeling for every employee that they have the freedom to speak up and take ownership of a given situation that is within their control, professionally. We hope that this will gradually show its value in the way that the culture of an organisation changes for the better. Ultimately, though, professionalism depends on training as well. On the whistleblowers, may I ask the noble Baroness to repeat the second half of her question?
I apologise to the noble Baroness. It is very important that that does not happen. This was very much a matter that Sir Robert had in his sights when preparing the report. We have a certain amount of protection for whistleblowers at the moment—the noble Lord, Lord Hunt, referred to this—and the current Government have augmented that protection, not least through the way in which we have improved the NHS constitution. But Sir Robert is clear that we need to go further and, in particular, to ensure that those whistleblowers who find their position untenable in an organisation and are obliged to leave are not thereby blacklisted by the NHS merely for having spoken up. We think that the measures Sir Robert has proposed will achieve this but, more importantly, they will ensure that there is a better form of conflict resolution, able to nip concerns in the bud at an early stage and at a local level.
My Lords, I had the privilege of introducing the first whistleblower protection legislation when I served in the other place. I regret that it was not successful because the then Conservative Government opposed it. Richard Shepherd, a Conservative Member of Parliament whom I consider a good friend, was much more successful in 1998 when he introduced the Public Interest Disclosure Act, together with the support of the Labour Government. Sir Robert refers to that Act a number of times in his report. On page 9, he says:
“For a number of reasons this legislation is limited in its effectiveness … The legislation does nothing to remove the confusion that exists around the term ‘whistleblowing’ … The legislation is also limited in its applicability”.
He also refers on page 78 to suggestions that PIDA should be strengthened. I agree with him; the Act needs to be reviewed and amended. Will the Government agree to do this, because that would certainly overcome many of the problems that this report has highlighted?
My Lords, it may be that Sir Robert’s recommendations lead to legislative proposals. At the moment, we have no view on that. We want to consult broadly to seek people’s views, not least from all parties in Parliament. If I understand Sir Robert correctly, he was keen to achieve answers to these questions that do not involve legislative change and can be achieved easily, without too much bureaucracy. However, we would certainly wish to leave the door open if legislation is needed. In fact, there is one particular measure that we will endeavour to put through in the current Parliament, as long as we have cross-party support for it.
My Lords, I express the thanks of everyone who has worked in the National Health Service for this extremely important and compelling report. Is the Minister in a position yet to say anything about the terms of reference of those who will be the local whistleblowing guardians, what kind of qualifications they will be expected to hold and who will employ them? I take it that the national whistleblowing guardian is to be employed by the Care Quality Commission. Again, it would be helpful to know the Government’s views about the kind of individual who will be sought to fulfil that appointment.
The noble Lord, as ever, makes a series of very important points. The personal qualities of these guardians need to be considered very carefully. At this early stage, we have made no firm proposals along those lines. As I have indicated, we think that every NHS organisation needs to identify one member of staff to whom other members of staff can speak if they have concerns, particularly if they feel that they are not being listened to. Clearly, the qualities of that local guardian need to be of a kind that inspires trust in the body of employees. As regards the national whistleblowing guardian, that will be a full-time post within the CQC. Again, it will require somebody of stature, sensitivity and trustworthiness so that the system can be seen to be robust.
My Lords, when I served in the other place, I tried very hard to persuade the then Government to bring back the traditional role of matron into our hospitals. I know that we have modern matrons, but they are not the same thing. It was a most disastrous day when we took matrons away from our hospitals; heaven knows why we did it. If we reintroduced that role, with all its responsibility—and particularly its authority—and an awareness of what goes on the hospital, many of the things that we are talking about today would be resolved.
I am sure that my noble friend’s comments will strike a chord in many places. I am aware that we have had debates of this kind quite often in the past. Of course, it is open to any NHS organisation or hospital to appoint a matron if it so wishes—and indeed some do that. The key point here is that there should be appropriate leadership in nursing at a senior level in the organisation. The successful organisations of which I am aware have had a senior nurse on the board and someone who has taken direct responsibility for nursing standards throughout that organisation.
My Lords, I am not necessarily of the Hattie Jacques school of nurse management, but will the Minister say a little more about these leadership issues? Those of us who have actually been involved as either a chair or a chief officer of a public body know how difficult it is to keep these agendas alive after they have lost their fashionability in the public eye. What are the Government going to do to ensure that the regulators and the boards keep coming back to this issue and keep bringing to the attention of the front-line staff their enthusiasm—and I use that word advisedly—for learning about failings that are going on in their organisation?
The answer to that must lie chiefly with the way in which the CQC now operates. One of the domains that it pays attention to in its inspections is the well led domain. Is this an organisation that has leaders in it who are aware of what is going on in the hospital, have a clear vision and a strategy for that hospital and are in touch with patients’ views and experiences, not least through complaints? These, and a whole range of other factors, are what the CQC looks at when assessing the quality of the leadership. The noble Lord is, of course, quite right that this must be and remain a key ingredient of a successful NHS culture and good-quality care for patients. We now have a system in which poor leadership will be exposed quite rapidly.
My Lords, first, I am quite astounded that people should be treated in this way by one of our great national services. Secondly, will the Minister tell us whether arrangements were put in place whereby people who felt aggrieved or threatened would be able to appeal? Thirdly, will he also tell us what the trade union involvement was, and whether the unions were obstructed from doing their proper job of protecting their members? Finally, are the trade unions going to be consulted about this report to give them ideas about how they could be better involved in protecting their membership?
My Lords, I agree with the noble Lord, Lord Stoddart, that the examples of poor care exposed by Sir Robert’s report were shocking. In many respects, the work he has done and the recommendations he has made constitute a wake-up call for everybody in the NHS—even those who are providing a very good service, which most of the NHS is providing.
There are many levels of protection for NHS employees. An employee can always lodge an appeal if they feel aggrieved and turn to their trade union for support in that context. We intend to consult widely on Sir Robert’s recommendations, including with the trade unions. We welcome their input to these ideas and look forward to further discussions—which, in the normal course, happen very regularly anyway.
The Minister has acknowledged that it should be the responsibility of all staff to support the principles of openness and whistleblowing. However, has he any concern that the creation of these freedom-to-speak-out guardians might—I say only “might”—lead to staff thinking that they could abdicate that responsibility and leave it all to the guardians?
My Lords, the role of the guardians will be primarily to provide advice to those who have concerns and feel that they are not being listened to. They will be able to report directly to trust chief executives on not just individual issues but on progress in general in stamping out any bullying that may be occurring, or the intimidation that Sir Robert says is all too common. I do not think that the creation of a freedom-to-speak-up guardian will in itself inhibit the process. Of course, we are open to views. If that concern is widely held, we will have to take it into account.
Does the Minister agree that while of course it is right and proper that, in relation to whistleblowers, Sir Robert’s recommendations should be given every opportunity to see whether they succeed in removing this scourge from our society, the situation should be monitored and should it be the case that it is not possible to remove this disgraceful practice of victimising whistleblowers, stern, swingeing criminal sanctions should be considered if necessary? It is a drastic proposal, but the practice it would be designed to meet is disgraceful.
I take full note of the noble Lord’s proposals. Clearly, we will wish to monitor the effectiveness of these new arrangements once they are in place. It will be open to the next Government to make a judgment on that score and, if necessary, to come forward with more stringent proposals that could indeed involve legislation with penalties attached.
Report (3rd Day)
Clause 88: Exercise of regulatory functions: economic growth
43: Clause 88, page 70, line 29, at end insert—
“( ) This section does not apply to the following—
(a) Care Quality Commission,(b) Human Tissue Authority,(c) Medicines and Healthcare Products Regulatory Agency,(d) Professional Standards Authority,(e) General Medical Council,(f) Nursing and Midwifery Council,(g) Health and Care Professions Council,(h) General Chiropractic Council,(i) General Dental Council,(j) General Pharmaceutical Council,(k) Human Fertilisation and Embryology Authority, and(l) any persons exercising a regulatory function with respect to health and care service that the Secretary of State specifies by order.( ) An order under this section must be made by statutory instrument.
( ) A statutory instrument containing an order under this section may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.”
My Lords, I am concerned about the unintended consequences of the economic growth clauses on a number of health regulatory bodies. The clauses on the impact of economic growth specify that regulators must consider the promotion of economic growth in exercising their regulatory functions. The Government have said that the health regulators likely to fall under Clauses 88 to 90 are as follows: the Human Fertilisation and Embryology Authority, the Human Tissue Authority, the Medicines and Healthcare Products Regulatory Agency, the Professional Standards Authority and the Care Quality Commission.
The noble Lord, Lord Wallace of Saltaire, has said that the economic growth duty will complement existing duties and will not override or reduce the protection of the public. However, I put the question to him: if the economic growth duty does not impinge on the prime responsibility of the regulator, why bring in the clause at all?
The Minister then said that the economic growth duty sits alongside any other factor that a regulator must consider. However, “sitting alongside” suggests that it has some weighting and cannot simply be ignored. Indeed, the noble Lord has also pointed out that regulators must understand and consider the impact of their policies on individual businesses. That is of course reinforced by the provisions in the Bill.
Clause 88(2) states that “the person”—that is, the regulator—must,
“consider the importance for the promotion of economic growth of exercising the regulatory function in a way which ensures that … regulatory action is taken only when it is needed, and … any action taken is proportionate”.
In Committee my noble friend Lord Tunnicliffe specifically asked about the position of the Care Quality Commission —the principal health quality regulator, to which the noble Earl, Lord Howe, has just been referring—as regards whistleblowing. My noble friend asked,
“do we want a situation where, when the CQC is contemplating putting a requirement on a failing nursing home that may close it down to protect the residents of that home, the operator of the home can say, ‘Closing me down is against growth. Please prove that this regulation, which you may have used elsewhere, is both needed and proportionate’?”.—[Official Report, 20/11/14; col. GC 206.]
I have to say to the noble Lord that I do not detect any enthusiasm from the health regulators themselves about the economic growth duty. The CQC’s briefing to me can hardly bring itself to mention the duty.
The Professional Standards Authority, in line 1, says that it supports the intention behind Clause 88, and then spends the rest of its briefing critically examining the clause. It concludes that Clause 88 ought to be restricted by excluding from the duty any regulatory function the prime purpose of which is to protect the public. I must say that I am surprised to see the Professional Standards Authority included. It is not a regulator. Its job is to oversee the nine statutory regulators, including the General Medical Council, and I do not understand why the GMC and the NMC are not on the Government’s list of organisations to be included within this clause.
Can we come to the Human Fertilisation and Embryology Authority? The noble Lord will know that that body has a crucial and difficult task, and this responsibility could make that duty even more difficult. On 24 February we will have a debate about regulations on mitochondrial donation. Currently, the law only allows these techniques to be used in research. For the IVF techniques to be used in patients, Parliament must pass new regulations.
Both the Nuffield Council on Bioethics and the HFEA held extensive public consultations in 2012. They identified broad public support for the use of these techniques with a “robust regulatory framework”. I stress those words. As the noble Earl’s honourable friend the Minister Jane Ellison told the other place when it debated the regulations:
“The HFEA is highly respected across the globe as a model for the regulation of fertility and embryology treatments and research. Many other countries do not have such a framework”.—[Official Report, Commons, 3/2/15; col. 163.]
Indeed, if the regulations are passed by Parliament on 24 February, the HFEA will be expected to introduce a robust regulatory process, as it has in other areas of fertility treatment. I know that not all noble Lords think that it is as robust as they would wish it to be. None the less, many of us would say that it is a robust process.
The question that I put to the noble Lord is about where the economic growth considerations come in. There is no provision in the Human Fertilisation and Embryology Act for the HFEA to have regard to the imperative to promote economic growth when making its decisions. If a clinic does not meet statutory requirements, it cannot grant a licence or allow a certain activity to take place, regardless of how economically desirable it might be thought to be. Similarly, if there had been gross failings at a clinic, regardless of the economic impact of closing it down the HFEA would be bound to say so in the interests of ensuring patient safety and maintaining public confidence in it as a regulator. Surely the economic growth duty is inconsistent with those requirements. The HFEA’s own website has often acknowledged that it is not an economic regulator. This has been confirmed by Ministers in Written Answers. Peter Thompson, the chief executive officer of HFEA, has recently been quoted as recognising a responsibility by that authority to take action against what he described as rampant commercialisation of IVF in the UK.
The Minister has prayed in aid the draft guidance during the passage of this Bill, but it only adds to concern. The guidance summary states:
“The growth duty does not automatically take precedence over or supplant existing duties held by regulators”.
The term “not automatically” must by implication mean that it is entirely possible for it to take precedence.
The decision about mitochondrial donation is of huge importance. It must be made in the absolute certainty of the regulatory process. There is no time for ambiguity. Will the Minister agree to give this further consideration? I find it very difficult to understand why any of these bodies are going to be included in the list for which regulations will be brought forward. Why on earth has the Human Tissue Authority been brought in scope of this provision, or the Care Quality Commission? I certainly do not understand why the PSA is included. I hope that the Minister will bring some words of comfort that the Government have reconsidered this issue, and I beg to move.
I support this amendment wholeheartedly. If my noble friend Lord Hunt decides to divide the House, I shall join him in the Lobby. I disagree with him on a fundamental point, which I shall discuss in a second, but the basis behind his amendment is absolutely correct.
One issue is that London in particular and the United Kingdom in general is increasingly becoming a centre for the healthcare market, which is burgeoning—and, increasingly, there are risks that various practices are being adopted that are not ideal for patients and in some cases are clearly not safe and not validated. If there is an issue about a regulatory authority considering the commercial value and income for the United Kingdom, that would be a very serious issue indeed.
On the Human Fertilisation and Embryology Authority, I was not going to get to my feet until I heard my noble friend move his amendment, but I disagree with him fundamentally about that body. It is not a good body but one that we have been left with, and I think that it badly needs reform. It is nothing to do with mitochondrial transfer, which we will discuss in a couple of weeks—I think that it will regulate that perfectly well. But at present there are large areas that that body is not regulating well. My noble friend says that it is the envy of the world, but I say with deference to him that the fact is that there is not a single sovereignty anywhere in the globe that has adopted that model. No one has adopted that model because it is not widely respected outside the United Kingdom. That is a problem. None the less, we have it.
One of the issues that the Human Fertilisation and Embryology Authority has not been capable of dealing with is the burgeoning private care market in London. To give a typical example, last week a friend of mine—a lady approaching her 40s, who does not have a partner and is worried that she might run out of fertility time —went to a private clinic in London asking for donor insemination. I do not want to go into the gruesome details of donor insemination, but essentially it is simply placing donor sperm inside the body of the woman so that she can conceive. It is not exactly a high-tech treatment—but it is regulated by the HFEA.
The Minister might be surprised to hear that the clinic my friend went to, which is not by any means the most expensive in London, was going to charge her £11,000 for three months of treatment. That kind of exploitation is widespread across the market. I have recently seen patients who have written to me in distress because they have mortgaged their houses and spent £60,000 or £70,000 on three cycles of in vitro fertilisation.
When we have complained to the HFEA, it has again and again said that it is not there to regulate prices and there is nothing it can do. I think that the HFEA is anxious about the situation, but cannot do anything about it. If we do not agree to this amendment—if not now, at Third Reading—there is a real risk that we will encourage what is already a disgraceful market in this important area.
The House should not forget that infertile people are deeply vulnerable. They are very distressed. They are often seemingly deranged—although of course they are not: they are sensible people like the rest of us. Noble Lords who have infertile relatives who have had these treatments will know well what it means to those individuals. This is a very serious issue. That combination of avarice and desperation is a serious worry. So when it comes to any kind of impetus to understand and to try to look at the commercial value of this activity—even though it is undoubtedly capable of producing an income to London and other parts of the country—we should be very aware that, as with the whole of healthcare, which my noble friend has covered in his amendment, we need to give it very serious consideration.
I rise simply to underline everything that the noble Lord, Lord Winston, has just said. It seems to me a disgraceful possibility that individual private clinics might be allowed to exploit these vulnerable people. The words that the noble Lord quoted show that this could happen automatically. It is not just that people may be allowed: the suggestion is that they will be allowed, unless some very special consideration applies. I therefore beg the Minister to reconsider this part of the Bill.
My Lords, the Minister may not be surprised to find that I am keen to intervene on this amendment, moved by the noble Lord, Lord Hunt of Kings Heath, but he may have been surprised by the noble Lord’s ability to put together an interesting coalition of voices which would not necessarily always agree on some of the substantive issues raised in the context of human fertilisation and embryology. On this occasion I strongly agree with what my noble friend Lady Warnock and the noble Lord, Lord Winston, have said, and I hope the House paid attention to the specific example that the noble Lord gave of someone having to spend £11,000 in a London clinic. I find that extraordinary and we are all grateful to the noble Lord for telling us about it.
I strongly agree with what the noble Lord, Lord Hunt of Kings Heath, said about some of the organisations mentioned in the amendment: the Care Quality Commission, the Human Tissue Authority, the Professional Standards Authority and the Human Fertilisation and Embryology Authority. What have they got to do with economic growth duties? They have much more important duties than that and I find it amazing that we are dealing with this issue at all in the context of the Deregulation Bill.
If we examine the press releases of the Human Fertilisation and Embryology Authority, or look at its website, we will see, in terms, the phrase that the noble Lord, Lord Hunt, used. The HFEA says:
“We are not an economic regulator”.
That is also emphasised in a previous Written Answer by the noble Earl, Lord Howe, in which he stated:
“The HFEA is not an economic regulator and, accordingly, does not publish information on costs at a clinic level”.—[Official Report, 22/1/13; col. WA 195.]
And nor should it. So, surely this serves only to emphasise that the HFEA is not competent to undertake any economic growth duty.
Indeed, at last year’s Progress Educational Trust’s annual conference, the noble Lord, Lord Winston, described how most NHS trusts charge above cost, and that they are driven by profit motives. Dr John Parsons, the former director of King’s College Hospital’s assisted conception unit, also argued at the same conference that simple greed had made profits, rather than compassion for patients, the top priority of many fertility clinics today. That point was underlined by the noble Lord, Lord Winston. Dr Parsons further argued that this encouraged the use of dubious technologies which are motivated simply by market forces rather than treatments motivated by compassion that are targeted to suit the needs of the individual patients about whom we have heard today. Are the Government proposing that the HFEA should emulate those whom it is failing to regulate?
If the HFEA, which is not an economic regulator, should now have the additional duty to make a profit, how might its judgments be further impaired by such pecuniary interests? How might this exacerbate what the report of the Progress Educational Trust’s last annual conference described as—I repeat what was quoted by the noble Lord, Lord Winston—
“the rampant commercialisation of IVF in the UK”?
If the profit motives of some avaricious clinics go unchecked by the regulator, and the regulator itself becomes increasingly motivated by profit, will this not make an already bad situation even worse?
It is far from clear that the HFEA has proven itself to be a particularly effective regulator as it is. The noble Lord and I do not agree on this point. I do not believe that it is sufficiently robust. To begin with, recent Written Answers to Parliamentary Questions reveal that it does not even maintain proper records on the number of human embryos used in research or allowed to perish. Instead, the HFEA seems more concerned about providing repeated references to a pinhead, the relevance of which to the number of human embryos destroyed is far from clear, except perhaps as a reflection on the competence of whoever is responsible for answering these Questions.
The HFEA’s enforcement of its multiple births policy has already proven to be utterly toothless. That is exemplified by a press statement on the HFEA website from 13 November 2013, in which it was conceded that IVF clinics would no longer be subject to a condition on their licence that they keep their multiple births rate below the HFEA target. As the press statement further revealed, this was in response to a legal challenge launched by two UK clinics,
“resulting in considerable cost to the HFEA”.
How much easier it will be for the HFEA to cave into those it is supposed to be regulating if it has to prioritise an economic growth duty.
Strikingly, an ensuing Written Answer from the noble Earl, Lord Howe, on 9 December 2013 stated the following in relation to the incidence of multiple births and the HFEA’s publication of clinic success rates:
“It is not clear whether additional powers of economic regulation would alter the HFEA’s influence on such practice”.—[Official Report, 9/12/13; col. WA 79.]
If the profit motives of some clinics already remain unchecked in a continuing environment of IVF postcode lotteries, how will this not be made even worse by having the HFEA join the fray in prioritising profit over protecting patient interests?
Although the HFEA chief executive, Peter Thompson, may be trying to make some modest efforts to combat,
“the rampant commercialisation of IVF in the UK”,
this seems limited only to “tentative steps” for increased transparency on the part of clinics and an expectation that others will bring about a change in culture. This does not exactly sound like an effective regulator, does it? If it is up to clinics to bring about a change in culture, what is the HFEA there for? The impotence of the HFEA is already serious enough as it is. As Dr Geeta Nargund, who I met recently, pointed out in a Huffington Post article that I would encourage noble Lords to read,
“no-one appears to be monitoring the drugs given to women during IVF treatment. Extremely high doses of stimulation drugs and intravenous immune therapy injections are administered to women by some clinics with no scientific evidence to support those practices. The HFEA do not collect information about drugs and dosages given to women, but we need this information to study any adverse effects of the drugs on women and their children in the future”.
How is the HFEA protecting the interests of patients if neither it nor anyone else is monitoring this? Dr Nargund’s concerns are only reinforced by the Written Answer I received from the noble Earl, Lord Howe, just yesterday, in which it was admitted that the,
“administration of medicinal products to patients undergoing fertility treatment ... is not regulated by the Human Fertilisation and Embryology Authority ... The HFEA has advised that it does not collect information on the identity of medicinal products used in treatment”.
But it gets worse. The same Written Answer received yesterday goes on to describe nevertheless how the,
“HFEA is aware of some clinics that have administered reagents to permitted gametes or permitted embryos that are then introduced into patients when the reagents concerned have not been CE marked. … Although the HFEA does not hold information on the effects of particular dosages on the welfare of the developing child and the health of the mother, the HFEA expects clinics to do such monitoring as part of their licensing conditions”.
It should be noted that we are not just talking about unlicensed medicines but about off-the-shelf laboratory reagents, most of which I gather would typically be labelled as unsuitable for clinical application. It should also be noted that no mention is made here of the sanctions imposed by the HFEA on clinics for putting goodness knows what into patients without knowing the effects,
“on the welfare of the developing child and the health of the mother”.
It therefore seems that as long as the clinic is responsible for whatever happens, the HFEA is satisfied.
In closing, I would like to reinforce what the noble Lord, Lord Hunt, said in relation to proposed interventions for mitochondrial diseases. Regarding the question of profit, it is noteworthy that a “competing interests” statement on a recent paper by Shoukhrat Mitalipov—belatedly added as a corrigendum—includes the admission that he has a patent application entitled:
“Method for mitochondrial DNA replacement in oocytes”.
My understanding is that researchers at Newcastle have no similar patent applications for pronuclear transfer, which is probably unsurprising because their proposed use of this technique is not original, having already been attempted in humans in China with woeful results. However, how would the economic growth clauses in the Bill affect the HFEA’s consideration of such licence applications? Would the HFEA be compelled to favour proposals for spindle-chromosomal complex transfer over proposals for pronuclear transfer on the basis of patent applications and potential profits to be gained? Or can the Minister please spell out clearly how the projected use of pronuclear transfer in admittedly limited numbers of clients could be seen as a contributing factor to economic growth, such that the HFEA would be seen as satisfying the economic growth clauses in the Bill?
I am sorry to have wearied the House with some of this but the point I am making is that these are complex and clear ethical, as well as medical and scientific, issues. This is not about things being driven by the state of the economy or deregulation, and it is a great error on the part of the Government to have included this in the Bill. I hope that between now and Third Reading the noble Earl will listen to what the noble Lord, Lord Hunt of Kings Heath, has said and give this much greater and more detailed consideration.
My Lords, this debate has ranged widely over a number of health issues, and I realise the seriousness of the issues that have been raised. Given that I am painfully aware of the cost of a new hip, and the noble Lord, Lord Winston, is telling me cost of IVF treatment is in the same league, there are some major questions. I am also conscious, partly as a result of conversations with the noble Lord, that the United Kingdom has identified biomedical research and development as one of the core areas that we want to develop. One member of my family is heavily involved in some of that. London, Oxford, Cambridge, Edinburgh and other places are centres of expertise, and this is therefore an important area in which aspects of economic growth are entirely relevant, but careful regulation also has to be part of it. The question of care homes has also been raised. That is another very broad area where sustainability, how far profit should be part of the process and how far we should be promoting mutuals are some other major questions.
Since this is the first of three related areas, it might be helpful if I say something about the Government’s approach in this Deregulation Bill. We are following the course set out in the Legislative and Regulatory Reform Act 2006, which proposed that there would be regulations that set out the various regulatory functions that would follow. The Regulators’ Code, which comes under that Act, includes as its first principle of six:
“Regulators should carry out their activities in a way that supports those they regulate to comply and grow”.
That is very much the delicate balance that we are talking about.
In Clause 88—perhaps it would be useful if I read it out carefully—we propose:
“A person exercising a regulatory function … must … have regard to the desirability of promoting economic growth”.
It does not in any way say that economic growth should override other functions. Some regulators will regard this as a factor to be included, but not as one of the more important ones—other issues rather than economic factors will clearly matter a good deal more. It has been made very clear in the debate that, in a very large number of areas of medical and biomedical concern, the question of economic growth—let alone of commercialisation—will have to be treated either as not relevant to the subject, or as one of the factors but certainly not one of the most important ones.
May I explain where we go from here? The Government are currently consulting on which functions are to be regulated and which are out of the Bill’s scope. The HFEA was in scope in the original 2013 consultation on the growth duty; that remains the Government’s case. I recognise that part of the discussion about the HFEA here has been a criticism of the way that that body functions, rather than whether it is in scope. The Government are currently exploring whether the Professional Standards Authority has any regulatory functions. If they conclude that it does exercise a number of regulatory functions, they will then consult on including them before doing so. The regulations, when ready after extensive consultation, will come back to Parliament as an affirmative statutory instrument. I have no doubt that the concerns that have been expressed about this will be taken very fully into account in the continuing consultations.
I hope that that provides the level of assurance needed for the amendment to be withdrawn. The Government are very aware of concerns in the biomedical area. We stress that Clause 89 requires that any such order specifying regulatory functions to be included in the scope of the duty must be subject to the affirmative procedure. This is a debate that will continue. Once the Bill becomes an Act we will consider which bodies will come within its scope and for which purposes. Again, I stress that Clauses 88 to 91 follow the recommendations in the proposals by the noble Lord, Lord Heseltine, and others that regulatory authorities, where appropriate, should include the consideration of economic growth in their factors to be taken into account. Again, I stress that in some cases that will be a very important part of what they should consider; in others, it will be one factor and not necessarily one of the most important.
I hope that that provides the assurance that the noble Lord seeks and that he will therefore be able to withdraw his amendment.
My Lords, I am very grateful to all noble Lords who have spoken. However, I am disappointed with the Minister’s response because I thought that at the least he would have been prepared to give this matter further consideration between now and Third Reading. With my noble friend Lord Winston here to talk about the Human Fertilisation and Embryology Authority and the noble Lord, Lord Alton, also present, I knew that we would have an interesting debate.
The point is that, however effective or not the HFEA is at the moment, the one thing that unites us all is that we do not want to see its regulatory function weakened. My noble friend Lord Winston spoke about London becoming the centre of a healthcare market, and the Minister welcomed that. When I took through the 2001 regulations that extended the purposes of research in the original 1990 Act, which was based very much on the extraordinary work of the noble Baroness, Lady Warnock, we clearly had in mind that there was research potential for the UK. That was one of the factors behind taking through those original regulations. The argument that we put forward then was that the UK would be able to attract research investment because, despite some of the doubts that noble Lords have expressed today, we were considered to have a first-rate regulatory function. I put it to the noble Lord that he is putting that reputation at risk by allowing ambiguity in the nature of the regulatory process.
My noble friend talked about the dangers of commercialisation in this field and he is surely right. It is interesting that the chief executive of the HFEA has recently been quoted as recognising the responsibility to take action against rampant commercialisation of IVF in the UK. That statement is very welcome. My noble friend has argued that at the moment it does not have the powers to do anything about it, but the noble Lord comes here with a proposal to weaken its already inadequate powers. That is quite remarkable.
The Government are very keen for the mitochondrial donation regulations to be approved on 24 February. I support them, but has the noble Lord considered the risk to that decision from the impact of this Bill? This will be a big issue when we debate those regulations. When the noble Earl, Lord Howe, comes to make proposals for the regulations, he will say that your Lordships can have confidence in passing the legislation because of the robustness of the HFEA. However, I, who support those regulations, will have to get up and say that actually the noble Earl is incorrect because of what the noble Lord here is proposing to do.
That is absolutely right. The noble Lord then went on to say that we should be fine because the provisions in the Bill say that all the regulator has to do is to “have regard to” the desirability of promoting economic growth. However, the moment you include those words, the regulator becomes liable if it can be shown that he does not have regard to that, even though the noble Lord recognises that in many cases he ought not to have regard to it.
It is quite inadequate to say that we are consulting on this. This is absolutely wrong. We need to know by Third Reading whether the Government are going to keep in the HFEA and the PSA. I think that the noble Lord ought to allow further discussions to take place between now and Third Reading, and he ought to discuss this with his colleague—particularly the impact on the new regulations on mitochondrial donations that will be coming forward. As for his assurance that any of these bodies will be included by an affirmative resolution, how many times has an SI been defeated in Parliament? It is fewer than 10 times, so it is a meaningless safeguard in effect. I invite the Minister to say that he will at least give this further consideration before Third Reading before I make my decision.
Amendment 43 withdrawn.
Clause 89: Functions to which section 88 applies
44: Clause 89, page 71, line 2, at end insert—
“(d) a regulatory function of the Commission for Equality and Human Rights.”
My Lords, I am not sure that I can give the same assurance to the Minister about withdrawing my amendment because, as I will try to explain, even the offer he may make—that the Equality and Human Rights Commission will be excluded from future statutory instruments—will not relieve the commission from the sword of Damocles that is hanging over it, as a future Government could bring it within the ambit of this legislation.
Perhaps I may explain to the House the position and why I think it should take this as an exceptional case and put the commission into this primary legislation. First, I should like to make clear the commission’s current position:
“The Commission supports the principle and intention behind the growth duty. We do, and will continue to, exercise our regulatory functions fairly and proportionately, taking all relevant considerations into account—including the impact on businesses and economic growth. However, applying the growth duty to the Commission risks our status as an NHRI”—
national human rights institution—
“and a National Equality Body and introduces legal uncertainty into the exercise of our functions. We therefore consider that the Commission should be excluded from the scope of the growth duty, as proposed by”—
Amendment 44. It continues:
“The Commission has the highest possible UN accreditation (‘A status’) as an NHRI rated against the UN ‘Paris Principles’, which clearly and unequivocally require NHRIs to be independent of government”.
I made sure that I had that clear statement of where the commission itself is in terms of its attitude to this legislation.
I should give the House a little background. When the coalition came into office in 2010, there were many criticisms of the EHRC, some justified. Since then the organisation has been refocused, restructured, given a new board and a new leadership in the person of the noble Baroness, Lady O’Neill, who I am pleased to see in her place. During my time as a Minister at the Ministry of Justice I became involved with the EHRC on two fronts: first, in attempting to regain A-list status at the UN, which we had lost; and secondly, regaining Britain’s place on the UN Human Rights Committee. With the help of the FCO and the DCMS, particularly the then Minister Maria Miller, we were able to achieve both. We were able to do that, however, by stressing the independence from government and the integrity of the Equality and Human Rights Commission.
As noble Lords will be aware, Clause 88 places a legal duty on regulators to have regard to the desirability of promoting economic growth when exercising regulatory functions. The EHRC, as I said, supports that principle. However, when the Joint Committee on Human Rights looked at the matter, it opined that the Bill,
“raises serious questions about the EHRC’s independence from the executive”.
It concluded that the matter could easily be dealt with,
“if the proposed new duty did not apply to the EHRC”.
The committee went on to ask that the EHRC and the Government should continue to negotiate to see whether such a settlement could be reached. As I indicated, no such settlement has been reached. The noble Baroness, Lady O’Neill, has gone on record to express her concern about this matter, particularly the threat to our hard-won A status.
I now come to the reason for my amendment. In a letter to the noble Baroness, Lady O’Neill, on 19 November, my right honourable friend Vince Cable, the Secretary of State for Business, Innovation and Skills, wrote:
“I would like to take this opportunity to state that the Government has taken the decision to fully exclude the EHRC from the growth duty. This decision was taken to ensure that the Government mitigated the risk of this policy unintentionally triggering a review of the important ‘A’ status that EHRC holds as a National Human Rights Institution”.
The Government accept that the threat to the EHRC status and reputation exists—so far, so good. However, the commission fears that leaving the Bill as it is would leave it open to future Administrations to apply the growth duty to regulatory functions of the commission through secondary legislation. I agree entirely with the noble Lord, Lord Hunt, that the idea that secondary legislation offers protection from further inclusion is not sustainable. It is to avoid that threat that I have put down my amendment.
In opposing my amendment in Committee, my noble friend Lord Wallace said that,
“listing inclusions and exemptions in a Bill is not generally regarded as appropriate because primary legislation would then need to be amended each time a regulatory function were changed or created”.—[Official Report, 20/11/14; col. GC231.]
QED—that is exactly why I am putting this amendment forward. I am putting it forward as a narrow, focused amendment to turn the Government’s good intentions into a copper-bottomed guarantee—or as the EHRC has said,
“the risks to the Commission’s independence, and the consequences of impinging on it, are of such importance that this matter should be”,
put beyond doubt in primary legislation.
Let me emphasise, particularly to my colleagues on these Benches, that my amendment does not change the Bill in any way other than to remove beyond peradventure what the Secretary of State himself describes as the risks of unintentionally jeopardising our A status as a UN organisation. I beg to move.
My Lords, I am speaking in support of Amendment 44 in the name of the noble Lord, Lord McNally, in place of my noble friend Lady Thornton. On these Benches, we are very pleased that the noble Lord has brought this matter back to the Floor of the House. We fully support having the EHRC’s exclusion from the list of regulators included in the Bill, and the noble Lord has already explained the importance of doing so—it is what he described as a copper-bottomed guarantee. We really cannot see why the Government would not want to support this. Essentially, as the noble Lord says, it would just ensure that the Government’s good intentions actually hold up regardless of what a future Administration might wish to do. We are also in no doubt that even the risk that the EHRC might be included in the regulations in future could have an adverse effect on its A status as a UN accredited national human rights institution—an NHRI. That, in turn, might impact on the UK’s compliance with European Union law.
However, the real issue here is around the independence of the EHRC. The UN International Coordinating Committee has said to the UK Government that independence from government is an essential element of a national human rights institution. In considering whether an NHRI is independent, the ICC looks at all the ways in which the particular institution in question is subject to control or direction. Although the Deregulation Bill may not intend to affect the independence of the EHRC, attaching an additional duty could be seen as competing with or limiting its existing duties, and may have that effect on its decision-making. Being subject to ministerial direction and the possibility of legal challenge could have a detrimental effect on the EHRC’s ability to make decisions in relation to upholding human rights. When combined with the existing connections and accountabilities to the British Government, these clauses will raise questions about the compliance of the EHRC with the UN Paris principles—the principles which uphold the protection of human rights by national institutions.
The real point here is that it would be a shame if—when we are all agreed that the EHRC should have that independence, and we all want to see that status maintained by the UN—we were yet again to pass the law that we pass most often here, the law of unintended consequences, and thereby damage the ECHR’s prospects when it goes through the process of UN reaccreditation. The accreditation process, when the UN considers whether an NHRI will retain its accreditation, takes place around once every five years. I am sure the Minister will be aware that the EHRC is up for that process this year. Given that, is this not the worst possible time for us to introduce uncertainty? The way to remove that uncertainty is, as we are all aware, to put the amendment on to the face of the Bill.
We know that the Minister will say that the Secretary of State for BIS has written to the EHRC to say that the Government have decided to,
“fully exclude the EHRC from the growth duty”.—[Official Report, 20/11/14; col. GC229.]
If the Government want to do that, they will accept the amendment because it delivers the Government’s aims. This is a matter of huge importance and we assume from what the noble Lord said in introducing the amendment that he will press it to a vote. However, if for any reason he decides not to do so, we on these Benches certainly will. It would be an extraordinary own goal to limit the perceived independence of the EHRC and it is something that we should not allow to happen, even if only inadvertently or by accident. I hope that the Government and indeed the House will accept the amendment.
My Lords, the noble Baroness has given us a lot of hypothetical, “If a future Government were to”, and so on. The Government have made it entirely clear and said publicly that they intend the EHRC to be excluded from the growth duty. No Parliament can bind its successors. I cannot imagine that any major party or minor party that might be part of a future Government is likely to want to do this, and as I say, no Parliament can bind its successors. Indeed, if that were to happen we would encounter heaven knows what. At the present moment the Government have taken the clear decision to exclude the EHRC from the growth duty in order to remove any threat to its international standing. We have provided the commission with a reassurance of that decision and, as has already been said twice in this debate by my noble friend Lord McNally and the noble Baroness, Lady King, the Secretary of State for Business, Innovation and Skills wrote to the EHRC in November to confirm the decision. We have also reaffirmed the commitment to exclude the commission from the duty in the recent consultation document on extending the growth of the duty.
The Government Equalities Office, which is the EHRC’s government sponsor, does not see a significant threat to the commission’s A status by not excluding it on the face of the Deregulation Bill, and the GEO has advised the commission to accept those reassurances.
My Lords, my understanding is that it is going to be very difficult to bring them forward before the election. However, I will take that back and will be sure to write to the noble Baroness with any exact dates for the regulations.
No specific regulatory functions of any other particular named body are listed on the face of the Bill, and it is not necessary to do so in relation to the regulatory functions of the EHRC. The regulatory functions to which the growth duty is to apply will be set out in secondary legislation, as I have said before. Meanwhile, the Government have given a range of assurances that the EHRC is outside the scope of the growth duty and will be excluded.
My Lords, I had not intended to speak because, as chair of the EHRC, it is difficult for me to do so, but before the Minister sits down, I think I can allow myself to say one factual thing. This is an unusual regulatory body in that it is subject to international inspection and rating—which will be done by the ICC. Unfortunately, as a matter of timing, all the evidence that the ICC requires will have to be submitted in June this year, and I think the Minister has just informed us that it will not be possible to lay the statutory instruments that exclude the commission from scope before that time.
My Lords, I would simply reply that we are of course well aware that this is not the only body for which there are a range of international complications and obligations. Indeed, the RSPB briefing, which some Members will have seen, raises questions about EU legislation. We are very conscious that everything we do in this area, biomedical issues included, carries international implications.
Another gem is lost to us from the noble Lord, Lord Jones. Let us not confuse this issue: the protection of a statutory instrument is not the same as the protection afforded by being in primary legislation. It is that protection of primary legislation that I want to give to the Equality and Human Rights Commission.
I have no doubts about my noble friend’s commitments, but we live in strange times. For most of my life, the concept of the Universal Declaration of Human Rights has been accepted as part of our world governance. We live in an age when people think of the concept of human rights as somehow a western imperialist invention, but I believe that this country’s role in championing human rights since the Second World War has been a very great one, of which we should be proud. David Maxwell Fyfe drafted the European Convention on Human Rights, and when Eleanor Roosevelt launched the Universal Declaration of Human Rights, she called it a Magna Carta for all mankind. There was no need for a translation of what she meant.
This is an exceptional case that I am arguing. I know all the objections of the barrack-room lawyers and draftsmen to specifics in primary legislation, but by putting this in primary legislation, I believe we will be keeping faith with our tradition of protecting human rights and be giving the EHRC the strength to carry on its excellent work. As I have indicated, I would like to the test the opinion of the House.
44A: Clause 89, page 71, line 3, at end insert—
“( ) Section 88 shall only apply to a person exercising a regulatory function in so far as it is consistent with the proper exercise of their existing regulatory functions.”
My Lords, the Labour Party, despite rumours put about by the Benches opposite, is pro business. We see business as central to our society: it is essential, and thriving industry is good for us. We are also pro growth. We might have slightly different views about its distribution: we think that growth should go to the many as well as to the few. That would have been a point of difference until the recent conversion of David Cameron to a belief that firms should be paying their staff more. This we applaud, and therefore we so far have consensus. Because we are pro business and pro growth, we support the generality of Clauses 88 and 89, but with reservations. I was almost talked out of supporting the two clauses by the Minister, who pointed out that the 2006 Act apparently does what these two clauses do anyway. Life might have been easier if the Government had not brought forward these clauses at all.
However, just as we are pro business and pro growth, we are pro good regulation. Once again, I am absolutely delighted that we are not alone in this. Oliver Letwin, the Minister of State for Policy, indicated at the beginning of this Bill in the other place that he, too, was in favour of good regulation. Good regulation protects the citizen from the overly powerful, be it overly powerful commercial interests, the state or other large bodies. It protects consumers, workers, patients, the old and those with disabilities, while other regulatory bodies protect the environment, the built environment and many other areas of our lives. The challenge is to create a balance between legislation that is pro growth on the one hand and protects the citizen on the other. We think that Clauses 88 and 89—and I think Clause 90 as well—go too far, and that is why we are moving Amendment 44A.
Just stand back for a second and see how these clauses are going to promote growth, and look at the guidance material that we have already received—and discussed at some length in Committee. They divide into two areas. A great deal was said about the bureaucracy of regulation, the same form coming twice and different inspectors coming on different days. The essence of much of the illustration of the value of these two clauses was about regulators being much more efficient at bureaucracy, more sensitive to the needs of business and much more business-friendly. We could not agree more. It is absolutely sound that that should be true.
The other potential for the two clauses is to have an impact on protection itself and actually diminish it. We are very concerned about that. We discussed this at some length in Committee, and the Minister very kindly arranged a number of meetings. We thank him for doing that. Those meetings were very much the same. They were very much the curate’s egg—good in parts. They almost always started with the Minister present stating fairly flatly that these clauses were not meant to diminish protection. The Minister would say that they did not have an impact on safety. Then, towards the end of the meeting, the Minister would float back into perhaps that being the area where they could impact.
At the end of this, we had two letters, including a very useful letter from the HSE. I shall not quote it at any length, but the HSE is a much derided body. It is an excellent organisation that has matured greatly under the chairmanship of Judith Hackitt. In many ways, its maturity is reflected in the letter. Essentially, the HSE does not say that it does not need the provision, but it is sort of saying that in practical terms it will not make a difference to protection because the essence of the 1974 Act—one of the best pieces of legislation around, which has survived to this day largely unamended—is that it had a sense of proportionality about it. It said,
“so far as reasonably practicable”.
We were very satisfied with that letter.
Then—not exactly sequentially—the Minister wrote to us to assure us. His letter had more of the history of British Raj about it, almost: “On one hand”, and then “On the other”. Early in the letter, he says:
“I can assure you that the duty will complement existing duties and will not override or reduce the protection of the public”.
I had a little trouble with “complement”. If you look it up, it seems to mean “add to” or even perhaps “enhance”, but where in the Bill is it clear that the duty will not override or reduce the protection of the public? It is clear in his assurance in this letter, but it is not clear in the Bill. This is where in the meetings we had the same sense of floating away. The letter states that: “This duty sits alongside”—so one is now having words of equal weight—
“any other factors that a regulator must consider … As experts in their relevant areas, it is the regulators themselves who are best placed to decide how much weight it is appropriate to afford to the desirability of economic growth in the relevant circumstances; in order that economic growth is considered whilst public protections are maintained. Indeed, it would not be appropriate for Government to dictate how growth should rank in relation to other factors which regulators also need to consider”.
We do not agree. It is appropriate for government and this House to give clear guidance in the Bill about how the growth duty ranks with the other duties of the regulators involved.
Once again in this balanced approach we get to where he says:
“I might also add that if a regulator has had regard to, and considered growth, and can justify its decision, then a business cannot expect to successfully challenge that decision, nor can it use the duty to escape legitimate compliance costs”.
One of the ways to understand a sentence like that is to reverse it. It would then read: “I might also add that if the regulator has not had regard to and not considered growth and cannot justify its decision, a business could expect to successfully challenge that decision and could use the duty to escape legitimate costs”. In other words, each of the three conditions—“have regard to”, “consider growth” and “justify”—have to be met for the challenge not to be made. Clearly, the person who drafted this letter envisaged that challenges could be made, and those were the three conditions that had to be met.
Why am I so concerned with what might seem like a nuance? The whole problem with regulation is that, frequently, balance is achieved very much in the matter of the nuance. I come from a very regulated back- ground—originally aviation, then railways, then nuclear, and so on. In a high-hazard background you sit down and consider killing people and how much you are going to spend to avoid that, to mitigate that risk. Those are very difficult decisions, but they are taken. When you edge or nuance protection, ultimately you are talking about harm and about people getting killed. I worked in an industry where, sadly, we killed people every year. You cannot carry 800,000 passengers a year without killing some of them. We abandoned the whole idea that it was just an accident; we took the view that every death was our responsibility. That meant that every death was analysed so we could establish how much we could have spent or sensibly should have spent to mitigate that death.
Those are the sorts of decisions small and big companies take. We know that they take those decisions, perhaps most famously from the BP Texas City explosion in 2005. The examination of that event uncovered that BP head office had demanded cuts in costs. There was no mitigation on safety and no qualification; cuts in cost had to be made. Sadly, 15 people died in that event. We know that BP did not learn its lesson, because the Gulf of Mexico spillage happened five years later, in 2010.
What, then, is our remedy to avoid this now? It is the amendment to which I speak:
“Section 88 shall only apply to a person exercising a regulatory function”—
that is the growth duty—
“in so far as it is consistent with the proper exercise of their existing regulatory functions”.
That makes it clear that the protection—the balance—in the present regulatory structure should be unaltered. It makes it clear that in the nine areas which we have talked about, particularly the bureaucratic areas, let us get rid of the bureaucracy—yes, great—and if you look at the impact assessment, you will see that that is where virtually all the money is. However, it protects us from any erosion of the protection of the current regulatory regime.
My nuance may be unfounded—it may be that all firms take their safety and other protection responsibilities seriously. However, sadly, I have seen too much evidence of the opposite. I have been in rooms where people have said, “Compliance with this regulation is too expensive. How can we avoid it or reduce it?”. We have to maintain the present regulatory balance while introducing the growth concept. We want noble Lords to support this amendment to protect citizens from the bad guys, which of course will leave a level playing field for the good guys.
I rise to support my noble friend’s amendment and congratulate him not only on the way he exposed the ambiguities in the Bill but on how he introduced the argument on protection and balance. That is an argument I want to pursue. The amendments that we have just debated have totally exposed the fact that the language of the Bill is a morass of ambiguity. I am thinking of terms such as “have regard to” or “not automatically”, and the suggestion that it should be up to the regulators to interpret the Bill as will suit their best purposes.
In this amendment, we are giving the Government an opportunity to do what they say that they want to do: to have a clear intention of purpose with regard to regulation; to put in the Bill exactly what they mean by their expectations of regulators; to show that they understand what regulators do, can do and should do; and to put clarity into the Bill that leaves no one in any doubt about the limits to what they can do.
I want to talk about balance and growth in another context—in relation to the built environment and the protections that surround our environment. That is a parallel argument to the one that my noble friend made. One danger of the ambiguity is that it introduces an additional requirement for growth, although the Government say that it is complementary. Will that additional requirement sit alongside or above the existing growth duties that regulators have to implement and which they are bound by law to do? With the National Planning Policy Framework, the Government very wisely embraced the advice of statutory bodies such as English Heritage, which retained the essential point about planning law—that it is a balance between development and protection of landscapes and precious spaces, the ancient and characterful environment with which we all live.
The need for appropriate development in the right place and time is not in dispute, but it is balanced with the need to protect and sustain what this country is uniquely known for. We already have a presumption of growth in the National Planning Policy Framework; in short, we have a duty to promote growth. But that is balanced by a requirement to protect our precious landscapes and the heritage of our built environment. The balance has worked well, and it was very gratifying that, after a lot of discussion, when the National Planning Policy Framework was introduced, it repeated and reflected those traditional, tested balances that had been in the previous planning law. The statutory agencies know how to do that, in the full knowledge that there must be scope for development and a response to housing pressures and the need for infrastructure, but there is also a prior duty to protect what they are there to protect.
All this amendment does—I urge the Government to think about this, because they will get themselves out of a real problem if they do—is to make clear beyond doubt that the duty to promote growth must be consistent with the proper exercise of existing regulatory functions. Everything that I have heard the Government say, in their letters, suggests that it is what they want. So what is the difficulty about putting a clear, unambiguous, crisp statement in the Bill? It is vital that we have that assurance, because it will tell all the practitioners and the country as a whole that the Bill does not change or challenge that balance, and it does not override the scope of the functions of protection. It does not create an unnecessary diversionary distraction in the shape of another growth duty.
If the amendment is not accepted, that will send the opposite signal. It will send a signal to the developers, for example, that there is an imperative of growth, which is undefined—we have perhaps lost the argument that sustainable growth should have been specified; that would have been infinitely more acceptable and sensible—and that that imperative can be taken to override the other protective functions.
I think that there will be a chilling effect on regulators, because if it is up to them to try to interpret what is meant by a duty to “have regard to” something in the exercise of their proper functions, they will always be looking over their shoulder. They will always know that there will be a challenge from people who think there is a higher imperative— in many cases, an inappropriate economic imperative.
The local and national authorities will suffer from the same fear—that they are getting it wrong. They will be faced with a further layer of confusion. We all know that what the planning system needs above everything else is certainty. This provision will introduce another layer of uncertainty, and will have perverse consequences. It will cause further delays while people argue about whether the regulator has had proper regard to something. For that reason, it would hand greater scope and power to developers. My great fear is that the balance, which the noble Lord spoke about in relation to health and safety, will also be compromised or lost in relation to the protection of the environment.
We have had a very successful planning system to date, which has been supported by all Governments. The regulatory bodies are extremely experienced, well intentioned and well practised in their duties. Without the simple and incontrovertible logic of the amendment, which spells out what the Government themselves want to achieve, we will introduce more confusion and delay. So I hope that the Minister will listen seriously to the arguments for it.
My Lords, in speaking to the amendment moved by the noble Lord, Lord Tunnicliffe, I should note my current involvement with the Better Regulation Strategy Group, the independent body that advises the present Government on better regulation. I should also note, as it is relevant to my perspective on the amendment, my former involvement in the two predecessor bodies that advised the previous Government—the Better Regulation Commission, of which I was vice-chairman, and the Risk and Regulation Advisory Council.
Based on my experience of those three independent bodies advising government on better regulation, I question the need for Amendment 44A. If the proposed duty as set out in the Bill were to override regulators’ powers of protection, compromise their decision-making or supersede their existing regulatory duties—or if there were any ambiguity about those three important assessments—I would wholly understand the need for the amendment. But in my judgment that is not the case.
The proposed growth duty will not override or cut across regulators’ powers of protection. It is simply an additional factor for regulators to take into account when they are making their decisions. It will not compromise their decision-making and, as I understand it, it will not supersede regulators’ existing duties. It will not remove the responsibility of businesses to comply with what the law or regulations require of them. The duty will therefore not compromise the independence of regulators. They will continue to have decision-making autonomy, exactly as they do now. Regulators will therefore remain free to decide how best to incorporate the duty into the decision- making involved in performing their primary statutory functions.
I have been looking at the published draft guidance that the Government issued in January, and I believe that it makes very clear many of the points that I have just mentioned. I understand that the guidance is continuing to be developed in discussion with the regulators so that it can be finalised before the policy comes into force. That guidance makes it clear that the proposed duty does not encourage regulators to reduce protections or to ignore non-compliance.
For the benefit of noble Lords who have not seen the published draft guidance, Non-economic Regulators: Duty to Have Regard to Growth, I draw their attention to the beginning of chapter 2, on page 5, which sets out the purpose of the duty. The very first sentence reads:
“Regulators exist primarily to protect people or achieve other social or environmental outcomes”.
That is an important headline sentence, which reminds us of the principal duty that regulators must subscribe to. The second paragraph on that page says:
“The duty requires that economic growth is a factor”—
not the factor, but a factor—
“to be taken into account alongside regulators’ other statutory duties … The duty does not set out how economic growth ranks against existing duties as this is a judgment only a regulator can and should make … The duty does not oblige the regulator to place a particular weight on growth”.
Those are only a few extracts from one page of the draft guidance, but they set out a clear proposition in terms of the importance of maintaining the balance between regulators having regard, as appropriate, to growth and their maintaining protections. As I see it, the proposed duty will complement existing duties and will not override or cut across regulators’ powers of protection, nor their responsibilities for ensuring protection. It will be for a regulator to weigh up the desirability of economic growth against each of the other factors it must consider, and tailor its approach accordingly.
In some circumstances those factors will sit well together; in others the regulator will need to decide how much weight to afford to each factor for the best outcome. On the basis of the wisdom that was developed through the Better Regulation Commission, the Risk and Regulation Advisory Council and so on, I believe that the regulator’s expertise means that it is best placed to decide what weight it is appropriate to afford growth in the relevant circumstances.
I therefore disagree with the insistence of the noble Lord, Lord Tunnicliffe, that only Parliament can rank those factors. In a good regulatory regime there should be discretion for the regulators to make judgments between parallel factors, because they can take account of the exact circumstances in which they are regulating. Therefore, although the growth duty clause as drafted requires that growth be put on the same footing as other duties—in other words, it enables regulators to have regard to growth—it also ensures that essential protections are maintained.
We should not lose sight of the importance of the new growth duty and the benefits that will flow from it. Regulators spend some £2 billion each year on regulatory activities, and still to this day more than half of businesses see regulation as a barrier to their success. The duty is required to clarify the fact that growth is an important factor for regulators to take into account, and it will ensure that regulation is delivered in a way that best supports growth. It will also ensure that the protection intended to be given by regulations is still delivered. On those grounds, although I understand the motives behind the amendment, I genuinely believe that it is unnecessary, and that the balance will be not only maintained but enhanced by the Bill as drafted.
My Lords, we have heard three excellent and very sober speeches on the amendment, for which I thank noble Lords. There is only a small difference between the noble Lord, Lord Tunnicliffe, and myself, on behalf of the Government. We are talking about balance—the balance among a range of factors that we wish regulators to consider.
I thank the noble Earl, Lord Lindsay, for his speech. I had forgotten that he was vice-chair of the Better Regulation Commission, on which my wife also served with him. The continuity of the approach which the last Government and the current Government have taken to regulation should be marked. We have not differed very much in the way we approach regulation as such.
Although the noble Lord, Lord Tunnicliffe, recognises that growth should be a factor which we take into account among other factors in considering the balance, he fears that this duty, in spite of what the Bill and the guidance clearly say, will nevertheless come to override other factors. He is suspicious that there may be some underlying hidden motivations behind them when he talks about nuances. I reassure him that nothing in the Bill, the guidance or the draft regulations gives any credence to what he fears.
If a regulator has had regard to growth and can justify its decision, a business cannot expect successfully to challenge that decision. Businesses cannot use the growth duty to escape legitimate compliance costs. I am very familiar with the work of the noble Baroness, Lady Andrews, in English Heritage and I recall with pleasure escorting her on her inspection visit to Saltaire as a world heritage site—it is just possible that one or two noble Lords are not familiar with the fact that Saltaire is a world heritage site, so I rub that in. I say to the noble Baroness that the growth duty is not a higher duty which would trump existing considerations. Therefore, where regulators are required to consider sustainable development or environmental and social concerns, they will continue to do so. It will be for the individual regulator to decide whether, in view of the duty and the guidance, they are striking the appropriate balance between growth and the other factors they are required to take into account.
Clause 88 is clear that the growth duty is a duty to have regard to the desirability of economic growth. It does not provide that the duty should take precedence over a regulator’s existing and other duties. As a result, it does not in any way override or cut across a regulator’s existing powers of protection. The duty sits alongside the other duties and functions of regulators, and it is for each regulator to decide what weight, if any, to afford to the desirability of economic growth, depending on the decision they are making. It cannot compel a regulator to take action in the interest of growth at the expense of other protections. In some circumstances, these factors will sit well together; in others, the regulator will need to decide how much weight to afford each factor for the best outcome. We are all familiar with the problems of regulation in that regard. The regulators’ expertise means that they are best placed to decide what weight is appropriate to attach to the desirability of economic growth against other factors in the relevant circumstances.
The Opposition Front Bench asked when the orders listing the functions to which the duty will apply, and the guidance for regulators, will be brought into force. They are intended to be brought into force in October this year by whichever Government are then in office.
The draft guidance sets out how regulators can implement the duty alongside their existing functions, and has been well received by the regulators. The noble Earl, Lord Lindsay, has already quoted it, but it also states:
“The duty does not compromise the independence of regulators, nor does it supplant or replace a regulator’s existing duties”.
It further states that the growth duty,
“does not remove or diminish in any way the responsibility of business to comply with the law”.
It is therefore not necessary to state on the face of the Bill that the duty will apply only where it is consistent with a regulator’s existing regulatory functions. As I have said, the draft guidance is quite clear that the duty is simply an additional factor for regulators to take into account as they carry out their existing regulatory functions and ensure regulatory protections, and that the duty does not expect regulators to ignore illegal behaviour. Given the experience of the noble Lord, Lord Tunnicliffe, in the transport field, I particularly note his comments about risk assessment and the large expenditure one sometimes has to make to mitigate the risks involved.
The post-implementation review of the Regulators’ Code showed that it had not gone far enough to incentivise change as the code is trumped by all other statutory duties affecting regulators. The growth duty clause, as drafted, therefore requires that growth is put on the same footing as other duties, enabling regulators to have regard to growth while ensuring that essential protections are maintained.
I hope that that gives the noble Lord sufficient assurance to be willing to withdraw the amendment.
My Lords, I thank noble Lords who have taken part in this debate. I thank the noble Baroness, Lady Andrews, for explaining how the point we are making has a wider application, particularly as regards a chilling effect. Some of these regulators are quite small, some have very tight budgets and some may face very large organisations, particularly in the planning world. The chilling effect on behaviour takes place over time.
I respect the experience of the noble Earl, Lord Lindsay, in this field—it is interesting that we have ended up with two regulators and a regulatee in this debate—but I am afraid that I do not share his view. The duty we are discussing may not cut across others but certainly has the potential to be considered on an equal footing. He quoted the draft guidance, which is now over a year old. The Government have not thought fit to revise it; I wish that they had. I do not find the draft guidance clear. Indeed, it is a wonderful topic to debate as, rather like the works of Karl Marx, you can find anything to justify anything. It contains as many words of assurance—which the noble Earl found—as of discomfort, which I found. The noble Earl mentioned a figure of £2 billion, which I believe the department subsequently withdrew. I believe that the £2 billion represents the gross sum of the regulatory bodies but does not cover just their regulatory work. I believe that a figure emerged that was half that sum.
The comments of the noble Lord, Lord Wallace, in many ways reflected what was said in various meetings. I am not accusing the Government of a conspiracy here. I do not think that the Government want to roar through the countryside, throwing out regulation all over the place by means of this clause and I am very persuaded by the bureaucracy point, which was well made in the regulations and the supporting documentation. However, the issue of protection worries me. If noble Lords do not agree with my amendment, they are implying that the exercise of the function we are discussing could be inconsistent with the proper exercise of the existing regulatory functions. For that reason, I wish to test the opinion of the House.
45: After Clause 29, insert the following new Clause—
“Tenancy deposits: provision of information by agents
(1) The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 (S.I. 2007/797) is amended as follows.
(2) In article 2 (prescribed information relating to tenancy deposits), after paragraph (2) insert—
“(3) In a case where the initial requirements of an authorised scheme have been complied with in relation to the deposit by a person (“the initial agent”) acting on the landlord’s behalf in relation to the tenancy—
(a) references in paragraphs (1)(b), (g)(iii) and (vii) to the landlord are to be read as references to either the landlord or the initial agent;(b) references in paragraphs (1)(d), (e), (g)(iv) and (vi) and (2) to the landlord are to be read as references to either the landlord or a person who acts on the landlord’s behalf in relation to the tenancy.(4) In any other case, references in paragraphs (1)(d), (e), (g)(iv) and (vi) and (2) to the landlord are to be read as references to either the landlord or a person who acts on the landlord’s behalf in relation to the tenancy.
(5) Section 212(9)(a) of the Act (references to landlord include persons acting on landlord’s behalf) does not apply for the purposes of this article.”
(3) After article 2 insert—
“3 Article 2(3) to (5): transitional provisions
(1) Paragraphs (3) to (5) of article 2 are treated as having had effect since 6th April 2007, subject to the following provisions of this article.
(2) Paragraphs (3) to (5) of article 2 do not have effect in relation to—
(a) a claim under section 214 of the Act or section 21 of the Housing Act 1988 in respect of a tenancy which is settled before the commencement date (whether or not proceedings in relation to the claim have been instituted), or(b) proceedings under either of those sections in respect of a tenancy which have been finally determined before the commencement date.(3) Paragraph (5) applies in respect of a tenancy if—
(a) proceedings under section 214 of the Act in respect of the tenancy have been instituted before the commencement date but have not been settled or finally determined before that date, and(b) because of paragraphs (3) to (5) of article 2, the court decides—(i) not to make an order under section 214(4) of that Act in respect of the tenancy, or(ii) to allow an appeal by the landlord against such an order.(4) Paragraph (5) also applies in respect of a tenancy if—
(a) proceedings for possession under section 21 of the Housing Act 1988 in respect of the tenancy have been instituted before the commencement date but have not been settled or finally determined before that date, and(b) because of paragraphs (3) to (5) of article 2, the court decides—(i) to make an order for possession under that section in respect of the tenancy, or(ii) to allow an appeal by the landlord against a refusal to make such an order.(5) Where this paragraph applies, the court must not order the tenant or any relevant person (as defined by section 213(10) of the Act) to pay the landlord’s costs, to the extent that the court reasonably considers those costs are attributable to the proceedings under section 214 of the Act or (as the case may be) section 21 of the Housing Act 1988.
(6) Proceedings have been “finally determined” for the purposes of this article if —
(a) they have been determined by a court, and(b) there is no further right to appeal against the determination.(7) There is no further right to appeal against a court determination if there is no right to appeal against the determination, or there is such a right but—
(a) the time limit for making an appeal has expired without an appeal being brought, or(b) an appeal brought within that time limit has been withdrawn.(8) In this article “the commencement date” means the date on which the Deregulation Act 2015 is passed.”
(4) The amendments made by this section to the Housing (Tenancy Deposits) (Prescribed Information) Order 2007 (S.I. 2007/797) do not affect a power to use subordinate legislation to amend or revoke that Order.
(5) In subsection (4), “subordinate legislation” has the same meaning as in the Interpretation Act 1978.”
My Lords, I will speak to Amendments 45 and 45A before moving on to Amendment 46. Amendments 45 and 45A have been tabled in response to a recent court case, Charalambous v Ng 2014, and an unreported county court case, Cooper v Collins, which have created uncertainty in the private rented sector.
Amendment 45 clarifies that, where a letting agent has received a deposit on behalf of a landlord, the letting agent’s contact details can be given in the prescribed information instead of the landlord’s details. It makes detailed amendments to the Housing (Tenancy Deposits) (Prescribed Information) Order 2007—the order that lists the prescribed information that a landlord must give to a tenant—to make absolutely clear when a letting agent’s details may be provided instead of the landlord’s. The amendments to the order are retrospective, making clear that it is and always has been the case that a letting agent’s details may be provided in the prescribed information instead of the landlord’s. In speaking to these amendments and those that follow, I declare my interest as a landlord.
To ensure fairness, provision is also being made that would prevent the reopening of out of court settlements or court cases that have been finally determined on the basis of this issue. The amendments will apply in cases where legal proceedings are under way at the time the provisions come into force, but tenants will be protected from paying their landlord’s legal costs where the court subsequently decides against the tenant in the light of these provisions. This strikes the right balance between ensuring that tenants do not suffer financially as a result of the retrospective legislation and ensuring that landlords are not penalised where they have followed government advice.
Amendment 45A has been tabled in response to the Court of Appeal’s judgment in the case of Charalambous v Ng 2014, which concerned a landlord who received a tenancy deposit prior to the coming into force of the tenancy deposit legislation in 2007. The tenancy in question became periodic prior to the date that the tenancy deposit legislation came into force and has continued as such ever since. The court ruled that the tenancy deposit legislation should apply to all landlords in this position and that they would therefore need to protect deposits if they wished to rely on the no-fault ground for eviction known as Section 21. It was never the intention, either in 2007 or following amendments made to the tenancy deposit legislation in 2012, that it should apply in this way. The amendments that we propose will make absolutely clear that, although landlords affected by the judgment will need to protect deposits if they wish to rely on Section 21, they will not be at risk of financial penalties should they fail to protect.
Moving on to Amendment 46, I thank the noble Baroness, Lady Hayter of Kentish Town, for her desire to clarify “prescribed information” in relation to lettings, to which I have just spoken. Her amendment makes provisions along similar lines to those that I just outlined on Amendment 45. While the Government agree with the noble Baroness on this point, we believe that Amendment 45 addresses the issues in a more detailed way than Amendment 46. I hope that the noble Baroness will be sufficiently satisfied not to move her amendment.
The Government’s amendments will make welcome clarifications to the tenancy deposit legislation. I beg to move.
My Lords, I thank the Minister for that. He will not be surprised that I am delighted that the Government have seen sense and tabled their amendments, which are in far more correct language than I managed. They implement the amendment that I moved in Committee, which, as he said, appears in the Marshalled List as Amendment 46.
In Committee the Minister said that my amendment was unnecessary but, to be fair to him, he ensured that discussions took place with the tenancy deposit scheme, which had raised concerns about whether having the letting agent’s name in the paperwork, rather than the landlord’s, was sufficient. Clearly, those discussions persuaded officials that the change was necessary. I congratulate the Minister and the draftsmen on producing Amendment 45 in time for Report. For obvious reasons, we heartily support this and I will not move Amendment 46 when called.
Amendment 45 agreed.
45A: After Clause 29, insert the following new Clause—
“Tenancy deposits: non-compliance with requirements
(1) Chapter 4 of Part 6 of the Housing Act 2004 (Tenancy Deposit Schemes) is amended as follows.
(2) In section 214 (proceedings relating to tenancy deposits), in subsection (1) after “shorthold tenancy” insert “on or after 6 April 2007”.
(3) In section 215 (sanctions for non-compliance)—
(a) for subsection (1) substitute—“(1) Subject to subsection (2A), if (whether before, on or after 6 April 2007) a tenancy deposit has been paid in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy at a time when the deposit is not being held in accordance with an authorised scheme.
(1A) Subject to subsection (2A), if a tenancy deposit has been paid in connection with a shorthold tenancy on or after 6 April 2007, no section 21 notice may be given in relation to the tenancy at a time when section 213(3) has not been complied with in relation to the deposit.”;
(b) in subsection (2A), after “Subsections (1)” insert “, (1A)”.”
Amendment 45A agreed.
Clause 30: Tenancy deposits
Amendment 46 not moved.
46A: After Clause 30, insert the following new Clause—
“Preventing retaliatory eviction
(1) Where a relevant notice is served in relation to a dwelling-house in England, a section 21 notice may not be given in relation to an assured shorthold tenancy of the dwelling-house—
(a) within six months beginning with the day of service of the relevant notice, or(b) where the operation of the relevant notice has been suspended, within six months beginning with the day on which the suspension ends.(2) A section 21 notice given in relation to an assured shorthold tenancy of a dwelling-house in England is invalid where—
(a) before the section 21 notice was given, the tenant made a complaint in writing to the landlord regarding the condition of the dwelling-house at the time of the complaint,(b) the landlord— (i) did not provide a response to the complaint within 14 days beginning with the day on which the complaint was given,(ii) provided a response to the complaint that was not an adequate response, or(iii) gave a section 21 notice in relation to the dwelling-house following the complaint,(c) the tenant then made a complaint to the relevant local housing authority about the same, or substantially the same, subject matter as the complaint to the landlord,(d) the relevant local housing authority served a relevant notice in relation to the dwelling-house in response to the complaint, and(e) if the section 21 notice was not given before the tenant’s complaint to the local housing authority, it was given before the service of the relevant notice.(3) The reference in subsection (2) to an adequate response by the landlord is to a response in writing which—
(a) provides a description of the action that the landlord proposes to take to address the complaint, and(b) sets out a reasonable timescale within which that action will be taken. (4) Subsection (2) applies despite the requirement in paragraph (a) for a complaint to be in writing not having been met where the tenant does not know the landlord’s postal or e-mail address.
(5) Subsection (2) applies despite the requirements in paragraphs (a) and (b) not having been met where the tenant made reasonable efforts to contact the landlord to complain about the condition of the dwelling-house but was unable to do so.
(6) The court must strike out proceedings for an order for possession under section 21 of the Housing Act 1988 in relation to a dwelling-house in England if, before the order is made, the section 21 notice that would otherwise require the court to make an order for possession in relation to the dwelling-house has become invalid under subsection (2).
(7) An order for possession of a dwelling-house in England made under section 21 of the Housing Act 1988 must not be set aside on the ground that a relevant notice was served in relation to the dwelling-house after the order for possession was made.
(8) Subsection (1) does not apply where the section 21 notice is given after—
(a) the relevant notice has been wholly revoked under section 16 of the Housing Act 2004 as a result of the notice having been served in error,(b) the relevant notice has been quashed under paragraph 15 of Schedule 1 to that Act,(c) a decision of the relevant local housing authority to refuse to revoke the relevant notice has been reversed under paragraph 18 of Schedule 1 to that Act, or(d) a decision of the relevant local housing authority to take the action to which the relevant notice relates has been reversed under section 45 of that Act.(9) Subsection (2) does not apply where the operation of the relevant notice has been suspended.
(10) References in this section and section (Further exemptions to section (Preventing retaliatory eviction)) to a relevant notice served, or complaint made, in relation to a dwelling-house include a relevant notice served, or complaint made, in relation to any common parts of the building of which the dwelling-house forms a part.
(11) But subsection (10) applies only if—
(a) the landlord has a controlling interest in the common parts in question, and(b) the condition of those common parts is such as to affect the tenant’s enjoyment of the dwelling-house or of any common parts which the tenant is entitled to use.(12) In this section and section (Further exemptions to section (Preventing retaliatory eviction)) a reference to a complaint to a landlord includes a complaint made to a person acting on behalf of the landlord in relation to the tenancy.
(13) In this section and section (Further exemptions to section (Preventing retaliatory eviction))—
“assured shorthold tenancy” means a tenancy within section 19A or 20 of the Housing Act 1988;
“common parts”, in relation to a building, includes—
(a) the structure and exterior of the building, and(b) common facilities provided (whether or not in the building) for persons who include one or more of the occupiers of the building;“controlling interest” means an interest which is such as to entitle the landlord to decide whether action is taken in relation to a complaint within this section or a relevant notice.
“dwelling-house” has the meaning given by section 45 of the Housing Act 1988;
“relevant local housing authority”, in relation to a dwelling-house, means the local housing authority as defined in section 261(2) and (3) of the Housing Act 2004 within whose area the dwelling-house is located;
“relevant notice” means—
(a) a notice served under section 11 of the Housing Act 2004 (improvement notices relating to category 1 hazards), (b) a notice served under section 12 of that Act (improvement notices relating to category 2 hazards), or(c) a notice served under section 40(7) of that Act (emergency remedial action);“section 21 notice” means a notice given under section 21(1)(b) or (4)(a) of the Housing Act 1988 (recovery of possession on termination of shorthold tenancy).”
My Lords, it is always a pleasure to act on behalf of my noble friend Lord Wallace of Saltaire, in whose name this amendment stands. I may be doing a bad impersonation of him but it is always a pleasure to respond in his name.
A number of amendments relating to retaliatory evictions have been grouped together. For clarity, I will address government Amendments 46A to 46J before moving on to Amendment 52 and, finally, Amendments 46AA, 46AB, 46BA and 46HA.
The private rented sector is an important and growing part of our housing market. It has overtaken the social rented sector in terms of size and is now the second largest tenure with 1.9 million properties housing 4 million households throughout England.
The quality of privately rented housing has improved rapidly over the past decade. The Government are committed to promoting a strong, thriving professional private rented sector where good landlords can prosper and hard-working tenants can enjoy decent standards and receive a service which represents value for money for their rent. However, the behaviour of a small number of rogue landlords has a detrimental impact on tenants. Also, some tenants do not act responsibly, and it can be difficult and time-consuming to evict such tenants where it would be legitimate to do so—for example, because of mistakes made when serving a Section 21 eviction notice.
This amendment to the Bill is designed to be a balanced package of measures that will benefit both tenants and landlords. It covers four areas, which I shall go through briefly. First, it will protect tenants against the practice of retaliatory eviction where they have raised a legitimate complaint about the condition of a property and a local authority has issued a notice confirming that the repair needs to be carried out to avoid a risk to health and safety.
Secondly, the amendment will ensure that tenants are always given at least two months’ notice before they have to move out of their home. This will be done by providing that a Section 21 notice may not be given in the first four months of the tenancy and by introducing an expiry date after which a Section 21 notice ceases to be valid if possession proceedings have not been brought. The purpose of this measure is to deal with an approach adopted by, I stress, a small minority of landlords and letting agents in which they serve an eviction notice at the start of a tenancy. This disreputable practice can result in a tenant having to vacate a property with virtually no notice.
Thirdly, the amendment will make the eviction process more straightforward for landlords where the tenant can legitimately be evicted. It does so through the introduction of a prescribed notice to reduce errors and by removing the need for the date specified in a notice served under Section 21(4)—which relates to the notice to be given in relation to a periodic assured shorthold tenancy—to be the last day of a period of the tenancy, while retaining the requirement to give two months’ notice. We estimate that this measure alone will deliver savings to landlords of about £3 million a year.
The fourth element is to provide that, where a landlord has failed to comply with certain legal obligations, the tenant cannot be evicted using the Section 21 procedure. We envisage that this will apply to existing legal obligations such as the requirement to provide a new tenant with an energy performance certificate and to obtain an annual gas safety certificate. This restriction on the service of an eviction notice would be lifted as soon as these documents were provided.
While some of these changes will involve small one-off costs to landlords, primarily due to the need to familiarise themselves with the legislation, we estimate that this provision will deliver savings to landlords of, as I said, about £3 million per year.
The first part of the amendment introduces much needed protection for tenants against a very small minority of unscrupulous and rogue landlords who knowingly rent out unsafe and overcrowded accommodation and then evict any tenant who makes a complaint about the condition of the property—as I have said, a practice known commonly as retaliatory eviction. The amendment provides that a tenant cannot be evicted for a period of six months where they have requested that a repair is carried out to their home and the local authority confirms that the repair is necessary to prevent a possible risk to the tenant’s health and safety. The landlord will also be required to ensure that the repairs are completed.
As noble Lords will know, this amendment originally started out as a Private Member’s Bill in the other place. The amendment is very similar but there are some differences, which I wish to highlight. One is that we have decided to remove hazard awareness notices from the list of documents that can confirm a health and safety risk. The other notices are an improvement notice and a notice of emergency remedial action. A hazard awareness notice is a document that alerts the building occupier to a potential minor hazard—for example, a cracked window or uneven steps on a staircase.
We took the decision to remove hazard awareness notices from the list as they are normally issued only where there is a relatively small risk to the tenant’s health and safety—for example, in the case of uneven steps on a staircase. It does not require the landlord to actually do anything to rectify the problem. Local authorities will not be prevented from issuing hazard awareness notices. However, doing so would not give a tenant the protection against eviction that they would get if an improvement notice or a notice of emergency remedial action were issued. Local authorities would be aware of that and could be expected to take that fact into account when deciding what action to take following an inspection.
The local authority will also have a crucial role to play more generally. The protection against eviction which this amendment introduces will apply only if the local authority has confirmed that there is a potential health and safety risk. In addition, the tenant must have requested a repair before the serving of a Section 21 eviction notice. The amendment will not cover situations where a landlord serves an eviction notice and the tenant subsequently requests a repair. In addition, the amendment will not apply where a local authority determines that the issue being complained about has arisen because the tenant has breached their duty to use the property in a tenant-like manner. These measures will help to ensure that unfounded complaints are kept to an absolute minimum.
However, we want to ensure that landlords, and indeed tenants, are not left waiting for months and months for a local authority to inspect a property, which I know to be a concern. Therefore, the amendment provides that, by the time that the possession case comes to court, a local authority will need to have carried out an inspection or, where it has carried out an inspection, will need to have decided whether there is a defect that poses a risk to the tenant’s health and safety. If the local authority fails to do so, a tenant will not have a defence to the proceedings on the grounds of retaliatory eviction.
This should not be an onerous burden on local authorities. A tenant must be given at least two months’ notice of eviction under the Housing Act 1988. Typically, it would take a further two months for a possession case to go to court. So, on average, a local authority will have four months to carry out an inspection and decide whether the complaint by the tenant is legitimate. This should be ample time.
Retaliatory eviction is wrong and its continued practice is unacceptable. No tenant should face eviction because they have made a legitimate complaint to the landlord about the condition of their home. These are important amendments which introduce protection for tenants against rogue landlords, but they also contain provisions which we believe will benefit landlords and make it more straightforward to evict tenants in legitimate circumstances.
I move on to other amendments in this group. Amendment 52 is very similar in parts to the Government’s Amendments 46A to 46J. The amendment would protect tenants against the practice of retaliatory eviction where they had raised a legitimate complaint about the condition of a property and a local authority had issued a notice confirming that the repair needed to be carried out to avoid a risk to health and safety. The amendment would introduce protection for tenants against a small minority of unscrupulous and rogue landlords who knowingly rent out unsafe and overcrowded accommodation and then evict any tenant who makes a complaint about the condition of the property.
The amendment provides that a tenant cannot be evicted for a period of six months where they have requested a repair to be carried out on their home and the local authority confirms that the repair is necessary to prevent a possible risk to the tenant’s health and safety. Amendments 46A to 46J are designed to tackle exactly this problem, and in fact they go much further by introducing changes in several related areas. First, they ensure that tenants are always given at least two months’ notice before they have to move out of their home. A small minority of landlords and letting agents have adopted the practice of serving the eviction notice at the start of a tenancy—a point that I made earlier. This disreputable practice can result in the tenant having to vacate a property without notice.
Secondly, as I have already said, the eviction notice makes the process more straightforward for landlords in situations where the tenant can be legitimately evicted. It does so through the introduction of a prescribed notice to reduce errors and by removing the need for the date specified in a notice served under Section 21(4) to be the last day of a period of the tenancy, while retaining the requirement to give two months’ notice. The Government are keen to ensure that we take forward a balanced package of amendments that will help both landlords and tenants.
Thirdly, the amendments provide that where a landlord has failed to comply with certain legal obligations, a tenant cannot be evicted using the Section 21 procedure. We envisage that this will apply to existing legal obligations, as I have already mentioned, in relation to energy performance certificates and the annual gas safety certificate. The government amendment provides protection for tenants against retaliatory eviction. It also, as I have explained, delivers a range of other benefits for landlords.
Amendment 46AA would require tenants to wait for up to 28 days before they could expect their landlord to simply respond to a request by the tenant for repairs to be carried out to the property. At that stage the landlord would be required only to inform the tenant what, if anything, he proposed to do in response to the request. The Government have set a time limit of 14 days for the landlord to respond. In our view this strikes a fair balance between ensuring that landlords are given a reasonable time to respond to a complaint while not expecting tenants to put up with the disrepair in their property for an unreasonably long time. Renting out property is a business transaction and tenants, like any other consumer, have a right to expect their landlord to respond promptly to a request for repairs. In our view, 14 days is a reasonable period in which to require a response. Indeed, in many cases, a much earlier response could and should be expected—for example, if there is a leak in the property or a problem with the heating during the winter months.
There may be situations where a landlord is genuinely unable to respond within that timescale, but even if that is the case, that does not mean that the landlord would automatically be prevented from evicting the tenant for a period of six months. The local authority would still have to inspect the property and determine whether there was a potentially serious health and safety risk. However, it would be open to the landlord at any stage, before the inspection is carried out, to contact their tenant, assess what work needs to be done and arrange for it to be completed. If that has happened by the time of the inspection, and as a result there is no longer a potential risk to the health and safety of the tenant, the local authority will no longer have any role to play. In that scenario, the proposed restrictions on the service of a Section 21 eviction notice would not apply.
Amendment 46AB has the potential to reduce the length of time during which a tenant would be protected against retaliatory eviction. The Government propose that a tenant should be protected against eviction for a period of six months starting from the date that the local authority has determined that a property contains significant health and safety hazards, and has issued either an improvement notice or a notice of emergency remedial action. However, this amendment would reduce that time. Local authorities have a lot of competing demands on their time and it is very unlikely that they could inspect a property instantly, as soon as they have received a complaint from a tenant. If, for example, a local authority did not inspect a property until two months after it had received a complaint, even if a serious health and safety hazard was discovered, a tenant would then be protected against eviction only for a period of four months. That reduction would significantly weaken the protection that the Government have decided tenants must be given against the actions of the very few rogue landlords.
On Amendment 46BA, we are absolutely clear that tenants should pay their rent on the date that it is due. The Government’s proposals do not in any way undermine this central principle. When a tenant has fallen behind with their rent, landlords can use the procedures under Section 8 of the Housing Act 1988 to evict the tenant. Those procedures will remain unchanged and will not be affected in any way by the proposed restrictions on the use of a Section 21 order of the 1988 Act. We do not believe that a tenant should be denied protection from a retaliatory eviction when there are already adequate provisions in existing legislation for dealing with non-payment of rent.
Finally Amendment 46HA would apply to a situation when a tenant is entitled to repayment of any rent they have paid in advance for a period when they no longer occupy the property because the landlord has served a Section 21 eviction notice. It provides that the amount of rent repaid will be offset by an amount equal to any money that may be owed by the tenant to the landlord. The amendment is unnecessary, as there is nothing in the Government’s proposed legislation that would prevent a landlord offsetting any debts owed to them by the tenant against rent that they are liable to repay to the tenant. Therefore, I commend Amendments 46A to 46J and hope that, in the clarifications and assurances, noble Lords who have tabled Amendments 52, 46AA, 46AB, 46BA and 46HA will be minded not to press them.
Amendment 46AA (to Amendment 46)
46AA: After Clause 30, line 17, leave out “14” and insert “28”
In moving the amendment I will also speak to Amendments 46AB, 46BA and 46HA. These are all amendments to the amendments proposed by my noble friend the Minister. Before so doing, I must declare an interest as an owner of rented-out residential properties.
Amendment 46AA would allow for a landlord to be away when a letter of complaint arrives. He or she may be absent for whatever reason—business, holiday, et cetera. In spite of what my noble friend said, I believe that it would be sensible to allow for this possibility when imposing a time limit. There may also be a need to seek professional advice to be able to give an adequate response to a complainant, so the time period should be adequate to allow for those items.
Under Amendment 46AB, the situation would be avoided when a tenant makes a written complaint and the local authority does not react promptly, say for four months, and the authority then issues a relevant notice, and when that relevant notice is issued a new six-month period begins. In effect, the ability to issue a Section 21 notice will have been blocked for 10 months—four months starting with the tenant’s written complaint, which was not acted on by the authority, followed by the six months starting with the issue by the local authority of a relevant notice. I do not believe that that was what was intended. I may have misunderstood it but perhaps my noble friend can make that clear.
That point becomes particularly relevant when I come to Amendment 46BA. It allows a Section 21 notice to be served if a tenant is in arrears of rent for two or more consecutive payment dates, even if the tenant has made a written complaint. My noble friend referred to Section 8 of the Housing Act but I understand that the only method of controlling the situation would be the issue of a Section 21 notice. Any tenant not wishing to pay his rent only has to put a complaint in writing to the landlord, and the tenant has security of tenure without paying any rent for the next six months—or if the local authority delays in its actions, an even longer period. This creates a situation that is open to abuse, and although most tenants would not dream of doing so, there will be occasions when such action is taken deliberately. It could be argued that my amendment is too lenient because, in effect, sanctions against non-payment of rent are taken away the moment a complaint is issued.
Amendment 46HA allows any money owing to a landlord to be deducted when returning rent to a tenant. Frequently a deposit is taken to cover damage by tenants over and above normal wear and tear. These deposits are regulated and held by a third party. It is only fair that where there is a reasonable claim for dilapidation, that is deducted from any rent due to be repaid to a tenant.
Finally, I would be grateful if my noble friend will say what is to happen when a landlord does not have the resources to make necessary repairs or improvements quite reasonably asked for by the tenant. In this context my noble friend might like to consider that where I live and rent out properties a full repair costs on average 16 times the annual rent, and a minor refurbishment five years’ rent, and that does not allow for any tax. That makes it difficult for many people to finance repairs. I am not trying to say that they should not make repairs but the Minister should consider what happens when people cannot pay.
My Lords, I support Amendment 46A, as well as Amendments 46B, 46C to 46H and Amendment 46J in the group. In supporting this amendment, I pay tribute to my colleague, Sarah Teather MP. On 28 November, she secured a Private Member’s Bill, the Tenancies (Reform) Bill, to deal with the problems caused by retaliatory evictions. Sadly, some Members in the other place that day were landlords and did not share the ethos of the Bill, and they talked it out. It is a great privilege for me to support the essence of the Bill in this amendment and to help to protect vulnerable tenants.
This amendment is not about penalising conscientious landlords; nor is it about protecting bad tenants who do not respect the property that they are renting. It is about protecting the rights of both groups and giving security to tenants who, when reporting a fault which affects their ability to live happily in their home, will not dread an eviction notice landing on the doormat as a result. It will give a clear signal to those landlords who currently ignore the state of their properties that this is no longer acceptable and that, if they engage in a regular programme of maintenance, they are likely to have a much better relationship with their tenants. Costly tenancy turnover will be lower and they will be less likely to face expensive repair bills for major incidents, such as collapsed ceilings due to persistent leaks, later.
I am sure that we can all give examples of where tenants have lived with poorly maintained and damp properties but have been too afraid to report this to the landlord. They may have seen other tenants who complained suffer eviction. Such evictions put pressure on local authorities, housing associations and others in the rented sector, and cause expensive, temporary accommodation solutions. These are a potential burden on the council tax payer and bring misery and uncertainty to families and children.
I am grateful to Citizens Advice and Shelter for their tireless efforts to bring the plight of those who are suffering from the injustice of retaliatory evictions to the notice of a wider audience. These and similar organisations have done all that they can to alleviate the suffering and uncertainty of those affected in our communities. It is often those on the lowest incomes and with the least options who are the most penalised in the housing market. They frequently have no choice but to turn to the private sector for accommodation.
It is long overdue that we seek to protect this section of our community and to give them some security, as well as decent homes to live in and in which to bring up their children. At the same time, we must protect those landlords who are assiduous in maintaining their properties. Without these landlords there would be an extreme shortage of properties to let around our cities and countryside. This amendment is all about establishing and maintaining a balance between the tenant and the landlord, and I am pleased to support it.
My Lords, I support the amendment to the amendment, moved by my noble friend Lord Howard. In principle, preventing retaliatory evictions is a very good idea for all the reasons that have been given by my noble friend and the noble Baroness. I want to focus on two aspects, one of which my noble friend raised in one of his amendments; that is, the 14-day limit provided for under subsection (2)(b)(i) of the new clause proposed under Amendment 46A. I query with my noble friend the Minister whether 14 days is a reasonable timeframe. I declare an extremely modest interest as a landlord of one property.
I just cast my mind to what might happen. I often go on holiday for more than 14 days. If, God forbid, one were ever in a dispute with a tenant—I have no current expectation that I would be in that position—it would be quite easy for a tenant seeking to make use of these provisions generally to cause trouble and to take advantage of one’s being out of the country and not being available for 14 days. As my noble friend’s amendment suggests, 28 days seems more reasonable on that basis.
The second thing I want to raise with the Minister is what would be an “adequate response”, as provided by subsection (2)(b)(ii) in the amendment, which is defined in subsection (3). I ask my noble friend the Minister: how will the adequacy of the response be judged? What is a “reasonable timescale” and who will judge what that is? I could not see in the amendments how any disputes about this process were capable of being dealt with. There needs to be certainty about how the processes will work. It is not entirely clear to me that a response can be quickly identified as being adequate or not, given the wording in subsection (3) of the amendment.
My Lords, I support this group of government amendments. I declare my interests as on the register, in particular as chair of the council of the Property Ombudsman, which handles complaints about property agents—traditionally about estate agents but today more about letting and managing agents in the private sector. I am grateful to Shelter and the British Property Federation for helpful briefings.
I want to address the concerns raised by some representatives of private landlords that this effort to end retaliatory evictions in private rented housing could become a charter for mischievous tenants to prolong their tenancies when they know that the landlord wants them to leave. I want to answer the question: could tenants raise spurious complaints about their property unnecessarily, unfairly or even maliciously, in order to frustrate their landlord and to secure an extra six months or so of occupation? If that was the outcome from that measure, it is argued that it would deter investment, put off potential buy-to-let landlords and slow the growth of this sector.
The private rented sector has more than doubled in size over recent years and we now have some 1.5 million private landlords. Properties that in times past would have been sold to home buyers have instead been snapped up by buy-to-let landlords. Some observers would welcome a slow-down in this shift from owner-occupation to private renting. However, outlawing retaliatory evictions seems very unlikely to put a break on this phenomenal growth. Only the minority of really hopeless—or actually criminal—landlords will be affected.
These measures will bite only where the landlord has not only ignored a request from the tenant for rectification of a serious problem but has also ignored the local authority when it has spelt out that the landlord is in breach of their legal duties. Local authorities will have to visit the property and be satisfied that there is a serious breach of the requirements and that the property is not safe and not free from grave health hazards. The council will then have to issue a formal improvement notice, not a simple hazard awareness notice. That is not an action that is taken lightly by local authorities and they will do so only if the landlord has failed to do anything to rectify the problem. Only after the whole process has been concluded and the landlord has done nothing will the tenant gain an extension to the tenancy. These are pretty extreme circumstances and it would take a truly obdurate or completely incompetent landlord to fail to do what is required by the council.
Nor can the Bill be used as a last-minute delay to hold up an eviction. If the tenant is challenging an eviction notice, they will have to prove that they made the complaint about conditions before the eviction notice was issued. The tenant will lose the ability to challenge the eviction notice if they do not do so within the two-month notice period, and the Bill specifically prohibits renters from raising any issues that are their own responsibility. Environmental health officers are well trained in assessing whether a defect has been exaggerated or manufactured by the tenant. Prior to serving formal notice, the landlord will be given time to address the problem, and proper law-abiding landlords will act before matters reach the stage of the local authority serving the improvement notice which would delay the eviction.
This measure can catch out the shameless landlord of a slum property seeking to remove a tenant who complains in order to find someone else who is prepared to tolerate extremely poor conditions, but it does not provide any help to the tenant who tries to use this as an opportunity to fend off a perfectly valid eviction notice. I think that it is a modest change in the law and there should be no anxieties that unscrupulous tenants can use it to make mischief. There may be some tweaks to be made to the small print which would improve the amendment, and I would not stand in the way of modest changes, but the core components of the measure represent a positive step forward. In combination with the other important new requirements in this set of amendments to enforce proper standards, this measure will support the process of driving out criminal landlords.
Regrettably, among the hundreds of thousands of new landlords in recent years, there are indeed some who lack not only competence but the financial resources to keep their properties in a decent condition, let alone to engage professional agents to manage the lettings for them. Frankly, these landlords are not up to the job, and if this measure flushes out even a handful of them, it will have been worth while. For the great majority of proper landlords these changes are good news because they target unfair competitors who undermine the reputation and the public’s perception of this very necessary sector. I strongly support this group of government amendments.
My Lords, I should declare that I am a landlord in the private rented sector, which is larger than the social rented sector and is still growing. I am firmly against any landlords who engage in retaliatory evictions. I have never had to resort to issuing or have even come close to issuing a Section 21 notice, so this is all slightly unfamiliar territory to me. But it seems that what we are dealing with in this group of amendments is the bottom of the barrel as far as landlords are concerned and, indeed, the bottom of the barrel as far as some tenants are concerned.
There are two improvements in these government amendments over the others which have been tabled and over the amendment moved by the noble Baroness, Lady Hayter, to the Consumer Rights Bill. The first is that the tenant must make a complaint to the landlord in writing and give the landlord time to rectify the problem before involving the local authority. It seems obvious, but it was not in the other amendment, so it is welcome. The second improvement is that regulations will require landlords to provide tenants with the details of their rights and responsibilities, which is also welcome.
I would now like to talk to the amendments tabled by my noble friend Lord Howard. I agree that 14 days is not long enough for the landlord to respond. If the Minister is unable to accept the period of 28 days suggested by my noble friend, perhaps 21 days would be a happy compromise. My noble friend’s Amendment 46BA addresses the case where a tenant has failed to pay rent for two or more consecutive due dates. Let us suppose that a tenant does not pay the January rent, but says to the landlord that he will deal with it. The February due date for rent then comes along, and he does not pay that either. On the morning when the February rent is due, the tenant writes a letter to the landlord with some sort of excuse and saying that something needs to be repaired. In the afternoon of the same day he writes to the local authority saying, “I have written to the landlord. He has done absolutely nothing about it, so can you come and serve your notice on him?”. If the local authority does that, the landlord has missed out on the January and February rent and will then miss the next six months as well. That cannot be right.
The bad tenant, the one at the bottom of the barrel, may not have actually sent the letter to the landlord even though he has a copy in his file. The poor landlord, who may not live close by because he is in another county, does not know that any of this is going on, yet the tenant has not paid the rent and will not be paying the rent for eight months. My point is this. Should there not be a duty in the Bill on the local authority to contact and/or write to the landlord saying that the tenant has made a complaint and asking what the landlord intends to do about it? As I have made clear in my example, this may be the first occasion that the landlord becomes aware that there is a problem.
I shall move on to the government amendments. There is a significant omission because the Bill makes no provision for what happens where a landlord responds adequately to a complaint from a tenant within the time allowed. The Bill does not provide for any kind of moratorium to prevent the local authority taking action. The local authority can still serve a statutory notice on the landlord even though he is dealing with the complaint in a responsible manner. This has two consequences for the landlord. The first is that this is potentially serious for a landlord who does not serve a Section 21 notice at the time and who has no intention of retaliating. However, if the landlord is served with a notice by the local authority, he is then automatically precluded from relying on Section 21 for six months. Even if the landlord does not serve a Section 21 notice following a complaint, should he have cause to do so within the next six months following the service of the local authority’s notice, he would not be able to serve it even though a perfectly good but unconnected reason for eviction may subsequently have arisen. It may be because the tenant has gone into rent arrears or has otherwise broken the terms of the tenancy, perhaps through anti-social behaviour.
The second problem arises because a notice served under Section 21 after the written complaint is invalidated. Again, no distinction is made between the bad landlord who is acting in retaliation and the responsible landlord who has a good reason unconnected to the complaint made by the tenant to evict him. The landlord may wish to obtain possession under Section 21 for good reasons and not in retaliation for the complaint. For example, the landlord may have received complaints about serious anti-social behaviour or there may be significant rent arrears. The local authority may want the landlord to evict the tenant because of the anti-social behaviour, but the amendment would mean that the authority could not do anything about it. The solution is to add a provision to the Bill stating that as long as the landlord replies in time and in an adequate way, the local authority should be precluded from serving a statutory notice unless the landlord fails to carry out the work on time. Likewise, in a case where the landlord has responded in time, has addressed the complaint and ensured that the work has been satisfactorily completed, the moratorium on serving a Section 21 notice should be lifted.
I have another point here. Can the Minister clarify what happens if by the time the local authority inspects the property, the original complaint has been dealt with satisfactorily but, on inspection, the local authority finds some other, second problem or complaint meriting the service of a relevant notice? Would the local authority be said to be acting “in response to the complaint”? It could be said that the complaint occasioned a visit which gave rise to the issue of the relevant notice even though it was for good reason. Clarity on this point is requested. It would seem to me that if the original complaint had been satisfactorily dealt with, but a second problem had been found, then a further 14 days should be available for the landlord to provide an adequate response within a reasonable timescale to this second problem, so that the local authority should not issue a statutory notice.
I may have raised one or two issues that the Minister is not able to respond to today. If so, perhaps he could do so in writing.
My Lords, I was not going to speak in this debate, because I think there is a need for us to move on, but in the light of a couple of speeches on this side of the House, the Minister needs to make it absolutely clear that there is no intention in these amendments to interfere with landlords’ rights in the situation of arrears. Most disrepair issues are sorted out between the tenant and the landlord, but where the relationship has broken down, and tenants need to get legal advice or local authority action, it is not surprising that some landlords may seek to regain possession.
There is an abuse of power here that we need to correct. These amendments are about getting that balance right. That is the purpose of the legislation and I give due credit to Sarah Teather and indeed the Department for Communities and Local Government, for actually allowing us to put these amendments through and for putting down an amendment that tries to make an acceptable reform in this area. The vast majority of landlords will not be affected by these amendments. They already ensure that they comply with the required health and safety standards and they will retain the freedom to issue Section 21 notices. However, the amendments will inhibit rogue landlords flouting their legal responsibilities. That is why this reform is needed.
My Lords, I declare my interests. I was an estate agent and am a consultant to an estate agency. I also piloted the 1988 Act through the House. The Act was introduced by my late noble friend Lord Ridley of Liddesdale when he was Nick Ridley and Secretary of State, and I am delighted that it has been so successful. It was controversial and was criticised quite heavily at the time, but it has achieved what it set out to do, which was to improve the private sector rented market and to give more people a choice of tenancies.
I have two concerns of principle with these amendments. One is the timing. This is Report stage, and this is a technical issue. I understand very well that the Liberal Party has put a great deal of emotion and faith into these amendments, and I do not blame them at all: technical points have been raised which need to be discussed. However, we can speak only once, and there is no way that this amendment is going to be discussed in any detail in another place. We are the only Chamber of Parliament that can actually get into this, but we are now limited to Report and Third Reading. The noble Lord, Lord Best, whose opinion we all respect, said that there could be some tweaks, but he did not tell us what the tweaks were. Those are the sorts of things that we ought to be looking at but which, under the procedure, we cannot. I mildly chastise my noble friends on the Liberal Benches for not introducing this in Committee. I understand why they did not: because there was a Private Member’s Bill in another place. But that did not stop them, and we could have had a much better discussion than we are having now. I would have hoped that my noble friend on the Front Bench might have taken this back into Committee, particularly for this purpose.
My second general concern is about the whole issue of the housing market. As many other noble Lords have said, this is a very fine balance. Section 21 is one of the key pendulums in the whole of the housing market legislation and has to be in the centre to get the balance right between landlords and tenants. My noble friend Lord Cathcart was absolutely right: we are dealing with, in this instance, the rogue landlords—who we all dislike and who we all want to get out of owning property—but we are also dealing with, possibly, the worst type of tenant, who wants to be obstructive and has the ability to be obstructive.
When you make laws for those sorts of people, it is very hard to get the balance absolutely right, because the effect percolates up through all the good people. What you do to the very bad affects the good. There is a perception that the Government are moving away from the fine balance that has been achieved and are moving more in the direction of the tenant than of the landlord. As a result, I have received inquiries as to whether this is going to be a trend and whether people should continue to own property to let. I do not think that these amendments will have that effect, but it is a perception, and perception in housing is important. It is hard to define and calculate, but it is there. One therefore needs to be extra careful in dealing with these amendments to make certain that this does not move the pendulum in a way that none of us wants.
I have a couple of questions for my noble friend. When one talks about the relevant notice to the landlord, one presumes that that notice will be received by registered post. Let us look at this 14 days, because I think that my noble friend Lord Howard has a point here. Let us say that it is sent by registered post on 20 December. The landlord in this instance could be just an individual without back-up—not necessarily the bad landlord that the noble Lord, Lord Best, mentioned, but an honest upright citizen who has gone away over the Christmas and new year period and does not get the registered document within the 14 days. However, the tenant can prove that it was sent, and this amendment would kick in. I ask my noble friend to have a look at this, because there is merit in the argument, although I agree that we do not want to make it too long. I was rather impressed that he answered the amendment before it was actually moved and spoken to, because in this instance it helps us. However, I hope that he will be able to look at that particular point again.
Another point which needs looking at is that sometimes landlords and tenants agree to suspend a notice because the tenant says that he is going to move. I know that this is not frequent, and I have never encountered it, but it has been reported to me. An unscrupulous tenant may say, “Do not bother to serve the notice, I am going to go anyway and you can do the repairs when there is vacant possession. I do not want all the hassle”. Then, when the landlord does not put the notice in and the tenant changes his mind and sits there—there could be tenants as difficult as that—that puts the landlord in a worse position than he is now. This is relevant to Amendment 46A.
I will also raise a point on Amendment 46D, which I think was the second point that my noble friend the Minister raised, about the length of notice for the Section 21 notices. You have to give two months’ notice and now you cannot serve a notice within the first four months. There is a problem for a six-month tenancy. It is purely a practical problem. If I had a property—which I do not—and I let it to my noble friend for six months, I could not serve the notice on him for the first four months. I would then have two months’ notice to give him but it is a six-month tenancy so that is blocked off. So at the end of the fourth month, I have that next day to serve the notice in order to get him out in a six-month period and fulfil the tenancy. I would like the Minister to comment on that, whether I am right or wrong. It is just making life a bit more difficult. It is moving the pendulum.
Yes, I agree with the principle. None of us likes rogue landlords. We do not want some of the present landlords owning the properties that they have because they are making life difficult for others. But those of us who actually support the principle of the amendment do want it to work.
My Lords, we are very happy to support the Government’s amendment. That is hardly surprising given that, as the noble Earl, Lord Cathcart, reminded the House, my noble friend Lord Stevenson of Balmacara and I tabled a very similar amendment to this—Amendment 50E to the Consumer Rights Bill—precisely to protect tenants against retaliatory eviction. Indeed, had the Government accepted it in principle at that stage, we would have had lots of time to discuss any tweaks and details. Furthermore, of course, that was the appropriate piece of legislation for it. It is exactly something that lives in a Consumer Rights Bill. It is quite hard to think why it should be in the Deregulation Bill but anyway it is here and we welcome the fact of it, and it is clearly the way the Government prefer it.
It is good to see the change of heart because when we moved that amendment in November, the noble Baroness, Lady Neville-Rolfe, who was dealing with it, said that the Government did not think it was necessary because it would not,
“add anything further to the guidance that is already available”.—[Official Report, 24/11/14; col. 761.]
To be fair, she supported the Private Member’s Bill in the other place and the Government have now decided to introduce this legislation, albeit perhaps not in the best vehicle, given that the Consumer Rights Bill is still in Parliament.
It is a shame that the Liberal Democrats who have added their names to the amendment did not share our concerns earlier. The noble Baroness spoke in favour of one of my other amendments, but it would have been nice to have their support when we tried to make letting agents belong to an ombudsman scheme. We got it through but without their help; nor did they support my attempts to get letting agents to put tenants’ rent into protected bank accounts, which would have safeguarded landlords as much as—if not more than—tenants, because when letting agents go walkies with the money it is usually the landlords who pay, but of course it is the tenants’ money that goes. But hey, I guess there is an election coming so now they are on the side of the tenants, and we welcome that support, belated though it might be.
We particularly welcome the Government’s view on this and their bringing forward these amendments. We know that it will please those who have campaigned a long time for this, including Crisis and Shelter, which have been mentioned, and the Brighton and Hove “Home Sweet Home” campaign, which has been working for a better and fairer private rented sector. Its members campaign on behalf of local tenants who are often too scared to speak out or to ask their landlords for repairs because they fear losing their homes. In places such as Brighton, that is not a joke; it does happen. As for the idea that there are rogue tenants—actually, the experience we have is of landlords mistreating their tenants.
These amendments give much-needed protection to tenants, as landlords will no longer be able to evict them in response to a valid complaint about their home. Tenants will no longer have to choose between living in poor conditions and losing their home. Unfortunately, revenge eviction has become a major cause of insecurity, not just in Brighton but elsewhere where there is a lot of pressure on the private rented sector. We want people to feel safe and secure in their own home, creating a fairer system for both tenants and landlords. We believe that these amendments will help achieve that.
We have one slight disappointment. As the noble Lord, Lord Ahmad, said, the hazard awareness notices are not included in these amendments, although they were in the Private Member’s Bill. We have some concerns that without these the protection risks being patchy. Some extra assurance on that would be welcome.
We are also pleased that, from what the Minister said in his introduction, the Government do not seem minded to accept Amendment 46AA in the name of the noble Lord, Lord Howard of Rising, which would extend the period that a tenant can wait before contacting the council from 14 to 28 days. Twenty-eight days is too long for a tenant to wait before legitimately contacting the council. None of us would wait that long if it was our home, especially if it was over Christmas. Therefore, where there is a serious problem that needs seeing to, we agree with the Minister that 14 days is the right balance.
I also pay tribute to the noble Lord, Lord Best, who has saved me from having to give a very robust response to those who fear that these amendments will achieve things that are too much in favour of the tenants and not of the landlords. We think that it is a fair deal between the two sides—although often, as people have said, they are not sides; it is a good relationship.
Meanwhile, given that the Government have decided—perhaps a bit late—to do something to help “generation rent”, it is a shame that it is not part of a wider strategy to ensure that tenants get a fair deal from landlords. We have undertaken to legislate for three-year tenancies, to give renters a stable home and landlords the confidence to invest. We will also stop letting agents charging fees to tenants, which we tried to do in the Consumer Rights Bill, but sadly that bit has not been brought over. However, I should not be churlish. We are delighted with the amendments that the Government have brought forward and we have pleasure in giving them our full support.
My Lords, I thank all noble Lords who have participated in this debate. Again, it demonstrates the great expertise and interest in your Lordships’ House in this important issue. I will seek to answer all the questions that have been raised but if there are specific, technical questions, I add the caveat that I shall of course review all contributions and write accordingly to cover any points that perhaps I have not been able to cover in my response this evening.
I, too, thank the noble Lord, Lord Best, for his support for the government amendments. He always speaks with great expertise on housing issues across the board, so his support is most welcome. I hope it continues for the later part of the evening but we shall come to that shortly. I also thank my noble friends Lady Bakewell and Lord Stoneham for their support for the Government’s position. In thanking other noble friends who perhaps have not been totally supportive, I of course recognise the concerns that have been expressed across a range of issues and hope that I can address most of them in my response.
My noble friend Lord Howard asked about tenants who stop paying rent once they have made a complaint. I assure my noble friend that in this regard the amendment under no circumstances permits the tenant to stop paying rent, and the tenant will be obliged to pay. It provides that a Section 21 eviction notice can be invalidated only if a tenant’s complaint is supported by confirmation from the local authority. Indeed, if a Section 21 eviction notice cannot be served for a specified period, the tenant is still contractually obliged to continue paying rent. Failure to do so, as I said in my opening remarks, would leave them liable to eviction under Section 8 of the Housing Act 1988.
I covered dilapidation costs, albeit briefly, in my opening remarks. There is nothing in what is being proposed to prevent landlords offsetting any debts owed by tenants to the landlord against any money that the landlord owes to the tenants. That would still apply.
My noble friend Lord Howard talked also about the possibility of a 12-month delay. We do not perceive that this would be the case. If the council has carried out an inspection by the time the case comes to court, which, as I said, would be a period of up to four months, the tenant would have no defence to the Section 21 proceedings.
My noble friend Lord Howard also raised the issue of affordability. Nothing in what is being proposed in the government amendments changes this. In a normal contract between an owner of a property, a landlord and a tenant, landlords are already obliged to carry out repairs under the Housing Act 2004. The amendment does not change that provision.
My noble friend Lady Noakes asked about adequate response and who decides what is reasonable. That would ultimately be determined by the county court, if it got to that point; initially, such a determination would be made by the local authority.
My noble friend Lord Howard referred to tenants being allowed to block evictions for up to 10 months. The maximum period will be six months from the date that the local authority serves the relevant notice.
My noble friend Lord Cathcart raised several important points on which I hope I can provide some reassurance. First, I assure him and your Lordships’ House generally that this measure is not to tackle good landlords, the majority of whom, as we know, have sound practices in the way in which they deal with their tenants. The protection will apply only where a local authority has confirmed that a repair is necessary to prevent a risk to health and safety. Landlords would also have a right to appeal against a local authority decision to serve a relevant notice. Landlords would be able to evict tenants who should be evicted—for example, because of rent arrears or anti-social behaviour. We have not made any changes to the eviction procedure under Section 8 of the Housing Act 1988. The courts will be able to dismiss a claim as unfounded if, for example, they consider a tenant to be in breach of their duty to use the property in a tenant-like manner.
My noble friend Lord Cathcart asked whether landlords could not evict if the local authority had served a notice even if the tenant was in rent arrears. I assure him that the landlord can always use Section 8 of the Housing Act 1988 to evict for other reasons, such as the non-payment of rent or, as I have stated, anti-social behaviour.
My noble friend asked also whether local authorities would write to a landlord to inform them that there was a problem. As I hope I made clear in my opening remarks, one of the safeguards that the Government have put forward in their amendments is that when a complaint is first made by the tenant, the tenant should write directly to the landlord. In addition, the landlord must also be given 24 hours’ notice before a local authority inspects. Local authorities would generally engage informally with the landlord to have repairs done before issuing a relevant notice.
My noble friends Lady Noakes, Lord Cathcart and Lord Caithness expressed concern about the 14-day period given to the landlord to respond. I assure my noble friends that this is the period for an initial response only. The landlord is not required to fix the problem in this time. On the issue of an adequate response, as I said earlier, it is for the county court to judge what is reasonable depending on the individual facts of the case.
My noble friend Lord Caithness asked whether the relevant notice would be received by registered post. The short answer to that is no. It would normally be sent by email or by ordinary post. Notices would be served in accordance with the Housing Act 2004. Again, what we are proposing will not be changed by the amendments that the Government have tabled.
My noble friend also asked what the position would be if a landlord and tenant agreed that the tenant would move out and the tenant then stayed. In that situation, the local authority would not be able to serve a relevant notice, so the tenant would not have a defence to a Section 21 notice.
My noble friend also asked about prohibition on serving a Section 21 notice in the first four months of a tenancy. He asked a specific question about short-term tenancies. If a landlord wanted a tenant to leave exactly six months after the start of the tenancy, they would need to serve the notice after the first four months of the tenancy had passed. That would normally be in short-term tenancy agreements.
I always listen to the noble Baroness, Lady Hayter, with great attention, as I do all noble Lords. Her critiques are delivered in a dulcet tone, which perhaps softens their impact, but I welcome her support for the Government’s position. She expressed disappointment over hazard awareness notices. As I said in my opening remarks, such notices are used only for very minor defects. The local authority can always issue an improvement notice if there is a defect and it wants to ensure that a tenant is protected against retaliatory evictions.
Several important clarifications have been rightly sought across the Chamber, particularly by several of my noble friends, and I hope that I have been able to address most if not all of them. I will reflect on the comments made by my noble friends and will write to them if there are areas which require further clarification. However, I hope that, with the assurances and clarifications that I have provided, my noble friend will be minded to withdraw his amendment.
Amendment 46AA (to Amendment 46A) withdrawn.
Amendment 46AB (to Amendment 46A) not moved.
Amendment 46A agreed.
46B: After Clause 30, insert the following new Clause—
“Further exemptions to section (Preventing retaliatory eviction)
(1) Subsections (1) and (2) of section (Preventing retaliatory eviction) do not apply where the condition of the dwelling-house or common parts that gave rise to the service of the relevant notice is due to a breach by the tenant of—
(a) the duty to use the dwelling-house in a tenant-like manner, or(b) an express term of the tenancy to the same effect.(2) Subsections (1) and (2) of section (Preventing retaliatory eviction) do not apply where at the time the section 21 notice is given the dwelling-house is genuinely on the market for sale.
(3) For the purposes of subsection (2), a dwelling-house is not genuinely on the market for sale if, in particular, the landlord intends to sell the landlord’s interest in the dwelling-house to—
(a) a person associated with the landlord,(b) a business partner of the landlord,(c) a person associated with a business partner of the landlord, or(d) a business partner of a person associated with the landlord.(4) In subsection (3), references to a person who is associated with another person are to be read in accordance with section 178 of the Housing Act 1996.
(5) For the purposes of subsection (3), a business partner of a person (“P”) is a person who is—
(a) a director, secretary or other officer of a company of which P is also a director, secretary or other officer, (b) a director, secretary or other officer of a company in which P has a shareholding or other financial interest,(c) a person who has a shareholding or other financial interest in a company of which P is a director, secretary or other officer,(d) an employee of P,(e) a person by whom P is employed, or(f) a partner of a partnership of which P is also a partner.(6) Subsections (1) and (2) of section (Preventing retaliatory eviction) do not apply where the landlord is a private registered provider of social housing.
(7) Subsections (1) and (2) of section (Preventing retaliatory eviction) do not apply where—
(a) the dwelling-house is subject to a mortgage granted before the beginning of the tenancy,(b) the mortgagee is entitled to exercise a power of sale conferred on the mortgagee by the mortgage or by section 101 of the Law of Property Act 1925, and(c) at the time the section 21 notice is given the mortgagee requires possession of the dwelling-house for the purpose of disposing of it with vacant possession in exercise of that power. (8) In subsection (7)—
(a) “mortgage” includes a charge, and(b) “mortgagee” includes a receiver appointed by the mortgagee under the terms of the mortgage or in accordance with the Law of Property Act 1925.”
Amendment 46BA (to Amendment 46B) not moved.
Amendment 46B agreed.
Amendments 46C to 46G
46C: After Clause 30, insert the following new Clause—
“Notice to be provided in relation to periodic assured shorthold tenancies
In section 21 of the Housing Act 1988 (recovery of possession on termination of shorthold tenancy), after subsection (4) insert—“(4ZA) In the case of a dwelling-house in England, subsection (4)(a) above has effect with the omission of the requirement for the date specified in the notice to be the last day of a period of the tenancy.””
46D: After Clause 30, insert the following new Clause—
“Time limits in relation to section 21 notices and proceedings
(1) Section 21 of the Housing Act 1988 is amended as follows.
(2) After subsection (4A) insert—
“(4B) A notice under subsection (1) or (4) may not be given in relation to an assured shorthold tenancy of a dwelling-house in England—
(a) in the case of a tenancy which is not a replacement tenancy, within the period of four months beginning with the day on which the tenancy began, and (b) in the case of a replacement tenancy, within the period of four months beginning with the day on which the original tenancy began. (4C) Subsection (4B) does not apply where the tenancy has arisen due to section 5(2).
(4D) Subject to subsection (4E), proceedings for an order for possession under this section in relation to a dwelling-house in England may not be begun after the end of the period of six months beginning with the date on which the notice was given under subsection (1) or (4).
(a) a notice under subsection (4) has been given in relation to a dwelling-house in England, and(b) paragraph (b) of that subsection requires the date specified in the notice to be more than two months after the date the notice was given,proceedings for an order for possession under this section may not be begun after the end of the period of four months beginning with the date specified in the notice.”(3) In subsection (6), for “subsection” substitute “subsections (4B)(b) and”.”
46E: After Clause 30, insert the following new Clause—
“Prescribed form of section 21 notices
In section 21 of the Housing Act 1988, after subsection (7) insert—“(8) The Secretary of State may by regulations made by statutory instrument prescribe the form of a notice under subsection (1) or (4) given in relation to an assured shorthold tenancy of a dwelling-house in England.
“(9) A statutory instrument containing regulations made under subsection (8) is subject to annulment in pursuance of a resolution of either House of Parliament.””
46F: After Clause 30, insert the following new Clause—
“Compliance with prescribed legal requirements
After section 21 of the Housing Act 1988 insert—“21A Compliance with prescribed legal requirements
(1) A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement.
(2) The requirements that may be prescribed are requirements imposed on landlords by any enactment and which relate to—
(a) the condition of dwelling-houses or their common parts,(b) the health and safety of occupiers of dwelling-houses, or(c) the energy performance of dwelling-houses.(3) In subsection (2) “enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978.
(4) For the purposes of subsection (2)(a) “common parts” has the same meaning as in Ground 13 in Part 2 of Schedule 2.
(5) A statutory instrument containing regulations made under this section is subject to annulment in pursuance of a resolution of either House of Parliament.””
46G: After Clause 30, insert the following new Clause—
“Requirement for landlord to provide prescribed information
After section 21A of the Housing Act 1988 insert—“21B Requirement for landlord to provide prescribed information
(1) The Secretary of State may by regulations require information about the rights and responsibilities of a landlord and a tenant under an assured shorthold tenancy of dwelling house in England (or any related matters) to be given by a landlord under such a tenancy, or a person acting on behalf of such a landlord, to the tenant under such a tenancy.
(2) Regulations under subsection (1) may—
(a) require the information to be given in the form of a document produced by the Secretary of State or another person, (b) provide that the document to be given is the version that has effect at the time the requirement applies, and(c) specify cases where the requirement does not apply.(3) A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling house in England at a time when the landlord is in breach of a requirement imposed by regulations under subsection (1).
(4) A statutory instrument containing regulations made under subsection (1) is subject to annulment in pursuance of a resolution of either House of Parliament.””
Amendments 46C to 46G agreed.
46H: After Clause 30, insert the following new Clause—
“Repayment of rent where tenancy ends before end of a period
After section 21B of the Housing Act 1988 insert—“21C Repayment of rent where tenancy ends before end of a period
(1) A tenant under an assured shorthold tenancy of a dwelling-house in England is entitled to a repayment of rent from the landlord where—
(a) as a result of the service of a notice under section 21 the tenancy is brought to an end before the end of a period of the tenancy, (b) the tenant has paid rent in advance for that period, and (c) the tenant was not in occupation of the dwelling-house for one or more whole days of that period. (2) The amount of repayment to which a tenant is entitled under subsection (1) is to be calculated in accordance with the following formula—
where— R is the rent paid for the final period;
D is the number of whole days of the final period for which the tenant was not in occupation of the dwelling-house; and
P is the number of whole days in that period.
(3) If the repayment of rent described in subsections (1) and (2) has not been made when the court makes an order for possession under section 21, the court must order the landlord to repay the amount of rent to which the tenant is entitled.Nothing in this section affects any other right of the tenant to a repayment of rent from the landlord.””
Amendment 46HA (to Amendment 46H) not moved.
Amendment 46H agreed.
46J: After Clause 30, insert the following new Clause—
“Application of sections (Preventing retaliatory eviction) to (Repayment of rent where tenancy ends before end of a period)
(1) Subject to subsections (2) and (3), a provision of sections (Preventing retaliatory eviction) to (Repayment of rent where tenancy ends before end of a period) applies only to an assured shorthold tenancy of a dwelling-house in England granted on or after the day on which the provision comes into force.
(2) Subject to subsection (3), a provision of sections (Preventing retaliatory eviction) to (Repayment of rent where tenancy ends before end of a period) does not apply to an assured shorthold tenancy that came into being under section 5(2) of the Housing Act 1988 after the commencement of that provision and on the coming to an end of an assured shorthold tenancy that was granted before the commencement of that provision.
(3) At the end of the period of three years beginning with the coming into force of a provision of sections (Preventing retaliatory eviction) to (Compliance with prescribed legal requirements) or section (Repayment of rent where tenancy ends before end of a period), that provision also applies to any assured shorthold tenancy of a dwelling-house in England—
(a) which is in existence at that time, and(b) to which that provision does not otherwise apply by virtue of subsection (1) or (2).”
Amendment 46J agreed.
Clause 31: Optional building requirements
46K: Clause 31, page 28, leave out lines 1 to 3
My Lords, I apologise for speaking to two consecutive amendments—your Lordships will be tired of the sound of my voice. Amendment 46K endeavours to ensure that standards of accessibility in new homes—where there has been important progress in recent years—do not now go into decline. The amendment would remove from the Bill a new power for the Secretary of State to set additional conditions before a local authority can start or continue to require housebuilders to build homes to disabled-friendly lifetime homes standards. By the removal of Clause 31(4), the threat of central government dictating lower standards than councils want, and some currently require, is removed.
The amendment comes with support from many organisations, including Age UK, the Royal Mencap Society and the Town and Country Planning Association among others. I declare my interest as president of the Local Government Association, and this body is also supportive of the approach taken by this amendment. In moving the amendment, I thank the noble Lord, Lord Wallace of Saltaire, for arranging a helpful meeting for me, the Leonard Cheshire Disability charity and experts from within the relevant departments and outside. Following that session, my amendment is intended to enable the Minister to place on record assurances that will clear up some misunderstandings and remove some doubts and misgivings about the legislation.
While everyone knows it is imperative that the quantity of new homes be increased to address acute national shortages that are wreaking havoc for almost all households under the age of 40, we must also be mindful of the quality of these homes. The UK is currently building the smallest flats and houses of any EU country—and, of course, in comparison with the USA, Canada, Australia and so on. Much of this new housing in the UK is storing up problems for the future. So often, the accommodation has no space for a family to sit down to a meal together, and a spare room is becoming a thing of the past. More far-reaching is the problem that new homes are not designed for an ageing society or accessible to those with a mobility problem, let alone a wheelchair user. Yet by spending only a little more on each new home we build from now on and achieving the so-called lifetime homes standards, our housing stock would gradually become suitable for us all in our older age, as well as for the young parent with a baby in a pushchair—and for any of us who become temporarily or permanently disabled, from the teenager who breaks a leg to the soldier returning home with a serious injury.
Clause 31 contains the power to remove the freedom for local planning authorities to impose obligations on housebuilders to achieve standards relating to space, security, energy, sustainability and accessibility. Instead of local discretion, standards are to be set centrally. This would have the positive effect of saving time and money for building firms that operate over several areas. The arrangements will also have the advantage for consumers that the new standardised standards covering accessibility, when determined by government, would then be enforced through building regulations by building inspectors. This would prove a more reliable mechanism than just a planning requirement for making sure that the standards are actually met.
The concern is that instead of promoting an optional higher level of accessibility which so many organisations, including Leonard Cheshire Disability and Habinteg Housing Association, as key campaigners, believe should be applied universally, the new centralised system will stop councils insisting on these lifetime homes standards. The fear is that instead of accelerating the healthy trend towards these higher standards, central government pressure will prevent councils going for the optional category 2, which would undermine those already requiring these standards. I hope the Minister will waylay those fears, which revolve around two key hurdles for planning authorities: first, to prove that there is a need for accessible homes; and secondly, to show that the extra cost of £500 to £1,400 per home does not undermine the viability of a development—that is, it will allow the housebuilder a profit of at least 20%. Moreover, when I moved this amendment in Committee, noble Lords raised the problem of local authorities being able to require the new optional higher standard only when they adopted a new or revised strategic local plan, a process which can take years.
I therefore ask for answers to the following questions. First, I know that the DCLG intends to provide guidance on good practice to local authorities, but can the Minister confirm that this is intended to raise the aspiration for all new homes to be built to accessible standards in the years ahead?
Secondly, and more narrowly, will the new test of need for accessible housing in each area be satisfied by the statistics which, throughout the UK, demonstrate that the ageing population is a universal fact and disability is ubiquitous? Bearing in mind that London has the lowest proportion of older people of any English region but that the GLA aims for all new homes to achieve the lifetime homes standards, is it logical to argue that other areas of the country could fail the needs test in this regard?
Thirdly, how will the viability test be satisfied? Ultimately, viability relates to the price paid by the developer for the land. Higher standards, if required by the planners, will simply lead to the landowner getting a little less. When, if ever, could the modest extra costs of achieving optional higher standards—calculated by consultants for the DCLG to be no more than £1,400 per home, and usually much less—prevent accessible, disabled-friendly standards being met?
Fourthly, can the Minister confirm that where a local authority already requires a higher standard than the new basic category 1 level, as the GLA does, they will be able to continue to do so, with their existing policies on accessibility passported through without having to go through any new procedures or awaiting a new local plan? Can he also confirm that it will be possible for those local authorities that now wish to require developers to adopt the new category 2 standard to do so through supplementary planning guidance, set out in supplementary planning documents, rather than awaiting the adoption or revision of their local plan?
Fifthly and finally, do the Government intend to commission research to assess the outcome of introducing the new standards? The DCLG’s impact assessment of these proposals estimates that 31% of new homes are currently built to lifetime homes standard, rising to 45% by 2024 if nothing changes. It will clearly be critical to keep track of the impacts of the new housing standards to make sure that the supply of accessible homes goes up and not down.
I think it was Aneurin Bevan, as the post-war Housing Minister, who said:
“In one year’s time we will be judged on the number of homes we have achieved; in ten years’ time we will be judged on the quality of those homes”.
We know now, as our population ages, how inadequate standards of accessibility—steep steps, narrow doorways, cramped bathrooms, having no downstairs loo, and so on—have helped to create an A&E crisis. The false economy of skimping on accessible, disabled-friendly standards on day one can mean that, later, thousands of us have to remain in hospital when we could otherwise be discharged; readmissions multiply as we are returned to inaccessible properties; and premature moves into expensive residential care are necessary because our homes are inaccessible.
I hope that the Government of today can show the foresight to ensure that, in the rush to build more homes, which we certainly need, we do not allow standards to slip. This amendment would prevent central government overriding efforts by local authorities to insist on the accessible, disabled-friendly lifetime homes standards which are now commonplace in London, and which could, and should, become standard practice everywhere. I look forward to hearing the Minister’s response and beg to move.
My Lords, I speak in strong support of this amendment, so expertly and comprehensively moved by the noble Lord, Lord Best. When all the evidence points to the dire need for more accessible, future-proofed housing, surely the coalition Government will not insist on additional conditions to be met by local authorities before they can require housebuilders to build homes to disabled-friendly standards.
I apologise to the House for not being able to take part in previous stages of the Bill but I was spending time in hospital, in a spinal injury unit where I met far too many people whose homes had suddenly become inaccessible to them. They had gone out as usual one morning but had an accident, become paralysed and then found that they could never go back to their home again. All the clutter of their daily life was as they had left it; they have to rely on someone else to sort it out. Their families have to start the endless search for an accessible house or flat. They probably have to leave their much loved own home and change the children’s schools, while the patients themselves face long months in hospital long after they are ready for discharge. Is it surprising that relationships break down? Had the lifetime homes standard become universally applied soon after it was developed, probably none of that would be necessary.
Surely the coalition Government will not insist on this short-term reaction to the housing crisis, which will lead to far fewer accessible homes being built. It would mean that they are knowingly legislating to increase the pressure on health and social care budgets at a time when both are in crisis. I urge the Minister to readily give the noble Lord, Lord Best, the reassurances that he seeks.
My Lords, I should declare that I am a vice-president of the Local Government Association. I support the amendment, because I think it is true that new subsection (4) in Clause 31 could result in making it harder for a local council to deliver the lifetime homes and wheelchair accessibility policies that we need. I therefore seek the reassurance of the Minister on this matter.
As we have heard, there is currently a very serious shortage of homes that are suitable or can be easily adapted for those with mobility difficulties. The solution to this problem, as we have heard, is to build new homes to a lifetime standard. This matters greatly and will matter even more in the future because people who develop mobility problems usually prefer to stay in their own homes, where any essential adaptions can be undertaken.
This Bill puts lifetime home standards and wheelchair-accessible standards on to a statutory basis, and that is to be welcomed. The problem is that councils will then be required to produce a raft of evidence to prove that there is a need for those lifetime and wheelchair-accessible homes. Definitions of future need might be hard to prove, when common sense tells us that we should build more accessible homes now for an ageing society to prevent serious problems arising in 10 to 20 years’ time.
Until now, local councils have been able to implement very progressive policies, such as requiring all new homes to be built to lifetime home standards or ensuring that a reasonable number of new homes—perhaps 10%—are built with wheelchair access as part of large-scale developments. In supporting new building standards, which improve things, and in believing that we want to encourage local planning authorities to take them up, and while I accept that the creation of new standards could be a significant step forward, I am still very concerned that we might be weakening existing planning powers of councils. I hope, therefore, to hear from the Minister clear confirmation that nothing in the Bill will get in the way of enabling planning authorities to deliver the extra lifetime and accessible homes that we need now and are going to need in the future.
My Lords, I strongly support the amendment, and I declare an interest in that I have a daughter who has multiple sclerosis and is a board member of the Habinteg Housing Association. It does marvellous work in providing lifetime homes.
The importance of this has been so stressed by so many people tonight that I do not really need to comment on it. I have other amendments to speak on and noble Lords will be tired of listening to me. However, I strongly support everything that the noble Lord, Lord Best, and other speakers have said and hope the Government will see sense on this.
My Lords, we should be grateful to the noble Lord, Lord Best, for moving this amendment, which we wholeheartedly support. If there were any doubt as to whether we were going to support it, praying in aid Nye Bevan just about did it for us. I welcome my noble friend Lady Wilkins back to the House and acknowledge her knowledgeable contribution on an issue on which she has campaigned over a long time. It is good that the noble Lord, Lord Shipley, and the noble Baroness, Lady Gardner, are on the same page as well.
We support the review of housing standards: a lot of good work has come out of it. However, one of the consequences, as we have heard, was that lifetime home standards and wheelchair-accessible standards have become optional extras. That is really the issue before us today. The noble Lord, Lord Best, has probed with a series of questions and I hope that the nature of those questions means that the Minister has ready and satisfactory replies to them all.
I draw the Minister’s attention to a couple of paragraphs of the housing review document. On page 6, paragraph 14, it says:
“Unlike other Building Regulations requirements the optional requirements described in the Approved Documents will not be mandatory. They will only be applicable where a local planning authority has put a plan policy in place specifically triggering the application of the optional requirement or nationally described space standard in particular circumstances. Neighbourhood Planning Bodies (and Neighbourhood Development Orders) will only be able to apply the space standard, and not optional requirements”.
Will the Minister tell us why that is the case? Perhaps more importantly, paragraph 21, which looks at applying optional requirements and nationally described standards, states:
“The first step is for a local planning authority to stipulate that an optional requirement or the nationally described space standard applies in that area. As stated already, this must be set in plan policies, which have been subject to normal Plan Examination processes. It would not be appropriate to apply optional requirements or the space standard through supplementary planning guidance, since this is not subject to a sufficient level of scrutiny”.
Have the Government moved on from that, or is that still applicable?
I have one small observation in relation to financial viability and cost. If the additional cost is £500 to £1,000, that is one or two weeks in a care home invested in a home on lifetime standards now. That obviously obviates that, going forward. I hope the Minister can satisfy us on those requirements, because it would be a great shame, given all the progress that has been made on lifetime home standards—particularly in London—if these developments were to push those backwards.
I thank all noble Lords, particularly the noble Lord, Lord Best, for raising this issue. As he is aware, we have been in regular correspondence on this issue. Before going any further, however, I would like to join the noble Lord, Lord McKenzie, in welcoming back the noble Baroness, Lady Wilkins, to her rightful place in your Lordships’ House. I, too, welcome her contribution here this evening.
The noble Lord, Lord Best, has rightly set out his concerns about the way in which the proposed building regulations’ optional requirements will operate, particularly in relation to issues of access. Let me say that the Government understand these concerns. I have written to the noble Lord with reassurances about the clause, explaining how the evidence gathering will work. I assure your Lordships that we will be issuing planning guidance shortly, to help authorities assemble evidence to use the new optional requirements. I hope that the letters that I have written to the noble Lord, Lord Best, have provided that level of reassurance, but I think it is important that I summarise some of the key points that have been raised in his questions.
Let me just put the amendment into context. In this particular context, we believe that the amendment is not needed, because Clause 31(4) is merely a general fallback power, a reserve power enabling the Government to use regulations to set out conditions for the way in which optional requirements should be used, but only if necessary. They might be necessary, for example, if the system is being misused in some way, or used without sufficient rigour; or if there are problems applying the new regulations. It could be that the guidance proposed does not have the effect expected or is not followed. The new system is based on an approach no different from how local planning authorities gather evidence to justify planning policies now. For the benefit of noble Lords, I will set out the key points about how it will work.
Optional requirements will allow local authorities to set building standards that are higher than those in the building regulations. They are a new concept in building regulations, and are widely supported following our consultation on this matter. They are an important new tool, which I am sure noble Lords will agree should be used appropriately. For the first time ever, we have put a series of housing standards into the building regulations, such as on lifetime homes and wheelchair housing. Giving these areas the full force of building regulations is a major new step that I hope will be welcomed by all noble Lords.
However, because not every new home needs to be built to such standards, and because it is costly to do so, we will let local authorities decide how to target the standards based on local needs, provided the standards do not make local housing developments unviable. The Government intend to issue planning guidance on matters to be taken into account by local authorities to work out their local needs, such as the proportion of older or disabled people. We consulted on the matters to be covered in that guidance. This will mirror the approach taken with planning guidance which supports the National Planning Policy Framework.
Clause 31(4) simply provides a back-up power for the regulations we are putting in place to set the new system up. In many respects it is no different from other aspects of the building regulations which set out how local authorities should discharge their functions as a building control body. If the Government decide to put planning conditions in regulations under Clause 31(4), and I assure the House that we have no plans to do so, they will be subject to full consultation with interested parties, as we do with all changes to building regulations. It would be wrong to remove this power because we cannot anticipate all the potential ways the new optional requirement system is going to be used, and we need to have the tools available to address any problems.
On conditions applying to access requirements, I have written to the noble Lord, Lord Best, about the types of evidence an authority may reasonably be asked to assemble to justify applying these new optional requirements. I shall lay out some of the Government’s position in this regard, based on the questions that the noble Lord asked. The key point, set out in the National Planning Policy Framework, is that authorities should plan for the current and future housing needs of a wide range of households, including older and disabled people. Authorities should base their assessment on key demographic and population information for their area and a housing needs assessment. This should take account of, first, the likely future need for housing for older and disabled people, including wheelchair-user dwellings; secondly, whether particular sizes and types of housing are needed to meet specific needs, for example, retirement homes, sheltered homes or care homes; thirdly, the accessibility and adaptability of the existing housing stock; and finally, the overall impact on viability.
The Government recognise that we have an ageing population and that there are households with varying forms of specific support needs. We are also committed to ensuring that we support people in their desire to continue to live in their own homes, but it will be down to local authorities to determine their local needs. We cannot say what each area will conclude. Planning guidance already contains useful data sources in this respect, but we are offering to set out in one place further useful data sources which planning authorities can draw from to inform and undertake their assessments to support their policies. This will reduce the need for councils to replicate elements of the work and will reduce assessment time.
The noble Lord, Lord Best, asked a question about viability. I should stress that this is not a new policy. The National Planning Policy Framework set this policy out clearly in 2012, and it applies to a range across the planning system. When setting new policies, authorities are expected to consider the cumulative impact of those policies across the lifetime of the plan. They should not impose a burden that stops development happening. There will be many claims on viability, not just accessibility policies, so we are letting local authorities be the best judge of the right policy mix in the light of their local policy priorities. If they wish to prioritise access issues, which we hope they will, they are at liberty to do so.
In a recent exchange of letters with the noble Lord, I was asked about how existing policies in plans will be treated under the new system. Last year, we consulted on an idea to permit existing standard policies in plans to continue to apply. We intend to implement this approach, although after a six-month transitional period existing policies must use these policies as a basis for applying standards as set out in the new optional requirements. This policy will also apply to standards expressed in the supplementary planning guidance, provided that the SPGs are firmly based on local plan policies.
Given the importance of this area, I can assure the noble Lord, Lord Best, that the Government are in the process of commissioning further research to investigate and improve the evidence underpinning the accessibility of the existing stock and the needs of different sectors of the community. This will consider how needs are likely to change over time to meet the needs of an ageing and widely diverse population. We will also be keeping under review how the new policy is being implemented.
The noble Baroness, Lady Wilkins, and my noble friend Lord Shipley asked questions on the needs test and whether it will make it harder for authorities to apply access standards. The short answer to that is absolutely not. There is no change to what authorities should do now to justify standards. They have to provide evidence now, and that will remain exactly the same. The noble Lord, Lord McKenzie, talked about neighbourhood plans, the application of space standards and optional regulations. We have consulted on that idea, but there is no final decision on that issue.
The amendment moved by the noble Lord, Lord Best, has given the Government an opportunity to lay out and, I hope, clarify the concerns and the issues he has raised. I hope I have provided reassurance that the system is robust and a positive move forward. Based on those reassurances, I hope that the noble Lord will withdraw his amendment.
My Lords, I am very grateful to all noble Lords who have spoken, beginning with the noble Baroness, Lady Wilkins. Everyone has welcomed the noble Baroness back into the Chamber and it is great to see her back again. She has brought personal testimony of the value and importance of accessible housing for all, which is part of a campaign she has been running for at least 10 years, for which I am deeply grateful.
I greatly appreciated the support of noble Lords from all around the House including the noble Lords, Lord Shipley and Lord McKenzie of Luton, and the noble Baroness, Lady Gardner of Parkes. The noble Lord, Lord McKenzie of Luton, made the fundamental point that spending a little bit upfront is recouped later on. It is such an essential point to make because that little investment can be paid back in spades later when people do not have to go into residential care and can return from hospital. Our A&E crisis can recede because people can get home safely and it will be satisfactory when they get there. I am very grateful to noble Lords for all their support.
I am also grateful to the Minister for putting on the record a number of points that we have corresponded about. It is clear that this will be a reserve power, a fallback power. That is good news. There was even a hint that it might never be used, which was helpful. If it is to be brought forward, there will be full consultation. That is good. Local authorities will receive firm guidance from government about the way in which evidence is going to be collected by them. Advice on that will be helpful, particularly in relation to the so-called needs test. I was not absolutely sure where we stand in relation to the overlap between the requirements for accessibility that local authorities want to lay down and their local strategic plans and the neighbourhood plans that the community brings together. I think we are still in the process of negotiating on those points, and I hope to be part of those negotiations.
Finally, the Minister confirmed that further research will take place on the impact of these new measures, and I hope that they will prove to be satisfactory and will show an expansion, not a contraction, in the number of new accessible homes that will be built in future. On that basis, I beg leave to withdraw the amendment.
Amendment 46K withdrawn.
Clause 33: Short-term use of London accommodation: power to relax restrictions
47: Clause 33, page 28, line 32, after “which” insert “, for the duration of a major national or international sporting or entertainment event taking place in London,”
My Lords, I remind the House that I have declared my interests in the register and have spoken to that effect a number of times as I am the owner of some leasehold flats, which I have let on a long-term basis.
The topic of short lets needs to be addressed in detail. Excellent contributions were made in Committee by the noble Lords, Lord McKenzie and Lord Mawson, the noble Baroness, Lady Donaghy, and my noble friend Lady Hanham. The answers from the Minister were not adequate. It is scandalous that we have not seen the proposed new regulations in print before this Report stage of the Bill. I have asked questions on that matter and made clear the need to consider the regulations before Royal Assent. I am now informed that we will be aware of them only after Royal Assent. That is not good enough. That is too late.
It came as a surprise to me that this issue was to be in the Deregulation Bill at all. When the Delegated Powers and Regulatory Reform Committee considered the draft Deregulation Bill in great detail, this clause was simply not included and therefore received no scrutiny at that stage. It has been slipped in since. Further, I have been told that although deregulation is proposed, new regulations will be required. I find the claim that it is a deregulation issue curious. What is “deregulation” about “reregulation”?
The Minister has said that there was a degree of confusion during the Olympics, and for that reason I think it perfectly fair for the Secretary of State to have complete control at times of great national events. However, I oppose Clause 33 as it stands, and that will be covered later, in Amendment 51. Most local authorities in London tell me that there was no confusion during the Olympics and everyone was perfectly happy with the arrangements that were made. My views on the main issue are largely due to past and current experience. I was a member of the Greater London Council when this legislation was considered and put forward. It was important then to protect Londoners, and it is even more necessary now. London is a special case, and is a drawcard for tourists.
My husband served for a good many years on the London Tourist Board. I have always supported initiatives to boost tourism, but not at the expense of destroying the way of life for long-term residents, particularly in blocks of flats where they can be more vulnerable to the nuisance created by different groups appearing every week, or every two weeks, to occupy the same flats and cause massive disturbances in these blocks. The Government’s view that people should be able to let their homes while they go away on holiday, for not more than 90 days a year, could be quite workable.
With the availability of instant online bookings for flights and accommodation, it is important to keep up to date. I consider 21 days pre-application excessive, and that if local authorities wish to offer a registration system for visitors and short-let tenants, they should be able to develop a fast-track system, enabling people to make better use of available accommodation on offer for a short visit.
Some local authorities, such as Westminster, are very keen to retain controls, and actively use their present system. They would be prepared to adjust to a faster pace of life for processing. They consider that registration, knowing who will live in a place, and for how long, are essential. On the other hand, Kensington and Chelsea tells me that it does not actively pursue anyone who is simply letting their own home, but that it wishes and needs to be able to take action against others who are making life hell for long-term residents.
The block in which I own two flats has 15 flats in all, three of which have been let for well over a year on a short-term basis. Every two weeks, a different 10 people arrive to occupy each of the one-bedroom flats. They abuse long-term tenants, and in some cases threaten them. They leave the door to the street open, as well as all fire escape doors, which means that there is no security at all in the block, as a means of access is available to anyone in the street. These short lets increase anti-social behaviour and fear of crime, and destroy the community carefully built up by the long-term residents.
As this already happens in some central London boroughs, no doubt the practices in central London will spread to other local authorities. As time progresses, the situation will change, as some boroughs wish to maintain high security and ensure that standards of short lets are enforced. As that happens in some boroughs, there will be a spreading from the centre of London into other boroughs. Why do the Government not leave the detail of administrative powers to the local authorities?
In these times of heightened security, the local authority must know who is occupying the property and for how long. Someone has to take responsibility, and in the event of action being needed to protect others in a block, the local council is greatly disadvantaged if it has no idea of who the occupants are or for how long they will be there. The noble Lord, Lord Ahmad, in discussions on the Bill, made clear to me that he views any control as unnecessary bureaucracy. That may be the view of someone who does not want to put themselves out to notify anyone when they go away, but it is certainly not fair to residents in these blocks.
Why have we still not seen the details of the replies to the consultancy document, which was completed almost a year ago? I have tabled Questions; following a Question for Oral Answer on 8 December, I tabled a Question for Written Answer on that point, and received no reply. On the advice of the Table Office and well informed senior Members of the House, I was told to retable that Question. I did so, but there was still no reply. Now we get a statement from the Government, very much at the last minute, issued just this week, which still does not cover these issues. Why have the Government come forward with this startling change in regulation for London at such short notice? There is a need for the Government to discuss this matter more thoroughly with the London authorities, to agree acceptable and improved control for short-let properties in London, thus to encourage tourism—which I know the Business Minister and Housing Minister are keen to do—and at the same time protect long-term residents. Why are the Government not looking for the answer to benefit both homeowners and tourists?
I do not know whether the Government are aware of the huge press coverage that there has been of this subject. I noticed that in yesterday’s Times there was a story from Camden, which is finding great problems and has now developed a fraud team to tackle tenants who sublet homes on Airbnb. The homes being relet in Camden are mainly council houses, which is very bad because people are desperately in need of social housing in Camden. Again, there was a four-page spread in the Sunday Times Magazine on 18 January, describing the situation in Paris and mentioning New York, both of which cities are about to introduce regulations.
Someone from Onefinestay phoned me and told me how it runs everything at a superb level—it is all of a luxurious standard and everything is cleaned up and looked after. Then I read a great article by a woman in the Evening Standard on 2 February, entitled:
“Nice idea, but I won’t let my house out again”.
She had let her house through Onefinestay, and was told that it would remove all her—
I hope the noble Baroness will forgive me, but I was a little unclear as to whether she was speaking just to Amendment 47, which has been degrouped, or more generally to the raft of amendments that we will consider. If the noble Baroness is able to clarify that, it would help us to determine how we will proceed.
I will be happy to clarify that. There seems to have been a slight muddle in that the last amendment I had on Clause 33 was meant to be degrouped, but instead only one was degrouped. I am therefore turning this into a slightly longer and wider field because I lost the opportunity to do that on the previous amendment, which was my original intention. I hope that your Lordships will understand that.
Everything is supposed to be perfect until you do it, then you find—well, I advise noble Lords to read it for themselves. It is from Monday 2 February, in the Evening Standard. There is another whole page on the other side about the woman behind the “unhotel revolution” and pseudo hotels—so it is quite a wide issue. It is interesting that the fraud teams are being brought in to look into the whole issue. I had a reply from the treasury officer when I asked him what of these lettings would be tax free. The answer was, “Nothing, except the right to sublet a room in your own house to a lodger for a sum of £4,000 and something—less than £5,000”. That would be the only free opportunity. It is very interesting that the Serious Fraud Office attended a meeting that we had in the House of Commons in January, partly on this issue but on property in general. There is such an opportunity for fraud that it will be very interesting to know who declares what, with no one able to check on anything at all as to who is in these places, with risks of terrorism and fraud or whatever else is going on. People tell me that they find it almost unbearable, the smell of drugs being smoked in the flat above them, because it becomes so intense to have 10 people in one room. Again, are there no restrictions on how many people can fit into one bedroom? I find it hard to believe that you can have 10 people—and this is in three different flats.
I could go on and on, but I do not intend to, because it is late and the House has had a very busy time, with more to follow. I hope that the Minister will be a bit more open about things, as I am very dissatisfied that Questions for a Written Answer have simply not been replied to. I beg to move.
My Lords, with my noble friend Lord Tope, I have three amendments down on this matter. To start with, I point out to the House that this is a very small clause with a very large impact. It consists of six subsections, four of which require regulations. As my noble friend said, not only have we not seen any sight of these regulations but, apart from the Written Ministerial Statement that appeared on Monday, we have no clue what direction the Government take on this, other than that it is a complete liberalisation of the situation as it stands.
My noble friend Lady Gardner laid out in her usual elegant way some of problems with the legislation before us. We have a slightly different view on the emphasis to be placed on this, but we are all agreed—my noble friend Lord Tope, myself, my noble friend Lady Gardner and the local authorities—that this cannot just be allowed to rip. Local authorities have not paid any attention to people letting out their homes for short times. It has been illegal ever since the Greater London Council (General Powers) Act came in in the 1970s but, by and large, there has been a very sensible attitude taken about this—that if it is your home and you can get money in for a fortnight or so, it will not be a matter that a local authority will bother itself with. However, once it is acknowledged or admitted that the situation has been happening but that it is against the law and always has been, somebody does something about it.
London is different from everywhere else. Although the Written Ministerial Statement says in a rather patronising way that these measures, whatever they are going to be, will draw London into the 21st century, we should all recognise that London has actually been living in the 21st century since the 20th century—or halfway through it. We live with a great deal of problems, not only those which my noble friend described about people who come to live in a property for a short time and cause trouble. Another problem is that a lot of the housing now being built is investment property for rent and, unless there are some controls on who can let out accommodation on a holiday let, all hell will be let loose and there will be rentals all over London taking place in an entirely illegal way.
The laws have up to now been broken and there are now companies, some of which my noble friend mentioned, which, unwittingly or not, have enabled people to do that. But a business is building around all this, and there can no longer be any suggestion that this is just people having a one-off whim to go on holiday for a fortnight in New York or whatever and to earn a bit of money on the way. That is not the reality. The reality is that agencies are already set up to deal with people who want to let their houses short term. Some of them will be very good and some will already have measures in place to let houses in a way that means that they are properly managed, they are cleaned up afterwards, they are looked after and their tenants do not cause problems—and there is some security aspect about who those tenants are. However, let us not delude ourselves that that is what will happen. As the business builds, more and more businesses will be built around it. Unless there is some regulation as to what is and is not allowed, we can say goodbye to quite a lot of accommodation that we are pleased to describe as permanent accommodation at the moment.
My amendments do three things. One says that there must be at the very least a fine-touch registration system with the local authority. It can be done quite easily and uniformly across London, with a website—and I have spoken about the royal borough, to which my noble friend has already referred. It can be done securely on a website. What can be discussed subsequently is whether people have to register before they go away or whether they have to register annually and say that they may be going away and letting their property under those circumstances. It requires some indication as to how many days they will be able to do that for, and the Written Ministerial Statement suggests that it should be 90. I do not know about you, but I am jolly lucky to get 90 days’ holiday a year. It seems to be quite a lot—and I think that most families would find 90 days quite a lot to go away. There will have to be a balance between 30 days, which I think has been promoted, although it is very hard to know as we do not have any regulations before us, and the 90 days being proposed by the Government.
There must be some way in which the local authority knows that the property may be let by the permanent owner, and it must have some idea of how long they will be entitled to do that—and for a very good reason. If the local authority gets complaints about that property, it is very helpful for it to know, for enforcement action to be taken, that it is being let by the owner. There are plenty of examples. My noble friend could give spiels of examples of where a property has been abused and people’s lives have been made a misery by lettings such as this and longer term. That would bring the planning authority back into the situation. At the moment, it has been completely chucked out. The provision in the Greater London Council (General Powers) Act goes and is amended with a few regulations that we do not know about and have not seen.
There is what I hope is an unwitting tendency at the moment to keep downgrading London. A later clause in the Bill on waste amends the London Local Authorities Act and this clause amends the Greater London Council (General Powers) Act. London is always going to be different and will always have different pressures and requirements. If every time local authority legislation goes through some of the measures get thrown out, that is not at all helpful or supportive. I think we would all hope that this clause would go away—at least until we have had an opportunity to sort out what the regulations are going to be, and how much regulation, even if it is light-touch regulation, we can put back in. My amendments try to achieve that. It is essential that the Government take note of the concern on this subject and do not try to pretend that London is some doolally maiden of two centuries ago with no idea of how anything works. They must recognise that London is an exceptional place, with great pressure on it from all sorts of sources, such as development, investment and the general movement of people in and out of the city.
I believe that our amendments are proportionate. I apologise to my noble friend the Minister for the fact that it is me—as well as my noble friend Lady Gardner—who is leading the attack from behind him, but I beg the Government to go back and take note of the concerns of London Councils. I should have declared my position as a co-vice-president of London Councils. It represents every local authority in London and it is absolutely against all these provisions.
My Lords, for the avoidance of doubt, I should say that we are now discussing two groups of amendments together, and not, as stated on the groupings list, simply Amendment 47, which relates solely to major sporting and entertainment events. It is helpful to be able to discuss the whole issue at the same time. I support my noble friend Lady Hanham; as she said, Amendments 49ZA, 49C, 50A and 51 have my name on them, and we have worked together on this issue for what feels like a very long time. Indeed, it has been a very long time.
I express many thanks to Onefinestay, the short lets company, which has been very helpful and willing to come and discuss issues, to London Councils, which my noble friend Lady Hanham has mentioned, and particularly to Westminster City Council. I have had a lot of contact with Westminster. It is the London authority with the most experience—even greater than that of the Royal Borough of Camden—of the effects of the huge growth in this market. Indeed, it has a team entirely devoted to the enforcement of the legislation on short lets.
I particularly want to put on the record my grateful thanks, and those of my colleagues, to the Covent Garden Community Association, which contacted me shortly before we discussed this matter in Grand Committee; indeed, I referred to what it had to say when I spoke there. Since then we have been closely engaged, and it has worked hard to liaise with other community associations and amenity societies in central London. I am grateful to the Covent Garden Community Association for its interest—perhaps it is self-interest, but it is understandable self-interest—for the work that it has done, and because it has brought home to me and to others the effects of what is happening here on people who live every day with the situation.
This is not the happy situation that the Government sometimes allude to, when somebody simply goes on holiday for a couple of weeks and lets their flat for a little bit of income. It is very big business. We have heard innumerable horror stories, both collectively, from the Covent Garden Community Association, and from a number of individuals who have contacted me—and, no doubt, other noble Lords—to describe their day-by-day experiences. There are short-term lets where no one knows who is there from day to day and the people who are there do not know what the rules of engagement are, or how they should be living, and all the dangers that go with that.
My noble friend Lady Gardner has referred to the unsatisfactory way in which the Government have dealt with this situation, and I agree with her. As my noble friend said, the provision was introduced on Report in the other place; it was certainly in the Bill when it came to us for Second Reading. I expressed concern about it then—as long ago as 7 July. That is why lots of people on all sides started to contact me about it. We had a considerable debate about it in Grand Committee on 30 October, but still the Government were not clear about exactly what they were going to regulate.
My noble friend Lady Gardner said that she has consistently asked Ministers what will be in the regulations. On 8 December, in answer to one of her questions, the noble Lord, Lord Ahmad, said:
“In order to provide greater certainty before new legislation comes into force, we will issue guidance shortly that will clarify the Government’s view on planning and short-term letting in London”.—[Official Report, 8/12/14; col. 1593.]
That was on 8 December. Your Lordships know that the word “shortly” can mean many things in this House, but I am certain that on 8 December the noble Lord, Lord Ahmad, did not believe that we would have to wait until 6 February, just a few days before we had to deal with this on the last day of Report, before we had any indication from the Government of their intentions.
Why does this matter? It matters because the clause as it stands simply gives the Secretary of State the power to make regulations. However, it gives no indication of what may or may not be in those regulations. It is, in effect, a blank cheque. If those regulations were to be made by the current Government—as, presumably, was the intention when we had Second Reading back on 7 July, or even in Grand Committee on 30 October—that would be all well and good. However, for whatever reason, we have now got to the stage where there is simply not enough time for those regulations to receive parliamentary approval before the general election. I hope that when the Minister responds, he will confirm that that is the case. The regulations clearly cannot be laid until Royal Assent is received, which I guess will probably be mid-March. They then have to lay for 40 sitting days, during which time they can be prayed against, before the approval, or otherwise, of each House of Parliament can be obtained. There simply are not 40 sitting days left to achieve that.
I hope that the Minister will tell us whether it is this Government’s intention to lay the regulations immediately on Royal Assent before Dissolution, so that we at least know at last what the Government will, or will not, put in the regulations; or are we simply being asked to hand a blank cheque to whomever may form the next Government, and whomever may then be the Secretary of State, to do with as they wish? That could not be a much more unsatisfactory situation for anybody, whatever their view and whomever forms the next Government. Why we have taken nine months to get to this position, I do not understand. I do not envy the Minister having to try to explain it because I know that, whoever’s fault this is, it is most certainly not his. I thank him for trying very hard indeed to get some clarity on this. I suspect that had it not been for his very considerable efforts last week, we would not even have seen the policy guidelines last Friday.
We are now where we are. My noble friend Lady Hanham outlined the amendments we have tabled to suggest what should and should not be in the regulations. They have been drafted to reflect our views but with help from London Councils representing all the London boroughs, and most particularly following not daily but hourly discussion with Westminster City Council.
In short, the amendments want five safeguards to be built into the system. First, the premises must be the principal London residence of the owner offering the let. We seek a definition of “principal residence” and “owner”. Secondly, the owner must notify the council and let it know how long the stay will be. That means having a simple—we stress that word—and easy-to-use registration system. Otherwise, local authorities will have no possible way of enforcing whatever the regulations may state. Thirdly, the total lets in any one calendar year should not be more than 30 days. If we are talking about people being able to let their home for short periods while they go on holiday, 30 days in a year is not an unreasonable holiday entitlement. Fourthly, the council can request the Government to provide for local exemption from these provisions where there is a strong amenity case to do so. Finally, residents would not be allowed to continue letting if they were the subject of one successful enforcement action against a statutory nuisance. Our amendment defines the process for determining a statutory nuisance. I think I am right in saying that the Government intend to introduce those last two conditions; I hope that the Minister will confirm that that is the case.
Amendment 51 seeks to leave out Clause 33 entirely. When this issue was innocently put into the Bill on Report in the Commons last summer, I am certain that Ministers—and, I suspect, their officials as well—had no idea of its scale and complexity; I am sure that the Minister will not confirm that. It has been brought home to all of us who have dealt with it over the months that it is a very difficult and complex issue, and is one that is growing and spreading rapidly. At the moment, it principally affects a number of central London boroughs. This issue relates only to London because it relates to a London local authorities Act. However, the concerns and issues arising from short-term lets are spreading across the country. Popular visitor areas are already experiencing difficulties, perhaps not on the scale of Westminster, Kensington and Chelsea and Camden, but demand is growing so fast in this country and throughout the world that it can only be a matter of time before that is the case elsewhere. So this is clearly an issue that the Government have to tackle. They have to tackle it particularly in London for the reasons that we have given, but I suggest that they need to look at it in relation to the country as a whole.
We have got to the stage where we are being asked to give a blank cheque to the next Government to determine whatever they may or may not wish to put in regulations. As we are where we are, I urge the Government to say, “Right, we have got to this stage, and we really need to pause and have a careful think about all this”. Above all, we need to consult the companies working with short lets which are not against regulation but clearly have a rather different view from those who have to enforce the regulations. However, they should all be consulted. The leader of Westminster City Council issued a public letter dated 3 February—last week—in which she clearly says:
“There has been no engagement with this local authority either at a political or an officer level on the detail of the regulations that are intended to follow this Bill”.
Those were the words of the leader of Westminster City Council in a letter to Ministers last week—I repeat, last week.
Therefore, much though I regret that we have reached this situation, the best thing would be for the Government to concede and say, “We will withdraw this clause, consider further and consult fully, and we or whomever the next Government are will come back after the election with carefully considered, thought-out and consulted-upon regulations that properly tackle the issue”.
My Lords, I support this group of amendments and declare an interest as a professional involved with property, and in particular as having some involvement with commercial and residential management—although not, by and large, in Greater London, I hasten to say.
This matter seems to have started from what might be described as a once-in-a-lifetime event, the Olympics, and the implications of a London-specific piece of legislation; namely, Section 25 of the Greater London Council (General Powers) Act 1974. I follow the point made by the noble Baroness, Lady Hanham, that London appears to be a special case. Why else would that piece of legislation be on the statute book in the first instance?
We are dealing with the potential impacts on the amenity of existing residents. The question of short-term lettings introduces the concept of “churn”—the turnover of occupants, the cleaners, the services, the deliveries, and the implications for security and people coming and going, possibly at odd times of the day and night. With that, there is the natural local authority concern and the issue of public interest in matters of safety and security, including overcrowding, the maintenance of standards, fire precautions and so on. Beyond that, there is the ability to police whatever is put in place to ensure compliance. I have a particular problem with that because, for every block of flats to which such circumstances might apply, if they happen to be in a particularly accessible area near somewhere in our metropolis where there are constant events, one can easily see that a certain proportion could be on this “churn” at any given time. There might be a real question regarding compromising the peace and tranquillity of those who wish to live, work and do all the normal things that normal residents do.
I support the argument that there needs to be knowledge and a degree of control in the hands of the local authority through its planning, building regulations and environmental control functions. London is a special case; there is always something going on there, and that is why it is particularly important to have special regard for it. A less than 50% response—a minority of London boroughs responded—is not exactly an endorsement of what is being proposed by the Government. The noble Baroness, Lady Hanham, who has enormous experience from her involvement with an inner London borough, and the noble Lord, Lord Tope, who has great experience from a little further out, know that these are the issues, and their voices should be listened to. The noble Lord, Lord Tope, had a quick dig at the Minister about what the term “shortly” might mean. I was brought up in the west country, where there were two terms: one was “shortly”, and the other was “directly”. It was important to know that “directly” meant that there would be a quicker response than “shortly”. I hope that no one with west country roots will come back and tell me that I am wrong, but that is what I understood by those terms.
I apologise for continually referring to the noble Baroness, Lady Hanham, but she made a number of good points. I also pay tribute to the noble Baroness, Lady Gardner, for introducing the amendment in the first place and for being assiduous and persistent in plugging the general point. The noble Baroness, Lady Hanham, referred to the fact there is an increasing amount of investment property in London. That means that it is not necessarily governed any more by the wishes of those who live, work, shop and raise children in our metropolis. If we are not careful we will get to a tipping point, where the social profile and how to enforce and govern it get altered to the point of being something other than for those who live and work there. After all, they are the people with the democratic vote.
If we are not careful, this will go right to the heart of the structure of society. Of course, that erosion will be that much more rapid in areas with what we might call continual ongoing attractions, which might attract these short-term lettings—they will be cut most severely. To look at London as a composite whole is wrong. The noble Lord, Lord Tope, identified this as a phenomenon occurring elsewhere. For all I know it might affect areas near Glastonbury, the Hay-on-Wye Festival or any other place where these events go on in the countryside.
We are dealing with a class of lessor—people who allow their homes to be used as short-term lettings by others—who, it must be said, by and large lack the knowledge and expertise of renting in this sector. I do not think that many of them have the slightest idea of what is involved in the wear and tear on the property, what the critical capacity is of the hot water system for their block, or in any of the other matters that might be involved, such as the security at the front door when a large number of people, checked and unchecked, have access to the code to come and go.
I do not see what the Government are proposing as a deregulatory measure as at all deregulatory. It opens up a raft of potential further regulation. If it goes through without further ado I predict that we will be back again in not very many months, trying to patch over the cracks and deficiencies where things have started to go seriously wrong. They will go seriously wrong in the most critical areas of our capital, not in the relatively decentralised areas. There is a real question of how communities, local government or residence associations—or, for that matter, landlords or their agents—will be in a position to control this.
We need regulation, especially as some of the main players operating internationally on the web do so in an almost entirely unregulated environment, as far as I can see. That is putting aside the stories one hears of, which cause immense difficulties: about unpaid local taxation, problems of double booking and things like that, of people apparently thinking that they have a holiday let yet the owner knows nothing about it. All those have come to my attention. I do not know whether they are all completely apocryphal; I think they are probably not. We need some regulation, which really ought to be before this House.
I hope that the Minister will think again. I hope he will realise that, although one would have every wish to ensure that there were means whereby people could capitalise on, for example, Wimbledon fortnight by letting their homes to the wealthy from elsewhere, it would need to be done without it having a negative effect on other individuals, on those whom one might call normal residents and on the whole process of due diligence and the regulatory environment. In general, I am entirely in sympathy with Amendment 47 and the amendments in the group that follows it.
I apologise to my noble friend but I think that under the rules of the House we are still on Amendment 47 and Amendment 48 has yet to be called. There has obviously been some confusion in that people are speaking to two groups of amendments. I think that Amendment 47 is still being debated.
My Lords, we have got terribly confused tonight. I thought that we were speaking to the generality of the amendments and that that was the noble Baroness’s position. If that is the case and the noble Lord, Lord Leigh, wishes to make his contribution now, I will happily follow him.
I thank the noble Lord. I was planning to speak to Amendment 48, so my comments are directed to that group of amendments rather than to the specifics of Amendment 47. I declare my interests both as an investor in residential property and as president—
I hesitate ever to come in on a point of principle but my noble friend Lady Gardner said that she wanted Amendments 47 and 48 to be grouped, and that is what we have done. Have we spoken to Amendment 47 separately? Is there any way in which we can get this settled? I have spoken to the group commencing with Amendment 48, not Amendment 47. I was waiting for the noble Lord, Lord McKenzie, to come in and speak to his amendments. It seems to me that my noble friends Lord Tope and Lord Lytton have also spoken to the group starting with Amendment 48. I am sure that there must be a quick way of getting this sorted so that we are all speaking to the group commencing with Amendment 48.