House of Lords
Wednesday 27 April 2016
Prayers—read by the Lord Bishop of Leeds.
Children: Parental Separation
My Lords, we are prioritising the well-being of children by helping parents resolve conflict during separation. We have doubled funding for relationship support for couples to £70 million during this Parliament and our innovation fund has worked with around 30,000 separated families to help them collaborate in the best interests of their children.
My Lords, we are all aware that post-conflict separation is very harmful for children and is often exacerbated by disputes over child maintenance payments, especially when government agencies are involved. Will my noble friend update the House on how the 2012 child maintenance reforms are working as regards payments made within family arrangements?
My Lords, I am delighted to report that our 2012 reforms have been a huge success so far. They have incentivised separating families to make their own arrangements rather than using the statutory system as a default option, as co-operation between parents is clearly better for their children. Seventy per cent of clients using the service are choosing direct pay.
Will the Minister set out how her department is working with the Department of Health and the Department for Education to ensure that children whose parents are separating receive the support they need both through child and adolescent mental health services and counselling in schools?
My Lords, “so far” is a telling phrase. The Minister talked about the CSA but the Government are in the process of shutting down all CSA cases and telling parents that if they want to apply to the new scheme they have got to hand over one-fifth of all the money to the DWP in fees. However, they are allowed to apply to the new scheme only if they first ring a phone line and let someone on the other end of the phone try to talk them out of it and tell them to go away and make a deal with their ex directly. Mrs Thatcher set up the CSA to make sure that parents pay for their kids even if they are separated from the other parent. If there are any grounds to the growing concern that parents will end up paying less money to children than they have in the past, will the Minister accept that the strategy has failed and needs to be reviewed?
The noble Baroness clearly has significant expertise in this area, but I have to say that the current system, which was set up in 2012, does not automatically take 20% of the payments. As I say, the point of the new system is to encourage parents to make their own arrangements. It is only if they do not use the direct payment method that they will pay the additional premium for that service.
My Lords, I am sorry. It is a declaration of interest. I apologise to the House. I should have declared a historic interest in that five years ago I was a board member of the Child Maintenance and Enforcement Commission. That is all I wanted to say.
My Lords, it is obvious that children who are not informed about what is happening to their parents when they are separating do much less well than those who are kept in the loop. What will the Government do to make this one of the really important aspects? Parents must let their children know, even at an early age, what is actually happening and make them part of the decision-making, or at least give them an understanding of what the future is going to be.
The noble and learned Baroness makes another good point. We have been trialling interventions with our innovation fund where we are using the voice of the child to make sure that we include children in the conflict situation. We are also working with the Ministry of Justice to make those interventions work.
My Lords, is my noble friend aware of the proposals from the Scottish Government, which will be implemented this summer, for every child in Scotland under the age of 18 to have appointed for them a state guardian whose job it is to make sure that the parents are doing their duty? Can she reassure the House that if Scottish parents or parents living in Scotland move south, this outrageous scheme will not be continued in England?
My Lords, does my noble friend support the idea of child contact centres being made available in every local authority area to enable parents who are not of wealthy means to have contact with their children? Were one fortunate enough to have a Private Member’s Bill on this in the next Session, would my noble friend support it?
My Lords, the Government are considering their future policy on children’s centres, which are currently the responsibility of the Department for Education, as part of the development of the cross-government life chances strategy. We will publish more details on that in the summer.
My Lords, the Minister said that since the 2012 Act, the new arrangements have been a great success. How much additional money has gone to separating parents and their children; in other words, how much better off are those children, knowing that in the past many fathers would change their job, their address, their country and their name to avoid paying maintenance? Can she tell us how much additional money is going to children? If she cannot, because a lot of this is now voluntary, how does she know that it has been a success?
My Lords, the Minister will be aware that the cuts in legal aid have meant that parents, during the worst time of their lives, have been left to self-represent in court, struggling over the allocation of money to the detriment of the family. Will she tell the House if the Government have plans to reform the law on the allocation of money on divorce, preferably through my Private Member’s Bill?
To ask Her Majesty’s Government whether the recently published figures from the Department for Communities and Local Government are correct in stating that in 2009-10 Her Majesty’s Government built 33,000 social rent properties that were let at 40 to 50 per cent of market rent, and spent £22.4 billion in real terms on housing benefit, and that in 2014-15 they are predicted to have built 9,600 social rent properties that were let at 40 to 50 per cent of market rent, and to have spent £24.7 billion on housing benefit.
My Lords, I will focus on the figures for England only. The housing benefit bill was £21.7 billion in 2014-15, and £19.6 billion in 2009-10. This is published in the tables showing housing benefit and council tax benefit expenditure by local authority. The noble Baroness is correct to say that in 2014-15 we delivered 9,600 social rent homes, but we also delivered 40,700 affordable rent homes—a total delivery of 50,300 social and affordable rent homes.
I thank the Minister for confirming my figures. When I asked the same question on 21 January I was told I was wrong and inaccurate. I think that was because these figures reveal the crisis in housing. The Government are driven by ideology to stop building social rented homes, and are pushing people into the affordable rental market, where rents are 80% of market rents, and the private sector. This sends families into generational poverty, as we have seen since the 1960s and 1970s, and it has cost the public £2.3 billion extra a year. Does the Minister agree that families’ housing needs should be put before political dogma, and that the Government need to ditch this failed housing policy and build more homes for social rent?
My Lords, building more homes is a clear priority for this Government. We take very seriously the building of affordable housing, and we want to ensure that we support the most vulnerable. The Government introduced the affordable rent, which allows us to deliver more homes for every pound of government investment. This means that more people in need can access good-quality homes at a sub-market rent.
My Lords, what assessment have the Government made of the future need for rented social housing in rural communities where properties that come on to the market tend to be taken for second or retirement homes by people with means beyond the resources of local people?
Meeting the needs of the rural community is also very much a priority, and more than 85,000 affordable homes have been provided in rural local authority areas in England between April 2010 and March 2015. We are working with the Homes and Communities Agency, which supports a network of rural champions, to ensure that the profile of affordable rural housing remains high. The noble Lord makes a good point.
There is a balance to be struck here, and one of the things the Government are doing is to reduce social rents by 1% per year for the next four years, until 2020. This means that the housing benefit bill will fall accordingly. It has grown by 25% in the last decade, reaching £13 billion in 2014-15.
My Lords, can the Minister help me by giving me the average sort of figure for the new homes he talks of being built for sale in London and the south-east? What sort of price range is he looking at, and are such homes affordable for the people who are in short supply, such as nurses, teachers and police officer recruits?
The noble Baroness makes a good point. Again, that is part of our overall plan. We are spending £20 billion altogether to deliver 1 million more homes: that is the largest programme by any Government. In terms of focusing on affordable housing, £1.6 billion is being put towards 100,000 homes at affordable and intermediate rents, and London is very much part of that programme.
My Lords, I refer noble Lords to my declaration in the Register of Lords’ Interests and declare that I am an elected councillor in the London Borough of Lewisham. The figures cited by my noble friend highlight the problem, and the soaring costs borne by the taxpayer. When are the Government going to get to grips with rents in the private rented sector?
The private rented sector is also an important part of this. I am not quite sure what the noble Lord means by getting a grip but, again, that is part of the process of building more houses and making sure that we have houses that people want to live in at a reasonable rent.
Investigatory Powers Bill
To ask Her Majesty’s Government whether clause 217 of the Investigatory Powers Bill will give them the power to force a company to break its own encryption in a similar manner to the United States Federal Bureau of Investigation’s abandoned attempt to make Apple break the security of an iPhone.
My Lords, the Investigatory Powers Bill maintains and clarifies existing powers to ensure that terrorists and criminals cannot use technology to escape justice. The Bill provides our law enforcement and security and intelligence agencies with the ability to require communications service providers to remove encryption that they have applied themselves in tightly defined circumstances where it is reasonably practicable to do so.
My Lords, Clause 217 of the Investigatory Powers Bill gives the Government almost unlimited powers to force, in secret, companies to remove “electronic protection” from their products. How do the Government intend to use this power in the increasingly frequent cases where a company has designed the security of its products so that even the company itself is incapable of unlocking the equipment or decrypting the data? Will Apple and others be required to redesign their products so that they can break into them, or will they be required to stop selling them in the UK?
With respect to the noble Lord, Clause 217 does not provide anyone with unlimited powers with respect to these matters; it deals with technical capability notices—a notice which is given after discussion with the Technical Advisory Board to a company requiring it to retain the ability to decrypt information if and when an appropriate warrant is served pursuant to Clause 36 of the Bill. Therefore, it applies only to the extent that it is reasonably practicable for the company to comply. The relevant tests are clear in the Bill, as the noble Lord may recall, as he sat on the Joint Committee that considered the Bill between November 2015 and February 2016.
My Lords, will the Minister explain Clause 217 a little more clearly? It suggests that a warrant might be sent overseas from the UK. Does the opposite apply as well—that UK tech companies might get an overseas request to break encryption, with which they have to comply?
I am obliged to the noble Baroness. Let me be clear: Clause 217 is not concerned with warrants but with technical capability notices. They precede any question of a warrant. A warrant or a notice would proceed under a different part of the Bill. I do not want to elaborate on this because the Bill will be before this House in the very near future, at which time these details can be considered. However, to pick up on the noble Baroness’s last point, on companies that are overseas but have a presence here and provide services here, the warrant does extend to those companies. With regard to companies overseas, the warrant may be served there. They may have an answer that it is not reasonably practicable to respond because, for example, their own domestic law forbids them doing so. However, the Government have already initiated discussions with the United States of America to come to an agreement on reciprocal enforcement of these relevant and important provisions.
Before scare stories about this Bill start being run, can the Minister confirm that there is no case whatsoever for unlimited powers? One strength of the Bill is that it strengthens the oversight of the security agencies, to give people the confidence that those who are doing the work are being watched, and the watchers are also being watched on behalf of the public in order, therefore, to keep us safe.
I entirely concur with the noble Lord’s observations. The introduction of the double-lock mechanism in the context of the warrant underlines the importance of these developments. When the noble Lord, Lord Rosser, responded to the Statement on the Bill in November last year, he observed that it appeared that, in broad terms, the Bill had struck the difficult balance between public interest and privacy.
My Lords, the part of GCHQ responsible for ensuring the security of our national infrastructure, such as the national grid and our telecommunications network, is very keen on enhancing encryption. Another part of GCHQ wants to weaken encryption, so that it can access confidential information. Can the Minister say which side of GCHQ the Government are on?
It is not necessary to be on either side of the wrong question. The position is simple: encryption is effected by means of an algorithm, which is sometimes called an encryption key. If you sequence an encryption key, you encrypt; if you reverse the process, you decrypt. This Bill will not give any party access to the encryption key, which will be held by the provider.
I note what the noble Lord says, but the Apple case was one of some complexity. The court order that was eventually granted was in fact superseded because a third party came forward and provided the Federal Bureau of Investigation with access to the relevant material. The Apple case of course raised very real questions about the scope of responsibility of communications providers, and that is what this Bill seeks urgently to address. The providers have responsibilities to the public—not just the public to whom they provide their initial services.
My Lords, in support of my noble friend Lord Rooker, I ask the Minister this. In the final analysis, is it not absolutely essential—no matter what the complexities—that we do not allow criminals, terrorists, paedophiles, to exchange data, plan, and swap photographs in an area where there is no possibility of scrutiny by law enforcement agencies? Whatever happens, we must enable ourselves to monitor that, or else we are all less safe.
My Lords, the Minister did not like the question that the noble Lord, Lord Paddick, put to him. However, there is a real issue here: if the encryption keys are weakened because the companies concerned know they might be asked to release them under certain properly moderated circumstances, they will also have been weakened for other people who wish to do harm by breaching privacy, intellectual property and so on. What assessment have the Government made of how to mitigate that and to balance those two conflicting objectives?
I note that the noble Lord has associated himself with the noble Lord, Lord Paddick—it will become apparent why I make that connection. There is no question of encryption keys being weakened or of their being made available in response to a warrant. The encryption key will remain wholly in the possession of the provider of the service. The warrant will ask that they apply the encryption key in order to provide the decrypt. There is no weakening of any encryption in these circumstances.
Airport Expansion: Road and Rail Upgrades
To ask Her Majesty’s Government whether, as part of their decision on expansion of airports in the South East, they are considering the figures from Transport for London that upgrades to rail and roads will cost £16 billion more than estimated by Heathrow.
My Lords, the Airports Commission assessed the surface access requirements of each shortlisted scheme as part of its work published in July 2015. Transport for London’s views were considered by the commission as part of this work. The Government have been clear that we expect the promoter of any airport expansion scheme to meet the full cost of any surface access proposals that are required to enable the expansion and from which they will directly benefit.
My Lords, does the Minister accept that there is a balance to be struck between responsibility for general improvements to London’s transport and those improvements required specifically for Heathrow Airport, if it were decided to expand it? But the striking thing is the dramatic difference between the figures given by Transport for London and the price put on the improvements by the Airports Commission. Do the Government accept that they need to bottom out these figures and the difference between them, and who will be responsible for building new infrastructure, and that they need to do so before they make their decision on airport expansion?
My Lords, the noble Baroness is right to point out the difference between the figures from TfL and from the commission itself—and indeed the figures that Heathrow Airport itself presented. One thing I would say is that the figures refer to the different content in each proposal, and different timelines.
On her second, more substantive point about who is responsible, the Government’s 2013 aviation policy framework makes it very clear that developers should pay for the costs of upgrading, and that where the scheme has a wider impact and benefit the Government will look at it on a case by case basis.
My Lords, could not the cost of Transport for London be significantly reduced if so many of its executives were not paid excessive amounts compared with, say, the salary of the Prime Minister? What can be done to reduce the costs of congestion caused by the policies of Transport for London?
It is for the Mayor of London to review both those issues. But I say to my noble friend that with any salary paid to any public servant serving in any government—central, devolved or local—public scrutiny is important and needs to be reflected.
A newspaper report today said that the Government’s decision on airport expansion in the south-east could be pushed back to September at the earliest, and possibly later, because of a government decision-making log-jam caused by the EU referendum. Do the Government stand by their position that a decision will be announced in the summer, and, if so, can the Minister say on what date the Government consider that this coming summer will end?
I say to the noble Lord, who has wide experience, that you should not always believe what you read in the papers. The Government’s position, as I have said, is that we intend to conclude the additional work around the issues and the concerns rightly raised about the environment and noise pollution in the summer. He asked for a specific date but, as I have said, I cannot give that at this time.
As my noble friend will appreciate, the Government are making the biggest investment in transport infrastructure not just for a generation but, in the case of the railways, since the Victorian age. Aside from the HS2 project we are making more than £60 billion of investment in this Parliament alone, which underlines the Government’s commitment to ensure expansion of the transport infrastructure across all modes of transport.
My Lords, the environment committee in the other place has today called for urgent action to stop 50,000 premature deaths a year from air pollution-related illnesses. Is it not mad to expand Heathrow Airport when we are already in serious breach of European air quality laws? Would it not also be mad to pull out of the protective umbrella of EU pollution rules?
I am sure that the noble Baroness was not suggesting that I was mad—but I will read Hansard carefully. She is quite right to raise the issue of air pollution. As I said, it will be given due consideration in the wider environmental impacts that the Government are looking at.
My Lords, does the Minister recall that a few years ago, the solution to the problem of emissions around Heathrow was to put the M4 and the M25 in a tunnel, so that the emissions would come out at the ends, away from the airport? That would have reduced the level of emissions. Is that still on TfL’s agenda?
Again, just for clarity, I am sure that my noble friend was referring to the figures provided by TfL, which are for others to analyse, and not to the commitment that the Government have given to spending £65 billion on transport infrastructure in this Parliament.
My Lords, I draw attention to my interest in the register. On the matter of upgrading infrastructure for airports, will the Minister take this opportunity to acknowledge and welcome the decision of London Luton Airport to invest £260 million in a new passenger transit system to speed transfers between the parkway rail station and the airport terminal? For the UK’s fastest-growing airport it will mean, when concluded, that journey times from London to the airport terminal will be about half an hour.
My Lords, with the leave of the House I shall now repeat a Statement delivered in the other place by my right honourable friend the Home Secretary.
“With permission, Mr Speaker, I would like to make a Statement on the Hillsborough stadium disaster, the determinations and findings of the fresh inquests presided over by Sir John Goldring, and the steps that will now take place.
Twenty-seven years ago the terrible events of Saturday 15 April 1989 shocked this country and devastated a community. That afternoon, as thousands of fans were preparing to watch the FA Cup semi-final between Liverpool and Nottingham Forest, a crush developed in the central pens of the Leppings Lane terrace. Ninety-six men, women and children lost their lives as a result. Hundreds more were injured, and many more were left traumatised. It was this country’s worst disaster at a sporting event.
For the families and survivors, the search to get to the truth of what happened on that day has been long and arduous. They observed the judicial inquiry led by Lord Justice Taylor. They gave evidence to the original inquests, which recorded a verdict of accidental death. They have seen further scrutiny, reviews and a private prosecution. They suffered the injustice of hearing the victims—their loved ones and fellow supporters—being blamed. They have heard the shocking conclusions of the Hillsborough Independent Panel and they have now, once again, given evidence to the fresh inquests presided over by Sir John Goldring.
I have met members of the Hillsborough families on a number of occasions and, in their search for truth and justice, I have never failed to be struck by their extraordinary dignity and determination. I do not think it is possible for any of us to truly understand what they have been through. Not only in losing their loved ones in such horrific circumstances that day, but to hear finding after finding over 27 years telling them something that they believed to be fundamentally untrue. They have quite simply never given up.
I would also like to take this opportunity to pay tribute to the right honourable Member for Leigh, who has campaigned so tirelessly over the years on their behalf, and also the honourable Members for Liverpool Walton, for Garston and Halewood, for Halton, for Liverpool Riverside and for Wirral South.
Yesterday, the fresh inquest into the deaths at Hillsborough gave its determinations and findings. Its establishment followed the report of the Hillsborough Independent Panel, chaired by the right reverend Bishop James Jones. The contents of that report were so significant that it led to the new inquests and two major new criminal investigations: one by the Independent Police Complaints Commission examining the actions of the police in the aftermath of Hillsborough, and a second criminal investigation—Operation Resolve—led by Jon Stoddart, the former chief constable of Durham.
Since the fresh inquests opened in Warrington on 31 March 2014, the jury has heard 296 days of evidence. It ran for more than two years and was the longest running inquest in British legal history. I am sure the whole House will want to join me in thanking the jury for the important task it has undertaken and the significant civic duty the jurors have performed.
I will turn now to the jury’s determinations and findings. In its deliberations, the jury was asked to answer 14 general questions covering the role of South Yorkshire Police, the South Yorkshire Metropolitan Ambulance Service, Sheffield Wednesday Football Club and Hillsborough stadium’s engineers, Eastwood and Partners. In addition, the jury was also required to answer two questions specific to each of the individuals deceased relating to the time and medical cause of their death.
I would like to put on record the jury’s determinations in full. They are as follows:
Question 1: do you agree with the following statement which is intended to summarise the basic facts of the disaster?
‘Ninety-six people died as a result of the disaster at Hillsborough stadium on 15 April 1989 due to crushing in the central pens of the Leppings Lane terrace, following the admission of a large number of supporters to the stadium through exit gates.’
Question 2: was there any error or omission in police planning and preparation for the semi-final match on 15 April 1989 which caused or contributed to the dangerous situation that developed on the day of the match?
Question 3: was there any error or omission in policing on the day of the match which caused or contributed to a dangerous situation developing at the Leppings Lane turnstiles?
Question 4: was there any error or omission by commanding officers which caused or contributed to the crush on the terrace?
Question 5: when the order was given to open the exit gates at the Leppings Lane end of the stadium, was there any error or omission by the commanding officers in the control box which caused or contributed to the crush on the terrace?
Question 6: are you satisfied, so that you are sure, that those who died in the disaster were unlawfully killed?
Question 7: was there any behaviour on the part of football supporters which caused or contributed to the dangerous situation at the Leppings Lane turnstiles?
Further to Question 7: was there any behaviour on the part of football supporters which may have caused or contributed to the dangerous situation at the Leppings Lane turnstiles?
Question 8: were there any features of the design, construction and layout of the stadium which you consider were dangerous or defective and which caused or contributed to the disaster?
Question 9: was there any error or omission in the safety certification and oversight of Hillsborough stadium that caused or contributed to the disaster?
Question 10: was there any error or omission by Sheffield Wednesday FC (and its staff) in the management of the Stadium and/or preparation for the semi-final match on 15 April 1989 which caused or contributed to the dangerous situation that developed on the day of the match?
Question 11: was there any error or omission by Sheffield Wednesday FC (and its staff) on 15 April 1989 which caused or contributed to the dangerous situation that developed at the Leppings Lane turnstiles and in the west terrace?
Further to Question 11: was there any error or omission by Sheffield Wednesday FC, (and its staff), on 15 April 1989 which may have caused or contributed to the dangerous situation that developed at the Leppings Lane turnstiles and in the west terrace?
Question 12: should Eastwood and Partners have done more to detect and advise on any unsafe or unsatisfactory features of Hillsborough stadium which caused or contributed to the disaster?
Question 13: after the crush in the west terrace had begun to develop, was there any error or omission by the police which caused or contributed to the loss of lives in the disaster?
Question 14: after the crush in the west terrace had begun to develop, was there any error or omission by the ambulance service, SYMAS, which caused or contributed to the loss of lives in the disaster?
Finally, the jury also recorded the cause and time of death for each of the 96 men, women and children who died at Hillsborough. In all but one case the jury have recorded a time bracket running beyond the 3.15 pm cut-off point adopted by the coroner at the original inquests.
These determinations were published yesterday by the coroner, and I would urge the reading of each and every part in order to fully understand the outcome of the inquests.
The jury also heard evidence about the valiant efforts made by many of the fans to rescue those caught up in the crush. Their public-spiritedness is to be commended, and I am sure that the House will want to take this opportunity to recognise what they did in those terrible circumstances.
Clearly, the jury’s determination that those who died were unlawfully killed is of great public importance. It overturns in the starkest way possible the verdict of accidental death returned at the original inquests. However, the jury’s findings do not, of course, amount to a finding of criminal liability, and no one should impute criminal liability to anyone while the ongoing investigations are still pending.
Elsewhere the jury noted that the commanding officers should have ordered the closure of the central tunnel before the opening of gate C was requested, as pens 3 and 4 were full. They should have established the number of fans still to enter the stadium after 2.30 pm. And they failed to recognise that pens 3 and 4 were at capacity before gate C was opened.
While the inquests have concluded, this is not the end of the process. The decision about whether any criminal prosecution or prosecutions can be brought forward will be made by the Crown Prosecution Service on the basis of evidence gathered as part of the two ongoing investigations. That decision is not constrained in any way by the jury’s conclusions.
The House will understand that I cannot comment in detail on matters that may lead to a criminal prosecution. I can however say that the offences under investigation include gross negligence manslaughter, misconduct in public office, perverting the course of justice and perjury, as well as offences under the Safety of Sports Grounds Act 1975 and the Health and Safety at Work etc. Act 1974.
I know that those responsible for the police and IPCC investigations anticipate that they will conclude the criminal investigations by the turn of the year. We must allow them to complete their work in a timely and thorough manner, and we must be mindful not to prejudice their outcome in any way.
I have always been clear that the Government will support the families in their quest for justice. So throughout the ongoing investigations we will ensure that support remains in place in three ways.
First, the family forums, which have provided the families with a regular and structured means of engaging with the investigative teams and the CPS, will continue. They will remain under Bishop James’s chairmanship, in a similar format, but will reflect the fact that they will be operating after the inquests. The Crown Prosecution Service, the IPCC and Operation Resolve will remain part of the forums.
Secondly, now that the inquests have concluded it is the intention to reconstitute the Hillsborough Article 2 Reference Group, whose work has been in abeyance during the course of the inquests, under revised terms of reference. The group has two members: Sir Stephen Sedley, a retired Lord Justice of Appeal, and Dr Silvia Casale, an independent criminologist.
Thirdly, we want to ensure that the legal representation scheme for the bereaved families continues. This was put in place, with funding from the Government, following the original inquests’ verdicts being quashed. Discussions are currently taking place with the families’ legal representatives to see how best the scheme can be continued.
In addition, I am keen that we capture and learn from the families’ experiences. I have therefore asked Bishop James, who is my adviser on Hillsborough, to write a report that draws on these experiences. This report will be published in due course, to ensure that the full perspective of those affected by the Hillsborough disaster is not lost.
I would also like to express my thanks to Bishop James again for his invaluable advice over the years. There is further work to be done, so I have asked Bishop James to remain as my adviser and I am pleased to say that he has agreed to do so.
The conclusion of the inquests brings to an end an important step since the publication of the Hillsborough Independent Panel’s report. Thanks to that report and now the determinations of the inquests, we know the truth of what happened on that day at Hillsborough. Naturally, the families will want to reflect on yesterday’s historic outcome, which is of national significance. I am also clear that this raises significant issues for the way that the state and its agencies deal with disasters. Once the formal investigations are concluded, we should step back, reflect and act, if necessary, so that we can better respond to disasters and ensure that the suffering of families is taken into account.
I want to end by saying this. For 27 years, the families and survivors of Hillsborough have fought for justice. They have faced hostility, opposition and obfuscation, and the authorities that should have been trusted have laid blame and tried to protect themselves instead of acting in the public interest. But the families have never faltered in their pursuit of the truth. Thanks to their actions, they have brought about a proper reinvestigation and a thorough re-evaluation of what happened at Hillsborough. That they have done so is extraordinary. I am sure that the whole House will want to join me in paying tribute to their courage, determination and resolve. We should also remember those who have sadly passed away while still waiting for justice.
No one should have to endure what the families and survivors have been through. No one should have to suffer the loss of their loved ones through such appalling circumstances, and no one should have to fight year after year, decade after decade, in search of the truth. I hope that for the families and survivors who have been through such difficult times, yesterday’s determinations will bring them closer to the peace they have been so long denied. I commend the Statement to the House”.
My Lords, I declare an interest as someone who has given advice to the Hillsborough families over the last five years. I thank the noble Lord for repeating the Home Secretary’s Statement. The Home Secretary promised the families that she would do her best to see the wrongs that they had suffered righted, and she has been true to her word.
The facts that the Home Secretary’s Statement narrates are truly terrible. Yesterday the jury gave an unequivocal verdict. They found that the 96 who had died were unlawfully killed and that there was no fan behaviour that did or might have caused or contributed to their death. How could it have taken 27 years for the truth to emerge? The South Yorkshire police force put protecting itself above care for the fans, the families and the truth. It had relationships with the media that made it possible for it falsely to smear the families and the fans. In all too many cases, the media colluded with the police in perpetrating those smears. In the justice system, the families for too long could never compete with the resources of the public bodies and the private companies that they faced in court.
The inquest that has just concluded has produced a verdict that completely vindicates the fans and the families. The jury delivered its verdict, which clearly was thought out as it included reasons, not just the yes/no answers that the Minister rightly went through in the Statement. It was clear that it had thought about the matters and come to clear and simple conclusions. The inquest itself, though, involved the smears continuing. Lawyers for retired police officers repeated the slurs about drunken behaviour. The current South Yorkshire force tried to establish that others were responsible for the opening of the gate. Apologies made now by the South Yorkshire Police ring very hollow indeed.
There are a number of areas that this House and the other place should look at in relation to what happens in future. First, I agree with all that the Home Secretary has said in relation to subsequent criminal proceedings. Can the Minister give us an update on the timing of decision-making? In particular, do we really have to wait until the end of the year before decisions are made?
Secondly, on the issue of disciplinary proceedings against the police, the Policing and Crime Bill currently going through the other place proposes a 12-month time limit after retirement during which disciplinary proceedings can be taken. Will the Minister consider whether, in the appropriate cases, there should be no time limit so that people cannot retire in order to avoid proper disciplinary proceedings?
Thirdly, there is the position of the South Yorkshire police force. As I have indicated, it continued with a number of allegations detrimental to the fans in this inquest, despite what it said immediately after the Hillsborough Independent Panel reported, and despite the remarks of the Lord Chief Justice when he set aside the previous inquest verdicts. What steps does the Minister think should be taken to deal with the present position of the South Yorkshire Police? Does a root-and-branch review of the South Yorkshire Police now appear appropriate? Is the position of the chief constable of the South Yorkshire Police now untenable?
Fourthly, there is the collusion between the media and the police. No one has ever been held to account for the smears in the media relating to the families and the fans. Noble Lords will know that on the Wednesday after the Saturday, the Sun produced a headline saying, “Hillsborough: The Truth”, and made entirely false allegations about the behaviour of the fans. Libel proceedings were obviously not a possibility, for a whole range of reasons. The relationships between the police and the media were to be investigated by the second stage of the Leveson inquiry. That is no longer going ahead. The relationships between the police and the media were a considerable source of the 27-year delay. Is it the Government’s intention to go back on their promise—not to these families, although they were included in the group, but to all those who had suffered from media smears—or is the second stage of the Leveson inquiry going to take place?
Lastly, there is the unlevel playing field. The inability of the families properly to fund themselves at the first inquest led to findings of accidental death and a cut-off time of 3.15 pm that meant there was no proper inquiry in the first inquest. There was an appeal to the Divisional Court but that was rejected. What steps are the Government now going to take to ensure that families such as the Hillsborough families are not left alone and outgunned in court?
It was wonderful to be in the court yesterday, on the day when the justice system acknowledged the truth. The families were vindicated. However, it was filled with so much sadness about the lives ruined by the darkness of those 27 years and the very many people who had died over the period, never seeing the person they loved being able to rest in peace. Our institutions failed the families time and again. Liverpool Football Club and the City of Liverpool never wavered in their support of the families. They were with them during the years when there was no hope, but mostly the families were alone. The best of our country and its true values were demonstrated by the families who never gave up. We should honour them and do our best to ensure that what happened to them will never happen to anyone else.
My Lords, I thank the Minister for the thorough and important Statement. When you meet the Hillsborough families, you are immediately in an emotional bond with ordinary, loving and decent people—remarkable and loving people—who, over 27 years, with great dignity and heads held high, have taken on the establishment to get to the truth. Much is owed to those who researched the evidence; to the indefatigable supporters’ groups led by families; to the independent panel chaired by the then Bishop of Liverpool; to those who finally listened and agreed to a second inquest; to the jurors who spent years examining the evidence, and to all those involved in legal support for the family, including the noble and learned Lord, Lord Falconer of Thoroton.
On this day of all days the front page of the Sun speaks volumes for the real levels of remorse shown by that newspaper. There will be no complete justice until those responsible for the events at Hillsborough—for the monstrous cover-up, the lies and the years of organised deceit—are properly called to account. Thanks to many people, the families of the 96 dead and nearly 700 injured have never walked alone. What plans do the Government have for arrangements for access to justice to ensure that ordinary people always have full opportunity to get their complaints heard in the face of inaction or opposition from the authorities? In my city we say, “At the end of the storm there’s a golden sky”. My thoughts and prayers are with the families and survivors today.
My Lords, I thank both noble Lords for their contributions. In doing so, I acknowledge the noble and learned Lord’s own contribution. I know he has worked with the families and I pay tribute to his work in this respect. The noble Lord, Lord Storey, said that he is of Liverpool, as are many in this House, and I declare an interest as a lifelong Liverpool fan. I remember the tragic events of Hillsborough very well. The verdict yesterday was a very notable moment for the whole city and particularly for the families.
Turning to the specific questions raised by the noble and learned Lord, Lord Falconer, about subsequent criminal proceedings and the timeline, he will know better than many that there is obviously due process to be followed. It is right now that we look towards the CPS and the two ongoing investigations and he and many others will know from their own experience that the CPS has been working very closely with both those inquiries so one would hope, with the evidence that has already been shared and assessed, that they will move forward. In terms of those two particular inquiries, we are certainly looking towards the end of the year.
The noble and learned Lord suggested an amendment to the Policing and Crime Bill relating to police officers who may choose to retire, or indeed resign, to absolve themselves of responsibility for such tragic events. It was certainly the Government’s intention to bring forward such an amendment, and that is why the Home Secretary and my right honourable friend the Minister for Policing inserted a clause in the Bill that reflected the 12-month retirement period. I am informed that, following representations by the shadow Home Secretary, the right honourable Member for Leigh, the Home Secretary has agreed to meet him and the shadow Minister for Policing to see how we can best take forward that provision in the Bill.
Turning to South Yorkshire Police and the statements that have been made, one would have hoped that the force would have accepted without any reservation the findings of the inquest. At this juncture, I just say that what we have seen coming out from South Yorkshire Police is both of concern and regrettable. It is important to ensure that anyone who serves in any area of public life, but particularly in the important role of policing, takes responsibility and has the confidence of the public, which has clearly been lacking in this instance.
The noble and learned Lord also talked about the media, the police and Leveson part 2. As he will know, and as I am sure many noble Lords will be aware, criminal proceedings connected to the subject matter of the Leveson inquiry, including the appeals process, have not yet been completed. The Government have been clear that these cases must conclude before we consider part 2 of the inquiry.
I turn to the very valid issue of access to justice and legal representation. I pay tribute to all those who were involved in the inquest—in particular, the jury. As I am sure noble Lords know, they sat for 296 days over two years, and that shows their resilience. I pay tribute to them and am sure all noble Lords across the House join me in doing so. The inquest underlined the importance of having not just access to justice and legal representation but access to quality legal representation. Therefore, I am delighted that the Bishop of Liverpool has agreed to stay on as an adviser to the Home Office, and to the Home Secretary directly, on this issue to ensure that all the lessons learned from this tragedy are encapsulated. I am sure that they will be presented in his report and in his direct advice to the Home Secretary. We hope that through that process the issues that have arisen, including access to quality legal support, will be addressed—a point raised by the noble Lord, Lord Storey.
My Lords, I crave noble Lords’ indulgence for a moment while I say where I come from. I was a new Member of Parliament covering the area around the Hillsborough stadium in 1989 and I am now married to a doctor who was a volunteer in the hospital in Sheffield on that evening. I myself visited some of those who were injured that weekend.
I commend the Statement and I commend the families and those working with them for seeking and gaining the truth and looking for justice. I hope very much that the work of Bishop James Jones will be able to incorporate the proposals of my noble friend Lord Wills, which were debated three months ago in this House and to which I contributed. I hope that the Minister agrees that they would contribute towards meeting the challenge of ensuring that families in circumstances such as these do not have to go through what those families have gone through over the last 27 years.
I have a question for the Minister. In dealing with the immediate future, it will surely be crucial that the people of South Yorkshire, many of whom played a signal part on that day by taking people into their homes, letting them use their landlines and, in many cases, running people back to Merseyside, do not now pay the penalty of costs arising from further investigation and work on top of the costs that have been incurred. Nor should members of the force, most of whom are dedicated, committed officers, find themselves in a situation where they cannot carry out their duties properly. Would it not be a fitting tribute if we were able to move forward with sensitivity and rationality in ensuring that the people of Merseyside receive the justice and truth that they have sought, and that the people of South Yorkshire do not find themselves penalised, financially or in terms of policing, because of what happened 27 years ago?
My Lords, first, I agree with the noble Lord about the ordinary people on that tragic day who did indeed open their doors. In other tributes that have been paid, it has been widely acknowledged, even by those who were themselves suffering the tragedy, that the people around the stadium of Hillsborough—the ordinary people of Sheffield—showed the warmth and hospitality that really defines our nation, opening their doors to strangers at a time of acute need. That was reflected by many.
On the issue of police officers specifically, as we witnessed on our television screens, and as those in the stadium witnessed, there were individual police officers who tried to act in the best interests of the fans who were clearly suffering in this tragedy. It is important that we now see that the people of Liverpool—particularly the families of the 96 tragic victims—have suffered far too long. Twenty-seven years to wait for justice and truth in a country such as ours is plainly and simply unacceptable. Therefore, I am sure that I express the sentiments of all—and it is resonating—when I say that we look forward to the conclusion of the two ongoing inquiries and the inquiry that the CPS will launch to ensure that we get the justice that the 96 tragic victims need.
My Lords, my question concerns Lord Justice Peter Taylor, whom noble Lords may remember was later appointed Lord Chief Justice of England and Wales and who sadly died in office in 1992 or 1993. It was Peter Taylor who conducted the first inquiry into the Hillsborough disaster. He published his report only three and a half months after the disaster had taken place. Although he laid blame in a number of directions, he was quite clear in the main thrust of his report that he wanted to focus on three issues: first, that the fans were absolutely blameless; secondly, that South Yorkshire Police had largely caused the disaster by their lack of control of the crowds at the Leppings Lane end; and thirdly, in fulsome manner, he criticised South Yorkshire Police for the then emerging criticism from South Yorkshire, who were trying, as he put it, to shift the blame from themselves on to the fans. His clear findings were largely submerged by the growing flow of lies, half-truths and misinformation that occurred before, during and after the first inquest. Bearing in mind that what he said and what he found was entirely mirrored and repeated by the inquiries carried out by the Lord Bishop of Liverpool and by Lord Justice Goldring in the current and shortly to be concluded inquest, will the Minister do everything possible on every appropriate occasion to reflect on the fact that it was Lord Justice Taylor who got to the truth first, even though that truth was later obscured? He was the man who spoke the truth and gave the signpost. In making this statement, I remind the House that it was I who led his inquiry and produced to him the evidence on which he based his findings.
My Lords, the moral culpability of those who participated in the cover-up is particularly grave. Will the Minister do all he can to encourage the prosecution authorities to come to an early conclusion as to whether criminal proceedings should follow?
As I have said, we all agree that it is important that we reach an early decision, but it is also important that the CPS carries out whatever investigations it needs to and that the two ongoing inquiries reach a full conclusion. I reiterate that the two ongoing inquiries will report back at the end of this year.
My Lords, as a Minister involved in setting up the Hillsborough Independent Panel, I add my thanks to the Government and congratulate them on the way they have followed through the setting up of that panel and its aftermath and on the outstanding work done by that panel, which led to the verdicts yesterday. However, most of all, like other speakers, I once again briefly pay tribute to the courage, dignity and persistence of the bereaved families and their campaign for justice. Their extraordinary work has ensured that their loved ones who died at Hillsborough will never be forgotten, and they have honoured their memory.
However, now that the jury has reached its conclusions, the wider public policy lessons must be learned; I very much welcome what the Minister said about that today. In particular, however, I pick up on the point made by my noble friend Lord Blunkett and ask whether the Government will now agree to adopt at least the principles and the guts of my Private Member’s Bill, which seeks to provide all similarly bereaved families in future with a right to the support and transparency which, finally, the Hillsborough families have received. There must be no complacency about what has happened. It is time to ensure that no other similarly bereaved families in the future have to suffer and endure what the Hillsborough families suffered and endured for 27 years.
I pay tribute to the noble Lord’s efforts in this respect. With regard to his Private Member’s Bill, I will be delighted to meet with him and I suggest that we also include the Bishop of Liverpool in that to see how best we can move this forward.
My Lords, during the 27 years that have elapsed since the Hillsborough disaster, the double spectre of loss and injustice has hung over the people of Liverpool. Among the 96 who died were former constituents of mine, including a child. Those deaths of loved ones were compounded by the denial of criminal negligence, callous indifference, the subversion of our justice system, collective character assassination and demonisation. If the Minister has had a chance to read the material I sent him this morning, including the letter I sent before the game was played at Hillsborough which questioned the safety of the ground, he will realise that there are still many unanswered questions. I would be grateful if he told us more about the timetabling of the continuing inquiry, which is being held with great diligence and meticulousness at Warrington; I have had a chance to visit it and talk to the people about the way they are going about their work. Will he also answer the question which the noble Viscount, Lord Hailsham, put to him a few moment ago about the further judicial proceedings that will be necessary and the timetabling for decisions? We certainly cannot wait another three decades.
To take the noble Lord’s last question first, it would certainly be inappropriate for me to straitjacket the CPS in any respect, but the CPS, the two ongoing inquiries and everyone involved in them are fully aware of the sensitive nature of this issue. As we said, there is a responsibility on all involved in these inquiries to make sure that we reach a decision which ensures that justice prevails as soon as is possible and practicable, but it is very much for the CPS to lead on this. I confess that I have not had time to reflect on the detail of the information the noble Lord sent to me this morning, but I certainly will, and look forward to discussing it with him.
My Lords, I declare an interest because I come from Liverpool and most of my family still live there. My grandmother lived on Anfield Road at the time of the tragedy—no one in Liverpool was so remote that they did not know someone who was affected by it. People who have not been recognised in the comments so far are those such as Steven Gerrard and Rafa Benitez, who gave huge amounts of money to support families and did so without expectation of gratitude or publicity. A lot of individuals, like them, showed enormous generosity at a time when the cause was not popular. Can the Minister assure us that the independent panel sets a model for how such investigations ought to be continued in the future in similar circumstances, with objective scrutiny of documentation? Also, does he think that current levels of press regulation under IPSO—before we get to Leveson stage 2—would be in any way stronger in preventing the sort of press abuse that continued until only three years ago?
I thank the right reverend Prelate for those questions. We have learned lessons from every element of the inquiry, and from the panel in particular. We will take forward all the issues, particularly good governance. We have set up an ongoing relationship with the former Bishop of Liverpool. On the issue of press regulation, as I have said already, we are waiting until the Government can look at the second part of the Leveson report to ensure that a comprehensive response can be given. On press regulation and review, we live in a very different world now from that of 27 years ago—indeed, of 10 years ago—and the press, along with everyone else, need to reflect on their responsibilities, particularly when reporting such tragedies as Hillsborough.
My Lords, the Minister said earlier that we would have to wait until criminal cases had finished before we—to use his phrase—“consider” phase 2 of Leveson. However, I remind him of what the Prime Minister said after phase 1 of Leveson in November 2012:
“When I set up the inquiry, I also said that there would be a second part to investigate wrongdoing in the press and the police”.—[Official Report, Commons, 12/11/12; col. 446.]
He went on to say:
“It is right that it should go ahead, and that is fully our intention”.—[Official Report, Commons, 12/11/12; col. 458.]
I understand why criminal cases have to proceed before phase 2 can begin. However, can the Minister assure us that it will begin once those cases have finished, and that the Government will not then reconsider whether it should happen at all?
My Lords, we must consider the crass statement that was put on the South Yorkshire Police website this morning, and the fact that the chief constable of South Yorkshire Police has just been suspended. In the light of what the noble Lord, Lord Blunkett, said, and whoever is elected as Police and Crime Commissioner next week, South Yorkshire Police is going to need extra support. What support will the Government look at giving to solve the problem of the clearly dysfunctional senior management within the South Yorkshire police force?
The noble Lord raises an important point, particularly regarding the responsibility of the Police and Crime Commissioner. They will have an important role to play, but we will certainly be reviewing the situation. As further details emerge, I will write to the noble Lord about the steps we are taking. The important point is that there is a responsibility in the higher echelons of that police force. The noble Lord mentioned the statement put on the website which, as I said earlier, was both concerning and regrettable. There is a history of their making a statement and then retracting it. One would have hoped that, on this occasion, they would not have done so, but that is exactly what has happened.
My Lords, I may be the only member of your Lordships’ House who was present at Hillsborough 27 years ago. I subsequently gave evidence to Lord Justice Taylor’s inquiry and to the Hillsborough Independent Panel. I join all other Members in commending both the Statement and the contributions from all sides of the Chamber today. This House has matched the mood perfectly. I think that the victims’ families will feel that they have been vindicated, certainly as far as this House is concerned. I have just one question. Does the Minister agree that what has made the victims’ families’ agony so much more unbearable has been the refusal by the South Yorkshire police force, consistently over the last 27 years, up to and including the period of the inquest itself, to put up their hands up and admit that they were at fault?
My Lords, perhaps I may express a personal view coloured by my experience of more than 30 years in the Police Service. I am concerned that what appears to have happened in this case—the police attempting to protect their reputation by covering up what happened—is not isolated to South Yorkshire Police and may be prevalent across the Police Service as a whole. This is based on a genuine concern that, in order to operate effectively, they have to have the trust and confidence of the public. However, clearly, they cannot cover up wrongdoing to win that trust and confidence because, inevitably, the truth will come out, as we have seen in this case. Can the Minister give an undertaking that this wider issue across other police forces will not be ignored and will be looked into as part of the Government’s response to this disaster?
The noble Lord is right to raise the issue of trust in a general sense. Speaking as any citizen would, we look to our police forces up and down the country—many of which do an incredible job—to provide safety and security for all of us. A high level of confidence in your police force is an essential part of going about your daily life. Where that has failed, particularly in the instance of South Yorkshire Police—I know an earlier question related to the fluid nature of what is happening in South Yorkshire at the moment—it is important that police forces and all those associated with their governance not only accept direct responsibility but make and act on the right decisions for themselves and, more importantly, for the people of their areas.
My Lords, I declare an interest as a director of Carlisle United Football Club. The composition of football fans today is rather different from 27 years ago, but I know that I speak for every single football fan the length and breadth of the British Isles when I say that we are pleased and proud that our fellow fans at Liverpool have been vindicated. They have shown up some of the key elements of British society—the police, the media and the legal trade. I am also pleased that nowadays, under our new freedom of information legislation and the mood that goes with it, the Minister is able to make such a Statement, which we all admire.
I agree with the noble Lord. Whichever club you support or wherever you live in this country, football is part of what defines our nation; it is part of our DNA. The exoneration yesterday of not only the victims but everyone who attended the event, or was involved with the football club or with the city, was a historic moment in moving forward in the right manner. I hope that, ultimately, once the CPS inquiry and the two other inquiries are concluded, we can give final solace and peace to the 96 tragic victims and ensure—if I may quote the noble Lord as a final comment on this—that they never walk alone.
Housing and Planning Bill
Clause 54: Meaning of “property manager” and related expressions
1: Clause 54, page 25, line 27, at end insert—
“( ) But a person is not a property manager for the purposes of this Part if the person engages in English property management work in the course of that person’s employment under a contract of employment.”
My Lords, before we get into our discussion of the main issues of the day, we will start with a group of amendments that are undoubtedly minor and technical in nature. I hope, therefore, that we will be able to make rapid progress. The amendments address a small number of technical amendments that are required to provide additional clarity or implement technical corrections to a number of measures.
I shall start with Amendment 1. I hope that it is clear that it was always the intention that Clause 54 would not apply to individuals who carry out property management work under a contract of employment, in the same way that Clause 53 does not apply to individuals engaged in letting agency work as part of their contract of employment. However, the current drafting is not explicit on this point. The amendment inserts a minor and technical amendment to Clause 54 that makes it clear that it does not apply to employees.
Amendment 9 makes a minor and technical change to the interpretation of the chapter as a consequence of the changes to the housing administration objectives already agreed on Report. Unfortunately, in making the other changes, the definition of the objectives of housing administration in the interpretation chapter became inaccurate. This amendment corrects that inaccuracy.
Amendment 12 amends the new clause tabled by my noble friend Lord Lucas on Report on planning freedoms. We understand that the intention was that Clause 154 would allow the Secretary of State to make planning freedom schemes only in England. However, the current drafting is not explicit on this point. I am therefore proposing, in the interests of clarity, simply to add the words “in England” to the end of subsection (1). This will make it explicit in the legislation that the power to make planning freedom schemes applies only in England.
Amendment 13 removes a superfluous consequential amendment from Clause 181 on the appointment of an inspector, while Amendment 14 is a minor amendment to Clause 196 about the payment of interest on late payments of advance payments of compensation, which is consequential on an amendment made on Report. It inserts a reference to new Section 52(4ZA) of the Land Compensation Act 1973, inserted by Clause 195(2)(b) of the Bill, which refers to the date by which an advance payment must be made.
As I mentioned, these amendments are intended to provide clarity and remove any ambiguity that might remain within their respective clauses. I beg to move.
My Lords, I am sorry to delay proceedings, but I am a little confused by Amendment 1. As I understand the Bill, the banning order offences are to be specified in regulations which we have not seen. They will define the nature of the offences that can lead to a banning order. Under Clause 14(2), if a banning order is made against a corporate body, it must be made at the same time in the case of “any officer” involved in “the same offence”. Under Clause 13(1)(c), the banning order applies to people involved in “property management work”, yet the amendment seeks to exclude people employed under a contract of employment. The Bill goes on at page 26 to define who these employees are. They are defined as,
“any director, secretary or other similar officer of the body corporate, or … any person who was purporting to act in any such capacity”.
How can we possibly exclude people who are the directors of a company? I understand that it is quite usual for directors themselves to have contracts of employment. Are they somehow to be excluded from responsibility which might lead to a banning order when in fact they may well have taken the decision that led to the banning order having to be introduced? I wonder whether the Minister can clarify the position.
One of the problems is that in the Bill there are references to different groups of people, but I think they are actually all meant to be the same—that is, people who are involved in property management, people who are property managers and people who are officers, and I think that there is another category as well. Perhaps the Bill should have been clearer in defining these particular different individuals and describing them in one particular form instead of under three different headings.
My Lords, I refer noble Lords to my declared interests, and also declare that I am an elected councillor in the London Borough of Lewisham. I see the Minister’s point—that the amendments appear, on the face of it, to be minor and technical. But my noble friend Lord Campbell-Savours has raised an issue, and I hope that we get a response from the Minister. None of us would want to agree something today that had unintended consequences at a later date.
My Lords, I hope I can provide some clarity. It is true that the amendments are minor and technical, but let me try to explain. The purpose of the amendment is to make it explicit in the legislation that Clause 54 does not apply to individuals engaged in property management work under a contract of employment. The noble Lord, Lord Campbell-Savours, may remember that on Report we made a number of amendments to the housing administration section of the Bill, and unfortunately, during this process the definition of housing administration objectives became inaccurate. This amendment corrects the definition.
To give a little more detail, it may help the noble Lords, Lord Kennedy and Lord Campbell-Savours, if I say that I believe that officers are defined as directors or executive members of a company. Given that this is technical, it would be wise if I gave a fuller answer than the one I am giving at the Dispatch Box now, so I will write to all noble Lords with a description.
The amendment says:
“But a person is not a property manager for the purposes of this Part if the person engages in English property management work in the course of that person’s employment under a contract of employment”.
A director of a company involved could have taken the decision that led to the banning but, as far as I can see, would not be responsible under this clause. Is that the intention, or am I simply misunderstanding what the Bill says? I think we should have a bit more information while the Bill is in this form, on Third Reading, because this is our final opportunity.
Yes, it is. I see the point that the Minister is making about wanting to write to us, but I am also conscious that this is Third Reading. Other than maybe a bit of ping-pong, these are almost the last throes of the Bill. If my noble friend Lord Campbell-Savours is right, the Government will unintentionally have created a bit of a pickle for themselves. Before we move on, we need more than the Minister saying that we will get a letter in the post.
My Lords, this may well be Third Reading, but the amendment will go to the other place as a Lords amendment, so it is perfectly possible, as my noble friend has courteously offered, for the matter to be clarified and, if there is a need for further technical clarification, that could be made in the other place.
May I just point out that in Clause 53, on the same page, there is a definition of a letting agent, and that it is pretty much the same as how Clause 54(1), and the amendment, would define a property manager. So there would be consistency between the two positions. If there is to be clarification, it would presumably, on whatever basis, apply the same rules to both a letting agent and a property manager.
My Lords, I think it would be right for me to endeavour to get a full explanation during the debates that we are going to have this afternoon. I take on board the comments of the noble Lord, Lord Kennedy, and that will be the aim. Already those behind me, and perhaps also those beside me, have put in motion a process to get some further information on top of the explanation that I have attempted to give. I will absolutely endeavour to get back to noble Lords as soon as I possibly can.
Amendment 1 agreed.
Clause 73: Reduction of payment by agreement
2: Clause 73, page 33, line 15, leave out subsections (2) and (3) and insert—
“(2) The terms and conditions of an agreement must include—(a) the amount of the reduction mentioned in subsection (1), and(b) any terms and conditions required by subsection (3) or (4).(3) Where the agreement is with a local housing authority outside Greater London, it must include terms and conditions requiring the authority to ensure that at least one new affordable home is provided for each old dwelling.”
My Lords, Third Reading is normally a time to reflect on the passage of a Bill through your Lordships’ House and thank all those who have taken part. However, just two days after we finished Report, I believe we have reached consensus on one thing—that this is not a normal Third Reading.
The amendments I move today are a reflection of the quality of the debate we have had, and I thank all noble Lords whom the Secretary of State, the Minister of State and I have met over the past few days. I hope that the amendments in my name today will be helpful.
On Report, I committed to return to your Lordships’ House with an amendment to put in the Bill the Government’s commitment to deliver one new affordable home for every one sold. This is a key feature of our policy, which ensures that the sale of higher-value council housing funds the building of new affordable homes, as well as providing home ownership opportunities through extending the right to buy.
I hope noble Lords agree that Amendment 2 provides the assurance that this House has been seeking that, where the Government make an agreement with a local authority outside London about building new homes, at least one new affordable home is provided for each dwelling that is assumed to be sold. This was always our intention, and is what I committed to on Report. This amendment chimes with the provision for the London authorities, which recognises the housing pressures in the capital and means that any agreement with the Secretary of State must ensure the construction of at least two new homes for every one that is assumed sold. Amendments 4, 5 and 7 are consequential minor changes to clarify the text on agreements.
Alongside this, it is the Government’s intention to give local authorities with particular housing needs the opportunity to reach bespoke agreements about the delivery of different types of new homes in their areas. If a local authority can demonstrate, for example, that there is a clear need for new affordable rented homes, then the Government should aim to make an agreement with them reflecting that, while taking into account the normal considerations of value for money and so on. On Report, I undertook to work with the noble Lord, Lord Kerslake, on how we might reflect that in the Bill. I am grateful to him for meeting me to discuss the issues. I believe that we all want to see local authorities in the driving seat, making the case for the type of new homes which are right for their communities, with an opportunity also to enter into agreements with the Government to deliver those homes, either directly or through partnership with other organisations. Of course, the Bill already enables local authorities to enter into agreements with the Government for the delivery of new homes but I acknowledged on Report that the House was keen to see some further detail in the Bill.
I am sorry to say that I am not able to return with a government amendment on this element at this stage. As I said, I believe that we share the view on the role that local authorities should play in delivering housing, but I am not able to accept the amendment which the noble Lord, Lord Kerslake, has retabled, which is too restrictive, as I made clear on Report. I will respond formally when we discuss his amendment.
Replacement of housing in rural areas is another area where noble Lords have made a strong case. Pressure on housing in some rural areas is exceptionally high and it is right that we should sometimes take a different approach to reflect that. Recognising these pressures, on Report I made a commitment to exclude—in the regulations which will govern the payment to be made by local authorities in respect of their higher-value vacant housing—housing in areas of outstanding natural beauty and in national parks.
On Report, I also undertook to look at the detailed points that had been raised in your Lordships’ House about housing in rural areas more generally. I have since looked at this issue further. I have also explored the issues that the noble Lords, Lord Best and Lord Cameron, raised. I am pleased that I can confirm that the Government will consider other rural areas when making exclusions in regulations to the housing to be considered for payment in respect of higher-value vacant housing. In particular, we will consider whether there is a case to exclude rural areas that have particular difficulty in replacing housing. We would be able to use the same regulation-making powers that we will use to exclude national parks and areas of outstanding natural beauty.
Defining an exclusion in secondary legislation would take a little time. We would need to ensure that any definition is fair and reasonable yet retains existing local authority housing in communities where the accommodation would be hard to replace. We would also want to think through the relationship with the other rural aspects of the Bill, as raised by your Lordships’ House. As part of this, we will be looking closely at how the Secretary of State could designate particular rural areas to see if that would provide the basis for a clear definition. I will of course involve my noble friends Lord Best and Lord Cameron—I am sorry, the noble Lords, though I think that they have become my noble friends—in discussions.
Another commitment that I made on Report was on offering flexibility on the starter homes requirement for rural exception sites. I committed to return to the House at Third Reading with an amendment giving local discretion on the national starter homes requirement on rural exception sites. This was in response to the amendment by the noble Lord, Lord Cameron, to seek flexibility for local councils for rural exception sites. However—I spoke to noble Lords about this—the amendment by the noble Lord, Lord Kerslake, to remove the power to set a national statutory requirement for starter homes was accepted by the House. This therefore renders the proposed amendment for rural exception sites invalid: if there is no nationally set requirement for starter homes, there is no need to disapply it for rural exception sites.
I would like to be clear to the House that the Government have listened carefully to the debate on starter homes and are carefully considering our response to the amendments. We will return to them during Commons consideration of Lords amendments. I reassure the noble Lord, Lord Cameron, and other noble Lords that, although I am not able to table our amendment to give the promised flexibility on rural exception sites today, our intention is to honour that commitment and that the amendment should be made at a later stage.
Amendment 15 is a technical amendment to ensure that no hybridity issues arise in respect of the regulations to define “higher value”. I beg to move.
Amendment 3 (to Amendment 2)
3: Clause 73, in subsection (3), after “dwelling” insert “in the same local plan area”
My Lords, I rise to speak to Amendment 3 in my name, and to Amendment 6 in the name of the noble Lord, Lord Kerslake. I remind the House of my declaration in the Register of Lords’ Interests as a district councillor, a vice-president of the LGA and chair of the National Community Land Trust Network.
We had long discussions and deliberations in Committee on not only the replacement of the right-to-buy homes sold to tenants but the thorny issue of the sale of high-value local authority housing. I will not rehearse in depth here the arguments about local authorities and their housing needs assessments and local plans, and about the need to have the homes that residents require now and into the future in the areas in which they live, work and educate their children. I welcome the Minister’s commitment to one-to-one replacement outside London. It is essential that the higher-value homes that are sold off to fund both the starter home discount and those sold under the right-to-buy extension are replaced in the same area, if at all possible. There will be occasions when this will not be possible or when the housing needs assessment does not indicate that replacements are needed but, wherever possible, they should be in the same area. There is very real concern that, in some areas, homes will be sold by housing associations in one area of the country and that replacements will be in another area completely, thus depriving one area of a much-needed asset. That is a very real threat, as housing associations merge to create larger organisations that cover a wide area of the country.
I tabled Amendment 3 to limit the negative impact of homes being replaced in the wrong area, by restricting replacements to the local plan areas. Most local plans have boundaries contiguous with the local authority boundaries, but this is not the case everywhere. Allowing local plan areas rather than local authority boundaries to be the limiting factor will, I hope, provide the flexibility to ensure a steady supply of homes for those who most need them. I welcome the Minister’s commitment to look at exclusions for rural areas besides AONBs and national parks.
On Amendment 6, I support the noble Lord, Lord Kerslake. It is essential that local authorities—whose budgets have been reduced year on year for some considerable time—are not expected to sell off their high-value homes and hand over the entire receipts to the Secretary of State. Local authorities should be able to fund the replacement homes from the proceeds of the sales less administrative costs, before making the necessary transfer of resources to the Secretary of State. Noble Lords will be aware that the Government’s intention with this Bill is not just to ensure an increased and steady supply of homes that are desperately needed, but to contribute to the Government’s budget deficit. When responding on 18 April to the debate on Clause 78, as it was then, on the introduction of mandatory rents for high-income local authority tenants, the Minister said:
“We will not be allowing local authorities to retain any money raised, however. The money has been identified as a contribution to reducing the national deficit and, on that basis, it must come back to government”.—[Official Report, 18/4/16; col. 452.]
While sympathising with the Government on their need to reduce the budget deficit, I am not prepared for this to happen at the expense of providing homes identified by local authorities as needed to accommodate residents in their areas. If the noble Lord, Lord Kerslake, wishes to divide the House on this issue, I will support him.
My Lords, I shall speak to Amendment 6, and I declare my interests as chair of Peabody and president of the Local Government Association. My other interests are listed in the register.
This is an amendment that, until 5 pm last night, I did not expect to be speaking to. We have, I fear, travelled a long way on this issue only to end up back at the same place. Amendment 6, as now drafted, formed part of my Amendment 64A, moved on Report on 13 April. It concerns the replacement of council house stock forced to be sold to fund the extension of the right-to-buy discounts to housing associations. The first part of that amendment, the so-called one-for-one provision, was agreed to be taken on by the Minister as drafted. This has been honoured and is reflected in government Amendment 2. I am grateful to the Minister for acting on it. The amendment is a crucial change and ensures that the Government’s manifesto commitment that every affordable property sold outside London would be replaced by at least one other affordable property is on the face of the Bill. I welcome that.
The second part of my amendment, however, was equally crucial. It provided that where a local authority so wished and could demonstrate need, it would be able to retain from the council house sale receipts the funding necessary to reprovide a house of a similar type to the one it had sold. So if a social-rented family house has been sold to fund the government levy, and there is a desperate need for such housing in its area, the council could retain the funding needed to build a new social-rented house. It would be its choice and a case would have to be made, but if it made the case the funding would be there. On this issue the Minister replied constructively, recognising the different needs of different areas. She said:
“I totally agree that in our dialogue with local communities, local authorities should be empowered to make the case for the right balance of housing in their area, and that there should be a strong expectation that the Government will listen”.
She went on to say,
“I am very happy to work with the noble Lord, Lord Kerslake, to give local authorities with particular … needs in their areas the opportunity to reach bespoke agreements with the Government about the delivery of different types of new homes in their areas”.—[Official Report, 13/4/16; col. 304.]
In the light of these assurances, I withdrew my amendment.
Since 21 April, constructive discussions have taken place with Ministers and their officials on the drafting of a new amendment. This discussion has taken place with the close involvement of the noble Lords, Lord Best and Lord Porter. As at lunchtime yesterday, I understood that we had reached agreement on the form of words for such an amendment. Sadly, when the amendments came through at 5 pm last night, that crucial part of the amendment was missing. In the circumstances, I felt that I had no option but to resubmit my original amendment, and I am enormously grateful to the Table Office for allowing me the time to do this beyond the normal time limit.
I should say at once that the Minister has acted with great integrity on this matter, as indeed she has on the whole of the Bill. The Secretary of State, Greg Clark, has been equally open and responsive, and I recognise that the time between Report and Third Reading has been short. I also suspect that the responsibility for this turn of events lies elsewhere in government. However, the simple fact is that we have only half an amendment from the Government, with the crucial issues of funding, local need and like-for-like replacement—not just one-for-one—not covered. I fear that this just will not do. It adds to what has been a difficult journey for the Bill in this House. What may look like a technical amendment goes to the heart of the concerns of local authorities and their communities about one of the most contentious parts of the Bill: the forced sale of higher-value properties, typically the larger properties in the most sought-after areas, to fund large discounts for housing association tenants with the wherewithal to buy. Local government is paying for a central government policy. Those most in need are denied the opportunity of a new home to rent when it becomes vacant. The only saving grace for local authorities was the prospect of replacement funding.
With the definition of affordable housing now so widely drawn, the Bill needs to provide specifically for the opportunity for new rented accommodation, affordable to those on low incomes. This is doubly so given the uncertainty as to whether the sums involved here actually add up. This issue was of such importance that the leaders of all the political parties at the Local Government Association wrote a letter to the Guardian, expressing their concern and supporting my original amendment. It is essential that this is addressed in the Bill and not through general ministerial assurances, welcome though those are.
My Lords, I will briefly contribute to the debate on this group of amendments. I am pleased that the Government have brought forward Amendment 2. As many of your Lordships will recognise, we have always felt strongly that it was likely in many places across the country that the need for additional housing was such that the desire of local authorities, the local development community and local people for that housing would mean that we would very much be looking for an agreement of this kind with the Government. I declare again my interest as chair of the Cambridgeshire Development Forum. Cambridge and the surrounding area is one of those places. So Amendment 2 seems to be very welcome.
Amendment 3, the amendment to Amendment 2, in the name of the noble Baroness, Lady Bakewell of Hardington Mandeville, would be very unwelcome. In Cambridgeshire we have a number of local plans, for East Cambridgeshire, South Cambridgeshire, Cambridge City, and many of these development sites cross the boundaries of two local authorities. The local authorities work closely together, but it would be very unwelcome for them to feel that the decisions that they were making and the agreements reached with the Government led directly to rigid and potentially distorting requirements about where the new homes could be built. At Trumpington Meadows, to the south of Cambridge, there is a new development with considerable demand. It would be great to have more affordable housing as the development is extended and we would want the City Council and South Cambridgeshire District Council to be able to support the new affordable housing through these kinds of agreements.
I simply did not understand the noble Baroness’s references to the revenue that is to be returned to the Government under Chapter 3 of this part, which is not relevant to the determinations and agreements under Chapter 2. That part of her speech was irrelevant to the question we are considering. This part is about liberating value in vacant high-value local authority housing, both to build more houses and to support the extension of right to buy to housing association tenants. It is not about funding the deficit.
We are debating the extent to which the Government allow local authorities to retain money that would otherwise be payable to support the right to buy for housing association tenants, in recognition of building houses, and that is under Chapter 2 of this part. If at the same time under this legislation separately under Chapter 3 they are returning money to the Government as a result of the rents for high-income social tenants, that is not about the business of funding right to buy for housing association tenants under this part; it is separate. Anyway, it is a digression.
I was not a party to the procedural discussions on Amendment 6 to which the noble Lord, Lord Kerslake, refers. As a participant in the debates in this House, it was always clear to me that the Government were viewing sympathetically and would bring back proposals on Third Reading for one-for-one replacement. I never understood my noble friends on the Front Bench to say that they would do so on a like-for-like basis. There is a distinction.
Leaving aside the processes concerned, the Government are quite right not to have brought back an amendment to mandate like-for-like replacement. They should not do so. The amendment of the noble Lord, Lord Kerslake, seems to me to be thoroughly defective, because it places in the hands of local authorities the decision whether or not there is an agreement with the Government. It does not give the Government any discretion in that matter—it says the Government “shall enter” into such an agreement. Placing a rigidity on the Government in this respect is wholly undesirable. It would remove the flexibility to replace one kind of tenure with another and the flexibility to respond to the demand for new affordable housing in an area in a way that matches the needs of that area. It would also remove from the Government the flexibility of whether to enter into an agreement with a local authority at all, which is a central part of the Bill.
I wonder whether the noble Lord, Lord Lansley, could help me. He makes the point that the Secretary of State would have no flexibility, but the amendment says:
“If a local housing authority so wishes, and that authority can demonstrate, whether by reference to its local housing plan or otherwise, that there is a need in its area for social housing of the kind that it proposes to build”.
That demonstration is presumably to the Secretary of State, so I do not see that the noble Lord’s point has any substance.
I am sorry but I do not agree with that at all. The amendment says, in so far as an authority,
“can demonstrate … that there is a need in its area for social housing of the kind that it proposes to build”.
I know from my experience in local authorities that there are many places across the country where there is a need for new affordable housing and a need for social housing. Many local authorities will be able to demonstrate that they could build social housing and that there is a need for it. I do not doubt that, but it does not necessarily mean that it would be right for the Government to enter into an agreement, at the instigation of the local authority and with no discretion on their part, to support it in building social housing for its purposes, as distinct from supporting the provision of other new affordable housing on a more flexible basis. That is what the legislation is designed to achieve.
I am grateful to the noble Lord. Is he therefore saying that the Government know better than the local authority what the local housing need is in its area, when the local authority has demonstrated a continuing need for social housing to replace that which is being sold?
No, I am saying that in many places there is a need for affordable housing. Local authorities may well be able to demonstrate a need for affordable housing with a range of tenures, including starter homes, which are included within the Bill’s provisions, but the local authority itself may choose in some circumstances to prioritise its own building of social housing over the needs of the community for other forms of affordable housing. I would not accept that: it is the responsibility of the Government to respond to the need for affordable housing in these areas.
I thank the noble Lord for giving way. I do not disagree with either of your Lordships, but they are dancing on the head of a pin. We are asking not for a type of tenure but for sufficient capital receipts to be retained to build a replacement home. A starter home will cost as much to build as a home for rent. Your Lordships do not need to be having this row and should just concentrate on the things we should be talking about. Let us move on.
We will move on, but I will just say to my noble friend that I do not think this is irrelevant. We should not build into the legislation, through Amendment 6, this rigidity of tenure and the character of affordable housing that should be funded by a reduction in the payment that local authorities would otherwise have to make.
My Lords, I thank the Minister for her ongoing efforts to give special consideration to housing in rural areas, on my behalf and that of the noble Lord, Lord Cameron of Dillington. We are both very confident that the final result will be a significant improvement on where we started.
I support Amendment 6, in the name of the noble Lord, Lord Kerslake. To bring a little more clarity to the issue, it might be worth recapping where we have come from. An influential policy paper from the think tank Policy Exchange suggested the compulsory sale of the most valuable council homes, when they fell vacant, to raise funds for building new affordable housing. Although local authorities do not like to be told how to run their affairs, if they were compelled to sell their best council housing, at least they would be able to recycle all the proceeds to boost new housebuilding, either by themselves or by supporting housing associations.
However, in the run-up to the last general election, a new policy was announced for housing association tenants to have the right to buy at big discounts. A significant problem with that plan was that, at a time of continuing austerity, several billion pounds would be needed to pay for those discounts—£4 billion to £5 billion, if the expected number of housing association tenants were to buy their properties. It was proposed that the proceeds from the compulsory sale of more expensive council properties should be used to cover the costs of those discounts. However, to allay fears that the compulsory sales policy would simply mean the loss of good-quality council homes that would all be sold on the open market to any buyer, a manifesto pledge was given that the sales proceeds would also fund the replacement of the sold properties with new,
“affordable housing on a one-for-one basis”.
That sounds rather too good to be true: billions would be found from compulsory sales to pay for the extended, new right to buy, and billions would also be found to replace the vacant council housing that is sold. If things sound too good to be true, they probably are. The hazard clearly identified by local authorities is that, to square this circle, the one-for-one replacement might not be remotely a like-for-like replacement. It might mean selling a three-bedroom, semi-detached suburban council house with a garden, previously let for a very reasonable rent, and replacing it with a one-bedroom starter home for sale—one for one, but not like for like. Sometimes replacing on a like-for-like basis would not be necessary, because local needs are for a product that is different from traditional council housing. Obviously, local authorities are best placed to know what their area needs. However, the Government are worried that if councils are always given the option, many will go for a truly like-for-like product, and then an awful lot of the proceeds from selling vacant council homes would be needed to pay for those replacement homes, leaving insufficient funds to cover the housing association right-to-buy discounts.
Some kind of compromise seems to be needed so that sales funds can be used for like-for-like replacement where that is patently needed—that is, principally in areas of intense demand for affordable, rented family homes—but with the Government having some chance of raising a significant contribution toward funding their right-to-buy discounts. As the Minister said,
“local authorities should be empowered to make the case for the right balance of housing in their area, and … there should be a strong expectation that the Government will listen”.—[Official Report, 13/4/16; col. 304.]
I found the discussions with the Minister on this to be helpful and constructive, as they have been throughout the progress of the Bill. However, nothing has appeared to that effect as a government amendment to the Bill, although the one-for-one amendment confirms the other manifesto pledge. Perhaps this is a matter of timing; if the amendment before us is not acceptable, a government amendment in the other place may take care of the matter. As things stand, the reassurances on Report, which led the noble lord, Lord Kerslake, to withdraw this amendment, have not been translated into any change to the Bill.
As Cross-Benchers, those of us concerned to improve legislation have no desire to score points and would much prefer to reach agreement with Ministers than win votes, because there is always the strong possibility that a vote is won but the amendment is overturned in the other place. Putting an issue to the vote, though, is the only course available when we run out of road in negotiations. At least that can keep alive the possibility of a change to the Bill; and a change really is important. Otherwise, there will be a significant loss of affordable homes when the finest council housing falls vacant and would have been re-let to a family in very serious need, but will now be sold off to the highest bidder, with no comparable replacement for that precious asset. That would be a terrible outcome. I support the amendment.
My Lords, now that we are at Third Reading, I declare my vice-presidency of the Local Government Association. I support Amendment 6, the case for which has been so well put by the noble Lords, Lord Kerslake and Lord Best, and the noble Baroness, Lady Bakewell of Hardington Mandeville. The noble Lord, Lord Kerslake, said that Amendment 6 goes to the heart of the issues in the Bill. I agree entirely. The amendment contains a crucial matter of principle about the need to have social homes built for rent. It is a reasonable and important amendment.
Government Amendment 2 reminds us:
“Where the agreement is with a local housing authority outside Greater London, it must include terms and conditions requiring the authority to ensure that at least one new affordable home is provided for each old dwelling”.
As we pointed out during earlier stages of the Bill, the terms of that amendment could be met by building starter homes for sale rather than social homes for rent, since in Clause 158 the Bill amends the definition of “affordable homes” to include starter homes for sale. That is why we should support Amendment 6: because it would make it clear in the Bill that a replacement home should be let as social housing on terms similar to those on which the old dwelling was let, where there is a demonstrated need.
Given that many households now renting could never aspire to a starter home even with a 20% discount, we really have an obligation to protect the needs of low-income households by ensuring a new supply of social homes for rent. The amendment from the noble Lord, Lord Kerslake, would do that, while the Government’s Amendment 2 on its own does not. If the noble Lord is minded to test the opinion of the House, he therefore should be supported in that.
I noted that in opening the debate on this group of amendments the Minister used a particular phrase: I think she said that the Government could not accept Amendment 6 “at this stage”. I noticed those three words and wondered at which stage the Government might decide that they could accept the amendment or something extremely close to it. I hope the Minister might explain that to us.
Lastly, the noble Lord, Lord Best, has quoted from the Conservative Party’s manifesto. I remind the Minister that another part of that manifesto states that the party would require,
“local authorities to manage their housing assets more efficiently, with the most expensive properties sold off and replaced as they fall vacant”.
The implication of that to a neutral reader is that they are going to be replaced with something very similar. Replacing them with starter homes with a 20% discount for owner-occupation—that is now in Clause 158 as part of the definition of “affordable housing”—seems to miss the crucial point that there is a crying need to build social homes for rent in this country. I wonder whether the Minister understands that. If the blockage here lies with the Treasury, I hope very much that your Lordships can demonstrate a deep strength of feeling on this issue. Otherwise, those who depend upon renting are going to find it increasingly difficult to rent at levels they can afford.
My Lords, if noble Lords will excuse me, I have a note here because I intend to quote a few people and I do not want to get any of the quotes wrong. Before I start, I refer noble Lords to my interests in the register. Specifically, I am the leader of South Holland district council and the chairman of the Local Government Association.
I am not going to support the amendment tabled by my noble friend Lord Kerslake, as I said last time, because it restricts some of what I would like to see in the Bill, and I cannot support the noble Baroness’s amendment because, again, it restricts something that we are doing. Noble Lords may not know this but we are in negotiation with the Government to allow the capital receipts from right-to-buy sales of our own properties to be spent across more than just our own area, and I would like the flexibility of being able to spend the money that we retain across other areas if that is how we, as local government, determine that it would best be used. That could be on the basis of interest-free loans to our friends next door who might not necessarily be in the same housing market area. For that reason I think that it is restrictive and I cannot support it.
It is worth pointing out that we have had this Bill for about a month now and it is better than when we started. If we had it for about two years it would probably be perfect. But we have not got two years and I have already been told to speed up so I am going to speed up a little bit—but not completely.
The Minister confirmed last week that we would be sticking to our manifesto commitment about how we dealt with the capital receipts from these buildings and I said last week that I would probably offer to sell all of the council homes that I have in South Holland on the basis that the capital receipts would be greater than the sum of money that I would need to be able to replace those units and therefore I would be able to put money towards the Government’s noble aim of freeing up social mobility and allowing more people to buy their own property and at the same time replace my own housing stock, most of which was built between the 1930s and the 1950s, with brand-new units and therefore save my housing revenue account money.
I am not going to read all this now. I was going to read what the Prime Minister said but noble Lords will all have read our manifesto, which is really good. People voted for it so we are going to stick to it, which is what we said we were going to do. That is why I disagreed with my noble friend Lord Lansley and the noble Baroness, who argued about the tenure. The tenure is not important; the important part of this is that the Government allow councils to keep sufficient capital receipts to build replacement units.
The tenure needs to be decided locally: whether we need rented units or starter homes. In South Holland I would do a mixture because if I build starter homes I will keep all the capital receipts when I sell them. A starter home built for £80,000 and sold for £110,000 will increase the sum of money that I have to build more council houses. Noble Lords probably will not know this but South Holland got back into building council houses in 2006 when the party opposite was in charge of the Government and the noble Lord, Lord Prescott, who is not in his place, issued a challenge to build those homes. So I am pro-council housing but I am also pro-social mobility and the only part of this discussion that I do not like is the fact that the capital receipts are going to go to RSLs. I begrudge giving any of that money away but it is clear that the Government are not going to give way on that, so I am not going to keep banging on about it.
Let us not lose sight of the fact that this is not going to be about us selling high-value homes; it is about a new form of levy being put on councils with council stock. All I want is for us to be able to minimise the size of that levy and maximise the amount of capital we have to spend in our own areas. Neither of the amendments tabled do that. The Government have a clear manifesto commitment to do something about it and I am prepared to challenge them to make sure that at some point, when we do this ping-pong thing that I am not yet familiar with, the Bill comes back even better than it currently is. I am sure the noble Lord, Lord Kerslake, will press his amendment to a Division and I will be going through on the Government’s side.
My Lords, the substance of the noble Lord’s speech, based on his very real experience of South Holland, is that he wants the flexibility, once all of his 1,500 houses are sold, to determine himself whether they become starter homes or homes for social rent—that he determines that, not the Government. That is what this amendment is asking for. Therefore, I hope that he will join us in our Lobby if the noble Lord presses it to the vote.
I have already made it clear that I will not because the amendment goes beyond that and becomes too restrictive because of the way that it is worded. I have made it clear several times that if any amendment restricts the flexibility of a council to operate in the best interests of its own community, I will not support it.
Perhaps I may add a third Conservative variant to the two that we have already had. The noble Lord, Lord Shipley, absolutely put his finger on the issue that we must not forget in all of this, which is social housing for rent. This is the fundamental point, among all the others, on which we have to focus in these amendments.
To illuminate that, perhaps I may give the House some facts, as opposed to words where one is dancing on the head of a pin, as my noble friend Lord Porter said. The Government’s own figures for housebuilding in the last financial year show that in 2014-15 in the UK we built 152,440 houses. That is quite a big figure and it goes some way towards the 200,000 which the Government want to reach, so that is good. The bad side is that, of that number, only 2,510 were council houses—an appalling figure in the light of the history of council housing in this country—and, of those, only 1,360 were in England.
Not only that but—this is the whole point of the debate—some of those houses are being sold off under the enhanced right-to-buy provisions that are already in place. As a former London MP, I went round London looking at the houses sold in each London borough and calculated that last year 3,805 council houses were sold off. So we are losing council houses, which are predominantly social houses for rent, in London and no doubt in other places in the country.
The National Audit Office also looked at whether the Government are replacing lost council housing. The Government maintain that they are but unfortunately the NAO questioned their statistical methods and made the point that the Government have to increase social housing for rent by a factor of five to replace that which is currently being lost under the right to buy. Therefore, it seems to me that the amendment of the noble Lord, Lord Kerslake, has considerable merit because it tries to get an element of replacing like for like into the broad mix.
I congratulate the Government on giving a huge boost to housing in this country. Their plans are admirable, and my noble friend Lady Williams has been noticeably listening. But I do think that the amendment of the noble Lord, Lord Kerslake, has greater merit. Even if, in these last few hours, the amendment that he has tabled is not quite right and is considered too restrictive in some respects, as my noble friend Lord Lansley said, surely in the toing and froing between the two Chambers a sensible amendment that deals with this point, which has been discussed at length, can be put down to satisfy all sides of the House.
My Lords, I generally welcome the amendments in this group. There has been a good debate but I am disappointed that the Government, having heard today’s debate and those during the course of the Bill, are not able to accept the amendments in the names of the noble Baroness, Lady Bakewell, and the noble Lord, Lord Kerslake.
However, Amendment 2, in the name of the noble Baroness, Lady Williams of Trafford, is very welcome. It puts on the face of the Bill that one new affordable home will be provided for each old dwelling that is sold. That is very good and I thank the noble Baroness for it very much.
We on these Benches fully support the amendment in the name of the noble Lord, Lord Kerslake. It would put in the Bill a provision whereby, if a local authority can demonstrate to the satisfaction of the Secretary of State that it needs to provide new social housing locally, it can retain the funds to do that. I do not disagree with the noble Lord, Lord Lansley, about the words “can demonstrate”. I think it is for the Secretary of State to make the decision; it is not a matter for the local authority. The amendment certainly gives the Government the power to look at that and, if they are not satisfied, they will not go ahead. So I do not see why the amendment cannot be accepted.
It is disappointing that the discussions over the last few days have not been fruitful. I agree very much with the comments of the noble Lords, Lord Porter and Lord Horam, and I hope that, by supporting this amendment, we can impress upon the Government how strong the feeling is in this House. As the noble Lord, Lord Horam, said, perhaps we can find an amendment during ping-pong next week that all sides can agree on.
My Lords, I thank the noble Lord, Lord Kerslake, and the noble Baroness, Lady Bakewell, for their amendments, both of which relate to agreements with local authorities in respect of the delivery of new homes. The powerful points that have been made in your Lordships’ House today show just how important this issue is.
I turn first to Amendment 6 from the noble Lord, Lord Kerslake. I am grateful to him for working with me over the past few days on the issue of additional homes. I hope that he will agree that in our discussions we were clear that the agreement process was the best way to ensure that new housing is built using these receipts, giving local authorities the ability to build additional homes to suit their local communities—I press that point quite firmly. As I said earlier and on Report, we intend to give authorities with particular housing needs in their area the opportunity to reach bespoke agreements about the delivery of different types of new homes. Responding to the diverse housing needs in this country is at the heart of the Government’s drive for localism. The Government’s aim is to support this through agreements, taking into account other normal considerations of funding such as value for money and delivery plans.
Amendment 6 focuses on social housing. This regresses to the discussion that we have been having on developing the agreement process to acknowledge the potential desire for many different types of housing that would best meet local housing need, and it is not in line with the commitments that I made in Committee and on Report.
Amendment 3 from the noble Baroness, Lady Bakewell, would require new housing delivered under these agreements to be within the same local plan area. I understand the concern that the noble Baroness is seeking to address—that new homes should be reasonably local to those that were sold. However, in my view the best way to address this is for local authorities to decide where the new homes should be delivered, as part of the agreement process. This could be within the local authority’s boundaries or it could involve working with a neighbouring authority to deliver homes across boundaries, as my noble friend Lord Lansley says. This enables a local approach to decide where the new homes should be. This co-operation may be important particularly in places where there is less available land, and flexibility is needed for local authorities and partners to deliver the new homes that they need. Through our engagement, local authorities have been very clear that they are looking for this flexibility, and it is important that we do not put an additional barrier in the way.
Rather than restrict flexibility at the local level, the Government want to allow local authorities the opportunity to work with neighbouring authorities to build new homes, as they already do on a number of developments. Many local authorities already own housing outside their own boundaries, and many are working together across areas such as mine in Greater Manchester—where 10 local authorities are working together—or Oxford or Cambridge, as my noble friend Lord Lansley says. As my noble friend Lord Carrington of Fulham said in Committee, the location of new housing should not be imposed in the Bill. The amendment would be unnecessarily restrictive because it predetermines the type and tenure of the housing, as my noble friend Lord Lansley says, and it removes the ability of local authorities to work together to find the most appropriate solution for their area.
The noble Baroness, Lady Bakewell, raised the issue of receipts from the sale of high-value assets, and she quoted from our proceedings on Report; I think that she was speaking about the high-income social tenants policy. On Report, I recall making it clear that receipts from the sale of higher-value vacant houses will be used only to fund voluntary right to buy and the provision of new homes. Where a local authority enters into an agreement with the Secretary of State to retain a portion of the receipts to build new homes, where the authority does not enter into an agreement, those receipts will be returned to the Government and will be used to build new homes. I hope that clarifies things for noble Lords this afternoon.
We need to build new homes in this country, and these amendments would limit the ability of the Government to ensure that they are delivered. Therefore, I hope that the noble Baroness and the noble Lord will not press their amendments.
My Lords, I thank the Minister for her comprehensive response and thank other noble Lords who took part in this debate. I am aware that local plan areas are not necessarily as neat and tidy in other areas of the country as they appear to be in my area. I have also been influenced by my noble friend Lord Shipley, who tells me that in Newcastle the division between two local plan areas runs down the middle of one street. I can imagine that this causes a great deal of hassle and complication for those involved. I am committed to local authorities having flexibility on all housing matters and I am reassured by the Minister’s comments. On that basis, I beg leave to withdraw Amendment 3.
Amendment 3 (to Amendment 2) withdrawn.
Amendment 2 agreed.
Amendments 4 and 5
4: Clause 73, page 33, line 20, leave out “require” and insert “include terms and conditions requiring”
5: Clause 73, page 33, line 24, after “responsible” insert “by terms and conditions”
Amendments 4 and 5 agreed.
6: Clause 73, page 33, line 25, at end insert —
“( ) If a local housing authority so wishes, and that authority can demonstrate, whether by reference to its local housing plan or otherwise, that there is a need in its area for social housing of the kind that it proposes to build, the Secretary of State shall enter into an agreement with that authority whereby it shall retain such part of the payment as may be required to fund the provision of a new dwelling to be let as social housing on terms (as to tenure, rent or otherwise) which are similar to those on which the old dwelling was let.”
My Lords, I am grateful for the wide-ranging contributions on this amendment, which have been heartfelt and informed. I am also grateful to the Minister for her response. There are many areas where we are in complete agreement, such as the importance of one for one and the need for local arrangements to suit local need.
But there is one crucial issue on which we are not in agreement, which is the need for a safeguard within the Bill for a local authority that seeks to replace a social rented property that has been sold with a new social rented property. The noble Lord, Lord Horam, captured the point perfectly. It absolutely does not impair flexibility, because it will be where the local authority so wishes and where a case can be made by the local authority. So this would be a sensible and important safeguard in the Bill to address a deep, wide-ranging concern across the whole of local government and local communities. In the circumstances, notwithstanding huge efforts and my support for my noble friend Lord Best’s arguments about compromise, we have failed to find the right formula here this time. Regretfully, therefore, I would like to test the opinion of the House on this issue.
7: Clause 73, page 33, line 26, after “subsection” insert “(3) or”
Amendment 7 agreed.
Clause 80: Meaning of “high income” etc
8: Clause 80, page 36, line 28, at end insert—
“( ) make provision for the level of household income, for the purposes of defining “high income”, to be increased every three years to reflect any increase in the consumer price index.”
My noble friend is anticipating the result, I hope correctly. This amendment deals with one aspect of the pay-to-stay provisions which have been very controversial. I shall reiterate briefly that the rationale for the provisions is based on a myth; namely, that council housing in particular is subsidised and therefore people with what is regarded as a high income are being subsidised by the taxpayer. In fact, of course, the housing revenue accounts of councils are not subsidised. Councils are obliged to balance the books and do so through the rent system. Paradoxically, however, what we may find under the pay-to-stay provisions is that the so-called high-income residents will be subsidising the taxpayer, rather than the other way round, because the money raised from the increase to be applied will go to the Treasury.
In a useful discussion with the Secretary of State and the Minister, I suggested that at the very least there should be some indexation of the income levels to reflect the increases which one anticipates will continue to take place in the consumer prices index. The amendment seeks to provide that this could take place on the basis of a triennial review to update the levels by the rise, if there is one, in CPI. That seems reasonable and the Secretary of State thought so too. I had hoped that the Government might come forward with an amendment, but they have not done so. I assume, however, that their view has not changed and I trust that the noble Baroness will—
I chose the CPI because it is generally the Government’s preferred option. I thought it might be pushing the boat out a little too far to go for RPI. However, if the amendment is carried, I hope very much that the noble Lord will have a word with his colleagues in the other place and improve on it in the way he suggests. I would be perfectly happy with that outcome and I suspect he is more likely to persuade them than I am. I beg to move the amendment as it stands at this point.
My Lords, I support Amendment 8 because I have still not been given a satisfactory explanation for why the thresholds have been reduced from those that were used in the voluntary scheme. There is no evidence base for that. However, my main reason for speaking now is to seek clarification on a point raised by the Minister on Report and to reiterate a concern that I have raised all along.
Twice on Report, at cols. 470 and 472 on 18 April, the Minister said that tax credits, child benefit and disability living allowance would not be taken into account as income. That is welcome, but as she knows, DLA is gradually being replaced by the personal independence payment and only those who are currently of retirement age will continue to receive DLA in the long term. Can she confirm that PIP will also be excluded, because otherwise the commitment to disregard DLA is not worth very much? She also made it clear that other exemptions would be made in the regulations and kindly referred to the case I made with regard to those with caring responsibilities and people who are subject to domestic violence. Is she yet able to say, first, whether carer’s allowance will be exempt under the regulations and, secondly, what provision will be made to protect those whose accommodation has been adapted, either for reasons of accessibility or under the domestic violence sanctuary scheme?
My Lords, I thank the noble Lord for the amendment and, if I may, I will turn to the point made by the noble Baroness, Lady Lister, about the commitments I made on Report. We have confirmed that a taper will be in place. Our preferred approach is for a taper of 20%, although clearly noble Lords disagreed and have decided to include a taper of 10%. I do not want to say any more about that today, but I am sure we will return to the operation of the taper in due course.
I said that our preferred income thresholds were £31,000 nationally and £40,000 in London. Again, noble Lords disagreed and this is another area where we will need to agree to disagree at this point in the Bill. I can confirm that the definition of income for the purposes of the policy will be taxable income, which means that certain state benefits would not count when a household is determining what income to declare. DLA and tax credits will not need to be included. The definition of a household will be the tenant, joint tenants and their spouses, partners and civil partners. This will ensure that non-dependent children living at home who are not a joint tenant will not have their income counted for the purposes of determining the rent payable. Finally, I confirmed that anyone in receipt of housing benefit and universal credit will not pay any additional rent. This is important as it will protect those most in need and ensure that state resources are not used to fund the increase in rent.
The noble Baroness asked whether PIP would be exempt, and I can confirm that it will be. She also talked about victims of domestic violence, to whom I am very committed. That would be one of the considerations that I have committed to dealing with in regulations. I hope that that gives her comfort about my intentions.
I think I said at an earlier stage that I want to work through all these issues in regulations to ensure that we do not miss anything out as the result of unintended consequences. There are groups of people that we will want to include, and I commit to working with the noble Baroness on those exclusions in due course.
I turn now to the proposal for an increase in the income thresholds based on CPI. I have previously committed to ensuring that the policy is developed fairly and that in particular it protects those on the national living wage. Uprating the thresholds by the CPI may help us to achieve that aim as it would ensure that the thresholds rise as the living wage does. Therefore, I ask the noble Lord to withdraw the amendment as it stands because that will ensure that further work can go on and all the options on this issue are undertaken.
I am sorry, but I am at a loss to understand quite where the Minister stands on this. It is a perfectly simple proposition. She seems sympathetic to it, as indeed the Secretary of State was in our discussions, yet no conclusion seems to have been reached. I think we ought to send a signal to the other end—possibly, with the help of the noble Lord, Lord Lansley, even improving the provision when it gets there. We ought to make our position clear, and I wish to test the opinion of the House.
Clause 115: Interpretation of Chapter
9: Clause 115, page 53, line 39, leave out “means the objectives in” and insert “is to be read in accordance with”
Amendment 9 agreed.
Clause 150: Permission in principle for development of land
10: Clause 150, page 77, line 27, leave out from beginning to end of line 6 on page 78 and insert—
“(4) Permission in principle granted by a development order takes effect—(a) when the qualifying document takes effect, if the land in question is allocated for development in the document at that time;(b) otherwise, when the qualifying document is revised so that the land in question is allocated for development.But a development order may provide that, if the local planning authority so directs, permission in principle does not take effect until the date specified by the local planning authority in the direction.(5) For the purposes of subsection (4)(a)—(a) a register maintained in pursuance of regulations under section 14A of the 2004 Act takes effect when it is first published;(b) a development plan document takes effect when it is adopted or approved under Part 2 of the 2004 Act;(c) a neighbourhood development plan takes effect when it is made by the local planning authority.(6) Permission in principle granted by a development order is not brought to an end by the qualifying document ceasing to have effect or being revised.(7) Permission in principle granted by a development order ceases to have effect on the expiration of—(a) five years beginning with the date on which it takes effect; or(b) such other period (whether longer or shorter) beginning with that date as the local planning authority may direct.(8) Permission in principle granted by a local planning authority ceases to have effect on the expiration of—(a) three years beginning with the date on which it takes effect; or(b) such other period (whether longer or shorter) beginning with that date as the local planning authority may direct.(9) The Secretary of State may by regulations amend subsection (7)(a) or (8)(a) by substituting a shorter period for the period for the time being specified there. (10) A development order—(a) may make provision in relation to an application for planning permission for development of land in respect of which permission in principle has been granted;(b) may require the local planning authority to prepare, maintain and publish a register containing prescribed information as to permissions in principle granted by a development order.(11) In exercising a power of direction conferred by virtue of subsection (4), or conferred by subsection (7)(b) or (8)(b), a local planning authority must have regard to the provisions of the development plan and any other material considerations.(12) In exercising any other function exercisable by virtue of this section, or in exercising any function in relation to an application for planning permission for development of land in respect of which permission in principle has been granted, a local planning authority must have regard to any guidance issued by the Secretary of State.(13) In relation to an application for permission in principle which under any provision of this Part is made to, or determined by, the Secretary of State instead of the local planning authority, a reference in subsection (1) or (8) to a local planning authority has effect (as necessary) as a reference to the Secretary of State.””
My Lords, during discussion on this measure on Report, I agreed that I would reflect on the comments of the noble Lord, Lord Beecham, as well as those made by the Delegated Powers and Regulatory Reform Committee in its 28th report. I am pleased to return with our new government Amendments 10 and 11 that set how long permission in principle can be granted for on the face of the Bill. Unless local authorities choose to vary these locally, these are now five years in the case of permission in principle granted through locally prepared plans and registers and three years for permission in principle granted on application to a local authority.
The amendment will also enable the Government to reduce these timeframes in the future through secondary legislation made by affirmative procedure. This is an approach suggested by the DPRRC and I hope noble Lords agree that it will strike a good balance between allowing some flexibility to change the timings for permission in principle while still ensuring appropriate parliamentary scrutiny.
In addition, Amendment 10 returns with some features of our previous government amendment. It still enables local authorities to vary the start date of permission in principle granted through plans and registers to give great flexibility to better align with the planned delivery of sites. The amendment still also extends our statutory guidance power to enable the Secretary of State to issue guidance on how local authorities should handle the technical details consent process. This will help make all aspects of the permission in principle system accessible to all users. I hope noble Lords will agree that this amendment demonstrates that we have listened to views raised on the timeframes of permission in principle.
I place on record my thanks to the noble Lords, Lord Kennedy and Lord Beecham, for working with me on a draft of this amendment. I hope that they are now supportive of the approach we are taking. I therefore beg to move.
Amendment 10 agreed.
11: Clause 150, page 78, line 34, at end insert—
“( ) In section 333 of that Act (regulations and orders), after subsection (3) insert—“(3ZA) No regulations may be made under section 59A(9) unless a draft of the instrument containing the regulations has been laid before, and approved by a resolution of, each House of Parliament.””
Amendment 11 agreed.
Clause 154: Planning freedoms: right for local areas to request alterations to planning system
12: Clause 154, page 81, line 11, after “area” insert “in England”
Amendment 12 agreed.
Clause 181: Confirmation by inspector
13: Clause 181, page 97, line 38, leave out subsection (4)
Amendment 13 agreed.
Clause 196: Interest on advance payments of compensation
14: Clause 196, page 108, line 2, leave out “end of the period mentioned in section 52(4)” and insert “last day on which payment could have been made in accordance with section 52(4) or (4ZA)”
Amendment 14 agreed.
Clause 214: Regulations: general
15: Clause 214, page 121, line 1, after “section” insert “68(8),”
Amendment 15 agreed.
Schedule 7: Secure tenancies etc: phasing out of tenancies for life
16: Schedule 7, page 149, line 35, at end insert—
“(dd) introductory tenancies of dwellings in England granted on or after the day on which paragraph 4 of Schedule 7 to the Housing and Planning Act 2016 comes fully into force;”
My Lords, we now turn to Amendments 16 to 32, which respond to commitments I gave on Report to bring forward amendments that would enable local authorities to grant longer-term tenancies in certain circumstances.
Before speaking to the amendments, it may be helpful to remind noble Lords that the Government’s aim with these provisions is to assist local authorities to get the most out of their social housing and to help the 1.24 million households on housing waiting lists by ensuring that it is firmly focused on those who need it the most for as long as they need it. That is why we want to ensure that local authorities carry out regular reviews of a tenant’s household circumstances so that tenants can be moved into more appropriate housing as their needs change over time, or supported into home ownership where this is a viable option. However, we recognise that there may be situations in which it makes sense to offer longer-term tenancies.
These amendments will give local authorities discretion to offer tenancies of up to 10 years in length, and potentially longer for families with children, to which I shall return. The amendments include a power for the Government to issue statutory guidance to which local authorities must have regard. This means there will be clear expectations on what the local authority should consider when making these decisions, and they can be held to account if they fail to follow the guidance. We will use the guidance to set out the circumstances in which we expect local authorities to issue shorter-term tenancies and the circumstances in which they may exercise their discretion to offer longer-term tenancies. This will enable councils to consider appropriate provision for households where there is someone with a disability or a long-term illness, older people, and those who provide long-term care for a person in this situation. This will help local authorities to get the best use out of accommodation which has been adapted and give those with longer-term needs a sense of stability. We will work with local authorities in developing the guidance and we will ensure that noble Lords have an opportunity to consider it before it is finalised.
As I have said, the amendments also enable local authorities to grant tenancies to cover the period that a child is in school. We have listened carefully to the debate on this issue. We absolutely agree that it is important that children are brought up in a stable environment and recognise that frequent moves can be disruptive to a child’s education. To keep this relatively simple for local authorities, the amendment provides that where a local authority is notified that a child lives in the household, they may provide a tenancy with a fixed term that lasts until the child turns 19. This will allow local authorities to ensure that the relevant child has completed secondary education.
The amendments also make consequential changes to allow landlords to continue to operate an introductory tenancy regime in relation to longer fixed-term tenancies and make necessary changes to the legislation governing demoted tenancies and family intervention tenancies to deliver the policy.
We have listened carefully to the debate and hope that the changes I have set out will be welcomed. With this, I beg to move.
I welcome what the Minister has said. It is an improvement on the Bill when first published. I repeat that I think it is a matter for the local housing authority to have the discretion to make decisions—I suppose that the Localism Act, as it stands, is probably adequate. However, given that the Government are keen to see changes, I acknowledge that the amendments here are a marked improvement on the original Bill, because of the extension from five to 10 years and, of course, longer where there are children and young people under the age of 19. I thank the Minister for the flexibility that the Government are showing. Section 86A of Schedule 7 makes it clear that this change does not impact current secure tenancies and that a new secure tenancy of a dwelling house can be offered to a tenant at the end of the current tenancy, so in that respect the power to grant a further secure tenancy lies with the local authority. Although I would have preferred no change at all, what we have now is better than what we had a few weeks ago and I thank the Minister for that.
My Lords, I welcome the amendment and what the noble Baroness has said. I have two brief but related points. First, on reading Hansard, I realised that I never formally said thank you on the record for the concession that was made on Report with regard to those who give up a secure tenancy because of domestic violence—I am pleased to do so now. I also suggest that, when the work is done to put this into regulations, the department works with organisations, such as Women’s Aid and, particularly, Solace Women’s Aid, whose research I drew on heavily in drafting my amendment. I think that they can give insight into how this works on the ground.
Secondly—I am sorry to sound like a broken record—I have still not received the frequently promised equality statement on this clause, despite the noble Baroness’s promise in col. 512 of Hansard to come back to me on it as soon as possible. I raise this now only because it raises questions about the status of equality statements. It suggests that they are being treated as an add-on rather than integral to the policy process, as they are supposed to be. I suggest that the department may want to reflect on how it treats equality statements.
My Lords, I thank the Minister for taking on board the concerns that we raised on Report and I am pleased to see that the need for security for families has been recognised, to a certain degree. I must admit to still being a little disappointed as I am not sure what the point is of a 19-year tenancy. If a child is one and can stay until they are 19, and then the family does what families do and has a second child, does it mean that a new 19-year period starts? When they then have the inevitable third child—as people are surely prone to, if the average is 2.2—does a successive 19-year period start, so that the people will probably live there for around 30 years anyway before a council will look to remove them? On that basis, I am not sure that we will add to the additional supply of houses. A fixed-term period that is not for life when a family lives there is silly, as the family will not invest in the house, the garden or the community. Although the Government have moved a heck of a long way, I am still disappointed that we have not done what we should have done, which is to exclude families from this altogether.
My Lords, I thank the noble Baroness for her comments and for moving this amendment. As other noble Lords have said, this has come a long way and we welcome that, but in some ways it has not gone far enough. I thank the Government and noble Baroness for what she has proposed today. It would be helpful when the noble Baroness responds if she can repeat her remarks about disabled people and elderly people. I think I was distracted and did not quite hear what she said.
I said that this would enable councils to consider appropriate provision for households where there is someone with a disability or a long-term illness, older people and those who provide long-term care for a person in this situation.
I barely dare say to the noble Baroness, Lady Lister, that I understand the equality impact assessment will be available in due course. I hope that she does not have to return and quote the promise again when we come back to this. We will reflect on her comments. As I say, I am sorry—that is all I can say at this stage.
Amendment 16 agreed.
Amendments 17 to 32
17: Schedule 7, page 150, line 1, leave out “place” and insert “places”
18: Schedule 7, page 150, line 1, at end insert—
“““introductory tenancy” has the same meaning as in Chapter 1 of Part 5 of the Housing Act 1996;””
19: Schedule 7, page 150, line 12, leave out “5” and insert “10”
20: Schedule 7, page 150, leave out line 16 and insert—
“(b) no longer than the permitted maximum length.”
21: Schedule 7, page 150, line 16, at end insert—
“(1A) The permitted maximum length is 10 years, unless subsection (1B) applies.(1B) If the person granting the tenancy has been notified in writing that a child aged under 9 will live in the dwelling-house, the permitted maximum length is the period—(a) beginning with the day on which the tenancy is granted, and(b) ending with the day on which the child will reach the age of 19.”
22: Schedule 7, page 150, line 18, at end insert—
“( ) In deciding what length of tenancy to grant in a case to which this section applies a person must have regard to any guidance given by the Secretary of State.”
23: Schedule 7, page 159, line 2, leave out “less than 2 or more than 5 years” and insert “—
(a) less than 2 years, or(b) more than the permitted maximum length.”
24: Schedule 7, page 159, line 2, at end insert—
“(2BA) The permitted maximum length is 10 years, unless sub-paragraph (2BB) applies.(2BB) If the landlord has been notified in writing that a child aged under 9 will live in the dwelling-house, the permitted maximum length is the period—(a) beginning with the day on which the tenancy becomes a secure tenancy, and (b) ending with the day on which the child will reach the age of 19.(2BC) In deciding what length to specify in a notice under sub-paragraph (2A)(a) the landlord must have regard to any guidance given by the Secretary of State.”
25: Schedule 7, page 159, line 8, at end insert—
“Landlord and Tenant Act 1985 (c. 70)
17A(1) Section 13 of the Landlord and Tenant Act 1985 is amended as follows._(2) After subsection (1A) insert—“(1AB) Section 11 also applies to a lease of a dwelling-house in England which is an introductory tenancy for a fixed term of seven years or more granted on or after the day on which paragraph 4 of Schedule 7 to the Housing and Planning Act 2016 comes fully into force.”_(3) In subsection (1B)—(a) for “In subsection (1A)” substitute “In this section”, and(b) after the definition of “assured tenancy” insert—““introductory tenancy” has the same meaning as in Chapter 1 of Part 5 of the Housing Act 1996;”.”
26: Schedule 7, page 159, leave out line 41 and insert—
“(b) no longer than the permitted maximum length.”
27: Schedule 7, page 159, line 41, at end insert—
“(1A) The permitted maximum length is 10 years, unless subsection (1B) applies.(1B) If the person entering into the tenancy has been notified in writing that a child aged under 9 will live in the dwelling-house, the permitted maximum length is the period—(a) beginning with the day on which the tenancy is entered into, and(b) ending with the day on which the child will reach the age of 19.”
28: Schedule 7, page 160, line 3, at end insert—
“( ) In deciding what length of tenancy to enter into in a case to which subsection (1) applies, the local housing authority or housing action trust must have regard to any guidance given by the Secretary of State.”
29: Schedule 7, page 162, line 20, leave out “more than five years” and insert “longer than the permitted maximum length”
30: Schedule 7, page 162, line 21, at end insert—
“(3B) The permitted maximum length is 10 years, unless subsection (3C) applies.(3C) If the landlord has been notified in writing that a child aged under 9 will live in the dwelling-house, the permitted maximum length is the period—(a) beginning with the day on which the tenancy becomes a secure tenancy, and(b) ending with the day on which the child will reach the age of 19.(3D) In deciding what length to specify in a notice under paragraph (3)(b) the landlord must have regard to any guidance given by the Secretary of State.”
31: Schedule 7, page 162, line 40, leave out “the definition of “flexible tenancy” in subsection (1),” and insert “in subsection (1)—
(a) in the definition of “flexible tenancy”,”
32: Schedule 7, page 162, line 42, at end insert—
“(b) in the definition of “relevant social housing tenancy”, after paragraph (a) (but before the “or” at the end) insert— “(a) a secure tenancy of a dwelling-house in England granted on or after the day on which paragraph 4 of Schedule 7 to the Housing and Planning Act 2016 comes fully into force,“(ab) an introductory tenancy of a dwelling-house in England granted on or after the day on which paragraph 4 of Schedule 7 to the Housing and Planning Act 2016 comes fully into force,”;(c) at the appropriate places insert—““introductory tenancy” has the same meaning as in Chapter 1 of Part 5 of the Housing Act 1996;”;““secure tenancy” has the meaning given by section 79 of the Housing Act 1985;”.”
Amendments 17 to 32 agreed.
My Lords, I place on record my thanks to my noble friends Lord Younger, Lady Evans and Lord Bridges. It has not been the shortest or the least complex of Bills and I have greatly appreciated their help. I have also greatly appreciated the help and good humour—well, not necessarily the help but certainly the good humour—of the noble Lords, Lord Beecham and Lord Kennedy, the noble Baroness, Lady Bakewell, and indeed other noble Lords who are not in their places at this moment. I also thank noble Lords for bearing with us on the sheer number of amendments that we have dealt with, which have seemed so many at some points that we have almost lost track—excuse me, my Lords, I think I am suddenly losing my voice at a terrible time. I also pay tribute to the work of my officials and parliamentary counsel, many of whom have become known to noble Lords during the passage of this Bill.
I fear that this is not the last time that I will appear at this Dispatch Box on this subject, but I hope that the discussions in the other place will be on the whole as amicable as those in this House have been. On that note, I beg to move.
My Lords, just when you thought it was nearly over, I want to return to the issue raised by the noble Lord, Lord Campbell-Savours, about the application of amendments discussed earlier. He asked questions about the definition of a letting agent and the difference between someone who works for a letting agent and a member of its management. Clause 53 provides that a letting agent is a person who engages in letting agency work but qualifies that definition by stating that a person who engages in letting agency work in the course of their employment, under a contract of employment, is not to be regarded as a letting agent. This distinction means that someone who simply works for a letting agent is treated differently from someone who owns the business or is a director, company secretary or other similar officer of that company.
Clause 54 provides that a property manager is a person who engages in English property management work. The intention has always been to exclude ordinary employees of a property manager from that definition, for the same reason that we excluded ordinary employees of a letting agent. That is why we have tabled an amendment at Third Reading which excludes ordinary employees of a property manager from the definition. The amendment, however, is not intended to capture a director, company secretary or other significant employee of the company. For example, if a property management company faces a banning order, the directors could also be banned if they had committed the banning offence, but we would not want to ban every employee who had simply been acting under their contract of employment. I hope that helps to make the distinction.
That is not what the amendment says. It does not draw a distinction between the two classes of employee that the noble Viscount has referred to. He is drawing a distinction between directors and what he calls normal employees, and it is not clear from the amendment that that is what he is doing there.
I was trying to make that clear distinction between those who own the business and those who are employees, and the difference between those under a contract of employment and those who own the business. As I said earlier, it would help if I left the matter here and wrote to the noble Lord.
My Lords, I also thank the Minister for her enormous patience during the passage of this labyrinthine and complicated Bill. The Minister and her colleagues on the Government Front Bench have demonstrated great stamina on what has been a bit of a marathon. I and my colleagues are grateful to her for the many briefings that she has organised to assist us in getting to grips with the Bill and for attempting to meet us half way on what are major issues for us. I thank also the Labour Front Bench—the noble Lords, Lord Kennedy and Lord Beecham—and on the Cross Bench the noble Lords, Lord Best, Lord Kerslake and Lord Cameron, for their very positive approach towards co-operating with us on the Liberal Democrat Benches to ensure that proper in-depth scrutiny took place throughout the passage of the Bill.
Finally, but by no means least, I thank my colleagues on the Benches beside and behind me for their unfailing support over two months: my noble friends Lord Shipley, Lord Foster, Lord Stoneham, Lord Tope, Lord Palmer of Childs Hill, Lord Taylor of Goss Moor, Lord Teverson, Lord Greaves, Lady Parminter, Lady Grender and Lady Doocey, and in particular my noble friend Lady Maddock, who has sat with me for many hours into the late evenings. Without their in-depth involvement in taking on various sections of the Bill, my role would have been extremely arduous; I am grateful to them for sharing and lifting the burden.
My Lords, as we come to the end of the Bill, I will not start a debate on the regulations, which we have discussed many times.
I have some concluding remarks. I start by thanking the Bill team, and all the officials who have worked on the Bill. They have been willing to engage with us at all times, and we are grateful for that. I pay tribute also to Ian Parker from the opposition office for all his work on the Bill, and especially to Molly Critchley from the opposition office, who has helped, directed and guided me and my noble friend Lord Beecham and other noble Lords on the Opposition Benches. She has proved knowledgeable, technically skilled and valuable to our debates as we hold the Government to account on this Bill.
I thank, too, noble Lords from all sides of the House, certainly the noble Baroness, Lady Bakewell, and the noble Lords, Lord Best, Lord Kerslake and Lord Cameron, and many noble Lords on the Government Benches as well, including the noble Lords, Lord Porter, Lord True and Lord Lansley. I have enjoyed our debates. I think that we have all helped to improve the Bill. It is fair to say that at many times local government has spoken with one voice. It is also clear from the contributions of noble Lords that there is great experience here and that we all care deeply about housing. We may not often agree what needs to be done, but that is another matter. We are all concerned about the housing crisis and that it is dealt with.
I pay tribute also to the noble Viscount, Lord Younger of Leckie, and the noble Baroness, Lady Evans of Bowes Park. They engaged willingly with the House and dealt with all noble Lords in a courteous manner.
My penultimate remarks concern the noble Baroness, Lady Williams of Trafford. I have sometimes wondered what she had done to be given such a controversial Bill—an ill-prepared Bill—and to have the poise to deal with all sorts of points from around the House, often on her own. She has done so with great skill and courtesy; I have appreciated that very much, as has the whole House.
Although the Bill is in better shape than when it arrived in your Lordships’ House, it will not particularly help to tackle the housing crisis. In some respects it may actually make things worse. We may get back to the Bill next week in ping-pong fashion but I hope we do not—I hope that the Government accept all the amendments from your Lordships’ House. We shall wait and see about that. What is certain, however, is that we have not seen the last of those regulations. We have not seen them at all yet, but I can guarantee that we will have a return performance by the same group of noble Lords in the autumn. We will discuss the regulations and how they should have been here now, and maybe one or two Motions from the Opposition. I do not know what we will see, but I thank everybody most sincerely.
It is quite unusual for anyone to say anything from this side at this stage, but I support the remark about the regulations and would like to say how good the noble Baroness, Lady Williams, and her team have been. It has been a superhuman task. The Bill came to us in a very difficult form and I have never seen a Minister do better than the Minister has done on this Bill.
Bill passed and returned to the Commons with amendments.
Armed Forces Bill
1: After Clause 5, insert the following new Clause—
For section 160 of the Armed Forces Act 2006 (decisions of Court Martial: finding and sentence) substitute—“Majority verdicts(1) The finding of the Court Martial need not be unanimous if—(a) in a case where there are not less than seven members of the court, five of them agree on the finding;(b) in a case where there are five members of the court, four of them agree on the finding;(c) in a case where there are three members of the court, two of them agree on the finding.(2) The judge advocate shall not vote on the finding.(3) Where the finding of the Court Martial is guilty, the judge advocate shall not accept the finding unless the President has stated in open court the number who respectively agreed to and dissented from the finding.(4) The judge advocate shall not accept a non-unanimous finding under subsection (1) unless it appears to the judge advocate that the members of the Court Martial have had such a period of time for deliberation as the judge advocate thinks reasonable having regard to the nature and complexity of the case.””
My Lords, the issue raised by Amendments 1 and 2 is whether a serving member of the Armed Forces is a citizen in uniform and entitled to the same protection of his rights and freedoms as any other citizen, or indeed as a member of any other disciplined service, such as the police, or whether, as a matter of policy, he and his family should, if they come with the character of persons subject to service law, be subject to a fundamentally different judicial procedure in respect not just of breaches of the disciplines inherent in his trade or calling, but, under Section 42 of the Armed Forces Act 2006, of the entire body of criminal law, including the most serious charges.
The system of jury trial probably predates the Norman Conquest. It involves the trial of serious criminal charges by 12 members of the public. It has been like that for the best part of 1,000 years. From at least 1367, unanimity was required, whether the verdict was guilty or not guilty. Six hundred years later, by Section 13 of the Criminal Justice Act 1967, majority verdicts were allowed in the ordinary criminal courts. With the consent of the trial judge, after a period of appropriate deliberation and directions, a verdict by a majority may be received. Where there is a finding of guilt, the vote has to be stated in open court. Where there is an acquittal, no majority is stated.
The criminal standard of proof is guilt beyond reasonable doubt: the jury has to be sure. Sir Patrick Devlin said, in his famous book Trial by Jury:
“The criminal verdict is premised upon the absence of reasonable doubt. If there were a dissenting minority of a third or a quarter that would of itself suggest to the popular mind the existence of a reasonable doubt and might impair public confidence in the criminal verdict”.
That was in 1952, when majority verdicts might suggest that a reasonable doubt existed.
Public confidence is everything. I do not propose to repeat everything that I said at Second Reading and in Committee but it is obvious, by the series of media storms that we have endured and the public demonstrations that have taken place, that the verdict of a court martial does not command public confidence. To draw a very topical parallel, it is inconceivable that if police officers involved in the Hillsborough disaster were to be tried for gross negligence and manslaughter by a panel of senior police officers, the outcome would be acceptable.
The system of courts martial has its origins in a statute of Edward I in 1279, which enacted that, by virtue of the royal prerogative, the sovereign of England has the right to command, and thereby the power to regulate and discipline, the military forces of the nation. The Court of the Constable and Marshal administered military law, although the office of constable was effectively abolished when Henry VIII beheaded the then Lord High Constable—so the right to try military offences devolved to an ad hoc committee of officers, known first as Marshal Courts and then as courts martial. The authority of courts martial later derived from a succession of Mutiny Acts passed between 1678 and 1878, then subsequently by the Army Act of 1881 and its successors, which will shortly include this Bill. So the two systems of civil and military law had quite different origins and it is only very slowly that they have converged—but converged much more rapidly since the European Court of Human Rights delivered a devastating verdict upon the system back in about 1989.
Every move has met with resistance from the military and the civil servants advising them. For example, I read with interest today a debate of 1926 in the other place where Ernest Thurtle, the Member of Parliament for Shoreditch and the son-in-law of George Lansbury—later leader of the Labour Party—sought the abolition of the death penalty for cowardice or desertion. The same old familiar arguments were produced: that it was bad for discipline and would reduce the determination of soldiers to fight if the death penalty for cowardice were abolished. The Government of the day had no answer to the argument that the Australians were under no such constraint when their bravery and discipline at Gallipoli and elsewhere could not be doubted. That Bill eventually got through in 1930 under a Labour Government but was rejected by the House of Lords, notably led by Lord Allenby and other retired generals. The House of Commons had to insist upon it for it to go through.
My Amendment 1 seeks to replace the current Section 160 of the Armed Forces Act 2006 to take another step towards convergence. In the third edition of Rant on the Court Martial and Service Law, edited by the current Judge Advocate-General, Judge Blackett, paragraph 5.126 states:
“An undisclosed simple majority decision in a serious case where the defendant is at risk of a significant custodial sentence might be perceived as being inherently unsafe, since the outcome rests on a knife edge … This provision is a legacy from the past, which represents a significant weakness in the Service justice system and a striking contrast with the much more secure arrangements in the Crown Court. When there is legislative opportunity the law should be changed”,
in a court martial, said the Judge Advocate-General,
“to require either a unanimous verdict, as, for example, is the case in the Court Martial system in other Commonwealth countries such as New Zealand or at least a significant and disclosed majority”.
When I put forward this amendment in Committee, the Minister argued as follows. First, he said that, “The great advantage” of a simple majority,
“is that it avoids a ‘hung jury’: there is no need for a retrial”.—[Official Report, 1/3/16; col. GC 51.]
That puts the cost and expense of a retrial ahead of justice—and is a court martial swift and final? Judge Blackett said last week, in the Ellement case:
“This case should have been heard five years ago”.
Talking to the family, he said:
“I apologise to you that it has taken so long to resolve this issue. The extreme delay … prejudiced the defendants, Anne-Marie and justice generally”.
That is a current case with five years’ delay; and there are other cases in the pipeline where there are long delays from the date of the alleged offence.
Secondly, the Minister said in Committee that,
“there are no lingering doubts outside the court”,
if it is not,
“apparent whether the verdict is unanimous or by majority”—
I repeat, “no lingering doubts”. But my amendment expressly provides that only when there is a guilty verdict would there be an announcement that it is by a majority, which is what happens in the Crown Court. Nothing is said when it is an acquittal.
The Minister asked whether a defendant can return to his unit after an acquittal without murmurings. Of course he can, as much as if he were acquitted under the current system. Thirdly, the Minister said that,
“the deliberations of the lay members of the court”,
would be exposed and that confidentiality is an,
“important safeguard of the independence of the lay members”.—[Official Report, 1/3/16; cols. GC 51-52.],
and an ingredient of a fair trial which would be destroyed. But majority verdicts are accepted in the Crown Court and nobody says that the deliberations of the jury are exposed—they never are—or that the jury lacks independence.
The forces need to recruit and to retain their recruits. They may be prepared to be disciplined and trained, but will they or their parents be prepared to subject themselves to a system of justice in which the public generally have no confidence? In the case of Sergeant Blackman in the Court Martial Appeal Court the Lord Chief Justice, having found against the appellant, nevertheless commented that there would be an opportunity for Parliament to legislate on the question of majority verdicts. That was the main point of the appeal against conviction by Sergeant Blackman: that it was a simple majority that had convicted him.
The purpose of Amendment 2 on sentencing is so that the judge advocate should be the sole sentencer after consultation with the panel. At the moment it is the panel which decides the sentence, with a judge advocate having a vote on that decision. The Minister rejected that argument in Committee and said that the change would be,
“an erosion of an important difference between the civilian criminal justice system and the service justice system”.
It is my case that they should be brought closer together and that no question of erosion should arise.
Secondly, the Minister said:
“The military context and service experience should be considered during sentencing as well as in findings of guilt or innocence”.—[Official Report, 1/3/16; col. GC 53.]
My amendment says that the judge should sentence after consultation with the panel and that any input can come from the panel about service issues.
Thirdly, the Minister said that the court martial was part of an overall system of justice and discipline and that the statutory principles as set out in the 2006 Act—the maintenance of discipline and the reduction of service offences—meant that there had to be the direct involvement of the panel in sentencing. I am suggesting the direct involvement of the panel in sentencing, but not in making the decision. In any event, said the Minister, the judge will advise and has a casting vote.
Let us take a panel of seven. If the judge is added to it, eight people are deliberating on a sentence. That means that the professional judge with experience of sentencing can be outvoted seven to one, six to two, five to three. It is only if the panel is split four-four that he has the casting vote. My case is that sentencing is an art. It requires a great deal of training. Judges of great seniority still go for training in sentencing. I have been out of the criminal courts for about three years but I would hesitate very much to go into court now and suggest what a sentence should be.
Crime has come down but prison numbers have gone up. Why? It is because prison sentences are longer. There are different types of criminal sentences. Some involve custody and some do not. Sentencing is a professional job. The panel members are individual officers or warrant officers who come and sit on one case. They may never have had any connection at all with the criminal justice system. They sit on one case and have the responsibility of deciding the sentence. It should be the judge who decides, with the advice and help of panel members who have military service and experience. I beg to move.
My Lords, I shall say something about the Scottish system of justice. If one is talking about convergence, which part of the United Kingdom one comes from may be relevant to a consideration of the issues. I did my national service in a Scottish regiment and I live in Scotland. The Scottish system of justice differs from the English in relation to verdicts.
The Scottish system at the moment depends on the simple majority. There is a jury of 15 and someone can be found guilty so long as eight on the jury are in favour of guilty. Verdicts are from time to time returned by a simple majority as narrow as that, although most majority verdicts are much more in the area of 13 to two. The fact is, however, that a simple majority verdict is enough for a conviction to be recorded.
So far as the question of lingering doubt or confidence in these verdicts is concerned, my experience as a prosecutor and a judge in Scotland is that that system is accepted without question. There is, of course, an additional element in the Scottish system in that there are three verdicts, not two, and a jury of 15, not 12. I am not concerned to explore the size of the jury or the use of the not proven verdict. The important point is that a simple majority verdict is good enough.
The system has one feature that I think is absent from the proposal in Amendment 1. There is never a question of a failed trial because no verdict has been reached. A Scottish jury always reaches a verdict. There is no question of a failure to reach the required majority because a simple majority will do. If it is not achieved, there is an acquittal. It may be that an acquittal is good enough. When the jury comes to return its verdict, it is either not guilty or not proven. If it is guilty, the jury is then asked, “Is that unanimous or by a majority?” and the foreman will say whether it is a majority or unanimous verdict. The real point and the value of the system for the Scots is that retrials are not required because there is a failure to reach a verdict. If the required figure is not reached, acquittal follows. There is some value in that.
I do not know how far one takes the principle of convergence, but it might be relevant to consider how it applies to those who come from Scotland to serve in any of the three services, who in their domestic system do not have the system which applies in England and Wales, and in Northern Ireland.
My Lords, I worked out before this evening that Amendments 1 and 2 were, in fact, Amendment 3 in Grand Committee on 1 March. Mindful of the guidance in the Companion, that arguments fully developed in Committee should not be repeated on Report, I took the trouble to read the report of the Grand Committee. At the time, I indicated that I was to some extent attracted to some of the arguments of the noble Lord, Lord Thomas of Gresford. I said:
“I am putting a burden on the Government, today and perhaps in subsequent meetings and in writing, to argue the case for why we should not move in the general direction of these amendments and make the whole process for the defendant more analogous to that of a civil court”.—[Official Report, 1/3/16; col. GC 48.]
I still cleave to that general direction. The Minister then made a spirited defence, stretching from col. 50 to col. 54, which I read and also found persuasive in the sense that making small changes is likely to have unforeseen consequences which might be difficult. I have heard nothing today to change my general direction of travel. The Government should consider examining in the Ministry of Defence, perhaps in concert with the Ministry of Justice, whether the decision-making process where the citizen is on trial—the member of the Armed Forces becomes a citizen at this point—should not be closer to the civil system.
Moving in that direction would create some significant change and there may well be some significant consequences. I am not convinced that today’s amendments would not have unforeseen deleterious effects. Accordingly, these Benches will not be able to support them. We ask the Government to think seriously about the arguments that have been brought forward in Committee and on Report, and to look at the extent to which there should be some movement towards the citizen when on trial having much closer rights and a similar process to the civilian courts.
My Lords, I remind the House that I am still a commissioned officer in the reserves, although I am not training. This is my 60th year of life, so I will not be doing it for much longer. The noble Lord, Lord Thomas of Gresford, suggested that both the general public and those in the Armed Forces do not have confidence in the system of discipline in the Armed Forces. My experience is different. I have never had members of the Armed Forces come to me and say that they lack confidence in the system of military discipline. I have to admit that it is a robust system.
I have also never heard a member of the public—someone who is not in the Armed Forces—say that there is something seriously wrong with the system of military discipline, apart from when one reads articles in the Daily Mail, some of which are not very well researched.
One of the problems with what the noble Lord suggests is that we do not understand the dynamics of how the court martial panel works. In Committee, I suggested to the Minister that we need to do research, along the lines proposed by the Opposition Front Bench, to understand what the effect would be. We need to war game it before we start altering the system. I suggested to my noble friend that he keeps this under review and makes sure that we are going in the right direction.
Amendment 2 is on sentences. I have done two or three courts martial, for very minor offences, and my experience is that the judge advocate explains in great detail about the tariff and whether the offender is at the high or low end of it. I do not see that the panel can go outside the guidance given by the judge advocate without running the risk of a successful appeal because it has gone outside the sentencing guidelines.
The noble Lord referred to the need for training in sentencing. I agree, but that input and experience comes from the judge advocate advising the other officers on the panel. You cannot say that the officers and warrant officers on the panel do not have training, because they have been trained for many years in military matters. I do not really understand why the panel would want to deviate very much from what the judge advocate has suggested—that was certainly not my experience. These are interesting amendments, but not ones we should accept.
My Lords, I am still on the active list. I have been for 50 years now, and will remain on it until I die, unlike the noble Earl. I have been president of a court martial and on a court martial board, and have been court-martialled myself. I have also read Hansard from the previous debate. Although the system is not broke, we do need to look at possible changes, but we need to be very wary about how we move forward. I thought the arguments deployed by the Minister in Committee were very convincing.
My Lords, as so often, noble Lords have taken a great interest in the operation of the courts martial, and I welcome the opportunity to discuss the subject today. I am grateful for the careful thought that the noble Lord, Lord Thomas of Gresford, has given to the changes that he believes would improve the system and increase public confidence in it. Before turning to the detail of the amendments, I should emphasise a couple of important general points.
First, we must not lose sight of the fact that the service justice system has some carefully constructed differences from the civilian justice system for a particular and important reason, which is the maintenance of operational effectiveness. I will elaborate on that a little later.
Secondly, although he did not emphasise this today, I note that the noble Lord himself has stated in this House that he has confidence in the service justice system. If I read his concerns correctly, his main one is about public perception. He explained in Grand Committee that his proposals were intended to give the public more confidence in the findings the court martial makes. My noble friend Lord Attlee made an important point on this, because it would also appear that members of the Armed Forces have confidence in the system: some 67% of those who responded to the Armed Forces Continuous Attitude Survey for 2015 think that the service discipline system is fair. This is comparable with—indeed a little better than—the level of confidence in the fairness of the civilian criminal justice system, for which the most recent Crime Survey for England and Wales recorded a figure of 64%.
Amendments 1 and 2 seek to change three important aspects of the court martial system: the system of majority verdicts; the confidentiality of the votes of the lay members of the court martial on guilt or innocence; and the role of the lay members in deciding sentence. Amendment 1 would change the law governing decisions of the court martial on findings of guilt or innocence.
As I explained in Grand Committee, the system of simple majority verdicts in the court martial is long established—the noble Lord, Lord Thomas, took us through the history. The service discipline Acts of the 1950s, which preceded the Armed Forces Act 2006, also provided for simple majority verdicts. The system allows conviction or, notably, acquittal by simple majority of the lay members of the court martial. Before the lay members consider their verdict in a case, the judge advocate directs them, if at all possible, to reach a unanimous verdict, but they are not obliged to return a unanimous verdict. The judge advocate’s direction provides a considerable safeguard against the lay members moving too easily to a majority decision. However, if they cannot reach a unanimous verdict, a simple majority is enough to convict or to acquit. An equality of votes results in acquittal.
The noble Lord, Lord Thomas, reminded us that I said in Grand Committee that the great advantage of reaching a decision by majority is that it avoids a hung jury. I also pointed out that there is no need for a retrial in the event of a lack of unanimity or a qualified majority. I was grateful for the insights into the Scottish system given to us by the noble and learned Lord, Lord Hope. Where there is a hung jury in the Crown Court, the accused is in limbo until they are retried or the case against them is dropped, and there could be a period of several months between trials.
The benefits of the court martial system are not simply those I have indicated—nor incidentally, are they about cost, which I think the noble Lord, Lord Thomas, implied. It has been accepted by the European Court of Human Rights that there are good reasons why, in a system of military justice, it is necessary to avoid a hung jury. The period of limbo between trials could have a negative impact on the unit concerned: there has historically been a clear military imperative to deal with transgressions swiftly to restore discipline. Further, if an accused is tried twice and then acquitted, all of their unit are likely to know that they were acquitted only second time around. The concern has always been, and remains, that this and the period of limbo between trials could ultimately affect operational effectiveness.
I understand that there are those who have questioned the fairness of simple majorities. But I remind the House that the Government have been successful in establishing, both in the European Court of Human Rights and in the civilian courts, that the court martial system is in principle safe, independent and impartial. The current system for majority verdicts has been considered twice in the last five years by the Court Martial Appeal Court—including the case of Sergeant Blackman, incidentally—and was on both occasions held to be fair and safe.
The Court Martial Appeal Court, which is made up of the same judges who sit on the civilian Court of Appeal, has held that there is no ground for deciding that a verdict by simple majority of the lay members of a court martial is inherently unfair or unsafe. The court noted, among other points, that the overwhelming majority of criminal trials in England and Wales are decided in magistrates’ courts and the process of simple majority verdicts is long established in those courts.
I note tha