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Lords Chamber

Volume 771: debated on Tuesday 10 May 2016

House of Lords

Tuesday 10 May 2016

Prayers—read by the Lord Bishop of Truro.

Her Majesty the Queen: 90th Birthday

My Lords, I have to inform your Lordships that earlier today I, together with the most reverend Primate the Archbishop of Canterbury, the noble Baronesses, Lady Stowell of Beeston and Lady Smith of Basildon, the noble and learned Lords, Lord Hope of Craighead and Lord Wallace of Tankerness, and the noble Lord, Lord Laming, presented to Her Majesty the Queen the humble Address of 21 April, and that Her Majesty made the following reply:

“My Lords,

I am most grateful to you for your Address on the occasion of my ninetieth birthday.

I have been deeply touched by the many messages of congratulations which I have received on this particular birthday and I warmly reciprocate the good wishes of My Lords at this time”.

Economy: High Street Trade


Asked by

To ask Her Majesty’s Government whether they have plans to undertake an urgent review into the financial sustainability of high street trade in England and Wales in the light of the growth of online retail and the increase in overhead costs for shops trading on the high street.

My Lords, in asking the Question standing in my name on the Order Paper, I declare an interest in that a member of my family is a retailer.

My Lords, there is no plan to undertake a review in England. In Wales this is a matter for the Welsh Assembly. The Government have taken action. Our high streets will benefit from the £6 billion business rates support package announced by the Chancellor at the Budget. We have also given more than £18 million to fund successful initiatives such as Love Your Local Market and the Great British High Street competition, and announced a digital pilot programme.

I recognise the work that Her Majesty’s Government have done to help retailers. Nevertheless, in essence it amounts to a modest amount of tinkering. Is my noble friend aware that 36 major chains have gone bankrupt, thousands of other retailers have stopped trading and retailers are faced with ever-increasing overheads, declining footfall and increasing competition from online? Against that background, will Her Majesty’s Government review the statement that the Minister has just made and recognise that we need a fairer tax covering both retailers and online trading, and that possibly that means a turnover tax rather than a property tax?

I thank my noble friend for recognising what the Government have done. He talked about various chains going bankrupt and the declining footfall on our high streets. In fact, footfall is now increasing and some high streets have responded very well to the changing patterns of the high street. The ones that have responded well are seeing very good results; for example, in my own town of Altrincham the market has almost completely revitalised the town centre.

The questioner specifically asked about a turnover tax on online trading. What is the Government’s response to that suggestion?

I have outlined the Government’s response to the suggestion, which is that high streets have found numerous ways of responding to the different patterns on our high street. Many chains on the high street are in fact benefiting from things like click and collect.

My Lords, does the Minister agree with me that local councils have done a great deal to help to revive local high streets, which are the centres of communities and particularly important to poorer communities? Have the Government considered giving local authorities, particularly the combined authorities, more powers in revaluing and setting the business rate, as suggested by the London Finance Commission and the City Growth Commission?

First, as the noble Baroness will know, local councils will be able to retain 100% of their business rates by 2020. Combined authorities that also have mayors will have the facility to raise or reduce business rates in their combined authority area. I totally concur with the noble Baroness, because I can think of two local authorities in Greater Manchester where the councils have been absolutely at the forefront of that revitalisation of their local high streets.

My Lords, will the Minister adopt the suggestion of reducing the size of town centres to take into account the fact of online trading and perhaps make some finance available to local authorities to achieve that aim?

The noble Lord makes a good point. One of the things that councils observe is that we need more shoppers in our local high streets and not more shops, hence the expansion into some of the excellent food offers in markets now and some of the conversions from office to residential that help to revitalise the footfall in local high streets, particularly in the north of England where I am.

My Lords, there can be only one of us standing up at any one time. Thank you. We have not heard from the Cross Benches. After hearing from them I suggest that we go to my noble friend Lord Grade.

My Lords, I have been a non-executive director of Booker, the FTSE 250 company, for eight and a half years. When I started our internet sales were £50 million. Today, out of a turnover of £5 billion, they are £1 billion. Surely the answer is to help the high street to take advantage of the internet age. What are the Government doing to help retailers to take advantage of the internet, whether on payments, winning customers or dealing with their suppliers and the supply chain?

The noble Lord is absolutely right that the digital age has in many cases been to the high street’s advantage. I have mentioned click and collect. Our local high street businesses have to compete in the digital era and we have recently announced a digital pilot programme across Gloucestershire working with partners in the private sector including Argos, IBM and Cisco. This work was developed in close collaboration with the BIS retail unit.

Does my noble friend think that there is any connection between the lack of customers in the high street and the tyrannical and punitive parking arrangements that are imposed in our streets that make it impossible to go to the high street and spend money?

My noble friend is absolutely right. The Government have recognised that some of the punitive practices on our high streets have prevented or discouraged people from going shopping on their local high streets and we have done something about it.

Is it not true that online trading is going to grow notwithstanding what might happen in the high streets? Is it not also true that while online trading is welcomed by many people, there are also drawbacks, not the least of these being growth in traffic—white vans are everywhere now—that is creating congestion and poisonous air in the communities? What are the Government going to do to restrain it or at least to make drivers pay for the pollution that they are creating.

My Lords, whether it is the car going with its owner to the shop or the van from the distribution centre going to the home, I am afraid shopping does, in one way or another, create carbon in our atmosphere. The noble Lord is right that online shopping is increasing vastly. The high streets that acknowledge that, and are responding to it and creating different offers, for example leisure opportunities and markets on the high streets, are the ones that are doing well.

Immigration: Public Services


Asked by

To ask Her Majesty’s Government, in the light of net immigration continuing at over 300,000 people per year, and the latest Office for National Statistics projections indicating an increase in the United Kingdom population, including births, of 500,000 per year for the next six years, what plans they have to limit immigration and to build more hospitals, schools, housing and prisons to meet an increase in demand.

My Lords, the Government recognise that mass immigration can increase population pressures. That is why we are seeking to reduce net migration to a sustainable level, from the hundreds of thousands to the tens of thousands. The Government are committed to a significant programme of investment in our public services. Taken together, these steps and future measures will ensure that there is adequate provision.

I thank the Minister for his somewhat sanguine reply. Would he also agree, though, that the million or so refugees whom Angela Merkel has accepted will soon have the right to come here, and the Turks could be next, adding to the overload on our hospitals, schools and houses, greatly to the detriment of our existing population? Is he also surprised that the effect of uncontrolled immigration from the EU on the stability of our nation and on the welfare of working people appears not to be of concern, with very few exceptions, to the Labour Party?

My Lords, the Government are completely reforming the immigration system, cutting abuse and focusing on attracting the brightest and the best. Since 2010, reforms have cut abuse in the student and family visa systems and raised standards in the work routes. In addition, of course, our recent negotiations in Europe have brought to fruition the provision of new settlement agreements for EU migrants, with the requirement for a seven-year emergency brake being in place.

My Lords, the Minister has told us how wonderful the Government’s investment in public services is—apparently to meet all the concerns of the noble Lord, Lord Vinson. Could he then explain, for example, why there is a shortage of primary school places in London, why our health service in so many areas is in crisis and why there is a problem with social care beds becoming unviable? Why is all that happening if the Government’s policies towards the public services have been so benign?

It takes time to recover from the experience that we had up until 2010, but major steps are being taken. The Government are committed to investing £7 billion in school places by 2021, to increasing NHS funding in England by £10 billion in real terms by 2020 and to investing £20 billion in housing in the next five years, including £8 billion in affordable housing.

My Lords, that is all very well, but clearly, as the noble Lord, Lord Harris of Haringey, said, it is not sufficient. Can the Minister tell the House why the Government are not building more new hospitals, schools and houses, using the additional income they are receiving from foreign workers, who are paying significant sums in income tax and national insurance?

As I stated a moment ago, very considerable sums are being expended in these areas. Indeed, we expect to deliver 600,000 new school places by 2021.

My Lords, has my noble and learned friend had any success in establishing a bipartisan policy towards reducing immigration to tens of thousands a year? Or are the Opposition dedicated to an open door to let more and more and more migrants in, with no idea of how we shall pay not just for the schools and the hospitals but for the roads, the waterworks, the power stations and everything else? Whose side does my noble and learned friend think the Opposition are on—the British people or the foreigners?

I believe that all Members of this House recognise the importance of a controlled migration system that brings us the best and is the best for this country. Only by means of a controlled migration system can we have an effective, workable society that is integrated and settled.

Today, we have had the opportunity to hear from the authentic voice of the Conservative Party—from behind the Minister.

The previous Labour Government put in place a migration impacts fund. Local authorities and health trusts, for example, could then apply for a share of the funding to support efforts to reduce the impact of migration on public services. It was certainly not a panacea to solve all problems, but it did help to raise new funding to support infrastructure. However, the fund was scrapped by the coalition Government within a few months, and little was then done to ensure that support was still given where it was needed.

We have also said that EU funding should be made available to areas impacted by rapid migration to help with public services such as schools and GP services. Are the Government supporting, or will they support, that step?

This Government had to wrestle with the inheritance of 2010 on migration. We found ourselves with more than 900 bogus colleges arranging for the admission into this country of fake students in the hundreds of thousands. Some 920 of those fake colleges have been closed since 2010. That itself has relieved pressure on our services.

My Lords, as an Iranian born citizen, I must say that not all of us are a drain on the economy. I remind the House that the National Health Service would not run if it were not for people from abroad with high qualifications who are willing to work in it and help the economy. It is important to recognise the contribution they make, because the caring services and the NHS would not function without it.

That important contribution is of course recognised. The Government believe that in the long term, it is necessary to train our own nurses in this country. Consequently, the Department of Health has put in place a clear plan to reduce the number of overseas nurses each year until 2019, when we expect to have sufficient nurses to meet demand.

Sport: Integrity


Asked by

To ask Her Majesty’s Government what consideration they have given to placing a duty on all publicly funded and professional sporting bodies to co-operate actively in identifying and punishing anyone damaging the integrity of sport.

We expect all sports bodies to adhere to the highest standards of governance and to fully co-operate in taking appropriate action against those who damage the integrity of sport. As a result, the Government are introducing a new governance code for sport in the UK later this year. The code will be mandatory for all sports governing bodies in receipt of public funding, and non-compliance with the code will mean that those bodies will lose that funding.

I thank the Minister for that reply. However, what is her opinion of what happens when some of those bodies reach the end of their authority and have to report on to somebody else to achieve any action against somebody who has broken the spirit of the code—for instance, a doping scandal that ends when it runs out of that authority? Are we to undertake a law review so that action is taken across the board and does not end at artificial boundaries, often there for purely historical reasons?

The noble Lord is quite right about the need for things to be joined up. That is why we have set up a group, curiously called the GIGS group—the government integrity group for sport—drawing from across Whitehall and from the key agencies, such as the Gambling Commission and UK Anti-Doping. We will be putting the governance code out to consultation so that the sort of issues that he has identified are properly thought through and dealt with.

My Lords, this week, we have the anti-corruption summit organised by the Prime Minister. Will the noble Baroness urge the Prime Minister to put this subject on the agenda, bearing in mind the news reports that we have read of government involvement in such corruption? Will she support the aim of funding a body that is independent of sports governing bodies?

My Lords, I can confirm that corruption in sport will be on the summit’s agenda this week. It is very important that international discussion should take place on this vital subject. UK Sport and Sport England are responsible for this whole area and draw on government money, which has to be properly accounted for. I am not convinced that the direction in which the noble Lord is going is the right one, although, as I said, we are looking at the whole area, including the question of criminal sanctions.

Is my noble friend aware that in ancient Greece, at the entrance to the stadium on Mount Olympus, they erected a row of statues of the great god Zeus to remind those entering what the purpose of the exercise was, and that these statues were paid for by fines levied on cheats? Could we adapt that idea and perhaps erect an avenue of statues of ordinary working men and women outside the entrance to the European Commission in Brussels to remind it what the purpose of the exercise really is? Given that it is Brussels, with all that money sloshing around, there should not be too much trouble in finding the money but, if necessary, I would be happy to chip in.

Our country and in fact the whole of European civilisation have learned a huge amount from the Greeks—and indeed from the Romans. I am sure that Brussels has lots to learn.

To return to sport, how can the Government intervene in the affairs of these various international sports federations when there is a tremendous problem? In autocratic countries Governments clearly fix what goes on whereas in non-autocratic countries Governments are very much more at arm’s length. How are the Government working with British and other representatives on such bodies to make sure that they do not go down the road that, sadly, one or two have done in recent years?

In Britain, we care a huge amount about corruption in sport and cleaning things up, and that is in the mouths of all the people who represent us around the world. That is one of the reasons the Prime Minister has put this important issue on his agenda this week. It is fair to say that we work day and night through our representative bodies to try to clean up sport, but there is always more to do. Obviously, the unanimous vote to suspend Russian athletes from all competition was a very good move.

They could indeed draw great inspiration from the Invictus Games and from the Olympics and Paralympics. Of course, the fact that Prince Harry is involved makes us all delighted.

When we send a team to Rio, rather than looking at the negative elements of sport, will my noble friend take the opportunity to look at the positive sides and find time, either before or after the team goes, to laud those who make a positive rather than a negative contribution to society?

My noble friend makes a very strong point. We can also lead the way on the issue of corruption by making sure that all our athletes are tested before they go and that we have no problems and no reputational issues when we are in Brazil.

Refugees: Unaccompanied Children


Asked by

To ask Her Majesty’s Government what extra resources they plan to provide to local authorities to support the foster care of unaccompanied refugee children, and what plans they have to engage charities that may have volunteers available to help.

My Lords, the Minister for Immigration will shortly be writing to local authorities to set out the new funding rates for unaccompanied asylum-seeking children. We are consulting with local authorities across the United Kingdom to understand how many children they can support, and we will engage charities with relevant expertise as a part of that process.

I thank the Minister for that Answer. In all our debates and statistics, it is vital that we remember that the needs of the child are paramount at every point. A number of my colleagues have signed a letter that was published in the Times today, calling on Her Majesty’s Government to ensure that the unaccompanied children living in the Calais camps who have families here in the UK are reunited with them in time for the new school term in September—and, furthermore, calling on the Government to act on the 300 unaccompanied children in Greece and Italy and deal with that in the same timeframe. In the light of this profound humanitarian need—indeed, crisis—would the Minister assure the House that the Government will act on these matters immediately?

My Lords, the Government are already acting on these matters and have made provision in Calais for suitable experts to be present to assist with the registration of unaccompanied children who may have direct relatives in the United Kingdom and who therefore have a route to the United Kingdom by way of the Dublin regulation. In addition, we have arranged to send experts out to Greece, again to assist with functions there in relation to unaccompanied children. We are at the forefront of attempts to secure as much as we can by way of relief to these unaccompanied children.

My Lords, over the last few days there has been a BBC television programme showing how Sikhs are supporting the homeless in London. This evening I shall be meeting people to take that work further forward. I assure the Minister that every Sikh gurdwara in the country will be more than willing to provide not only langar—free food—but every support and assistance to these children.

I thank the noble Lord. What he says complements the Government’s efforts to develop community sponsorship schemes for children arriving in this country.

Could the Minister give a clear and unequivocal statement that the children who are coming into this country will have no pressure or requirement placed on them at 18 to leave these shores?

I can give no such assurance. The position of these children when they reach the age of 18 will be assessed and their right to remain will be determined by reference to the country from which they arrived and also by reference to whether it is fair, reasonable and safe for them to return.

Are the Government in communication with the Government of Canada, who are working with civil society? For instance, Canada has a private sponsorship of refugees programme, whereby sponsors can provide financial and emotional support for a period—usually a year—and the joint assistance programme, partnering with organisations to resettle refugees with special needs.

I am not aware of direct contact with the Canadian authorities on that point, but I undertake to write to the noble Baroness on the matter.

In thinking of our long-term counterterrorism strategy, and bearing in mind the example of the Sikh community, about which we have just heard, are the Government planning to provide an exceptional education for the Muslims among these children—teaching them, for instance, not to follow the Muslim tenets of abrogation and Al-Hijra, and thus to become leaders of integration within our society?

These children, we hope, will be fostered along with British children and educated alongside British children, and we believe that they will acquire the same outlook and values.

My Lords, reverting to the question asked by the right reverend Prelate, will the Minister confirm that Citizens UK, cited in the letter referred to by the right reverend Prelate, has said that there are 157 children in Calais, in the “Jungle”, in horrific conditions of mud and squalor, who have a legal claim to come to the United Kingdom because they have relatives here? Will he confirm that he will speak to his officials to see that all possible things will be done to expedite those claims, to see if they have the standing to come to the United Kingdom and start the academic year in September in our schools?

The French authorities are taking steps to improve the conditions in Calais, as noble Lords will be aware. As regards the precise number of 157, I cannot comment—but I can say that the Government have made provision in Calais to ensure that those unaccompanied children who have direct relatives in the United Kingdom follow the appropriate path, which is to register with the French authorities and proceed by way of the Dublin regulation.

My Lords, will the Government take note that it is no good getting these children here two days before term starts and pitching them into a strange school? They must have time to settle into a family or a home before they undertake that very stressful process.

It is necessary also to have regard to the capability of local authorities to receive these children. Until there are suitable foster places available for them and until there are suitable schools available for them, it would not be appropriate simply to bring them here.

My Lords, I accept what the noble and learned Lord is saying, but it was suggested in the Commons yesterday that it could be seven months before any child is accepted here. How many more children will go missing in seven months? How many more children will suffer in seven months? This is not the first time that we have said that we need a degree of urgency on this question.

I believe that everyone is aware of the urgency of this issue. The Government said last week that we expected that the first children would arrive before the end of the year, not—as was widely reported—that it would take until the end of the year before they arrived.

My Lords, surely we remember that this proposal from Save the Children was first made last September. Since that time, it seems that nothing has been prepared by the Government in order to make sure that these children are welcomed here by people who really have warm hearts willing to welcome them. Are not the Government acting totally out of step with the thinking of the majority of caring people in the United Kingdom?

I do not accept that for a moment. This Government have been at the forefront of efforts to deal with the refugee problem not only in Syria but also as it has affected Europe. We are taking further steps, as the noble Lord knows, to deal with the question of unaccompanied children. However, noble Lords will remember that those children who are now in Europe are in relatively safe havens. It cannot be suggested that France is anything other than a safe country. For those children who have a connection or direct family links with the United Kingdom, we are taking steps to ensure that that connection is established properly and that they are brought to the United Kingdom.

My Lords, there are thousands of children who are going missing or have been sexually abused. They are not safe in Europe; we are talking about Europe. Where are these children going and what is happening to them? There needs to be much greater urgency than there is now.

We are all aware of the terrible reports that have emanated from Europe about the condition of these children and the fact that their whereabouts in many cases cannot now be ascertained. It is a matter of considerable concern. I reiterate that this Government are at the forefront of efforts to deal with these issues.

House of Commons Members’ Fund Bill

Third Reading

Bill passed.

Immigration Bill

Commons Amendments

Motion A

That this House do not insist on its Amendment 84 and do agree with the Commons in their Amendment 84C in lieu.

84C: After Clause 30, page 108, line 7, at end insert—

“Duty to arrange consideration of bail

(1) Subject as follows, the Secretary of State must arrange a reference to the First-tier Tribunal for the Tribunal to decide whether to grant bail to a person if—

(a) the person is being detained under a provision mentioned in paragraph 1(1)(a) or (c), and

(b) the period of four months beginning with the relevant date has elapsed.

(2) In sub-paragraph (1)(b) “the relevant date” means—

(a) the date on which the person’s detention began, or

(b) if a relevant event has occurred in relation to the person since that date, the last date on which such an event has occurred in relation to the person.

(3) The following are relevant events in relation to a person for the purposes of sub-paragraph (2)(b)—

(a) consideration by the First-tier Tribunal of whether to grant immigration bail to the person;

(b) withdrawal by the person of an application for immigration bail treated as made by the person as the result of a reference under this paragraph;

(c) withdrawal by the person of a notice given under sub-paragraph (6)(b).

(4) The reference in sub-paragraph (3)(a) to consideration of whether to grant immigration bail to a person—

(a) includes such consideration regardless of whether there is a hearing or the First-tier Tribunal makes a determination in the case in question;

(b) includes the dismissal of an application by virtue of provision made under paragraph 9(2).

(5) The reference in sub-paragraph (3)(a) to consideration of whether to grant immigration bail to a person does not include such consideration in a case where—

(a) the person has made an application for bail, other than one treated as made by the person as the result of a reference under this paragraph, and

(b) the First-tier Tribunal is prevented from granting bail to the person by paragraph 3(4) (requirement for Secretary of State’s consent to bail).

(6) The duty in sub-paragraph (1) to arrange a reference does not apply if—

(a) section 3(2) of the Special Immigration Appeals Commission Act 1997 (persons detained in interests of national security etc) applies to the person, or

(b) the person has given to the Secretary of State, and has not withdrawn, written notice that the person does not wish the person’s case to be referred to the First-tier Tribunal under this paragraph.

(7) A reference to the First-tier Tribunal under this paragraph in relation to a person is to be treated for all purposes as an application by that person for the grant of bail under paragraph 1(3).”

Motion A1 (as an amendment to Motion A)

Moved by

Leave out from “House” to end and insert “do disagree with the Commons in their Amendment 84C, and do insist on its Amendment 84”.

I beg to move that this House do not insist on its Amendment 84 and do agree with the Commons in their Amendment 84C in lieu and disagree with Motion A1 in the name of the noble Lord, Lord Ramsbotham, which seeks to reinstate Amendment 84. I shall speak also to Motion A2 in the name of the noble Baroness, Lady Hamwee, which would amend Amendment 84C to reduce the time limit for automatic bail referrals from four months to two months.

I start by reminding the House of what it has already achieved in its role as a reviewing and revising Chamber. There can be no doubt that the spirited debate in this House has added considerably to the quality of this legislation. This House has done its job, and more. This is indisputably a better Bill for it and, particularly, it does more to protect the interests of the most vulnerable. However, we must now make sure that we deliver what the British public voted for last May and pass this Bill into law.

The Immigration Bill delivers important reforms to our laws, and it is right that we ensure that there is proper consideration and debate of its content. The House’s achievement includes ensuring that the detail of the important reforms in the labour market and illegal working provide an effective mechanism to enable us to clamp down on those who exploit vulnerable migrants. The House has delivered improvements to the provisions on the criminal offences and ensured that the duty to have regard to the need to safeguard the welfare of children underpins all the provisions in the Bill. It has pressed the Government for the amendment tabled by the noble Lord, Lord Dubs, to do more to help refugee children, and the Commons yesterday accepted that amendment.

On detention, the Government recognise the strength of feeling on this issue, the need to ensure that detention is for the shortest period possible and that, in particular, there is proper provision to ensure that those who are vulnerable are detained only when necessary and for the shortest period possible.

On time limits on detention, while we do not agree that those are appropriate, we have listened to the concerns expressed in this House. We have listened to the concern that some people may be unaware of their ability to apply for bail or are unable to make such an application. That is why we have proposed our Amendment 84C, which ensures that, unless the detainee has already had a bail hearing, there will be a bail hearing after four months and every four months thereafter. That is an important safeguard, and this House deserves credit for it.

Amendment 84 places an upper limit on detention for all those who are not being deported of a maximum of 28 days in total, which may be extended by the tribunal only on the basis of exceptional circumstances. It might be helpful to remind noble Lords that we will seek to detain and enforce the removal of only those migrants with no basis to remain in the UK who are unwilling to depart of their own volition or who are non-compliant.

As I have stated before, this arbitrary time limit is frankly unworkable and would provide non-compliant migrants with an easy target to aim for in order to secure their release from detention and frustrate their removal. It would lead to meritless asylum claims being made, meritless judicial reviews being lodged and individuals refusing to co-operate with the documentation process. The aggregate limit of 28 days would cause difficulties if we need to redetain a person when a travel document is delayed or where a person disrupts their removal and needs to be taken back into detention until new removal arrangements are put in place.

It may help the House’s understanding if I illustrate this with some real examples. Mr R’s student visa was curtailed when he failed to enrol at university. He was encountered when giving notice of marriage to a British citizen, which was found to be a sham, and he was detained. The day before he was first due to be removed, he submitted a humans rights claim. He was subsequently removed after 30 days in detention. Mr M was encountered by the police and subsequently detained after his visa had expired. An emergency travel document was applied for, but when he lodged a judicial review he was released on bail. Once the judicial review was resolved he was redetained for removal. He disrupted the first attempt to remove him, so removal had to be rescheduled for a charter flight. Mr M’s two periods of detention totalled 130 days. Neither of these examples is likely to qualify as “exceptional circumstances” which would allow the Secretary of State to apply for extended detention.

This process of considering whether detention should be extended beyond 28 days would be a significant burden on the judiciary, significantly increasing the tribunal’s workload, diverting resources away from consideration of asylum and human rights appeals, and therefore leading to delays elsewhere in the immigration system. It would also increase complexity and require a new infrastructure to provide a process for the tribunal to review extended periods of detention without requiring the Secretary of State to make an application.

In our previous debate, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, helpfully quoted from a recent decision of the Supreme Court which supported a flexible and fact-sensitive approach to the duration of detention. It was also noteworthy that the noble Lord, Lord Ramsbotham, clarified, in response to comments from the noble and learned Lord, Lord Brown, and the noble Lord, Lord Pannick, that,

“I never said that immigration detention should be limited to 28 days. What I said was that nobody should be submitted to administrative detention—that is, detention ordered by civil servants—without judicial oversight of that detention within the shortest time possible ”.—[Official Report, 26/4/16; col. 1097.]

Of course, the noble Lord believes that 28 days is reasonable.

It is on this last point that we disagree. The Government continue to believe that we can best provide the required level of judicial oversight of detention by automatically referring cases to the tribunal at a set point, which we had initially set at six months from either the date of detention or the date of the tribunal’s last consideration of release on bail, with referrals at further six-monthly intervals calculated from the point of the last hearing. I am grateful for the encouragement this measure received from the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who expressed his satisfaction that the safeguard this provides, in circumstances where detainees do not themselves apply for bail, properly addresses the problem of detainees having to take the initiative in seeking release from detention.

The duty on the Secretary of State to refer a detainee’s case to the tribunal for bail consideration removes the onus from the individual. Bail guidance, issued by the President of the First-tier Tribunal (Immigration and Asylum Chamber), provides that judges will focus on several matters when considering a grant of bail, including the reasons for detention, the length of detention so far and its likely future duration, as well as the effect of detention on the individual and the likelihood that they will comply with bail conditions. This guidance explicitly states that the tribunal will need to be shown,

“substantial grounds for believing that detention should be maintained”.

The noble Lord, Lord Pannick, also thoughtfully supported the Government’s position that a bail hearing every six months was, to use his term, “adequate”. However, we have taken on board the concerns expressed by a number of colleagues here and in the other place; it is claimed that six months is still too long without judicial oversight. The Government have therefore tabled a motion in the other place proposing, again, a duty to arrange consideration of bail before the tribunal, but this time reducing the timing of the referral from six to four months.

Much has rightly been made in these debates about how detention affects those suffering from mental health problems. The reforms the Government are putting in place in response to Stephen Shaw’s report, including the “adults at risk” policy, will strengthen the existing presumption against detention of those who are particularly vulnerable. This, alongside the overall package of reforms to how immigration detention is managed, including the enhanced gatekeeper role and the new system of quarterly case management reviews, means that we fully expect to see fewer people being detained, and for shorter periods.

Nevertheless, for the small proportion of people who are detained for longer periods, the Government’s amendment ensures that, while judicial oversight may happen even earlier if a person applies for bail themselves, those who do not do so and do not opt out of the process will be guaranteed judicial oversight after at least four months in detention, and at future four-monthly intervals from their last tribunal consideration.

However, we now need to press on with delivering the important measures in this Bill. The other Chamber has considered Amendment 84 on two occasions now, and has rejected it—yesterday, without even pressing it to a vote. We should not continue to insist on this measure.

The Government understand the sentiment behind limiting time and detention, but the practicalities involved mean that Amendment 84 is not realistic or workable for the reasons I have set out at length in previous debates. This is not just the view of the Government. The noble Lords, Lord Pannick, and the noble and learned Lord, Lord Brown—both experienced lawyers in this field—supported the government position. Your Lordships have rightly pressed the Government to examine what more can be done to limit time spent in detention. The Government have listened. They have made significant concessions and explained why they can go no further. The Commons has twice agreed with the Government. I urge noble Lords to now accept that decision.

Amendment 84D in the name of the noble Baroness, Lady Hamwee, accepts the principle behind Commons Amendment 84C and automatic bail referrals, but proposes to reduce the timing from four to two months. The Government have already moved their original position from six to four months, accepting that there is a case for more frequent judicial oversight. With respect to the noble Baroness, Lady Hamwee, we believe any further reduction is unworkable.

In our last debate, I noted that Labour had repealed legislation for routine bail hearings at eight or 36 days because they were impracticable. Likewise, if the frequency of referrals was two months, this would still impose a significant extra burden on the tribunal and the Home Office, diverting valuable resources away from the consideration of asylum and human rights appeals, the management of the removal centres, and delivery of the removals programme at a time when their efforts should be focused on supporting faster and more cohesive immigration and asylum processes.

Your Lordships have raised legitimate concerns and the Government have listened and have made significant amendments to this Bill. The time, I submit, has now come to implement it. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

Leave out from “House” to end and insert “do disagree with the Commons in their Amendment 84C, and do insist on its Amendment 84”.

My Lords, I am very grateful to the Minister for the care with which he has set out the Government’s case. I have often thought that the worst experience in life is to be associated with something that you know to be fundamentally wrong, but feel unable to prevent. I am experiencing that today, because, to our collective shame, this House could be about to sanction something that, as a nation, we have roundly condemned, and indeed fought against, when practised by others over the years—namely, the arbitrary detention of innocent people by administrative diktat, rather than the due process of the rule of law.

During the passage of this dreadful Bill, with more than 400 government amendments suggesting that it had not been thought through before it was introduced, the House has twice voted to uphold the recommendation of a committee of the All-Party Group on Refugees and Migration, of which I and the noble Baronesses, Lady Hamwee and Lady Lister of Burtersett, were privileged to be members. The committee recommended that administrative detention, ordered by Home Office civil servants, should be limited to 28 days, after which the Home Secretary should be required, by law, to seek the approval of the First-tier Tribunal for any extension. Last night the Minister in the other place spectacularly missed that point when alleging that to specify a maximum time for immigration detention would be arbitrary, would not take account of individual circumstances, and would have a negative effect on the Government’s ability to enforce immigration controls and maintain public safety by encouraging individuals to seek to frustrate the removals process until this time limit was reached.

During the past 19 years I have had frequent cause to express my concern about the appallingly low standard of casework and procedural oversight in our immigration system. This began when, as Chief Inspector of Prisons, I found over 20 people from Bradford, who had been in this country for over 20 years—many of them married and with businesses of their own—who had been arrested and transported to Birmingham prison where, not surprisingly because they had not been charged with any offence, they went on hunger strike against the wholly inappropriate prison regime. Their right to remain in this country had not been processed by the Home Office—which is true today of more than 631,000 others—whose officials saw them as easy pickings for meeting performance indicators. I immediately complained to the Minister responsible, and was asked to take on the inspection of all immigration detention centres for my pains. This included inspecting Campsfield House after a riot, where I found that immigration centre rules were also wholly inappropriate, being based on prison rather than detention rules. My inspectorate and I set about revising them, inviting Home Office officials to work with us, the outcome being the immigration detention rules often quoted in debate on this Bill.

Since retiring as chief inspector, I have been a member of the Independent Asylum Commission, chaired an inquiry into the unlawful killing of an Angolan by G4S guards during an enforced removal, delivered a dossier on deaths and injuries inflicted on others being returned, forwarded reports on the inefficiency of the complaints system to the Home Secretary and lost count of the number of critical reports by inspectors of immigration and prisons that I have read. In other words, my 19-year experience of the immigration system entirely endorses the view of its then titular head, the noble Lord, Lord Reid, who, when Home Secretary, described it as not fit for purpose. Indeed, these experiences have encouraged me to believe that only root-and-branch surgery will enable the system to have any hope of coping with today’s requirements, let alone tomorrow’s, which will be exacerbated not just by civil wars in the Middle East but by other population movements and the effects of climate change.

I must admit that I was somewhat surprised last week when my noble and learned friend Lord Brown of Eaton-under-Heywood and my noble friend Lord Pannick focused on the periphery of theoretical access to the bail system rather than the fundamental obscenity of administrative detention. Their intervention reminded me that, over the years, successive Ministers have preferred to listen to fudge presented to them by their officials rather than facts immediately apparent to anyone who, like me, has had cause to examine them in detail. As has been reported time and again, conditions in our immigration removal centres are not good for a whole variety of reasons, not least lack of Home Office oversight. Four months is far too long for anyone to be condemned to remain in such conditions, certainly when it seems to be primarily for the convenience of incompetent officials and is not sanctioned by a court of law.

I do not pretend that casework is easy—indeed, one former head of the UK Border Agency decreed that only graduates were to do it—but its present standard, judging by the number of successful appeals against it, is appalling. I am not surprised that first the noble Lord, Lord Bates, and then the noble and learned Lord, Lord Keen, should have announced new arrangements, although I must admit that, having heard similar promises many times in the past 19 years, I will only believe them when I see them.

I now feel squeezed. Not only is time running out before Parliament is prorogued but I fear that, on the evidence of the amendment not being pressed to a vote in the other place last night, should noble Lords support my appeal to put pride in the reputation of our great nation before party-political considerations and vote for what in their hearts they know to be right—namely, that administrative detention of anyone, anywhere, is fundamentally wrong—it may not succeed. I am conscious that it is easy for an independent Cross-Bencher to speak like that, but I am conscious, too, of the constitutional position of this House, which I do not want to put at risk.

The immigration system in this country is so dysfunctional that even the Home Office’s favourite reporter, Stephen Shaw, has criticised it in detail. As an optimist, I hope that the Home Secretary will read what he said, and has been said during our debates in this House, before she wilfully damages our global reputation for being a civilised nation by going ahead with her alternative to limiting detention to 28 days. It is with a heavy heart that I beg to move.

The original Question was that Motion A be agreed to, since when Amendment A1 has been moved to,

“leave out from ‘House’ to end and insert …‘do insist on its Amendment 84’”.

The Question, therefore, is that Amendment A1 be agreed to. I should inform the House that if this amendment is agreed to, I cannot call Amendment A2 by reason of pre-emption.

My Lords, many of your Lordships will have negotiated a variety of agreements and arrangements, been involved in the toing and froing of proposals and counterproposals, and experienced the feeling of, “Okay, enough, let us move on”.

I do not equate that with this issue. I am realistic enough to understand where the Government have got to, but it is not far enough. From my privileged, comfortable position, compared with the asylum seekers, the subject of these amendments, I cannot leave it there. I do not feel, in the words of the noble and learned Lord, that I have done my job and done more.

I want to make it clear that I support the noble Lord, Lord Ramsbotham. To deprive an individual of liberty for the purposes of immigration control should be an absolute last resort. It should be comparatively rare and for the shortest possible time. At the last stage but one of this Bill, the Government introduced their amendment for automatic judicial oversight. We heard then references to detainees still being able to apply for bail and to access legal advice at any time, and so on. That painted a picture which, though technically correct, did not accord with the realities described to me over the years.

The noble and learned Lord introduced the automatic hearing after six months as a “proportionate response”, and said that earlier referral might result in work for both the tribunal and the Home Office at a time when an individual’s removal from the country was planned and imminent. So I was pleased last night that the Minister in the Commons, “after careful consideration”, moved a reduction from six months to four months to reflect the fact that the vast majority are detained for fewer than four months.

At the end of last December, on the latest figures that we have, 2,607 people were detained. Of these, 530—roughly 20% of the detainee population—had been detained for less than four months but longer than two months. Those are the numbers that my amendment is about, although they are 530 individuals, not just faceless numbers.

The impact of immigration detention, which is not a sanction—it is not punishment for wrongdoing—is considerable and reference has rightly been made to the particular impact on mental health. I look forward to Stephen Shaw’s further work and hope that it will ameliorate conditions, but there must always be a significant impact. I do not know, though I can speculate on, the Government’s reason for moving from the proportionate six months to four months, but if they can move, I suggest they can move further. In the mix of assessing what is proportionate, the impact of administrative detention must be a significant factor. Let us reduce it as much as possible. That is why I propose two months.

I take this opportunity to say, too, that in all this I do not want to lose sight of the objective of improving the whole returns process. Alternatives to detention with case managers who are not decision-makers would be more humane, less costly and more efficient. There is plenty of experience of that in other countries. An improved returns system would reduce the burden on tribunals and the Home Office. It may be trite but it is true that efficiency is much of the answer. I hope noble Lords will be sympathetic to my proposal to reduce it still more, and take us further on the journey that the Government have led us on with regard to the period when there must be an automatic judicial oversight of each individual’s position.

In the Commons last night, the government Minister confirmed that the Government accepted that there should be judicial oversight of administrative immigration detention, and that was why they had previously tabled a Motion, the effect of which would be that individuals would automatically be referred to the tribunal for a bail hearing six months after their detention began, or, if the tribunal had already considered whether to release the person within the first six months, six months after that consideration.

That amendment was not accepted in this House, which again carried a Motion providing for a 28-day period of administrative immigration detention, after which the Secretary of State could apply to extend detention in exceptional circumstances. The Commons has again rejected the amendment from this House and has instead passed a government amendment reducing the timing of an automatic bail referral from six to four months, since, apparently, the vast majority of persons are detained for less than four months. Will the Government confirm that that bail hearing after four months of detention will be automatic and will not depend on the individual in detention having to initiate the application?

This is an issue which this House has already sent back to the Commons twice. Consideration obviously has to be given to the role of this unelected House in the legislative process as a revising Chamber, inviting the Commons to think again in a situation where the elected Commons and the Government have made some movement—albeit not enough to meet the views of this House—on the length of administrative immigration detention without automatic judicial oversight.

My Lords, the noble Lord, Lord Ramsbotham, made a powerful speech. I will say a word in response to it. I am sorry that the noble Lord thinks that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and I were focusing on the “periphery” last week and supporting a “fudge”, as he put it. Your Lordships need to focus on the noble Lord’s amendment. It provides that, after 28 days, there would be no possibility of detention of a person for immigration reasons other than in exceptional circumstances. Last week I found that not to be something that I could support and I still cannot support it, because a person can be detained only for the purpose of removal and only for a reasonable period for that purpose. There is nothing exceptional about it taking longer than 28 days to remove a person who has been detained for immigration reasons. There has to be discussion with the country to which the individual will be removed and persons being removed often do not co-operate with their removal. There is nothing exceptional about it taking longer than 28 days. Of course, the individual concerned is also entitled at any time to require a judicial assessment of whether it is appropriate for them to continue to be detained for immigration purposes. I am pleased that the Government have moved to a four-month period and I think that is the right result.

My Lords, I, too, support Motion A. I will confine myself to three comparatively brief points. First, as has been made plain, the Government have already moved from the earlier proposal of six months down to four. Yesterday, as those who have read the debate in the other place will know, there was barely a voice and no vote whatever against that proposal.

The noble Lord, Lord Ramsbotham, has few greater admirers than I in this Chamber but, as I suggested earlier, his amendment goes altogether too far. One defect is that it is internally inconsistent. I mentioned this on Report but did not think it necessary to do so in the last round of ping-pong, though I rather regret that now. On its face, it refers in new subsection (1) to detention under any of the relevant powers. These are defined in new subsection (6) and include two dealing with detention pending deportation. However, looking at new subsection (4) of Amendment 84, it does not apply in cases where the Secretary of State is determined that there will be deportation. This is an internal inconsistency.

I suggest that four months properly protects against any risk of what can seriously be called arbitrary detention. One must remember that it is a safeguard over and above the intrinsic ability of those who are detained to seek bail—a safeguard I acknowledge to be appropriate and necessary, not least in the case of those with mental health problems. The proposal in the amendment of the noble Lord, Lord Ramsbotham, that there should be exceptional circumstances to justify detention beyond 28 days, is unworkable. The Minister gave reasons and illustrations, as did the noble Lord, Lord Pannick.

A shorter period, as proposed by the noble Baroness, Lady Hamwee—of whom, again, I am a great admirer—is, frankly, impracticable. Tribunals are already hugely busy and overworked. They really must not be overwhelmed.

My Lords, I will not repeat all the arguments but, as a member of the all-party inquiry, I support Amendments A1 and A2. The Commons had only an hour yesterday. Quite understandably, most of it was spent teasing out the practical implications of my noble friend Lord Dubs’ amendment. I do not think we should read too much into the fact that not much was said about these amendments.

My Lords, I am obliged to noble Lords for their contributions to this debate. I acknowledge the work done in the past by the noble Lord, Lord Ramsbotham, on detention and on the revising of the immigration and detention rules. I must, however, take issue with the suggestion that access to bail is merely theoretical and that there is an absence of judicial oversight.

The access to bail arises immediately on detention and a tribunal must be persuaded that there are substantial grounds for believing that detention should be maintained. This is not a theoretical right; it is an obligation on the part of the Home Office to persuade a tribunal that detention should be maintained. So far as the period of detention is concerned, I can confirm to the noble Lord, Lord Rosser, that, after a period extending to four months—which is highly unusual—there will be an automatic bail hearing. In these circumstances, I renew my Motion to the House.

My Lords, I am grateful to all those who have spoken, not least to my noble and learned friend Lord Brown of Eaton-under-Heywood and my noble friend Lord Pannick. It is rare for me to find myself in disagreement with them and I bow to their superior legal knowledge in this case. We have probably gone as far as we are able. I am pleased that, during the passage of the Bill, we have been able to raise so many issues. I sincerely hope that the Home Secretary and her officials will focus on these, not least when they concentrate on the reports that they have commissioned from Stephen Shaw and the report on the mental health arrangements commissioned by NHS England. I fear that the writing is on the wall for my hope of progressing further with this amendment during the passage of the Bill. With a heavy heart, I beg leave to withdraw the amendment.

Amendment A1 withdrawn.

Amendment A2 not moved.

Motion A agreed.

Motion B

Moved by

That this House do agree with the Commons in their Amendments 85D, 85E, 85F, 85G, 85H and 85I.

Commons Amendments to Lords Amendment 85C

85D: Line 3, leave out subsection (1)

85E: Line 7, at end insert—

“( ) A woman to whom this section applies may not be detained under a relevant detention power unless the Secretary of State is satisfied that—

(a) the woman will shortly be removed from the United Kingdom, or

(b) there are exceptional circumstances which justify the detention.

( ) In determining whether to authorise the detention under a relevant detention power of a woman to whom this section applies, a person who, apart from this section, has power to authorise the detention must have regard to the woman’s welfare.”

85F: Line 15, leave out “earlier” and insert “later”

85G: Line 22, leave out subsection (6)

85H: Line 65, leave out subsection (13)

85I: Line 96, leave out subsection (15)

My Lords, the Government have continued to listen carefully to the concerns expressed in both Houses on the issue of detaining pregnant women.

Last night, the other place agreed amendments which will make it clear that pregnant women will be detained for the purposes of removal only if they are to be shortly removed from the United Kingdom or if there are exceptional circumstances which justify the detention and which place an additional duty on those making detention decisions in respect of pregnant women to have due regard to their welfare.

The additional measures we are putting in place, alongside the 72-hour time limit on the detention of pregnant women, will act as extra statutory safeguards which will complement the Government’s wider package of reform in the area of the detention of vulnerable people. This includes the new adults at risk policy, which is given a statutory basis in this Bill. It includes a new cross-cutting gatekeeper function to help provide consistency in decision-making across the business. It includes new safeguarding teams which will provide an extra level of scrutiny of the cases of detained vulnerable people. As we have previously announced, we also intend to ask Stephen Shaw to carry out a short review in order to assess progress against the key actions from his previous report.

I hope that noble Lords will accept this suite of measures as a clear and positive demonstration of the Government’s absolute commitment and desire to ensure that pregnant women are detained only when it is absolutely necessary and as a last resort, with their health and welfare being a foremost consideration whenever a decision is made in respect of their detention. These are solid measures which will have a practical impact but which will also give life to the Government’s desire to end the routine detention of pregnant women, as was set out in the Written Ministerial Statement on 18 April. The 72-hour time limit announced in that Statement was a clear exposition of the Government’s intent, moving to a position in which in no circumstances will a pregnant woman be knowingly detained for longer than a week. That is a major shift from a position in which, theoretically at least and occasionally in practice, detention could persist for a longer period. This will be backed up with the new duty, the clear statement that pregnant women will be detained only for the purposes of quick removal or in exceptional circumstances. I reiterate that, even when there are exceptional circumstances, detention will still be for only the limited period set out in the Bill. It will also be backed up with other measures as I have described. All this represents a new level of safeguarding for pregnant women which, while not going as far as providing an absolute exclusion from detention, ensures that it will occur sparingly and only when it is absolutely necessary.

I turn specifically to Amendment 85J, tabled by the noble Baroness, Lady Lister of Burtersett. The adults at risk policy will effectively replace Chapter 55.10 of the Home Office Enforcement Instructions and Guidance, which is where the existing policy is set out, and will represent a different, and better, way of assessing the circumstances that apply in any given case of a vulnerable person, including cases of pregnant women. The amendments tabled in the other place automatically place pregnant women on a separate footing, making it clear that particular consideration needs to be taken in those cases.

The 72-hour time limit, by virtue of its brevity, will ensure that detention is used as a last resort. On that basis, I am of the view that the current formulation in the Bill, combined with the other measures we are putting in place, provides a high level of safeguard for pregnant women. I beg to move Motion B.

Motion B1 (as an amendment to Motion B)

Moved by

85J: Line 5, after “are” insert “very””

My Lords, I wish I could warmly welcome government Amendments 85D to 85I, given that they go a small way towards meeting the concerns voiced in your Lordships’ House on 26 April. However, it is only a very small way and, as I will come on to explain, the word “very” has some significance.

I thank the noble and learned Lord for his attempt last week to reach a compromise that would satisfy both sides. Alas, it was not, apparently, possible. As a very last attempt, I therefore tabled this very modest amendment, which would mean that the circumstances justifying detention have to be “very exceptional” rather than simply “exceptional”. This does no more than mirror current Home Office enforcement instructions and guidance which refer to “very exceptional circumstances”. We have just learned that that guidance is to be replaced. In the Commons last night, the Immigration Minister assured MPs that the guidance will also make it clear that detention powers,

“should be used in very exceptional circumstances, underlining our expectations in regard to the use of this power”.—[Official Report, Commons, 9/5/16; col. 486.]

Surely, if the Government want to underline those expectations, they should do so in the Bill itself. Otherwise, they could be sending out entirely the wrong message.

My fear is that, welcome as the new time limit is, unless the legislation states “very exceptional”, some might interpret the softening of language as a signal that it does not have to be quite so exceptional now that it is subject to a time limit. I remind noble Lords that, in practice, we are probably talking about 72 hours plus, because the clock starts ticking not at the actual point of detention but when the Secretary of State is satisfied that the woman is pregnant, if that is later, which it probably will be. Given that too many pregnant women are already detained in far from exceptional circumstances, in contravention of the guidance—as made clear by Shaw and the all-party inquiry into detention—this would be highly regrettable. Experience shows that we cannot rely on the guidance alone to underline expectations regarding degree of conditionality.

I turn to some questions raised by the government amendments. First, regarding Amendment 85E, I repeat what was said in the Commons by David Burrowes MP:

“However, we still need to ask about the small word ‘or’ in amendment (b) to Lords amendment 85C. Why does it make the distinction between

‘the Secretary of State is satisfied that—

the woman will shortly be removed from the United Kingdom, or

there are exceptional circumstances which justify the detention’?

Surely, pregnant women should be detained only if there are exceptional circumstances and they can be removed shortly. Why are we distinguishing between the two? If the aim of detention is to remove people and detention should be a last resort, given the new 72-hour limit on detention, when would detention not be exceptional and removal forthcoming? It is important that the Government clarify that”.

He expressed the fear that,

“the measure leaves the door open for the excessive detention of pregnant women”.—[Official Report, Commons, 9/5/16; col. 498.]

That is my fear, too. Given that it was not possible for the Immigration Minister to answer Mr Burrowes yesterday, I trust that the Minister will be able to provide an answer now.

Secondly, could the noble and learned Lord clarify, for the record, the purpose of the qualifying phrase, “apart from this section” in the second paragraph of Amendment 85E? Fears have been expressed by those more expert than I that it would appear to be saying that the Secretary of State does not have to have regard to the woman’s welfare. I am sure that that cannot be the case. I cannot see why anyone should be allowed to authorise detention without having regard to the woman’s welfare. I welcome the fact that having,

“regard to the woman’s welfare”,

is now in the Bill. I hope that he can provide reassurance.

I turn to the key sections of Amendment 85C, which the Government have rejected out of hand. These aim to incorporate key elements of the family returns process, which successfully uses engagement to try to resolve cases without the use of detention. Ministers have repeatedly explained, in the words of the Immigration Minister, that,

“we are using precisely that model and approach for pregnant women”.—[Official Report, Commons, 25/4/16; col. 1195.]

Yet their rejection of this part of Amendment 85C out of hand suggests a mindset that is not attuned to the family returns process, in which it is not assumed that removal requires prior detention. I ask the Minister: if the Government are using precisely that model and approach, why have they refused to countenance writing key elements of it into the legislation? Will he commit now to drawing up guidance that will ensure that the treatment of pregnant women does indeed follow the family returns process model? Otherwise, we have no way of ensuring that this model will be followed. I hope that this would reduce the need for detention but where it does still take place, clear guidelines following the family returns model would at the very least ensure that notice is given so as to minimise the stress involved in the process of being taken into detention, which can have a damaging impact on the mental and physical health of pregnant women. It is simply not good enough for the Government to talk about modelling the approach on the family returns process without giving Parliament any idea of how they plan to operationalise this.

On 26 April the Minister stated that,

“as a matter of fact and practice, all persons who are subject to removal are given notice of liability for removal, and vulnerable women, including pregnant women, receive a further notice via removal directions”.—[Official Report, 26/4/16; col. 1095.]

That sounded very reassuring but the notice of liability for removal can be three months in advance of removal and the further notice is sent after detention. There is no notice sent of removal into detention as opposed to removal out of the country, and I fear we have been talking at cross purposes on this. Will the Minister therefore now commit to a full review of the process of removal into detention, including how the woman’s medical and welfare needs are taken into account? When we last discussed this, I cited some dreadful examples of how pregnant women were in effect treated like animals during the journey into detention, potentially with serious implications for their physical and mental health.

On 26 April the Minister seemed to suggest that some of our concerns were in effect resolved because only one pregnant woman is currently being held in detention. Of course, for those of us, including Stephen Shaw and the members of the all-party group inquiry, who believe that pregnant women should not be detained on principle, one pregnant woman in detention is one too many. Leaving that aside, the numbers of pregnant women in detention have always fluctuated and we do not know the total number who have been detained so far this year. I find it worrying that the Home Office is refusing to comply with an FoI request submitted by Women for Refugee Women for the publication of the statistics on the numbers detained, the length of detention and outcomes. In the Commons debate on 25 April, the Immigration Minister said he would reflect on how best to create “greater transparency”. I then suggested that one way would be to commit now to making these statistics on the detention of pregnant women available for public scrutiny on a regular basis, as called for by bodies such as Women for Refugee Women and the Royal College of Midwives. But the Minister did not respond on that point and I would be grateful if he could do so now.

I know there is a reluctance to extend the ping-pong process too far but when your Lordships’ House passed Amendment 85C, despite the technical and other objections raised by the Minister, I took that as acceptance of the need to write into the Bill the safeguards necessary to ensure the protection of the welfare of pregnant women, whatever our view on the principle of their detention. I do not believe those safeguards are strong enough. This is a much more modest, even minimalist, amendment. I hope the Government will be able to accept it because it does simply what the Immigration Minister says is the Government’s intention, but with the force of primary legislative backing. I beg to move.

My Lords, I support the noble Baroness, Lady Lister, although I would say to her that there are rules about transporting animals.

In the Commons, as the noble Baroness said, the Minister referred to—and indeed relied on—the guidance providing for “very exceptional circumstances” to meet expectations. However, guidance can of course be changed much more easily than primary legislation, and it is easier not to follow. I share the concern of the noble Baroness that the legislation must not weaken the process.

I was also puzzled to read in the government amendment that the person who authorises the detention —I shall come back to that—must have regard to the woman’s welfare, not, as the Minister said last night at column 486 of Hansard, “due regard”. As we have heard, the current equivalent guidance is not effective enough and I do not see that there will be any impact from putting pregnant women into a separate category within the guidance. I agree with the point made by David Burrowes and the noble Baroness about Amendments (a) and (b), rather than (a) or (b). I, too, had two points of concern about interpretation. The noble Baroness has referred to the phrase “apart from this section”. I read this as applying to the person with the power to authorise, but I do not know what,

“a person who, apart from this section”,

means. I hope the Minister can help me.

The other question concerns the term “shortly” in paragraph (a) of Amendment 85E. The Secretary of State needs to be satisfied that,

“the woman will shortly be removed from the United Kingdom”.

In this House we are accustomed to the term “shortly”. It is something of an Alice in Wonderland term: it means what it is meant to mean on the occasion when it is mentioned. Will the Minister help us by providing greater precision?

My Lords, I shall detail the House only briefly. I am most concerned about this issue. I fear that the Government have completely overlooked a very important point. You are not just detaining a pregnant woman, you are detaining the foetus inside that pregnant woman. The effect on that foetus is something about which science is increasingly concerned. The recent science of epigenetics tells us clearly that the foetus at certain stages during pregnancy is extremely vulnerable to the environment of the mother. Indeed, I have been involved in this area of research at Imperial College, and I shall refer briefly to research going on not only at Imperial but at the University of Singapore, which I shall visit later this week, and McGill University in Canada, among other places.

It turns out that at a certain stage in pregnancy, if a woman’s stress hormones, particularly cortisol, are raised, the effect on the foetus may be profound. Working after the ice storm in Ontario some years ago, Michael Meaney undertook cognitive tests on infants aged five, who had effectively been interned within their own houses because of the darkness and lack of electricity over a period of time. He found significant cognitive impairment. There is also some evidence that after massive stress to the mother, some children may behave aberrantly when they grow up —particularly, for example, being more aggressive.

Unfortunately, at this stage the science is not absolutely clear but there is a massive amount of evidence from work on rodents and some other animals. The evidence from human work is increasingly that certain stages of pregnancy—for example, once the foetus is identifiable in the uterus, usually at around 22 to 26 weeks—are a particularly vulnerable time. That is when stressing a woman may have a severely adverse effect.

For that reason, the Government need to recognise that they may be responsible for a heritable effect on that child and possibly even on the grandchildren of the mother. Until that is firmly worked out, I beg the Government to consider that internment, if it must be done at all, must be done only under the most serious circumstances. We cannot go back for women who have previously been detained in prison and other places, but in future we must make sure that we make law which is humane and amendable, so that we cause the minimum amount of damage to future generations.

My Lords, I will speak very briefly to support the amendment moved so well by the noble Baroness, Lady Lister, this afternoon. I supported her on earlier occasions when we debated these issues. I am particularly pleased to follow the noble Lord, Lord Winston, who has returned us to an aspect of the debate which we discussed at earlier stages.

Members of your Lordships’ House may recall the remarks of the noble Baroness, Lady Neuberger, during our earlier debates. She focused on the effects on the unborn child of being detained in these stressful circumstances. I referred to work by the late, eminent psychiatrist, Professor Kenneth McCall, who described the effects later in life on children who had been affected by traumatic events that they had experienced in the womb. On the other side of that coin, of course, the world-famous violinist Yehudi Menuhin said that he believed that he learned his love of music during the time that he was in his mother’s womb. So it may be that the empirical evidence needs to be extended and much more work needs to be done around these things—but our own common sense and knowledge of our own human development probably take us in that direction.

But this is not just about concern for the unborn child. The noble Baroness quite rightly reminded us of the recommendations of Stephen Shaw, which were at the very heart of the debate when we looked at this earlier in our proceedings. He of course recommended that there should be an absolute ban—so this falls a long way short of his recommendations. The noble Baroness, Lady Lister, in her phrase, “very exceptional”, is reminding the Government that it cannot be right for us to have pregnant women held in detention in these ways.

I was particularly pleased, like the noble Baroness and the noble Baroness, Lady Hamwee, to read the remarks of the Conservative Member of Parliament for Enfield, Southgate, David Burrowes, who spoke so well in the other place yesterday. I hope that when the noble and learned Lord comes to reply, he will respond to the concerns that David Burrowes raised and to the remarks of the Royal College of Midwives—referred to earlier by the noble Baroness—which were quite categorical in saying that we should never keep women in these circumstances.

I have one or two questions to put to the noble and learned Lord. What kind of pre-departure accommodation will be made available when a pregnant woman is being held? Will he say a word about that and will he talk about how those particular needs will be met? Will he also assure us that pregnant women will not, for instance, as has happened in the past, be picked up in dawn raids, put in the back of vans and taken miles away to accommodation, with appalling consequences for the women in those circumstances? There are accounts of nauseous experiences, of vomiting and of people being incredibly distressed by those kinds of experiences. This should be in very exceptional circumstances, as the noble Baroness said.

Finally, I underline the point made by the noble Baronesses, Lady Hamwee and Lady Lister, about the second part of Amendment 85E. An odd phrase has been included at this late stage to say that,

“a person who, apart from this section, has power to authorise the detention must have regard to the woman’s welfare”.

Those words—“apart from this section”—are, at the very best, ambiguous, and I really cannot see what point they have. Could the noble and learned Lord enlighten us when he comes to reply?

Perhaps I could add to the point just made and express the hope that the noble and learned Lord will not only respond to questions raised in this short debate in this House but be doubly determined to do so. I find it extraordinary that when our amendments were discussed in the Commons last night, although they have the not surprising procedure that a Minister opens the debate, there was no reply by a Minister at the end of the debate. So all the legitimate questions raised in that debate after the Minister had finished speaking were not answered at all by the Government. I know very little about House of Commons procedures —that is quite obvious—but it is certainly a fairly remarkable procedure to have a debate where questions are asked of the Government but there is no Minister replying at the end. I hope that that is a defect that the noble and learned Lord will be able to rectify when he replies to this debate.

We accept that the Government have moved on this issue to a position of not allowing the detention of pregnant women beyond 72 hours—or up to a week with the Secretary of State’s approval. This House of course wanted the Government to go further and provide additional safeguards, which were reflected in the amendments sent to the Commons. In the Commons last night, the Minister said that the Government had tabled amendments that made it clear that,

“pregnant women will be detained for the purpose of removal only if they are shortly to be removed from the UK or if there are exceptional circumstances that justify the detention”.—[Official Report, Commons, 9/5/16; col. 486.]

As has been said, the Minister went on to say that the guidance will also make it clear that the guidance would also make it clear that the power to detain should be used only in very exceptional circumstances. Why does the government amendment passed last night in the Commons refer to “exceptional circumstances” and not to “very exceptional circumstances”, which is and will continue to be used in the guidance?

What in the Government’s view is the difference in this context between “exceptional circumstances” and “very exceptional circumstances”, since it is they who have decided not to use the same wording in the Bill as is and will continue to be used in the guidelines? Through her amendment, my noble friend Lady Lister of Burtersett seeks a credible and reassuring answer to that question, and I hope that the Government can provide it.

My Lords, I will begin by answering the question just posed by the noble Lord, Lord Rosser. The provision does refer to “exceptional circumstances”. The guidance as it exists talks of only “very exceptional circumstances” applying for the detention of pregnant women, and that will continue to be the policy that is applied in the context of the provision. I reiterate what was said in the other place last night: it is only in very exceptional circumstances that it will be considered appropriate for this provision on detention to be employed.

I am sorry to interrupt, but there was a specific question there: if that is the case, why is “very exceptional circumstances” not put in the Bill?

In the context of drafting statutory provision, it was not considered that the addition of such words as “most”, “much” or “very” would add anything to the proper construction of the provision. However, the policy guidance is there. It is absolutely clear, and both in this place and the other place it has been said that the policy will apply in the context of “very exceptional circumstances”.

With respect to the noble and learned Lord, as a matter of English language, there is a word “exceptional”, which is perfectly clear. What is the difference in his mind between “exceptional” and “very exceptional”?

With respect, the noble Lord makes my point for me. It is questionable whether there is any distinction to be drawn between exceptional, properly understood, and very exceptional or most exceptional. That is what lies behind the manner in which this provision has been drafted. Nevertheless, to dispel doubt in the minds of others, it has been said in the guidance that, as a matter of policy, the term “very exceptional” may be applied when approaching the application of this provision to the detention of pregnant women.

My Lords, with the leave of the House, I wish to pursue this issue. There must be a difference, otherwise it would not be necessary to use the word or the distinct phrases. Are the Government not in danger of falling foul of their own legislation by applying guidance that is different from the legislation?

I do not accept that. The purpose of the policy guidance is to lend emphasis to the test that is being applied, and that is what is happening here.

I shall move on to address a point raised by the noble Baronesses, Lady Lister and Lady Hamwee, which concerned the reference to the welfare of the pregnant woman. I emphasise that this provision is there as an additional safeguard. I will not claim that the draftsmanship of this clause is distinguished by its elegance, but its effect ultimately is clear.

In circumstances where it is thought that a pregnant woman may be detained, the party who may be exercising the right to detain will also have to have regard to the welfare of that pregnant woman before a final decision is made. For example, in circumstances where the pregnant woman has arrived at a remote port and there is nowhere in the vicinity that could properly be utilised to detain her when she is in a state of pregnancy, that factor must be taken into account—indeed, it must be a determining factor—in deciding whether to detain her. Somebody in a state of pregnancy arriving, say, at Heathrow can and should be detained because the circumstances are very exceptional and there are facilities to detain her in her state of pregnancy. However, if somebody arrived at a remote port where it was felt that there were very exceptional circumstances that would justify detention but where there was no suitable place for her detention, having regard to her welfare would mean that detention would not take place. I hope that that assists in explaining the purpose of the provision. It is an additional safeguard.

I turn to the question of and/or, which was raised in the context of whether or not detention should take place. Of course, the intended effect of these provisions, so far as pregnant women are concerned, is that they will, like all detainees, be detained only for the purposes of removal. Because there will be a time limit on the detention of pregnant women, all cases of detention of pregnant women will be necessarily short. Some of these cases will have exceptional circumstances attached but, by definition, not many. For example, cases at the border are quite likely not to have exceptional features. The clause as drafted therefore allows for the detention of pregnant women only when they can be removed quickly, or when they can be removed and exceptional circumstances pertain. It is merely to allow for the two circumstances—namely, that they can be quickly removed, or that they can be quickly removed and exceptional circumstances pertain. I hope that that explains the way in which that particular provision is drafted.

The noble Baroness, Lady Lister, asked about a further review. With respect, we have already had the review from Stephen Shaw, and he will be instructed to carry out a further short review about the implementation of these provisions. No additional or alternative review is being contemplated. Of course, the policy guidance that we have has been addressed already. The noble Baroness also referred to an FoI request. I cannot reply directly with respect to that request for the relevant statistics. But, of course, there is a process that can be followed through to a conclusion to determine that the FoI request is responded to in due time and in appropriate terms.

The noble Lord, Lord Winston, raised a point echoed by the noble Lord, Lord Alton, on the treatment of pregnant women and the effect of stress on them. Who can doubt how stressful it will be for a person who travels unlawfully to the United Kingdom in a state of pregnancy and then attempts unlawfully to secure entry to the United Kingdom? That alone is a source of stress. The question is how we deal sympathetically and effectively with such persons, particularly when we find that they are either vulnerable or pregnant. What we have developed here is a rational and reasonable approach to that very difficult question.

Finally, I address the question of facilities in the context of a planned departure. Our continuing view is that immigration removal centres remain the most appropriate places to detain pregnant women. Yarl’s Wood provides a high level of care for pregnant women. NHS midwives are available; general practitioners and nurses can be accessed seven days a week; there are strong links with local maternity services; and support is provided by a pregnancy liaison officer. In addition, there is a new care suite, staffed by a dedicated female member of staff, to attend to women in the state of pregnancy. Very few pregnant women are detained in these circumstances, but suitable and sufficient facilities are available and, as I observed earlier, where they are not for some reason available the welfare of the pregnant woman will be paramount.

I am grateful to the Minister. He will recall that he has been asked by three of us about those words that appear in the final section, in the penultimate line of the amendment, “apart from this section”. I wondered whether he could tell us why they had been included and what they add.

I did say that the relevant provision was not distinguished by its elegance. However, if noble Lords read the clause as a whole, it is intended to refer back to the person with the power of detention in terms of the Bill. How it is drafted at that point is dictated by how that is described in an earlier clause of the Bill.

Forgive me for intervening once more, but I do not feel at all confident about the question of incarceration. Arriving on these shores, perhaps illegally, and then being incarcerated, is very different from arriving on these shores with hope. What the evidence of the model shows in Canada is that it is the incarceration—in their own houses, even—that caused the stress to these women that resulted in the changes to the foetus that were subsequently inherited. I beg the Minister to consider that point when he finally sums up.

I had rather summed up, but I can say to the noble Lord, Lord Winston, that of course there are elements in the journey of such a person that will cause stress. Detention may be a factor in that but, in the round, we have to come to a reasoned conclusion as to how we deal with unlawful entry into the United Kingdom.

Can I make the Minister an offer? He is obviously as uncomfortable as I am with the drafting of this clause. Can we find a way in which to get it to mean what—whether we like it or not—he is telling us that we ought to understand it to mean early in the next Session? Let us tack it on to something that will come to us fairly shortly.

With respect to the noble Baroness, “It means what I say—it does not say what I mean” may be her line, but that is one that we shall take into consideration.

My Lords, I am very grateful to everyone who has spoken, and particularly to my noble friend Lord Winston, who made a very powerful point. It has reinforced the sense that this House is very concerned about this issue and not convinced that the welfare of pregnant women and the foetus inside them is being protected by the concessions that the Government have made.

I am grateful to the Minister for addressing all the questions that were asked. I do not think that it is just a question of elegance; it is a question of comprehensibility. I have to say that I did not understand a word of one of his answers, but that is probably me, and I shall put a towel over my head and finally understand it when I read it in Hansard. It does have resonances of Humpty Dumpty and words saying what I say they mean, and the,

“question is … which is to be master—that’s all”.

Unfortunately, it is the Government who are master and who have the power to decide these issues. The answers that I did understand from the noble and learned Lord were very disappointing. I have still not heard a good or proper reason as to why, if it is good enough for the guidance and it means something in the guidance, it is not good enough to be in the legislation. I am still worried that someone looking at both of them will think, “With regard to the legislation, the Government have actually gone backwards”.

I was not asking for a whole new review: I was asking for a very focused review of the process by which a woman is taken from her home into detention. As I understand it, there has already been a commitment to look at transport; I am just asking for that to be broadened out to the whole process. It is not a big thing, and I have still not heard any explanation as to how this is going to be modelled on the family returns process. The noble and learned Lord said there was not going to be any further guidance on this, so it is just an empty claim unless someone can show us otherwise.

I hope that the noble and learned Lord, the Immigration Minister and the Home Secretary will take this away and read what has been said in this House. My noble friend Lord Rosser pointed out the really strange Commons procedures that do not allow the Minister to respond to perfectly good questions, but we at least have a chance to do that in this House. I hope that the people in the other place will all read what has been said in this House and will think about how, within the constraints of the legislation as it is, we could make this a more humane process. As we have heard, there is a lot at stake here. My noble friend Lord Winston said that it could be responsible for a heritable effect on the child. That is very serious, so I hope that this will be looked at further, even if it cannot be in the context of actual legislation. That said, like the noble Lord, Lord Ramsbotham, I recognise when we are coming to the end of the road. Therefore, like him, with a very heavy heart indeed, I beg leave to withdraw the amendment.

Amendment B1 withdrawn.

Motion B agreed.

Child Refugee Resettlement


My Lords, I shall now repeat as a Statement the Answer to an Urgent Question given earlier today by my right honourable friend the Minister for Immigration on child refugee resettlement from Europe. The Statement is as follows.

“Mr Speaker, as I said last night, the Government are at the forefront of assisting and protecting vulnerable children, wherever they are. As the House is aware, last week the Prime Minister said that we will work with local authorities on plans to resettle unaccompanied children from France, Greece and Italy. We have said we expect the first children to arrive before the end of the year. We have not said that it will take until the end of the year for them to arrive. As I made clear to the House, we are working hard to see isolated children reunited with family, and children at risk of exploitation and abuse come to the UK as quickly as we can, but we have to be satisfied that they will be able to receive appropriate care and support when they arrive.

The revised Dubs amendment to the Immigration Bill obliges us to consult with local authorities. We must ensure that we fulfil our obligations to children who are already in the UK, as well as ensuring that we have the right support for those who may be brought to the UK from Europe. The provisions in the Bill by their nature mean that we have to consult others before finalising our plans, but that does not imply that we will delay getting on with this. We will be contacting council leaders in the coming days. I have already spoken to the Local Government Association on this matter.

We have always been clear that we must do nothing that inadvertently creates a situation in which families see an advantage in sending children ahead, putting their lives at risk by attempting perilous journeys to Europe. That is why only those present in the EU before 20 March will be eligible for resettlement, and even then only when it is in their best interests to come to the UK. This will avoid creating a perverse incentive for families to entrust their children to people traffickers.

We have already starting consulting relevant NGOs, UNHCR, UNICEF and other member states on how best to implement this legislation. Last Friday, I met the Greek Government in Athens to discuss how best we can make progress quickly. We are already working to identify those whom we can help. We have an ongoing plan with France to improve our joint response to children in Calais, accepting more than 30 transfer requests since February, with more than 20 already arrived. We will be working with France over the coming days and weeks to increase the identification of children in France who have family here so that we can bring them over.

In addition, the UK has been playing its full part in supporting European neighbours to provide support to those who have arrived. We have provided nearly £46 million of funding to the Europe-wide response to help the most vulnerable, including children and infants. In addition, the £10 million DfID fund announced on 28 January will support UNHCR, Save the Children and the International Rescue Committee to work with host authorities to care for and assist unaccompanied or separated children. Of course, this is on top of our Syrian resettlement programme and the children at risk resettlement scheme, designed to resettle up to 3,000 children at risk from the Middle East and North Africa, where it is deemed in their best interests. The Government remain committed to making a full contribution to the global refugee crisis.

We are already acting to implement the Bill amendment. We have started discussions with local government. We have begun work with European partners and NGOs to support effective implementation. We will bring refugee children to the UK as quickly as it is safe to do so. I am proud that the commitment of this country and this Government to help those in need both within and outside Europe stands comparison with any other country in the world”.

My Lords, that concludes the Statement.

My Lords, I thank the Minister for repeating the Answer to an Urgent Question asked in the Commons earlier today. We appreciate and welcome the steps that the Government are taking. In the Commons yesterday, the Government confirmed that they were accepting the amendment in the name of my noble friend Lord Dubs which was passed in this House. They also said that they would urgently consult others prior to bringing forward more detailed proposals and that a meeting of the Local Government Association was scheduled for later this week.

It appears that 10 Downing Street has now told the Daily Telegraph that the first children will be arriving by the end of the year, which is a totally different tenor of response to that given in the Commons, which was all about urgency and getting on with it as quickly as possible. Will the Government tell us the estimated timetable for implementing my noble friend’s amendment, which the Government have accepted? Will the Minister also say whether it will be an objective to take in at least the first 300 children before the start of the school year in September, since it will not assist the position of such children if they have to join a school well into the start of the school year?

Finally, 157 children have been identified by Citizens UK as being in Calais and having family connections here. I appreciate that earlier a Minister said he could not comment on the figure of 157, but will the Government give an assurance that they will take prompt action to ensure that those children in Calais with a valid legal claim for reunification are reunited as a matter of urgency with their families here under the Dublin arrangements?

My Lords, I am most grateful to the noble Lord, Lord Rosser, who asked a number of questions. The Daily Telegraph picked up the No. 10 statement and misconstrued it. No. 10 said that we would proceed with this programme as quickly as possible and that by the end of the year we will have seen children arriving in this country. That does not mean to say that it will be 31 December before any child arrives.

It is difficult for me to define the estimated timetable because of the need, as specified by the amendment in the name of the noble Lord, Lord Dubs, to consult local authorities before we are in a position to say how many children can be accommodated. I can only assure the noble Lord that we need to take necessary but not undue time to do that, that we are already engaged with the French authorities to ensure that the vulnerable children who I know the noble Lord, Lord Dubs, wants us to prioritise are identified as quickly as possible, and that we will do the same in Greece and Italy.

I cannot, as the noble Lord will therefore surmise, be specific about whether we will admit 300 children before the start of the school year. The very nature of this announcement means that we must take the necessary time to consult others before bringing forward final proposals on how to implement. All I can say is that we will not only implement the letter of this amendment but its spirit, and we will do so enthusiastically and as speedily as we can. Naturally, as I have already emphasised, those children in Calais are likely to be the first candidates.

My Lords, Save the Children, following extensive research and consultation, concluded that if the UK took 3,000 unaccompanied asylum-seeking children from within Europe, that would be a fair and proportionate number. I accept, as the Minister said, that there has to be consultation with local authorities, but we also heard earlier this afternoon in this Chamber that charities and other mechanisms can be used to help find homes for these children. Can the Minister tell the House how many of these children the Government intend to take: the smallest number they can get away with or the UK’s fair share?

It is not a question of the smallest number we can get away with. I hope that I have indicated that we are pursuing this amendment in its proper spirit. We have always been clear that we share the objective of identifying and protecting vulnerable refugee children wherever they are—our efforts to date have been designed to do just that—and we have heard many times about the measures that the Government have taken, particularly in the Middle East.

However, we were very clear that setting an arbitrary target, particularly one as high as 3,000, was the wrong approach. We cannot simply wade in and select some children whom we think would be better off in the UK, especially when some local authorities already care for very high numbers of unaccompanied asylum-seeking children—which in some cases is stretching services to breaking point. That is why we believe that the approach of the noble Lord, Lord Dubs, is the right one. We have to consult with local authorities before we can determine the number that we can accommodate, and we must observe the best-interests principle as well.

My Lords, I very much appreciate the way in which the Home Secretary, the Immigration Minister and Home Office officials have put me in the picture throughout this process. It was gratifying, not in a triumphalist sense, to see the Home Secretary’s name on the amendment in the Commons yesterday evening.

The Minister put his finger on the right phrase—that the Government intend to accept not only the letter but the spirit of the amendment. I will plead only that, given that we now have officials working with the French authorities, it might be possible to speed up the process of identifying children in Calais who have relatives in Britain and to help them to get to Britain in time for the school term in September. Surely that would be the right thing to do. The Minister cannot make a promise but I hope that he will accept the spirit of what I am saying and that the Government will do their best accordingly.

I can give the noble Lord that assurance. Clearly it would be desirable to ensure that those children who are most vulnerable and in need of help and support can arrive in this country in time for the school year, but he will understand that at this stage of the exercise I cannot give firm undertakings to that effect. All I can do is to say that we will use our best endeavours in that direction.

My Lords, does the Minister accept that it is a national responsibility to do what we reasonably can to help those children who are single, unaccompanied and already in Europe? Can he give an assurance that the costs will not fall on individual local authorities, but will be accepted as a national burden? The issue of the children coming to this country who eventually reach the age of 18 was raised earlier at Question Time, but we did not get a very clear or very acceptable answer from the Government. After we have invested so much resource, care and education in these children, surely they should be allowed to stay here and not have the sword of Damocles hanging over their heads that they might then be returned.

My Lords, on the question of costs, as the noble Lord will know, the central Government fund local authorities who care for unaccompanied asylum-seeking children. There is no reason why the implementation of this amendment should place unique challenges on local authorities. Of course, funding arrangements will be discussed with local authorities. The Home Office will engage with local authorities as it goes forward with the main question of how many children can be accommodated. Any additional flow of unaccompanied children needs to be aligned with existing schemes.

As regards giving a pre-emptive undertaking on what will happen to children when they reach the age of 18, I can say only that each case for asylum has to be considered on its individual merits. Where someone demonstrates a genuine fear of persecution, protection will be granted but, where someone is found not to be in need of our protection, we would expect them to leave the UK voluntarily.

My Lords, will the noble Earl confirm that he is having close discussions with the Welsh Government on these matters, seeing that many of the responsibilities lie there? We in Wales are anxious to play our part in this programme. Given the emphasis that he placed on co-operation with the French authorities, is he confident that in the unfortunate event of a Brexit vote that co-operation will continue?

My Lords, the answer is yes and yes. We are in touch with the devolved Administrations—not only the Welsh authorities but those in Scotland and Northern Ireland. I can of course give the noble Lord the undertaking about our dialogue with the French, which will continue whatever happens.

Housing and Planning Bill

Commons Reasons and Amendments

Motion A

Moved by

That this House do not insist on its Amendment 10B, to which the Commons have disagreed for their Reason 10C.

10C: Because it would undermine the delivery of starter homes.

My Lords, I want to be clear once more that Amendment 10B would undermine our manifesto commitment to build 200,000 starter homes by 2020. The requirement for starter homes would become something entirely different and not what we promised to deliver in our manifesto.

Our manifesto commits to starter home delivery at least three times. Let me quote directly from it to show that the commitment could not be clearer:

“As the party of home ownership, we want to go further and faster—and this manifesto sets out our plan. At its heart, a clear objective to build affordable homes, including 200,000 Starter Homes which will be sold at a 20 per cent discount, and will be built exclusively for first time buyers under the age of 40”.

The electorate will expect us to deliver our commitment and we are determined to do so. The Government have listened to this House on a number of aspects of this policy, including allowing for a taper and repayment mechanism when the property is resold. But the Government cannot compromise on the starter homes requirement. It is fundamental to delivering 200,000 starter homes within this Parliament.

More than 85,000 young people from across the country have now registered on our starter homes register of interest. We want these young people to have a chance of home ownership. The starter home model will give them such a chance. It will provide an opportunity for them to own their own home and, unlike many other home ownership products, will enable them to move onwards and upwards over time.

Elected honourable Members in the other place have been clear in their overwhelming support for delivering our starter homes commitment. They recognise the importance of starter homes for the long-term health of their communities and are receiving inquiries from interested constituents asking us to get on with delivering them.

As the honourable Member for North Cornwall said in the other place,

“we in this country have a right to own our own home and this Government are delivering that through this Bill”.—[Official Report, Commons, 3/5/16; col. 65.]

I am also in agreement with the honourable Member for South Ribble when she said:

“We need to get more houses built—and quickly … Developers and builders want certainty and speed”.—[Official Report, Commons, 3/5/16; col. 80.]

We will give them certainty through the straightforward, nationally set starter homes requirement.

We remain committed to delivering shared ownership and other forms of affordable home ownership products to help those who aspire to home ownership but cannot afford discounted purchase. They form part of a diverse and thriving housing market.

Our prospectus invites housing associations and other providers to bid for £4.1 billion of funding to deliver 135,000 shared-ownership homes, and £200 million to deliver 10,000 Rent to Buy homes. Local authorities will also still be able to deliver these products on site alongside the starter homes requirement where it would be viable. We estimate that 50,000 to 70,000 affordable homes can still come forward alongside our starter home requirement during this Parliament.

But this Bill focuses on starter homes to ensure the scale of delivery that we need. We strongly believe that a nationally set requirement for starter homes is essential to meet our manifesto commitment and we are consulting on the details for its operation. The requirement will be put in place through affirmative regulations, so Parliament will have a further opportunity to scrutinise the details.

We intend to deliver our manifesto commitment and I must therefore invite the House not to insist on Amendment 10B. That amendment would fundamentally change the Government’s manifesto intention as proposed in the Bill and it is therefore our view that the Salisbury convention is engaged.

We have a clear manifesto mandate to deliver our starter homes policy and I therefore invite the House to support Motion A and reject Motion A1 if it is pressed. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

Leave out from “House” to end and insert “do insist on its Amendment 10B as an amendment to Amendment 10A”.

My Lords, I declare my interests as chair of Peabody and president of the Local Government Association. I stand before you as a reluctant amender. As the Bill has moved towards its final stages, I have been very open to conversation and compromise. This has been possible on a wide range of difficult issues and was close to being achieved on the second amendment that I shall move later today.

However, on this part of the Bill—on housing—there remain two vital issues where I feel strongly that the debate needs to continue. The first, and the subject of Motion A1, is the so-called starter homes requirement. Under this, local authorities will not be able to give approval to individual planning applications unless they have included a specified number of starter homes. This figure is currently set to be 20%—one in five—of the houses approved.

The issues with this have been previously rehearsed, and there are three major concerns. First, it imposes a single, top-down requirement regardless of local circumstances. Secondly, it does so with a product that is still in design and is not tried and tested. Thirdly, the percentage proposed will squeeze out other kinds of affordable housing that are desperately needed. My amendment is not intended to be, nor is it, a wrecking amendment to the manifesto. It seeks only to give greater local flexibility where a need can be demonstrated and to allow other types of low-cost home ownership products to be counted within the starter homes requirement. It will be for individual local authorities to take a view on this within their overall duty to promote starter homes. There need be no delay in getting starter homes going.

Indeed, I think that local planning decisions will be quicker as a result of this flexibility. The low-cost home ownership delivered could quite reasonably count against the Government’s 200,000 target. They can, as new low-cost home ownership products, be targeted at the same group of people—young first-time buyers— whom the Government are seeking to help. From the point of view of the buyer, what matters is the opportunity to own their own home.

Before we lock ourselves into a rigid, inflexible, national solution that risks setting local authorities up to fail, I ask Ministers and this House, even at this very late stage, to consider a more localist, market-responsive approach. I beg to move.

My Lords, having sat through most of the proceedings on this Bill I recognise that it is probably the most controversial one from last year’s Queen’s Speech, and I quite understand the very strong feelings that have been aroused. I want to give three brief reasons why I think at this stage we should allow the Bill to go forward.

First, the Government have already made very substantial concessions on this Bill, principally in response to arguments put forward by Cross-Benchers and opposition Members in this House. There have been amendments on high-value assets, exceptions to secure tenancies, pay to stay, starter homes and rural exception sites. Where a case has been made that does not conflict with the manifesto, my noble friend has listened to the arguments and made the necessary changes. No one can accuse the Government of inflexibility.

Secondly, the vote in another place last night was by 80 to 100, without one single dissenting voice on the government Benches. Roughly two-thirds of English MPs rejected the amendments that came from this House. We should think carefully before we seek to second-guess them. Finally, the further Motion A1 seems to me to be against the spirit of the Joint Committee on Conventions. I quote:

“If the Commons have disagreed to Lords amendments on grounds of financial privilege, it is contrary to convention for the Lords to send back amendments in lieu which clearly invite the same response”.

I put it to noble Lords that Motion A1 does exactly that.

On reflection, it seems to me that this House has performed its traditional role of scrutinising, amending, revising and asking the other place to think again. We now risk moving to the more controversial territory of challenging the other place. In the debate yesterday, the Minister expressed surprise that your Lordships’ House,

“have chosen again to oppose one of our most important manifesto commitments”.—[Official Report, Commons, 9/5/16; col. 458.]

He went on to describe one of the other amendments as a “wrecking amendment”. I urge the noble Lord who moved Motion A1 to reflect on the changes that have already been made to avoid the risk of pressing this further, and to think of the tenants of Peabody, some of whom have written to me, who want the statute book to include this measure so that they can exercise their right to buy.

My Lords, I will very briefly give strong support to what my noble friend Lord Young of Cookham said. This House has performed an extremely valuable role in a number of Bills during this Session, which comes to an end this week. This House has every reason to take quiet pride and satisfaction in, for instance, the Trade Union Bill. I concentrated my endeavours on that Bill, but I have sat in on a lot of debates at the various stages of this Bill, and listened to arguments persuasively put and to answers sympathetically given. There is no doubt that the Government have moved. Of course they have not moved as far as the noble Lord, Lord Kerslake, would like, but in this life we very rarely get everything we like.

The noble Lord has had a very distinguished career in the Civil Service, finishing at its pinnacle. He was deservedly ennobled and sent to your Lordships’ House to contribute from his expertise and his wisdom. That he has certainly done. No one could begin to accuse him of not being an active Member of your Lordships’ House. But I beg and entreat him to recognise—as, with his distinguished Civil Service background, he must—that there are constitutional proprieties in our system. We are in danger of transgressing. We in this House very rightly passed various amendments. Last week the Government were defeated five times. That may not be unprecedented, but there are very few precedents where five amendments are passed for a second time and the Bill is sent back to the House of Commons.

The other place has deliberated. I am bound to say that I do not think that this is the most perfect Bill that has ever come before Parliament—far from it—but whether we agree with its deliberations or not, the other place has passed by substantial and significant majorities the amendments before us. The noble Lord, Lord Kerslake, is seeking yet again to press them. Of course he has every right to do so, but I suggest to him very gently that he does not have every constitutional right to do so. The elected House, as we say so often in this House, is the superior House when it comes to political power. We should all recognise that. I believe that most of us, in all parts of the House, do.

We have been active on this Bill—the noble Lord, Lord Kerslake, certainly has been most active—but I urge him not to press this today. The constitutional repercussions could be very considerable. We do not want—I certainly do not—to tempt any Prime Minister to send another long list of Peers to your Lordships’ House merely to big up the numbers. That is not what we should be about. We should be in the business not of provocation, but of scrutiny and examination. We have fulfilled our tasks in that respect. I believe that the time has now come for us to draw stumps. I very much hope that the noble Lord, Lord Kerslake, will find that there is some merit in my arguments and that he will feel able to desist.

My Lords, I was not going to intervene. I certainly do not know what the noble Lord, Lord Kerslake, will do with his amendment. I want to follow up on the wise words of the noble Lord, Lord Cormack, by saying that this is not a wise Bill. Some of us have been in this House for many years and have handled many Bills. The problem is that, in process terms—leaving aside the content—this is the worst Bill I have seen in 25 years. It is a skeleton Bill in which we do not know the detail; this will be carried out by regulations. I do not blame the Minister at all but we do not know—and the Minister does not know—what will be in the regulations because they will depend on consultation exercises. We do not know what these consultation exercises will say because they were started only two-thirds of the way through the parliamentary process.

Noble Lords all around this House have been trying to scrutinise properly and fairly, as we should, a Bill in which there are huge gaps. We do not know the costs, the statistics, the land requirements or the burdens on local authorities. We know none of this. Yet, we, who scrutinised the Bill, are being told that the Commons has overturned our amendments. In a very truncated debate last night, it barely touched half the issues that we had discussed, having read every word of it. The Commons really did not.

This leaves some of us, who respect the conventions of this House, in a very difficult position. This is a half-baked, half-scrutinised, quarter-digested Bill. We are being asked, in the name of constitutional propriety, to allow the Commons to have the final say on something that is, frankly, not fit for purpose. It should not have been introduced this year; it should have been deferred until next year, until all the detail was in place so that we could scrutinise and amend the Bill, as this House should do. Then, and in that context, we would respect the will of the Commons. The Commons is sending through on a conveyor belt a half-baked Bill that it has not scrutinised. It puts many of us who really value the scrutinising role of this House in a very difficult position. I am sure I speak for many noble Lords, including, perhaps, some on the Benches of the noble Lord, Lord Cormack, who share my concerns. We are being asked to scrutinise a Bill that is not fit for purpose.

My Lords, I endorse my noble friend’s remarks about the issues perfectly properly raised by the noble Lord, Lord Cormack. From the Minister’s remarks, one might have thought that the amendment of the noble Lord, Lord Kerslake, was going to utterly sabotage the Government’s proposals for starter homes. There is no evidence to support that as a potential outcome if his amendment were to be approved. It does not replace the principle that the Government seek to advance; it complements it. We seem to be invited to adopt the Government’s position on starter homes, failing which we are going to get some starter Peers. We have probably had a few of those in the last few years but that is not a matter that ought to weigh too heavily on us.

I think noble Lords on all sides of the House endorse the Government’s ideas for promoting home ownership, particularly—but not necessarily exclusively—among younger people. After all, this is the week in which we are talking about mortgages for people up to 85 years of age. There are people above the age of 40, who have been on the housing ladder for decades, for whom this Bill will do very little. Whereas, a slightly more relaxed approach of the kind that the noble Lord, Lord Kerslake, is advocating, would assist them, without damaging the prospects of those aged 40 and under, for whom this part of the Bill seeks to provide some hope and action. I agree with that.

I sympathise with the noble Lord’s amendment. I regret that the Government do not appear willing to move towards something that would make a modest difference to the provision of housing for more people in a rather different way but not one which, in my judgment, would damage the Government’s intentions. It certainly would not contravene their manifesto commitment.

My Lords, I thank all those who have spoken so clearly on this group.

As I said in my opening speech, and have made completely clear throughout the passage of the Bill in this House, a nationally set starter homes requirement is essential to delivering our 200,000 starter homes commitment. The amendment would mean that the requirement for starter homes would become something entirely different. This is not what we promised to deliver in our manifesto.

The Minister for Housing and Planning last night set out on the Floor of the House in the other place that we need to get on with helping those people to fulfil their dreams and get on to the home ownership ladder. Some 86% of our population want to be given that chance to do so. I am in complete agreement with him, and with my noble friend Lord Young of Cookham for reiterating the point that he made last night. It is,

“beyond astonishing that the upper House should try to amend a measure that has received such a clear message of support from this elected Chamber, and in respect of which we have an election mandate to help young people”.—[Official Report, Commons, 9/5/16; col. 459.]

Elected honourable Members have been clear in their overwhelming support for delivering our starter homes commitment, and, as my noble friends Lord Young of Cookham and Lord Cormack, said, Amendment 10B was rejected with a majority of 83.

This House has done its duty. It has scrutinised, and the Government have revised as far as they possibly can. It is time to stop and to recognise and respect the will of the electorate and the primacy of a manifesto mandate. The noble Baroness, Lady Hollis, said that the legislation had been rushed through and that the Commons had not scrutinised it properly. However, I understand from the Commons that timings were agreed, including by the Labour Whips. I have already made clear to the House that Amendment 10B would fundamentally change the Government’s manifesto intention as proposed in the Bill, and that we therefore consider the Salisbury convention to be engaged.

I once again reassure the House that the Government are completely committed to ensuring that a range of housing tenures come forward. These include shared ownership and other affordable home ownership products. However, we are legislating for starter homes alone as a new product, designed to address a specific gap in the market, and we have a clear manifesto mandate to do that.

I also reassure the House that the Government are consulting on setting the percentage requirement. These proposals include exemptions where a starter home requirement will not be expected. I would be happy to meet noble Lords to discuss this further before the resulting regulations are brought back to this House.

The noble Lord, Lord Kerslake, said that the percentage requirement was set at 20%. Twenty per cent is currently a consultation proposal and is not yet fixed. However, we are consulting the sector on this and other aspects of the starter home regulations. The noble Lord also talked about current proposals being rigid and inflexible. We are consulting on how the starter homes requirement will apply. This includes setting out exceptions on the basis of viability and the types of housing being built, such as housing for older people.

The noble Lord, Lord Beecham, suggested that this was not a wrecking amendment. We promised the electorate that we would deliver 200,000 starter homes by 2020. This was our election mandate and this amendment would undermine delivering that.

I have listened carefully to the debate, and I hope our clear manifesto commitment for starter homes means that there is no need to divide your Lordships’ House. With these reassurances in mind, I invite the noble Lord to withdraw his amendment to my Motion.

My Lords, I am grateful for the contributions to this debate on starter homes. I entirely understand and respect the constitutional issues at stake here. This House is clearly a revising and improving Chamber and, ultimately, the other place will prevail. That is the democratic propriety, and that is as it should be. I also recognise the issues associated with how the conventions work. The 2006 report referred to by the noble Lord, Lord Young, was not taken up within the context of the Companion, and my amendment complies with the rules as set out in the Companion. I absolutely respect the views put forward by the noble Lord, Lord Cormack. He and I worked very productively on the Trade Union Bill and saw very substantial improvements.

The challenge is judging the impact of what is proposed and whether it will deliver more homes—which we desperately need in this country—or, indeed, the 200,000 starter homes the Government seek. Personally, I severely doubt whether it will deliver what is intended. Notwithstanding what the Minister has said, it is in many ways a rigid proposition. I also recognise that it is a manifesto commitment and that Ministers have expressed a concern that the amendment will undermine that. I am alert to the Minister’s assurances on the consultation and the flexibility that will be built in. At this point I will, therefore, reluctantly withdraw the motion.

Motion A1, as an amendment to Motion A, withdrawn.

Motion A agreed.

Motion B

Moved by

That this House do not insist on its Amendments 47B and 47C, to which the Commons have disagreed for their Reason 47D.

47D: Because they would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient.

My Lords, I turn to another manifesto commitment—high value vacant local authority housing. I start by reminding your Lordships’ House what the manifesto said:

“We will fund the replacement of properties sold under the extended Right to Buy by requiring local authorities to manage their housing assets more efficiently, with the most expensive properties sold off and replaced as they fall vacant”.

The Bill delivers that manifesto commitment. It will increase housing supply through the delivery of affordable homes, and extend home ownership by funding the discounts for the ground-breaking voluntary right-to-buy agreement. Let me be clear: the manifesto says that the homes sold will be replaced with new homes. It does not say that there will be like-for-like replacement. We want to make sure that the new homes serve the needs of communities, today. We do not see a reason to commit ourselves to reproducing exactly the same type of home when communities have changed and the need for housing may be different. We want to retain flexibility in the legislation so that the Government, working with local places, can facilitate the development of the type of homes we need today.

Noble Lords have used their scrutiny role to great effect. The House has helped to improve the Bill in many ways. However, we cannot accept amending the Bill in a way that would prevent us delivering on our manifesto commitment. As the Minister for Housing and Planning explained in the Commons yesterday, the Government could not accept Lords Amendments 47B and 47C because they would significantly reduce the funding available for the voluntary right to buy. The other place has been clear that it does not agree with the fundamental changes that have been proposed to the agreements process. Twice it has emphatically rejected amendments from your Lordships’ House—by 288 votes to 172 last Tuesday, and then, yesterday, by 291 votes to 203. That shows their strength of feeling.

In addition, the House of Commons has, for a second time, offered a financial privilege reason for rejecting our amendments on this issue. I respect, and would defend, the right of this House to propose an amendment in lieu when the Commons has rejected our original amendment on grounds of financial privilege. However, I remind noble Lords that the Joint Committee on Conventions reported in 2006 that:

“If the Commons have disagreed to Lords Amendments on grounds of financial privilege, it is contrary to convention for the Lords to send back Amendments in lieu which clearly invite the same response”.

This House has already sent back one set of amendments in lieu which invited the same response of financial privilege—Amendments 47B and 47C, which were sent to the Commons last Wednesday. Motion B1 in the name of the noble Lord, Lord Kerslake, invites the House to offer Amendment 47E in lieu. At first glance, that amendment also has major implications for how the voluntary right-to-buy commitment will be funded and therefore could invite the same response. I hope the House will be mindful of that convention as we debate and decide on the Motions before us today.

The Bill has always enabled the Secretary of State to enter into agreements with local authorities. We have made amendments which clarify our intentions concerning replacements. These will ensure that where a local authority has entered into an agreement, at least two new affordable homes will be provided for each home expected to be sold in London. A similar approach will now work outside London as well, with local authorities that choose to enter into an agreement being required to provide at least one new affordable home for each one expected to be sold. Let me be very clear: “affordable” includes a range of different types of housing, meaning homes that will be made available for people whose needs are not adequately served by the commercial housing market, from new homes for sub-market rent to home ownership products such as shared ownership and starter homes.

Receipts will be used to support the delivery of our manifesto commitments to support the delivery of right-to-buy discounts to housing association tenants and the delivery of additional homes. We will of course compensate local authorities for transaction costs and the debt associated with the housing. After that, we have been clear that receipts will be used to fund both right-to-buy discounts for housing association tenants and the delivery of new affordable housing. We are not intending to use them for any other purpose. I beg to move.

Motion B1 (as an amendment to Motion B)

Moved by

47E: Clause 72, page 31, line 42, at end insert—

“( ) The amount of any reduction agreed under subsection (1) must be sufficient to fund the provision of at least one new affordable home outside Greater London, and at least two new affordable homes in Greater London, for each old dwelling.

( ) Where the local housing authority can demonstrate, whether by reference to its local housing plan or otherwise, that there is a particular need in its area for social rented housing, the Secretary of State, as part of any agreement under subsection (1), must consider any application from the authority to fund the provision of a new dwelling to be let as social housing, in respect of each old dwelling.””

My Lords, Amendment 47E seeks to do two things. First, it seeks to put it beyond doubt that sufficient funding will be available to local authorities to deliver at least one new affordable home for each higher-value property sold; in London this will be at least two for one. Secondly, it gives a local authority the opportunity, where it can demonstrate a need for social rented housing in its area, to make the case for the Secretary of State to consider.

There are few parts of this Bill that have caused such concern at local level and, indeed, where the impacts are so serious. Even today, I have received an open letter from tenants setting out their serious concerns. Even at this very late stage, we still do not have the vital detail needed to properly assess the impact. This point is made very strongly in the recent Public Accounts Committee report.

Shelter has calculated that to deliver the estimated £4.5 billion of receipts identified by the Government, 23,500 vacant council properties a year will need to be sold. This equates to nearly a third of all stock that will become vacant. It follows that it is absolutely vital to be clear in the Bill how this replacement will be delivered in practice. A huge amount depends on getting this right.

Under Clause 72, the Secretary of State may enter into an agreement with a local authority to reduce the amount that it has to pay under the higher-value sales levy. The Bill now makes it clear that where such an agreement is entered into, the manifesto commitment of at least one-for-one replacement must be delivered. What is glaringly absent from the Bill, however, is that the local authority will be able to retain enough of the levy to pay for this replacement. So we have the ends but not the means in the Bill. The first part of my amendment seeks to put this point right: it seeks to align ends with means. It has been argued previously that this is unnecessary, since Ministers have given a commitment. If that is the case, it ought not to be controversial.

My concern about the Minister’s argument in the other place is that it raises precisely the issue of whether the funding will be adequate, because it suggests that to agree this amendment or something close to it would compromise the delivery of the right-to-buy policy. One way or another we need to be clear whether the funds will be there to deliver the policy in the Bill. Given the huge uncertainty about how the sums will add up, it is reasonable for this House to take the precaution of seeking clarity in the Bill that the funding will be there. What would be the purpose of reaching an agreement if it did not have the underpinning funding to support it?

The second part of my amendment has been significantly revised from the version that we previously debated. It simply seeks to give the opportunity to a local authority to make its case on grounds of need to replace a social rented home with another social rented home. It does not require a local authority to make a case if it decides that it already has sufficient social rented housing. If it wishes to go for a different mix of affordable housing, it can do so. Nothing in my amendment prevents the flexibility to which the Minister referred. It simply provides an opportunity.

Equally, my amendment does not require the Secretary of State to agree with those representations. It asks only that the Secretary of State consider the case on its merits. It therefore fits completely with the Government’s intention to do bespoke local deals. The discretion is there for the local authority to make its case. The power is there for the Secretary of State to say no if he is not persuaded by that case. It is hard to see how you could be more flexible and responsive than that.

I understand the reluctance that some in this House will have about pressing these issues again. I have thought long and hard about them. I would not put the amendment forward unless I thought it was of such vital importance. Unless we get this replacement policy right now, on funding and discretion, we shall inevitably see fewer genuinely affordable homes available. The consequences of that would be rising numbers of low-income families living in temporary accommodation. There are now some 54,000 homeless families with children living in temporary accommodation. That number is rising. Unless we get this right, it will carry on rising, and we shall have missed a major opportunity. I ask the House to support this amendment. I beg to move.

Before the noble Lord sits down, and given that his previous amendment was subject to a claim by the other place that it was financially privileged, will he explain why this amendment does not meet the same obstacle and why it is not inappropriate for him to press the matter?

My Lords, as I indicated, I have taken on board the comments made in the previous debate and revised my amendment significantly. In particular—and this is the crucial point—it does not seek to impose a requirement on the Secretary of State as regards social rented housing. It is clear beyond doubt, as perhaps the previous amendment was not, that this is a matter that the Secretary of State is asked to consider, but does not necessarily have to agree. It is therefore a choice for the Secretary of State and as such would not have financial implications. Secondly, the first leg of my amendment simply seeks to say that if you reach an agreement, it has to be funded. That is all it says.

My Lords, in speaking in support of the amendment of the noble Lord, Lord Kerslake, I remind the House that I am a vice-president of the Local Government Association. I support two principles: first, that councils should be able to keep sufficient funds to replace each home they have to sell; and secondly, that negotiations between central and local government must allow councils to take into account the housing needs in their area. If there is demand for social homes for rent, councils should be enabled by the Government to replace those higher-value homes sold with another home for rent. This is what the amendment proposed by the noble Lord, Lord Kerslake, seeks to do, which seems to me entirely reasonable.

The Minister reminded us of what was said in the other place last night. The Minister in the Commons said that these proposals,

“would also significantly reduce the funding available for the voluntary right to buy”.—[Official Report, Commons, 9/5/16; col. 461.]

This suggests that the Government are refusing to accept what, on the face of it, is a very reasonable amendment because the priority for the money released by the forced sale of higher-value council homes is not replacement council homes for rent. This amendment remains vital for that reason.

We now have one-for-one replacement in the Bill, although not like for like, and I acknowledge the Government’s limited movement on the former. However, certainty that the funding will be available for that one-for-one replacement is now needed, as the noble Lord, Lord Kerslake, pointed out. Can the Minister make a clear statement that the funding will indeed be available for the replacement home, and that where that replacement home is a social home for rent, it will be funded from the sum realised by the sale of the higher-value council home before the residue goes to the Government to fund the voluntary right to buy?

When we last debated this matter a few days ago, the noble Lord, Lord Porter, quoted the Conservative Party’s manifesto and the accompanying press release. The press release said that sold council homes would be,

“replaced in the same area with normal affordable housing”.

I asked the Minister in that debate if a definition could be supplied of what a normal affordable home actually was. The press release went on:

“After funding replacement affordable housing on a one for one basis, the surplus proceeds will be used to fund the extension of right to buy”.

In other words, the Conservative Party made a commitment, in the press release accompanying its manifesto, that a replacement home would come first. There is a clear implication in the wording of that statement—

“After funding replacement affordable housing”—

that the home will be of the same type. That is what a lot of people believed to be the case. However, it becomes clearer that this is not the Government’s intention. Instead, a voluntary right to buy has to be funded first, and the resource available to supply a replacement council home will in practice be extremely limited.

The noble Lord, Lord Kerslake, gave one or two facts and figures. A rising number of people are homeless and a large number of people are now living in temporary accommodation, a figure that also seems to be rising.

We have more than 1 million people on council waiting lists. It is anticipated that under the existing right to buy, by 2020, 66,000 council homes will have been sold to tenants. The Government’s introduction of a 1% rent reduction each year for the next four years for social housing will reduce the number of replacements that can be built, because the revenue stream matters in paying the bills. Finally, the forced sale of higher-value council homes will reduce the number of social rented homes available, unless the amendment is accepted.

In my view, what the noble Lord, Lord Kerslake, has now proposed is entirely reasonable. I very much hope that the Minister will feel able to accept the amendment and the need for it, because in so doing, the Government would remove the all too transparent doubt that surrounds this debate.

My Lords, first, I thank the noble Lord, Lord Shipley, for mentioning me. There was a little competition going on here as to who was going to get in next, and because he put my name in the frame, my noble friends have given way to me—so thank you.

I respectfully ask the noble Lord, Lord Kerslake, to withdraw his amendment. He knows that I refused to work on it with him yesterday because I believe that the Minister has already given us the assurance that noble Lords such as the noble Lord, Lord Shipley, require: that we will be able to replace those council homes sold. In fact, the Prime Minister was very specific: he expects us to do that if that is what we need in our areas.

Given that this is the first time that I have spoken at this stage, I should probably refer again to my entry in the register of interests, one of them being chairman of the Local Government Association, although I am sure that a few Members on the Benches opposite will smile, because it looks as though I will not be saying that too many times in future—it looks like that is passing; happy days.

From a council perspective, the danger of the amendment of the noble Lord, Lord Kerslake, is that it will damage councils’ ability to replace their housing stock. At the moment, with the manifesto commitment, the Secretary of State will be compelled to allow us to do something; under the amendment, he will be invited to allow us to do something. Straightaway, that will weaken our position. I have complete and utter respect for the current Secretary of State, but who knows what a future Secretary of State may do? Even worse from a council perspective, when the Secretary of State works out what type of units will be replaced and who will be landlord, one factor will be value for money. We all know that when a council builds a house, it can do it for less real money than an RSL, but we also know that when the Treasury does its thing with smoke and mirrors around the public sector borrowing requirement, all of a sudden the council house becomes more expensive. If the amendment were to get through, one—unintended, I hope—consequence would be to allow a future Secretary of State to take resource from a local council and give it to an RSL. I vehemently hope that every elected Member opposite will resist the amendment.

My Lords, I thank the noble Lord, Lord Kerslake, for the gracious way in which he withdrew the previous amendment. He must have been a formidable Sir Humphrey, but as such, he would know when the time came to say, “Yes, Minister”. He has moved the amendment with quiet passion and a most persuasive speech, but we have reached the stage where we really should not be gainsaying the elected House. I hope that, with all his wisdom and experience, he will recognise that.

I also hope that my noble friend, who has done the equivalent of running several marathons over the past few weeks and deserves the thanks of us all for her unflappable demeanour, will recognise that worry is shared in all parts of the House about what I would call the Henry VIII aspects of the Bill. They were referred to in a short but persuasive contribution by the noble Baroness, Lady Hollis. I would like to think that my noble friend will gather a few people around, including the noble Lord, Lord Kerslake, to discuss the contents of some of the regulations that will undoubtedly need to be tabled and will be subject to affirmative resolution in your Lordships’ House. If people such as the noble Lord, Lord Kerslake, can have an input, that can only be helpful and to the benefit of us all.

I know that my noble friend is not in a position, as was slightly mischievously suggested by the noble Lord, Lord Shipley, to accept the amendment tonight. Of course she is not. The amendment either goes back to the Commons yet again or we accept that constitutionally, we do not really have the authority to do so. There are always things that we would like to get better. There are things that we would like to test to the ultimate. I am told that my car could go at 120 miles an hour, but would I do that? I would be not only a criminal but an idiot to attempt it.

I believe that we have taken this as far as we can in your Lordships’ House. It is good that the arguments are being rehearsed; it would be good if there were proper input from the noble Lord, Lord Kerslake, and others when the regulations come to be devised; but enough is enough, and I hope that we will not divide on this.

My Lords, I declare an interest as leader of a local authority and someone who has sat through a number of hours of proceedings on the Bill. Anyone who has read Hansard will know that my enthusiasm for aspects of it as it first appeared was perhaps a little way short of ecstasy, but it also contains some fundamental and important things that the Government promised in their manifesto and which people in this country want, such as starter homes, the right to buy and many others.

The House needs to find a balance, take part in a parliamentary dialogue and, ultimately, reach an accommodation. In that accommodation, I speak as someone who is elected, albeit as leader of a local authority. There is no doubt that the authority of election is substantial and different. It lies in the authority of the other Chamber and it does not lie in ours.

In the course of the past century, the House of Commons has not succeeded as a parliamentary Chamber capable of legislating as well as it should. That is a problem for the other place and one which the other place alone can resolve. It is because it has failed in that respect that your Lordships’ House has with great distinction developed this role as an advising and revising Chamber, which it has shown with exemplary quality and patience in the course of the Bill.

However, I ask the noble Lord, Lord Kerslake, not to press this matter further. This House cannot—it is not constitutional for it and it is not capable of it—construe the view that the other place, the elected House, takes of its own financial privilege. That is a matter entirely for the House of Commons. It is not for us to debate and say, “They won’t think this ventures into their financial privilege; we can get away with something else”. This is a matter for the other place. Twice, the other place has said to this Chamber that the Commons disagrees because it is asserting financial privilege.

The noble Lord, Lord Kerslake, is perfectly within his rights, and no one on this side or from the Government should ever say that a Member of your Lordships’ House is unable to propose an amendment in lieu when the other place has cited its privilege, but there comes a point when you have to say that batting back against the will of the elected House is not a profitable course to follow, either as a collective, as a House, or as an individual. I might give some gentle advice to the noble Lord: if I were seeking admission to the counsels of the Government, I would not necessarily keep shoving back the same thing time and again. I think there are perhaps better ways to proceed.

As the leader of a local authority, I have appreciated some of the many points that the noble Lord made. I wish, in some respects, that the Government had been able to listen on other points, but we are where we are. This is a much improved Bill; that has been acknowledged in the other place by Ministers who have welcomed the amendments that have been made. But now the time has come to accept the will of the elected House on this question. The noble Lord, Lord Kerslake, has had a good run—from the “Today” studio before he even became a Member of this House, through this long Bill. With the greatest respect, it is now time for him to head to the pavilion on this matter.

My Lords, I will not detain the House very long. A passing comment by the noble Lord, Lord True, has caused me to ask the Minister a basic question about financial privilege. The Minister has made it very clear to your Lordships’ House, and even clearer today, that when a higher-value affordable home is sold off, a local authority, should it negotiate with the Secretary of State, will be able to replace it with another property—a one-for-one replacement, or two for one in London.

The Minister has also made it very clear today that, when that takes place, the transaction costs and the cost of building the new property will be made available from the sale figures of the higher-value affordable home. I hope the Minister will confirm that that is definitely the case. Indeed, it covers the first part of the amendment from the noble Lord, Lord Kerslake. If that is the case, and the Minister has agreed that a new property to replace—not like for like but one for one—will be funded, I am at a loss to understand why the discussion about what the tenure of that property will be makes any difference to the amount of money that will then be left available to pay for the other aspects of government policy.

In the other place, the Minister, Mr Brandon Lewis, said that these proposals,

“would significantly reduce the funding available for the voluntary right to buy, again preventing this Government fulfilling their manifesto commitment. Let me be very clear: this is a wrecking amendment”.—[Official Report, Commons, 9/5/16; col. 461.]

The noble Baroness the Minister has repeated those very words today. I am at a total loss to understand where the loss of money comes from, because she has acknowledged that the building of a new property will be funded. What the tenure is does not alter the building cost. I hope that the noble Baroness can give a very clear explanation of the statement made by the Minister in another place and repeated by her today.

My Lords, I do not wish to address any issues of policy in respect of the Bill or the merits or otherwise of the proposals contained in the Bill. Unlike my noble friend Lord True, I am not elected or standing for election, so perhaps my words to the noble Lord, Lord Kerslake, will be a little less diplomatic than those of others. I do not know how much time Members of this House spend talking to people in the other place as we go about our work. I love this House and I think it does a fantastic job, but there is increasing irritation at the other end of the corridor about the activities of this House, and we should take account of that. There are proposals to reduce our powers, to which I am very strongly opposed. I believe that there are major issues concerning the use of secondary legislation and the provision of Henry VIII clauses, and no doubt we will address those in the next Parliament.

I have always very strongly supported the idea that the Cross Benches should have an important presence and role in this House. Traditionally, the Cross Benches have been composed of people with great expertise—the noble Lord, Lord Kerslake, is a notable example—but they have always known where to draw the line and have respected the conventions of this House. We are in danger of crossing that line. I do not seek to argue whether the noble Lord’s view is correct or the Minister’s view is correct. What matters is that the other place has rejected this matter and has claimed financial privilege. As my noble friend Lord True has pointed out, the question of financial privilege is a matter for the elected House. We, in this House, have always respected the view that we do not put forward Motions in lieu where they have been rejected on the grounds of financial privilege in the past, and this is what we are in danger of doing this afternoon.

I hope that the noble Lord, Lord Kerslake, will show the same degree of sensitivity in his position on the Cross Benches as he did on the previous amendment. I supported him in some respects—although I regret the way in which the Government finally came to the right conclusion on some aspects of the Trade Union Bill—but he is in danger of looking like a Member of the Opposition and not a Cross-Bench Member if he proceeds to push this amendment against the conventions that have applied. The Opposition may disagree. We know the position of the Liberal Democrats—having lost their democratic position in the other place, they have made it clear from the start that they wish to raise their standard here.

I urge Members of the House to think carefully, because this House has a great and important role, and it will be undermined if we behave in a way that causes extreme irritation to the other place, which, after all, has been elected to do a job on manifesto commitments with which we are concerned today. I give way to my noble friend.

I am grateful to my noble friend. I think the argument is stronger than he put in relation to financial privilege being claimed, because that has happened twice. The second time, which was last Wednesday, the noble Lord, Lord Kerslake, believed that the amendment would not invoke financial privilege, but it did. In that sense, the House has perhaps inadvertently sent an amendment back in lieu once, in contradiction of the financial privilege argument. To do so twice seems a serious breach of the convention.

My noble friend is absolutely right. As he knows, I always pull my punches, but he is right to invite me to make the case even more strongly. Of course, when I intervened earlier and asked the noble Lord, Lord Kerslake, if he would deal with the issue of financial privilege, he said that in his opinion his amendment did not breach that; but that is what he said the last time, and the House of Commons took a different view. He has made his argument, and my noble friend the Minister has shown enormous patience throughout the passage of this Bill, along with the rest of us who have been here to support her in the Division Lobbies. I hope that the noble Lord will accept, as my noble friend Lord Cormack said, that he has taken this matter as far as he can and that it is a matter for the elected Government and for the House of Commons to take things forward.

My Lords, last night the Commons spent all of 52 minutes debating the amendments passed by your Lordships’ House. In the course of the debate, the Minister, Brandon Lewis, asserted that this House had,

“chosen again to oppose one of”,

the Government’s,

“most important manifesto commitments, namely the commitment to ensure that more homes are built: homes that we need, and homes that young people are crying out for”.

To borrow a phrase from a somewhat more famous Conservative, Winston Churchill, that is a “terminological inexactitude”. It is perhaps less personal than the assertion by a Conservative Back-Bencher that the manifesto commitment was,

“struck down and circumscribed by the unelected, unaccountable panjandrums in the House of Lords”.—[Official Report, Commons, 9/5/16; cols. 458-59.]

I declare my interest, and perhaps others of your Lordships do so as well.

The Conservative manifesto commitment was to build 275,000 affordable homes by 2020 and all of—my words, not theirs—10,000 homes to rent at below market rents. Nothing in the Motion moved by the noble Lord, Lord Kerslake, conflicts with the manifesto commitment to build more homes. Part of the problem lies in the repeated use of the adjective “affordable”, and the failure of the Bill—and Ministers—to define the term other than in relation to starter homes, where the examples of affordability, reaching up to £450,000, are widely recognised as unrealistic. But the particular difficulty is the evident and extreme reluctance of the Government to acknowledge the need for affordable housing, which essentially means social housing, for rent, beyond identifying the massive programme of 2,000 houses a year at below market rents for the next five years.

The Government purport to address this issue by the provisions of the Bill which allow, but do not require, the Secretary of State to enter into agreements with councils to reduce the amounts they would have to pay to the Secretary of State, principally to fund the right to buy of housing association tenants. There is no requirement to do so, beyond the need in London, under an agreement for two-for-one replacement, and one-for-one elsewhere; but there is no requirement for the replacement to be by way of like-for-like tenure—only that replacements should be “affordable”. Moreover, as we have heard at some length during the passage of this Bill, the Government are unable to produce figures defining the meaning of “high value”, or the number of properties affected locally or nationally, or the likely rate of vacancies, or the cost of administering the scheme, or how they will judge how much to require councils to pay up-front annually, since the Bill envisages such payment will be required whether or not sales are effected. To misquote Marx—Groucho, not Karl—“A child of five could understand the impact of this policy. Bring me a child of five”, or perhaps, in these days, a special adviser.

Ministers constantly state that there are 16 million pieces of paper relevant to this issue and they are therefore unable to make any assessments. In that case, surely the answer is not to legislate before any real assessment of the impact is made, and not to rely on unamendable secondary legislation to ram through controversial and untested policies. That brings me to the claim that financial privilege prevents us from amending the Bill. The Government have already accepted some amendments with possible financial consequences, but the point is that financial privilege is not some God-given formula by which this House is prevented from amending legislation. We are not in the Moses Room with tablets of legislative stone; Governments can choose not to invoke or apply financial privilege, and we are entitled to invite them to do so. In any case, as the noble Lord, Lord Kerslake, suggested, the amendment does not breach financial privilege.

The Motion moved by the noble Lord is a modest one. All that it seeks is that in calculating the financial adjustments to be made on the forced sale of high-value properties, councils should be able to retain sufficient money to provide two-for-one replacements in London, and one for one elsewhere, with the rider that the Secretary of State should consider allowing sufficient to be retained to permit that replacement by social housing for rent, when they can demonstrate need. It is not carte blanche—it is still a matter for the Minister to agree. It is the least that could reasonably be asked for. It is consistent with the manifesto pledge to build more homes, and it deserves the support of the House, and indeed of the Commons. In no way does it override a manifesto commitment, and if the noble Lord invites the House to ask the Commons to think again, the Opposition will support him.

My Lords, I thank all noble Lords who have spoken so eloquently on the amendment, particularly my noble friends who are such constitutional experts, far more so than me—my noble friends Lord Forsyth, Lord True and Lord Cormack. My noble friend Lord Cormack asked initially about the regulations and working with noble Lords. I hope that, whatever noble Lords think about the Bill, they will agree that I have taken the time whenever needed to engage with noble Lords from across the House to discuss any aspect of legislation or regulations that they might wish—and I fully intend to continue in that role.

Amendment 47E, proposed by the noble Lord, Lord Kerslake, in lieu of Amendment 47, is not acceptable to the Government. It would require that, when the Secretary of State enters into an agreement, sufficient funding must be provided to fully fund the cost of the new home. I hope that noble Lords will not misinterpret me when I say that the Government want more housing to be built, and I hope that the noble Lord will recognise that the arguments that this House recognised in relation to the last group apply just as strongly now. We have listened, and I have reassured this House strongly on how flexible agreements will be. It is now time to stop undermining our ability to proceed and to let us deliver our manifesto commitments.

We support the involvement of local authorities in delivering new homes. We value the creative partnerships across the sector to increase housing supply. But additional homes should not be funded simply through retained payments from the sale of high-value vacant housing. We have discussed that at length throughout the course of the Bill. There should be opportunities for local authorities to contribute their land, assets or funding, and to work in partnership with other providers in their area to build homes. We also want to ensure that value for money is secured, and ensure that the homes are delivered as cost effectively as possible.

In placing expectations on receipts, the amendment would prevent the Government from fulfilling their manifesto commitment, because it would significantly reduce the funding available for the voluntary right to buy. Since November last year, more than 29,000 housing association tenants have asked to be kept up to date with the right-to-buy scheme via our website. It is not right that we should deny these tenants their dream of home ownership.

The noble Lord, Lord Beecham, talked about numbers. Let us reflect a bit back to the Conservative-led coalition being the first Government to end a Parliament with more affordable homes than we started with. Labour oversaw the loss of 420,000, by contrast. This is about our manifesto commitment to extend the right to buy.

The noble Lord, Lord Beecham, talked about the financial privilege that the Government look to invoke. That is not true—it is a matter for the Commons Speaker on the advice of Commons clerks. It is not a political decision. I do not know a lot about the constitution, but I do know that.

The noble Lord, Lord Kerslake, talked about increased homelessness. A key part of this policy is to release the value locked up in vacant higher-value housing assets in order to build more homes. We are committed to supporting the most vulnerable in our society to have a decent place to live. Since 2010, we have invested more than £500 million to help local authorities prevent nearly 1 million households becoming homeless. Time spent in temporary accommodation ensures that no family is without a roof over their heads. We have made common-sense changes to the law to allow local authorities to offer accommodation in good-quality private sector accommodation, and households, on leaving temporary accommodation, now spend on average less time in temporary accommodation than they did in 2010.

The noble Lord, Lord Shipley, asked why we would not agree to the amendment proposed by the noble Lord, Lord Kerslake, to enable homes to be built on a like-for-like basis. Our manifesto made it clear that we wanted to increase home ownership and drive up the supply of new homes. The receipts from the sale of high-value assets will enable us to deliver both of these commitments. The receipts will be used to give up to 1.3 million housing association tenants the right to the same level of right-to-buy discount as has been enjoyed by local authority tenants for decades.

But—and this is equally important—it will provide receipts that local authorities that enter into agreement with us will use to provide affordable homes. When they choose not to—and some will choose not to—the money will be returned to government to provide additional homes. As I have previously explained, the proceeds from right to buy will contribute to the funding that the housing association will use to provide an additional home for the one that is being sold, and an additional two homes in London.

The noble Lord, Lord Shipley, suggested that the policy would result in fewer social rented homes. I say again that we have a national housing crisis. We need more homes across different tenures and across the country. At the heart of this policy is the building of more homes, funded by part of the receipts from the sale of high-value council housing. The Secretary of State and a local authority can enter into an agreement for the local authority to retain part of its receipts to lead the delivery of more homes that meet housing need. In the case of London, where we know that there is an acute housing crisis, this agreement must result in the delivery of at least two more affordable homes for each high-value vacant dwelling that is taken into account under the determination.

I urge your Lordships’ House to respect the will of the other place, recognising that this is a manifesto commitment and that, as the House of Commons has offered a financial-privilege reason for rejecting our amendments, we should be wary of proposing an alternative that would invite the same response. I therefore urge noble Lords to accept the Commons reason and not support Amendment 47E.

I thank noble Lords for their contributions to this debate. I have listened intently to all of them. One of the things that I have discovered as a Cross-Bencher is that—to put it bluntly—you are on your own. You have to make your own judgments based on the arguments and listen to the debate very carefully.

Let me explain my underpinning dilemma here. We have two manifesto commitments. The one that the noble Lord, Lord Shipley, spoke about is the commitment to fund the replacement of a property sold. The other, to which the Minister alluded, is the manifesto commitment to fund the extension of right to buy. As we all sit here now, we do not know whether those two commitments stand together. Quite extraordinarily, during the whole passage of the Bill we have still not been able to answer that question.

This leaves us with a real dilemma. I should say that before I was a Sir Humphrey, I was an accountant. I would not employ me as an accountant now, but that is what my past was, and one of the things that I like to see is the numbers adding up. We are now faced with a real dilemma in this situation about a proposal that simply does not enable two contradictory things to happen. So the judgment we have to make is where we place the positioning of the amendment in relation to that. It remains my very strong view that what I have put forward here simply seeks to say that if you reach an agreement on one-for-one replacement—not like-for-like but one-for-one—it is not unreasonable to say that the funding should be there. I am perfectly comfortable with a range of funding being brought in to do more, but at a core level it should do what it says on the tin: fund a replacement.

The second part of my amendment simply says: give consideration to social rented housing. It is hard to see how anyone could see that as objectionable in any part of this House or the other place. So, having agonised and listened through this debate very carefully, I have very reluctantly concluded that I would like to test the opinion of the House on this issue.

Motion C

Moved by

That this House do not insist on its disagreement with the Commons in their Amendment 97A in lieu of Lords Amendment 97 and do not insist on its Amendment 97B in lieu of that Lords Amendment, to which the Commons have disagreed for their Reason 97C.

97C: Because Lords Amendment 97B would add complexity and unpredictability to the planning system.

My Lords, the Government place communities at the heart of the planning system. We have gone further than ever in giving communities the power to develop neighbourhood plans that set the planning policies for their area. The strength of feeling in this House on the issue of a neighbourhood right to appeal was made very clear. However, with more than 150 adopted neighbourhood plans in England, and more than 1,700 more at various stages of completion, the introduction of a right of appeal could have far-reaching consequences. As I have reiterated in these debates, we believe that a third-party right of appeal would add complexity to the planning system and slow down housing delivery.

We trust communities to shape future development through neighbourhood plans. We trust local planning authorities to take decisions for sustainable development and to listen to their communities. We cannot maintain a balanced planning system if every decision to approve a sustainable development is open to a lengthy and costly appeal.

The other place—the elected House—did not accept the Lords amendment on a neighbourhood right of appeal. It has rejected it twice without even a vote, so this is not the time to push any further. I hope that I can reassure noble Lords that they have been heard. The Minister for Planning and Housing has given an undertaking to the other place that he will look into this matter further.

I am obviously disappointed that your Lordships’ House did not previously support the Government’s amendment in lieu, which would have ensured that local planning authorities provided a very clear explanation of why the authority could justify recommending a decision that would conflict with a neighbourhood plan. However, we have the opportunity to return to this matter now. The Government’s amendment in lieu would require local planning authorities to set out in any report to a planning committee that recommends granting planning permission how any neighbourhood plan has been considered. They will also be required to identify in the report any conflict between their recommendation and the neighbourhood plan. This will ensure that the planning committee cannot fail to appreciate how the development accords with the neighbourhood plan and provides communities with the opportunity to raise any further concerns directly with their local councillors or to attend and request to speak at the planning committee. It also draws attention to the issues of conflict in case the community wishes to request call-in by the Secretary of State. Let me be very clear that communities can request that any application is considered for call-in before a decision letter is issued.

This added level of transparency and explanation will ensure that local planning authorities are absolutely clear about how they have balanced the neighbourhood plan against other material considerations that they are required to take into account. This amendment is a proportionate and appropriate response to ensuring that neighbourhood plans are given the respect and consideration they deserve. I beg to move.

Motion C1 (as an amendment to Motion C)

Moved by

Leave out from “House” to end and insert “do insist on its disagreement with the Commons in their Amendment 97A, do not insist on its Amendment 97B, and do propose Amendment 97D in lieu of Amendment 97A—

97D: After Clause 140, insert the following new Clause—

“Neighbourhood right to be heard

(1) After section 75ZA of the Town and Country Planning Act 1990 (inserted by section 140 above) insert—

“75ZB Responsibilities of decision-makers in respect of neighbourhood development plans in the exercise of planning functions

(1) For the purposes of this section—

(a) an “emerging” neighbourhood development plan means a neighbourhood development plan that has been examined, is being examined, or is due to be examined, having met the public consultation requirements necessary to proceed to this stage, and

(b) a “neighbourhood planning body” means a town or parish council or neighbourhood forum, as defined in section 61F of the 1990 Act (authorisation to act in relation to neighbourhood areas).

(2) In considering whether to grant planning permission or permission in principle for development which affects land all or part of which is included within the area covered by a made or emerging neighbourhood development plan, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the policies and proposals of that neighbourhood development plan.

(3) A planning authority must, before determining an application for planning permission or permission in principle, give any neighbourhood planning body whose made or emerging neighbourhood development plan includes all or part of the area of land to which the application relates, a period of 21 days, from the date of receipt of the application by the neighbourhood planning body, within which to make recommendations about the manner in which the application should be determined; and must take any such recommendations into account.

(4) Where a planning authority does not propose to refuse an application for planning permission or permission in principle where a neighbourhood planning body has recommended, under subsection (3), that permission be refused, the planning authority shall not grant planning permission until it has consulted the Secretary of State following the procedures set out in provisions 10 to 12 of the Town & Country Planning (Consultation) (England) Direction 2009.”””

My Lords, I very much welcome the comments made last night by the Minister in the other place, who said that he intends,

“to work with colleagues to ensure that neighbourhood plans enjoy the primacy that we intend them to have in planning law”.—[Official Report, Commons, 9/5/16; col. 462.]

I wholeheartedly endorse and welcome that commitment. However, I have prepared what I believe to be a significant compromise on the proposal that was agreed by this House during our last debate as a means to do just that.

Our previous amendment included a right of appeal—a limited one, but a right of appeal nevertheless. I understand that the Government saw that as a third-party right of appeal, which they did not wish to agree to. Therefore the amendment before your Lordships today does not push a third-party right of appeal but proposes a right to be heard. The proposal makes it clear that local authorities should have special regard to the policies in neighbourhood plans. It proposes that planning authorities must consult with neighbourhood plans and take account of their views before decisions are taken and, crucially, it provides for a call-in decision. I heard what the Minister said about call-ins if neighbourhood plan groups wish to ask for a call-in before a local authority makes a decision, but, crucially, they do not have that right once local authorities have refused an application which is contrary to that within a neighbourhood plan. That is a major barrier to encouraging more local groups to get involved in neighbourhood planning, which this House—and the Government—has said on many occasions we want to achieve because we know that neighbourhood plans deliver more homes.

The Bill needs to do all it can to ensure that local people invest the time and the effort in putting together neighbourhood plans so that we get the housing we need through consensus. Giving this extra weight to neighbourhood plans by allowing for this right to be heard—not a right of appeal—will mean that their plans will not be ignored or easily overturned. That seems a key to encouraging more neighbourhood plans to come into being, which is what the Government and all noble Peers have made it quite clear we want to achieve. This is a compromise amendment, therefore, on that basis, I beg to move.

My Lords, first, I refer noble Lords to my declaration of interests and declare that I am a locally elected councillor in the London Borough of Lewisham.

We have discussed the neighbourhood right of appeal on a number of occasions in your Lordships’ House, and I was convinced that the limited right of appeal, which the noble Baroness, Lady Parminter, has put forward on a number of occasions, was the right approach. However, despite that and numerous discussions, the Government have not been persuaded that this is the correct way forward. That is disappointing.

The government amendment agreed in the Commons makes some moves in the right direction but, as the noble Baroness told the House on 4 May, what is proposed here, set out on page 5 of the Marshalled List before us today, is what you would expect any good local planning authority or planning officer to do anyway. Therefore, I am under no illusion that what is before us from the Government is a particularly significant concession. As I said earlier, that is disappointing, and we should go a bit further.

When I look at this Bill, I often reflect back on the Localism Act. It appears that the government Benches are less keen on localism than they may have been a few years ago. In general, they talk about localism when they like what is going on, and when they do not like it, we have to do what they say. As I said, there is a bit of a hokey-cokey on localism from the government Benches. That is not the way to go, and it is disappointing. The noble Baroness has given us another possibility, and maybe we will have some good news from the Minister.

My Lords, I thank the noble Baroness, Lady Parminter, for her amendment and for the way she has worked with me throughout the passage of the Bill—she might think not to very great effect, but we have had extensive debates regarding a neighbourhood right to appeal, and I am pleased that we are able to return to this issue in quite a constructive manner. We all agree on the importance of neighbourhood plans and we wish to see the planning system working without unnecessary costs and delays. We also wish to see the planning system deliver sustainable development and the homes our communities need.

While I very much welcome the direction of travel of the amendment, which is focused on the call-in process, now is not the time to pursue the matter. This issue was not part of the original Bill and the other place has made clear its approval of the Government’s amendment in lieu. The Minister for Planning and Housing has made it very clear that he is willing to work with colleagues to return to this issue in due course. I hope that this is as encouraging to noble Lords as it was to certain Members of the other place—and particularly to organisations such as CPRE which have lobbied on this matter.

Although the Government cannot support this amendment, I understand the advantage of an approach that is based on the existing call-in system and the constructive manner in which it was laid. The Government are willing to look at this issue further, and I hope that provides the reassurance to the noble Baroness for her to withdraw her amendment.

I thank the Minister for those remarks. I am obviously disappointed that, at this late stage, after, as she knows, so many compromises have been brought forward from this side on this issue, the Government do not feel able to accept something that will deliver what they want to achieve—more homes—because it will bring about more neighbourhood planning. I thank the noble Lord, Lord Kennedy, for his comments and share his reflections that localism does not always mean what we would wish it to mean on the government Benches. On these Benches, we trust local people and want them to get engaged in the planning process, and we believe that that is the way to deliver more homes and the stable communities of the future.

I accept, however, that there is more than one way to achieve what we all want to achieve. In withdrawing this amendment, I hope that the Minister’s comments yesterday about working with colleagues applies not only to colleagues in the other place, but to colleagues in this House who feel so strongly that local communities need to be involved and that that will help us to deliver the sustainable homes that we need.

Motion C1 withdrawn.

Motion C agreed.

Motion D

Moved by

That this House do not insist on its Amendment 108 and do agree with the Commons in their Amendment 108C in lieu.

108C: Page 76, line 26, at end insert the following new Clause—

“Review of minimum energy performance requirements

After section 2B of the Building Act 1984 insert—

“Duty to review minimum energy performance requirements

2C Review of minimum energy performance requirements

The Secretary of State must carry out a review of any minimum energy performance requirements approved by the Secretary of State under building regulations in relation to dwellings in England.””

My Lords, this amendment would place a statutory duty on the Government to undertake a review of minimum energy performance standards for new homes in England. It should be noted that there was very strong support in the other place for this new amendment, with a vote of 292 in favour of rejection compared to 205 against.

We share a common goal of wanting new homes to be energy efficient and for their occupants to have low energy bills. That is why in the last Parliament we introduced tough but fair minimum standards that require homebuilders to deliver highly energy-efficient homes that reduce energy bills by £200 a year compared to homes built before 2010.

We have said throughout the various debates that putting a minimum energy performance for new homes in primary legislation, without the benefit of any evidence that it will work or consultation, has the potential to push some small builders out of the industry and make developing much-needed homes in some areas unviable.

The Home Builders Federation—the voice of the industry—completely agrees with us about these concerns. It said of Amendment 108 that,

“such a standard would add to the complexity and costs for all sizes of home builder but would hit smaller home builders hard”.

The HBF also draws attention to,

“the specific challenges entailed in delivering performance standards such as the ‘carbon compliance standard’ successfully at scale and the consequent risks to housing supply of not getting the answers right.”

We recognise, however, that costs of energy efficiency measures and the industry’s understanding of them can improve over time. That is why we propose placing a statutory duty on this Government to undertake a review of energy standards for new homes. It will seek evidence on the costs of energy measures and the impact on housing supply and the benefits in terms of fuel bill and carbon savings. It will identify what is cost-effective and feasible.

The HBF also fully endorses such a review and says:

“Given the wide range of technical and other challenges involved in this field, the risk to businesses and housing delivery in further changes to regulatory requirements and the importance of increasing housing supply, such a review would provide the opportunity for all relevant issues and considerations to be properly weighed in determining the way ahead. It is essential such issues are fully addressed”.

Prescribing an energy performance standard without up-to-date evidence and analysis risks slowing down or halting much-needed new homes and driving small homebuilders away from the industry. We should not take such a risk with homes and businesses. I beg to move.

Motion D1 (as an amendment to Motion D)

Moved by

Leave out from “108” to end and insert “, do disagree with the Commons in their Amendment 108C, and do propose Amendment 108D in lieu—

108D: After Clause 143, insert the following new Clause—

“Carbon compliance standard for new homes

(1) The Secretary of State must within twelve months of the passing of this Act make regulations under section 1(1) of the Building Act 1984 (power to make building regulations) for the purpose of ensuring that all new homes in England built from 1 April 2018 achieve the carbon compliance standard.

(2) For the purpose of subsection (1), “carbon compliance standard” means an improvement on the target carbon dioxide emission rate, as set out in the Building Regulations 2006, of 44%.””

My Lords, we return again the to the issue of building the homes that we need, ensuring at the same time that we contribute fully to meeting our greenhouse gas emission targets and lowering fuel bills.

I am very disappointed to see that the Government and the other place did not feel able to accept the amendment that we proposed. In lieu, the Government are proposing a review. I remind noble Lords that the zero-carbon homes standards were agreed during the time of the coalition, with industry-wide support. Again, we ask why there is a need for a review. As the noble Lord, Lord Krebs, so powerfully asked last week: how many more homes will have to be built before this review and the implementation date and any action coming out of that review takes place? Given that we are looking to build a million new homes, how many more of those homes will have to be retrofitted—at great cost to individual home owners—because we have added a requirement for a review, when we know what we need to do now? There is no guarantee of action at the end of the review proposed by the Government. Indeed, the Government are obliged anyway to review the building regulations by June next year as a condition of the 2010 energy performance of buildings directive.

Finally, on that point, given that it was the Government and the Chancellor who scrapped the zero-carbon homes last year—the Government throughout the process of this debate have refused to engage on anything other than the viability issues around the housebuilding industry; again, the Minister chose to quote only from the housebuilding industry this evening—it gives this House little confidence that the review will look, alongside viability for housebuilders, equally at the need to ensure that we meet our greenhouse gas emission targets and lower the energy bills of people so that we can contribute to meeting our fuel-poverty targets. Given that a third of our greenhouse gas emissions in this country come from buildings and two-thirds come from homes, my contention is that this is too important to leave to a review.

I accept, however, that at this late stage there is a need to move to a compromise. Therefore that is again what I have done today. The amendment before your Lordships is a compromise. At the last stage we were proposing carbon standards of 60% for detached properties, 56% for attached properties and 44% for flats. This compromise would set the reductions at 44% in greenhouse gases on the basis of comparison with the building regulations in 2016. That is the level that the Government recommended during their time in coalition as the on-site zero-carbon standards, which would take effect from this year. It is those standards that a growing number of local authorities were setting as a condition of giving planning permission, until they were scrapped by the then Secretary of State, Eric Pickles, last year. I point out that, between 2007 and 2014, 79,000 homes in England and Wales were built to this standard. Further, Scotland has introduced this standard already, last October, and the volume of houses to this standard is growing. Therefore, the standard is proven to be both effective and achievable.

As I told the Minister, I trawled through the Conservative manifesto this morning to study exactly what their commitments were in this area. The Conservative manifesto made a clear commitment to the legally binding climate change targets and to tackling fuel poverty. It made a very clear commitment—some of us in this House may not have liked it—to offer no further public subsidy to wind farms. That was the Government’s priority; it was in the manifesto and this House can therefore understand it. However, while they made no commitments on rowing back on building standards, they made a commitment to deliver on the greenhouse gas targets and to tackle fuel poverty.

Throughout this debate, all sides of this House have challenged the Government endlessly to make quite clear, if they intend to meet their greenhouse gas targets and are not prepared to accept this amendment, how they will meet those targets. The Bill is an opportunity to provide us with the sustainable homes that we need. This compromise amendment would put us back on the right trajectory towards getting more zero-carbon homes. It would help deliver on our greenhouse gas targets, ensure that people’s fuel bills were lower and at the same time deliver the homes that we need. I beg to move.

My Lords, I support the amendment. I, too, am sorry that the Government have not accepted the compromise that has been brought forward from our previous discussion.

The Government’s reason for rejecting the amendment is that it would increase burdens on housebuilders and threaten delivery of the large number of new homes that is proposed, but, as the noble Baroness, Lady Parminter, pointed out, how can this be true if 79,000 homes have already been built to this standard? The Scottish Government have adopted this standard; it is lower than the standard that has been adopted in London; and it is already being adopted by an increasing number of local authorities in their local plans. All that evidence seems to fly in the face of the Government’s objection. I find it hard to accept that it is a burden that the housebuilding industry would not be able to cope with and that it would threaten the delivery of new homes; the evidence on that just does not stack up.

We are offered instead a review. As the noble Baroness, Lady Parminter, said, the problem with a review—we have the evidence, but let us say that we agree a review—is that we do not have a clear date for completing it nor a clear set of actions that will arise from it, and a review would not add to what is required under Article 4 of the 2010 energy performance of buildings directive. I hope that the Minister will give us some tighter commitments on the nature of the review that the Government are proposing. When will it be completed? Who will take part in it? What actions will flow from it? How does it go beyond what is required in the 2010 directive?

I do not want to reiterate the arguments that we have had, but we have not heard any argument throughout the passage of this Bill that says that this is not the right thing to do. We know that it is the right thing to do to cut our greenhouse gas emissions and to help to resolve the issues of fuel poverty. All the arguments against it have been obstacles such as, “It’ll be too difficult. The industry won’t like it. It’s all going to need more analysis”—paralysis by analysis, as we often hear. We know that it is the right thing to do. We know that if we do not do it now, we will have to come back to those houses that have been built and retrofit them with improved carbon standards in the future. The Minister should give us as much hope as possible that the Government are really committed to cutting our greenhouse gas emissions through buildings as well as through other sources—in this case, through buildings—and she should go further than simply offering yet another review.

My Lords, I obviously bow to the zeal of the noble Lord, Lord Krebs, on these matters. I only say to him that this is a Bill about housing and planning, and that I had not seen it as a stage to have a great national debate about energy policy.

This amendment seems to be very little different—it is in minor details, with the 44% applying as a base rather than a higher base relating to detached and attached houses—from that which the other place considered and voted on. As my noble friend from the Front Bench has said, that decision from the other place was conclusive and I see no reason to expect that it would be different in this case.

Having been a long observer of this Bill, I have to say that the Benches opposite have had a fair number of concessions and have been heard on quite a few things. With their offer of a review, the Government have given a fair and good response—I am sure that my noble friend will be able to provide more details to satisfy the noble Lord, Lord Krebs—and I hope that this House will not send back an amendment that is broadly the same as that which has already been rejected by the other place. I urge my noble friend to stand firm on the matter.

My Lords, I was surprised that the Government rejected the Lords amendment in the other place last night and am pleased that the noble Baroness, Lady Parminter, has brought back another amendment to be considered today by your Lordships’ House.

Resistance to this measure is puzzling to say the least. Delivering zero-carbon homes is an important standard that we should strive to achieve. It helps reduce our carbon footprint and gives people living in the properties to be built cheaper fuel bills.

In previous debates, the noble Viscount, Lord Younger of Leckie, and the noble Baroness, Lady Williams of Trafford, have relied a number of times on the opposition of the Federation of Master Builders despite there being numerous organisations that support the measure. The noble Viscount said that he would write to me giving a list of other organisations that support the Government’s position. I have not had that letter yet; perhaps the Minister could tell me when I will get it, because it would be useful to see who these other organisations are. It is also important to remember, as the noble Baroness, Lady Parminter, reminded us, that the zero-carbon homes standard was agreed by the coalition Government in the last Parliament.

As the noble Lord, Lord Krebs, said—the noble Baroness, Lady Parminter, also mentioned it—we do not want in a few years’ time to be required to undertake expensive retrofit measures when we could have done the work during the initial construction at a fraction of the cost.

The Government’s claims as to the initial costs are just not convincing. At no point during our consideration of this part of the Bill have I felt that the Government made a convincing or compelling case for why this measure should not be supported. If the noble Baroness wishes to test the opinion of the House, we will support her.

My Lords, just to say to the noble Lord, Lord Kennedy, I will chase my noble friend. I think he might have gone to get the letter, actually.

It is helpful that the noble Baroness, Lady Parminter, has revised the carbon compliance standard in her new amendment, but we still do not know the risks it may pose to the viability of home building in some parts of the country, or the impact it may have on the home building industry, particularly some small builders. We need a clear understanding of what is technically possible, viable and cost effective to make any changes to energy performance standards for new homes. That is why we are introducing a statutory duty on this Government to undertake a full and comprehensive review of energy standards based on cost effectiveness and the impact on housing supply. We will report back to this House on the outcome of the review within the next 12 months.

The other place has given its considerable support to this review based on cost effectiveness, and it is supported by the Home Builders Federation—the main trade body that represents home builders of all sizes. The Housing Minister in the other place also pointed out the following yesterday:

“We said in our manifesto that we will meet our climate change commitments and that we will do so by cutting emissions ‘as cost-effectively as possible’. The electorate voted for that and the review will help to ensure that we can deliver it”.—[Official Report, Commons, 9/5/16; col. 463.]

So before the other place considers any changes to energy performance standards, home builders and the electorate think that we first need to have an understanding of what is cost effective. Is it right that we should go against their views?

Finally, I remind the House that it is not prudent to set requirements such as this in primary legislation. If, in the light of consultation, any slight adjustment to requirements were needed, we would not be able to do so without further primary legislation. Therefore, I ask the noble Baroness, Lady Parminter, to withdraw her amendment.

My Lords, I am deeply disappointed that the Government do not feel able to accept this amendment. While I heard what the Minister said, it is still not clear exactly how the Government will meet their binding climate change commitments if they will not accept the amendment. They talk about doing so in a cost-effective manner, but the trajectory of the roadmap is unclear if we do not propose a building standards target.

The Minister talks about the risks the amendment might pose to building homes, yet we know that local authorities up and down the country already insist on this standard as a condition for planning permission. We know that London is going further and that Scotland is taking this forward in an effective way. My contention, therefore, is that the Government have not been able to prove beyond reasonable doubt that their measure will not stop us building the houses we need; it certainly will not help us to meet our greenhouse gas targets or our fuel poverty obligations.

Even if we accepted the case for a review, there is absolutely no commitment in what the Minister has said today to government action at the end of the review. Nothing might happen. It was the Chancellor who last year cancelled and scrapped the zero carbon aims, and it was the previous Secretary of State who cancelled the code for sustainable homes, and I am afraid that that does not give me enough comfort that there is a real and genuine commitment to act. Similarly, the Minister again talked about cost effectiveness. Yes, we need homes that are cost effective but we must at the same time meet our greenhouse gas targets and contribute to our fuel poverty obligations. It is those three things together, not just cost effectiveness.

This amendment is another compromise, and it should be accepted this time. It would make a significant contribution in delivering the homes we need, in meeting our greenhouse gas targets and in lowering fuel bills. I deeply regret that the Government will not accept it, and I wish to test the opinion of the House.

Motion D agreed.

Motion E

Moved by

That this House do not insist on its Amendment 110 and do agree with the Commons in their Amendment 110C in lieu.

110C: Page 77, line 42, at end insert the following new Clause—

“Sustainable drainage

The Secretary of State must carry out a review of planning legislation, government planning policy and local planning policies concerning sustainable drainage in relation to the development of land in England.”

My Lords, the Government have recognised, here and in the other place, the depths of everyone’s concerns about managing the risk from flooding. My colleague the Minister of State for Housing and Planning said in the other place:

“The Government are committed to ensuring that developments are safe from flooding, and the delivery of sustainable drainage systems is part of our planning policy, which was strengthened just over a year ago. Our policy is still new, as I outlined in more detail last week, and I am willing to consider issues further as it matures. I am happy to review the effectiveness of current policy and legislation on sustainable drainage and to place that commitment on the face of the Bill”.—[Official Report, Commons, 9/5/16; col. 463.]

This amendment, proposed by the other place, introduces an express duty on the Government to carry out a statutory review of the strengthened planning policy in respect of sustainable drainage systems.

As I have made clear, the National Planning Policy Framework includes strong planning policies aimed at assessing, avoiding and managing risk from flooding. These policies apply to all sources of flooding, including from surface water run-off and overloaded sewers. Our planning policy guidance makes it plain that local councils must consider the strict policy tests that protect people and property from flooding, and gives local councils a clear mandate to reject unacceptable planning applications. This includes consideration of whether sustainable drainage provision in a development is appropriate. This planning policy was strengthened just last year.

I am confident that we have a strong package of measures in place that will ensure development is safe from flooding. I am also confident that sustainable drainage is given a full role in this. However, it is very important that any judgment about how this planning policy is performing on the ground must be based on reliable, up-to-date evidence. For that reason, we believe that the correct approach is to review how effective the policy has been over a sensible period of time before putting in place any new requirements or changes. Any changes should be based on the evidence and recommendations from the review. Evidence offered to this House to date is at best anecdotal and cannot be a firm basis for legislation. I therefore ask that noble Lords accept that this is a sensible approach. I beg to move.

Motion E1 (as an amendment to Motion E)

Moved by

Leave out from “110” to end and insert “, do disagree with the Commons in their Amendment 110C, and do propose Amendment 110D in lieu—

110D: After Clause 151, insert the following new Clause—

“Review of sustainable drainage

(1) The Secretary of State must—

(a) carry out a review of planning legislation, government planning policy and local planning policies concerning sustainable drainage in relation to the development of land in England,

(b) carry out a review of the proportion of new developments in England that include sustainable drainage systems that are constructed and maintained in accordance with the non-statutory technical standards for sustainable drainage systems, or any replacement standards as may be published by the Minister from time to time,

(c) prepare a report setting out the findings of the reviews and any action that the Secretary of State proposes to take in response to those findings, and

(d) lay the report before Parliament no later than 31 April 2017.

(2) In subsection (1) “development” includes both development that is major development (within the meaning given by article 2(1) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (S.I. 2015/595)) and development that is not.””

My Lords, this amendment and the previous debates concern ensuring that the homes that we want deliver sustainable drainage, with the benefit of protecting home owners from floods and wider amenity benefits to communities and to biodiversity. I am disappointed that the Government and the Commons did not feel able to accept amendments that this House voted for to end the automatic right to connect for housebuilders. However, I thank the Minister for what is being proposed now in terms of a concession on the review, which we believe will demonstrate all too clearly that the evidence on the ground that we have heard about in this Chamber on numerous occasions shows that SUDS are not being delivered.

However, the amendment we propose is to ensure that the review will be thorough. First, it would ensure that the review looks not just at policy but at actual developments; and that there is a robust sample size, taking into account the proportion of new developments and the type of SUDS being implemented. Secondly, it would ensure that the review is timely. The Climate Change Committee will report to Parliament next June. I am sure that the noble Lord, Lord Krebs, will want to say more about this. It will consider the penetration of sustainable urban drainage. It is therefore vital that any review undertaken can report so that the adaptation sub-committee has that information, can assess it and provide appropriate advice to Parliament by the time the report is published in June.

I hope that the Minister, in summing up, will be able to reassure the House that the review will indeed be thorough; that she will reassure the House that the Government accept the strength of feeling on this issue that the House has demonstrated on numerous occasions; and that we will be able to deliver the sustainable urban drainage systems that we all want to see. I beg to move.

My Lords, I should declare that I am the chairman of the Adaptation Sub-Committee, to which the noble Baroness, Lady Parminter, referred. Listening to what both she and the Minister said, I did not think there was too big a gap between their amendments. The Minister said that the review of policies would be robust and evidence-based. For me, part of the evidence base will be whether the policies are working on the ground. I hope that, when the Minister sums up, she will say that the review will also include looking at evidence of what is happening on the ground.

It is important to recognise that this is not just evidence from high flood risk areas. According to figures that I have been given from the insurance industry, 70% of claims for flood damage come from buildings outside high flood risk areas. This is because surface water flooding does not necessarily occur in the same place as coastal or fluvial flooding. If we could get confirmation on that point, it would be extremely reassuring both to me and to the noble Baroness, Lady Parminter.

On the question of timing, as the noble Baroness has said, my committee will submit its statutory report to Parliament next summer on the Government’s progress in preparing for the impacts of climate change. This includes the impacts of flood risk, which are likely to increase in future. In writing our report, it would be helpful for us to have the output of this review available at some time in the spring of 2017. I look forward to the Minister’s response.

My Lords, I was surprised that the Government rejected this amendment when it went to the other place. Ensuring that we build homes and have sustainable drainage is a positive thing. When we discussed this matter the other day, the amendment of the noble Baroness, Lady Parminter, sought to remove the automatic right of connection to ensure that the drainage system would be considered and resolved early on and not left to the end. It was suggested that the amendment was unnecessary or unworkable. I am not convinced that either is the case.

The noble Baroness, Lady Williams of Trafford, proposed Motion E. This goes some way in the right direction. It commits the Government to,

“carry out a review concerning sustainable drainage in relation to the development of land in England”.

That is to be welcomed, but I am aware that a review is a review and it commits the Government to nothing beyond that. The noble Baroness, Lady Parminter, and the noble Lord, Lord Krebs, asked some pertinent questions about timescales—when the review will come before Parliament and what action will come out of it. When the Minister responds to the debate, it would be useful if she could cover these points.

My Lords, I emphasise that we are committed to ensuring that developments are safe from flooding and that the delivery of SUDS—if I can call it that—forms part of our policy approach. Both the noble Lord, Lord Krebs, and the noble Baroness, Lady Parminter, asked whether the review would be thorough, robust and look at evidence on the ground. The answer to all three is yes.

The Motion moved by the noble Baroness, Lady Parminter, would include a review of all development, the scope of which would be too broad. The amendment also refers to the non-statutory technical standards, which is for guidance only. I therefore cannot accept the amendment. I hope that noble Lords will accept that, while we join them in supporting the use of SUDS, it would not be appropriate to make changes at this point, until we have the evidence on which to base any changes.

My Lords, the amendment from the noble Baroness, Lady Parminter, talks about a date of 31 April 2017. There is nothing in the government amendment. Can the Minister give the House any idea of timescale?

My Lords, I appreciate what the noble Lord, Lord Krebs, said about his committee reporting back next summer, so I will work, as I hope I always do, with noble Lords constructively towards a suitable timescale, though I cannot give the commitment at this point.

My Lords, I thank the noble Baroness for those remarks. They are indicative of the thoughtful and careful way in which she has handled negotiations on this difficult Bill. I am grateful for the time she has given to me and to other Members of this Chamber, particularly on this issue. I know it means so much to her and to other Members around this House. It will directly affect home owners who have already, in recent months, been so devastatingly affected by flooding. We have to ensure that houses we build in future do not lay them open to unnecessary flooding risks.

I am clearly disappointed that previous amendments which I think were reasonable were rejected but I accept the kind offer from the Government of a review. The Minister has given reassurances from the Dispatch Box around the thoroughness of the review and working towards a date to enable comments to come forward in a timely manner so that the House can hear from the Committee on Climate Change. I beg leave to withdraw the Motion.

Motion E1, as an amendment to Motion E, withdrawn.

Motion E agreed.

Energy Bill [HL]

Commons Reason

Motion A

Moved by

That this House do not insist on its Amendment 7TB to Commons Amendment 7, to which the Commons have disagreed for their Reason 7TC.

Lords Amendment in lieu

7TB: Line 179, at end insert “, or

(e) evidence that—

(i) an application for 1990 Act permission or 1997 Act permission was made on or before 18 June 2015 for the station or for additional capacity,

(ii) a grant of planning permission was resolved by the relevant planning authority on or before 18 June 2015,

(iii) planning permission was granted no later than three months after 18 June 2015, and

(iv) any conditions as to the time period within which the development to which the permission relates must be begun have not been breached.”

Commons Reason

The Commons disagree to Lords Amendment 7TB for the following reason—

7TC: Because it is not appropriate for renewables obligation certificates to be issued in respect of electricity generated after the date on which the Energy Bill is passed by onshore wind generating stations for which planning permission was granted in the circumstances described in the Lords Amendment.

My Lords, the elected Members in the other place have again sent a very clear message to this House. I do not wish to prolong the debate on this issue. We have discussed many times now the importance of ensuring that the Bill comes to a swift conclusion. As I noted during our last debate, industry bodies such as Energy UK, RenewableUK and Scottish Power have highlighted the need for swift passage of the Bill. In addition, the GMB Scotland secretary, Gary Smith, said today:

“'The Energy Bill contains important measures to help alleviate the severe pressures on jobs… across our oil and gas sector”.

He went on:

“It makes no sense whatsoever to compromise the Bill and the future of Scotland's oil and gas sector over a taxpayer subsidy that will only end up in the pockets of the hedge funds and wealthy landowners”.

He added that,

“some 200,000 jobs in Scotland depend on our oil and gas industry”.

He then urged MPs and noble Lords to get the Bill passed —I agree.

I do not wish to repeat the arguments that have been much debated both here and in the other place. We are all aware that this is a manifesto commitment which was signalled well in advance of the 18 June announcement last year. Indeed, the noble Baroness, Lady Parminter, acknowledged as much in the previous debate.

The noble Lord quoted Gary Smith, whom I know well. He is the Scottish secretary of my own union—the GMB. We all want the Bill passed in relation to oil and gas, but there are different ways of getting it passed. It could be passed very simply if the noble Lord, Lord Bourne, agreed to accept our amendment. There would be no problems; it would be passed straightaway. Am I not right?