Lords Sitting of 7 June 2004

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Newcastle.

Royal Mail
Baroness Oppenheim-Barnes Baroness Oppenheim-Barnes asked Her Majesty's Government:
What steps they are taking to ensure the satisfactory delivery of post by the Royal Mail.
Lord Davies of Oldham: My Lords, Royal Mail is currently undertaking a complete restructure of the business with the full backing of the Government. This is a huge undertaking for the company. I understand that, for the most part, the change has gone reasonably smoothly and is now working well. There have been some problems in certain areas and Royal Mail has apologised for the fall in service. Royal Mail has drawn up detailed plans to tackle these problems and DTI Ministers have Allan Leighton's personal assurance that these will be implemented vigorously.
Baroness Oppenheim-Barnes: My Lords, is the Minister aware that he has been misinformed? Nothing is going smoothly and it has not been going smoothly for many months. The Royal Mail is a national disgrace. I do not accept the figures that have been given. Is it not fraudulent for Royal Mail to charge people for a first-class stamp when it knows for certain that in many cases there is no hope of completing a first-class delivery?
Lord Davies of Oldham: My Lords, I think that the noble Baroness should be a little reserved about dismissing the figures. They are externally verified.
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The position is that the Post Office has rightly identified that its target was for 93 per cent of first-class mail to be delivered the next day and it hit only 90 per cent. It has apologised for falling short of that target. In other respects, the process of major restructuring in any company as large as this is bound to cause some difficulties in the short term.
Lord Clarke of Hampstead: My Lords, I declare an interest as a former postman with more than 50 years' experience of the Post Office. Is the Minister aware that it is the dedicated workforce, especially the regular delivery officers, who are bearing the brunt of the criticism—which is justified in many cases—and that they receive insults on the doorstep because of the deteriorating service? Does he agree that the increasing use of untrained, straight-from-the-agency staff to deliver people's important mail is causing widespread delay and misdeliveries? As the Government wholly own the Post Office, should they not be using their influence to halt the obscenity of paying senior managers vast bonuses for their failures?
Lord Davies of Oldham: My Lords, I agree with my noble friend that the vast majority of full-time postmen discharge their responsibility successfully and conscientiously. As he has indicated, there have been problems with regard to the employment of casual labour, which has been necessary because it is extremely difficult to recruit postmen in certain parts of the country. On the more general issue of pay and bonuses, the senior figures in the Post Office forsook their bonuses, except in the area of the financial target. It is in the area of the financial target that they have been successful. In all other areas, they did not receive bonuses.
Lord Razzall: My Lords, has the Minister read the report by his noble friend Lord Sawyer, which was circulated in the past 24 hours, on the question of labour relations within the Post Office? If he has read it, would he not agree that his somewhat optimistic statement to

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the noble Baroness regarding improvements in the Post Office, particularly in the Royal Mail, is perhaps undeserved?
Lord Davies of Oldham: My Lords, in a service industry like the Royal Mail, the relations between staff in the organisation are crucial. Last year was a bad year and, without any doubt at all, it contributed to the significant failure of the Post Office to hit certain targets. There is clear room for improvement. Assurances have been given to the Government that it is the area on which the management intend to put the highest priority.
Lord Wright of Richmond: My Lords, I recall reading in the press about two months ago that Royal Mail had decided to revert to the excellent practice of putting the time of the last post into the slot on post boxes. Does the Minister know when this will start?
Lord Davies of Oldham: My Lords, I had voluminous briefing for this Question but not a single reference to that particular point. The noble Lord has clearly indicated something that the Post Office ought to consider and we will make sure that his comments will be referred to it.
Lord Dubs: My Lords, will my noble friend confirm that even if there are difficulties with mail deliveries in some parts of the country—London may be an example—there are other parts of the country where the service is excellent; for example, in Cumbria? It is much to the dismay of postal workers in those parts of the country that they are being tarnished by the kind of allegations that have been made from the Benches opposite. There continues to be an excellent service in those parts of the north of England with which I am familiar.
Lord Davies of Oldham: My Lords, my noble friend is right that across the vast range of the country postmen are fulfilling their duties with the conscientiousness for which we have always respected them. There are one or two areas where there have been very considerable difficulties. At least one of those areas is one where there is a heavy movement of mail; namely; London. Last year, that contributed to the failure of certain aspects of the postal service.
Lord Inglewood: My Lords, having heard the Minister's fulsome confidence in the future performance of the Post Office, can he assure the House that the cheque in the post will come more quickly than it has in the past?
Lord Davies of Oldham: My Lords, the noble Lord is one of those fortunate beings who receives cheques in the post. Many of us envy him.
Lord Berkeley: My Lords, although it is good that my noble friend the Minister says that Post Office directors forwent bonuses last year in relation to delivery, they still received bonuses for financial performance. Financial
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performance is clearly important, but with delivery performance as appalling as it still is in some parts of the country, surely they should not receive any bonuses at all.
Lord Davies of Oldham: My Lords, I think the chairman of the Post Office is all too well aware of my noble friend's sentiment in this respect; he made it clear that he was not prepared to accept a bonus. However, there would be no point in having targets and bonuses attached to targets if the bonuses were not paid when the target was hit. As I indicated earlier, the financial target was hit. That was the area in which the bonus was paid.
Baroness Miller of Hendon: My Lords, following the noble Lord's first—very polite, but perhaps somewhat complacent—Answer, and as he spoke a little later about London, is he aware that in the postal district where my office is located—in London W1, where there are loads of solicitors, accountants and professional people—the Royal Mail's target is to deliver the mail between 11 a.m. and 2 p.m., and that that is all? Does the Minister really think that delivering on such unrealistically low targets is what could be called a proper delivery service?
Lord Davies of Oldham: My Lords, there has been widespread recognition of the fact that the Royal Mail has moved to one delivery. That made financial sense because 20 per cent of its resources were being devoted to a delivery of only 4 per cent of the mail. The noble Baroness has identified the fact that the service needs to be improved—the chairman made it absolutely clear in his meeting with Ministers that he regards that as the top priority—and she is quite right. In parts of the London area the service has not been satisfactory and the Post Office recognises that fact.

Freedom of Information Act 2000: Implementation
2.45 p.m.
Lord McNally Lord McNally asked Her Majesty's Government:
Whether preparations for the implementation in 2005 of the Freedom of Information Act 2000 will include provision for a fee structure for access to government information; and what the level of fees will be.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): Yes, my Lords, the Government will bring forward fees regulations under the Act in good time for their coming into effect in January 2005. We have published draft regulations, and we will be bringing forward to Parliament a final version by October.
Lord McNally: My Lords, does the Minister agree that a fee structure that charged exorbitant fees for freedom of information would in fact be the freedom to dine at the Ritz? Does he not grow more concerned

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every day about how far we have moved from those heady days when the noble Lord, Lord Clark of Windermere, brought forward his wonderful White Paper which cost him his job in the Cabinet? There was a commitment to freedom of information and to removing the culture of secrecy from Whitehall, in contrast to the position today when the culture of secrecy is firmly embedded in the Government.
Lord Filkin: My Lords, I agree with the noble Lord on his first point. A fee structure that acted in any way as a significant deterrent to people making use of their rights under the Act would go against the spirit and purpose of the Act. As for dining at the Ritz, I do not know whether that was an invitation, but I shall consult the Ministerial Code about it. As for the thrust of the noble Lord's question and the possibility that he has inferred from, I think, a wholly erroneous report in the Guardian that the Government are in some way negative or ambiguous about the importance of freedom of information in strengthening democratic participation, he is wrong. We will demonstrate that as the Act is implemented.
Lord Henley: My Lords, has the Minister made any estimates on behalf of the Government as to how many new civil servant jobs will be required for this?
Lord Filkin: My Lords, the best answer would be to make it quite clear that the Treasury says that no additional money will be made available to departments as part of fulfilling their obligations under freedom of information. The noble Lord can draw his own conclusion from that answer.
Lord McNally: My Lords, on that commitment to freedom of information, when I sat on the Select Committee that looked into freedom of information we took evidence from Canada and Ireland which was very strongly in favour of training civil servants in the run-up to implementation of the Act. What training programmes are the Government currently implementing?
Lord Filkin: My Lords, I cannot do justice to the scale of that question now, but I would be genuinely happy to have a discussion with the noble Lord to talk about it in more detail. In short, we are reviewing the matter with all government departments. I have had face-to-face discussions with every department about its implementation plans, and part of the review mechanism of course includes their training plans to ensure that all civil servants are properly trained. There is a judgment to be made about how soon one does that. One has to ensure at this point that there is general awareness, while delivering the high-pressure training nearer to the deadline date.
Lord Henley: My Lords, in response to the question I asked, can the Government therefore confirm that the costs will be borne entirely by those making inquiries under the Act? Therefore, perhaps the noble Lord, Lord McNally, was right in suggesting that this may be a case of dining at the Ritz.
Lord Filkin: No, my Lords, neither suggestion is correct. The Government's position has always been
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as it was at the point of the Bill's passage: we shall see that the cost of handling information requests is borne substantially by public sector bodies, as is right and proper. How the conundrum is squared between that and the Treasury position is not difficult; a normal part of officials' responsibilities is to respond to requests from the public for information. The only caveat is, and has always been, the cap on the amount of time and effort that we will put into very obscure or complex requests, as was made clear when the Bill was passed.

Oil Market
2.49 p.m.
Lord Ezra Lord Ezra asked Her Majesty's Government:
What is their response to recent uncertainty in the oil market.
Lord Triesman: My Lords, oil is traded in international markets, and it is not for the Government to intervene directly. However, I repeat the sentiments of the statement made by the Finance Ministers in the Group of Seven on 23 May, in saying that we welcome recent announcements by some oil producers to increase production and call on oil producers to provide adequate supplies, to ensure that world oil prices return to levels consistent with lasting global economic prosperity and stability, particularly in the poorest developing countries.
Lord Ezra: My Lords, I thank the noble Lord for that reply. However, would he agree that, in addition to short-term measures intended to increase supply to take the pressure off current oil prices, there should be an intensification of longer-term measures to reduce the demand for oil, especially in the road transport sector?
Would he further agree that such measures should include: the rapid introduction of biofuels; the encouragement of the use of hybrid vehicles, which cut petrol consumption by half; and the wider application of fuel cells to buses, as at the moment only two vehicles use them? Is there not a case for a targeted strategy to reduce oil consumption, to run in parallel with the targeted strategy for increasing renewables?
Lord Triesman: My Lords, the Government are fully committed to increasing the diversity of energy supplies. The key commitment in last year's energy White Paper is to reduce carbon dioxide emissions by about 60 per cent by 2050. We are giving priority to encouraging renewables and energy efficiency. We directly support the use of more environmentally friendly fuels through reduced fuel duty rates, and the Government further encourage the use of cleaner vehicles through reduced vehicle excise duty rates based on vehicle emissions.
The Government want the United Kingdom to lead the shift to low-carbon automotive economies, and to be a good place in which to develop, research and manufacture them. Hybrid vehicles are supported by the Government's Powershift programme, in which grants have been offered of £700 towards the purchase

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of those vehicles. We encourage buses that use dual supply in the same way. The targeted strategy to increase the number of fuel-efficient vehicles in the UK exists through those plans, copies of which are available in the Library.
Lord Corbett of Castle Vale: My Lords, does not the current speculation about the future price of oil—that is what it is—underline the wisdom in the Government's energy White Paper of making the maximum use of alternative and sustainable energy and, if possible, of trying to ensure that those targets are seen as a minimum, not a maximum? That is the way to guarantee the safety of our energy supplies.
Lord Triesman: My Lords, I wholly agree with my noble friend. There are limits to what the Government can do by way of interposing ourselves in any kind of market arrangement. However, we most certainly can look at the future in the most serious way through some of the alternatives now being developed, not least as a result of the high quality of United Kingdom science and technology, so that we can drive to a point where we are not held hostage by oil prices.
Lord Marlesford: My Lords, in light of the deeply deflationary impact of hikes in the oil price, how much longer will it be before the Government review their allegedly neutral, and in practice hostile, attitude to nuclear power?
Lord Triesman: My Lords, I feel as though I am revisiting a very well loved relation. The arguments have been well rehearsed in this House and I do not intend to repeat them, other than to say that the nuclear option has not been foreclosed. However, serious attention is being given to renewable sources of fuel that we believe will be environmentally friendly and will help to sustain the United Kingdom's energy requirements.
Lord Tanlaw: My Lords, how can the noble Lord say that the Government are doing everything to encourage renewables? In south-west Scotland, which is arguably the best place for wind turbines, there is a blanket objection by the Ministry of Defence to hill farmers—I have a declared interest in the matter—who wish to help the Government in their renewable energy programme. Nothing has been done and no answer has been given on the issue, which I have raised on a number of occasions.
Lord Triesman: My Lords, the issues of aircraft and radar and other signals are being actively pursued. We made it very clear during the passage of the Energy Bill in this House that there remains a desire to site a large number of successful wind farms in appropriate areas
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off the coast of the United Kingdom, particularly of England, Wales and Scotland. That remains the policy.
Lord Campbell of Alloway: My Lords—
Lord Tomlinson: My Lords—
Noble Lords: This side!
The Lord President of the Council (Baroness Amos): My Lords, there is plenty of time. We can hear from our Benches and then from the Opposition Benches.
Lord Tomlinson: My Lords, although my noble friend has a sense of déjà vu in revisiting the subject, would he accept that there was a sense of déjà vu in the House about the inadequacy of the answer? It is not fully acceptable to say that the Government have not closed their mind to the nuclear option. That in itself is a negative reply. Will he give us a very clear assertion that all steps will be undertaken to maintain the existing supply and our future needs for electricity generated by nuclear power unless and until we have adequate alternatives in place? None of the options should be forgone or allowed to degrade unless and until those renewables that we all want are actually in place, not merely a wish, a dream or a hope.
Lord Triesman: My Lords, as ever, I am deeply grateful to my noble friend for providing so robust a question. I cannot add to the general point. We have not closed the door on any of the fuel sources that we believe will be required. It is not right to make a distinction of the kind that may have appealed to one or two noble Lords about the intention to drive down carbon fuels, find new forms of renewable energy, and make sure that we have not closed the doors to some technologies that have proved extremely valuable in the recent past providing an envelope within which we will meet the fuel and energy needs of the country.
Lord Campbell of Alloway: My Lords, I revert to the Question. Is not the Government's response wholly related to the question of taxation, not to the supply of oil or indeed to carbon emissions, wind farms or whatever?
Lord Triesman: No, my Lords. It could not conceivably be argued that that was the case. There is no need for panic, but the anxieties expressed by governments as diverse as those of China, India and many other countries around the world—their requirements for fuel have grown because demand in their economies is growing—cannot all be attributable

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to the tax regime in the United Kingdom. We all want consistent supply, because we all want a buoyant economy and stability in the world economy.
Lord Desai: My Lords, despite all the fuss, is it not true that the real price of oil is below what it was in 1973? Oil is cheaper in real terms than it was. There is no energy crisis to justify a nuclear revival.
Lord Triesman: My Lords, it is quite right that, in real terms, oil prices are still at half the levels reached in the early 1980s.
Lord Tebbit: My Lords, the oil producer knows full well that, of the pump price of petrol in this country, 75 per cent is tax and only 25 per cent is there to account for the whole cost of production, transport, refining and retailing. Does the Minister agree that, from the oil producer's point of view, it looks a bit rich for the Government to complain about him increasing his share?
Lord Triesman: My Lords, I do not think that there have been complaints. Indeed, the dialogue that has been opened between OPEC and non-OPEC nations about greater transparency in all issues of pricing has been one of the central features of contemporary negotiations about oil prices. World economic stability is as much in the interest of oil producers as it is, if I may say so, in our interest.
Lord Campbell-Savours: My Lords, is it not true that the scientific research—
Baroness Amos: My Lords, we are out of time.

European Parliamentary and Local Elections
3 p.m.
Lord Hanningfield Lord Hanningfield asked Her Majesty's Government:
Whether they are satisfied that all the arrangements are in place for the European parliamentary and local elections on 10 June.
Lord Filkin: Yes, my Lords, we are satisfied that all the arrangements are in place and that we are on course for successfully run elections on 10 June.
Lord Hanningfield: My Lords, I thank the Minister for his reply, but is he not aware that we are still receiving reports that ballot papers have not been received by electors? In fact, in the ward of Aspull in Wigan, people were informed on Friday that they will have to go to the town hall to vote. In the light of all the assurances that were given during the passage of the elections Bill and the fact that his right honourable friend the Deputy Prime Minister appeared to pioneer the process, would the
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Minister agree that if any evidence emerged showing that anyone was unable to vote in the election or that people had been disfranchised it might be a resigning matter?
Lord Filkin: My Lords, I shall not go into specifics about the detailed situation in the local authority to which the noble Lord, Lord Hanningfield, refers. I shall outline the overall position and try to give the House a little more detail about why we are confident that the process is on course. We had a debate about that following a Statement that I repeated to the House just before the Whitsun Recess, when we signalled that we were confident that returning officers would comply with their legal obligation to issue ballot papers by the deadline of 1 June. They achieved that: 99.24 per cent of ballot papers were issued by that date and the 0.76 per cent were late were late by five hours and the Post Office incorporated them into the delivery. Therefore, there was no disadvantage to the public.
I am further advised by the Royal Mail that ballot papers had, to the best of its knowledge, been delivered to everyone and that 99.9 per cent were delivered by Thursday last week. The noble Lord, Lord Hanningfield, is right that there are isolated examples, as is true in most elections, where there appears to be a glitch in local areas. But there is ample opportunity and time for electors in those areas or the returning officers, if they are aware of an issue, to ensure that replacement ballot papers are provided or that alternative or additional electoral arrangements are put in place.
Baroness David: My Lords, is my noble friend aware that, in Cambridge, my postal vote had not arrived by this morning? I have had a postal vote for a long time. I have been in touch with the Electoral Commission in Cambridge. It told me that it will send me a postal vote here. That may not arrive in time, but I have to take that vote to the polling station or to the Guild Hall myself. I do not think that that is satisfactory; does the Minister?
Lord Filkin: My Lords, I share my noble friend's concern about the inconvenience. We would not want to lose her from the House by her having personally to deliver the ballot paper to Cambridge during the next few days. I am sure that her words will have been marked in Cambridge and that the authorities will ensure that they fulfil the promise that they have given her, so that she is adequately enfranchised.
Lord Renton: My Lords, the elections to the European Parliament are due to take place within three days. Will the Government make an immediate statement to the electorate in this country that there are now so many members of the European Community and their legal systems and other circumstances differ so much that the European Parliament will be unable to make laws of universal application within the Community?
Lord Filkin: No, my Lords, we will not issue such a statement for two reasons. First, the question is wide of the mark of the Question on the Order Paper. Secondly,

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the Government do not share the view that that is an accurate description of the position of the European member states.
Baroness Hanham: My Lords, does the Minister accept that most of us think that his statement is remarkably complacent and that there have indeed been some disastrous reports of what has been going on in the four areas in the north where there is all-postal voting? Will the Minister today give an unreserved assurance that for all future elections, especially the regional referenda that are coming up, voters will again be given the opportunity to cast their vote in the ballot box in the traditional manner?
Lord Filkin: My Lords, to come to the last point first: we have always been clear that these are pilots. They are pilots for a good reason, as we discussed at length during the passage of the Bill. Therefore, it is right and proper that the experience of the pilots is evaluated, reported on and discussed before we move forward on all-postal balloting. The right of an individual elector to opt for a postal ballot is already enshrined in law and we have no intention of retreating from that position.
Before we get overexcited about prematurely celebrating a disaster, we should make a distinction. Several things are going on at once. We have combined elections, which in itself is slightly more complicated for electors than a single election—although it is not the first time that that has happened. Moreover, we have all-postal ballots, which is bound itself to be a novelty to some people. It would be surprising if it were not. But that does not mean that one has a failed or a flawed electoral system.
Irrespective of that, we will receive a report from the Electoral Commission in mid-September, as it is statutorily obliged to report on its evaluation of postal ballots. That will give us an opportunity to discuss the issues again.

Business
3.6 p.m.
Lord Grocott: My Lords, with permission, later this afternoon a Statement on Iraq will be repeated by my noble friend Lady Symons, which will be taken after the completion of consideration of the asylum Bill and before the debate on the Housing Bill.

Higher Education Bill
3.7 p.m.
Lord Triesman: My Lords, I beg to move the Motion standing in the name of my noble friend Lady Ashton of Upholland on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 1 to 13,
Schedules 1 and 2,
Clause 14,
Schedule 3,
Clauses 15 and 16,
Schedule 4,
Clauses 17 to 29,
Schedule 5,
Clauses 30 to 45,
Schedule 6,
Clause 46,
Schedule 7,
Clauses 47 to 50.—(Lord Triesman.)
On Question, Motion agreed to.

Statute Law (Repeals) Bill [H.L.]
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, I beg to move that the House do now resolve itself into Committee (on Recommitment) on this Bill.
Moved, That the House do now resolve itself into Committee (on Recommitment).—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
House in Committee (on Recommitment) accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Repeals and associated provisions]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved the amendment:
Page 1, line 5, at end insert—
"(3) In determining for the purposes of section 1 of the Regulatory Reform Act 2001 (c. 6)(power by order to make provision reforming law which imposes burdens) whether any provision of an Act falls within subsection (4)(a) of that section (provision amended by an Act within previous two years), the effect of this Act is to be disregarded."
The noble and learned Lord said: The amendment addresses a potential problem in connection with the Regulatory Reform Act 2001. Section 1 of that Act gives a Minister of the Crown power to reform primary legislation that has the effect of imposing burdens that affect persons in the carrying on of any activity. Such reform is made by way of a regulatory reform order. Section 1(4) of the Act prevents a regulatory reform order being used to amend a provision in an Act that has already been amended during the past two years, other than consequential or incidental amendments. The Bill, of course, amends a number of Acts by repealing parts of them. Section 1(4) of the 2001 Act will prevent Ministers from making a regulatory reform order reforming parts of any provisions that have been partially repealed during the two years after the Bill receives Royal Assent.
We think that that is an unnecessary restriction. The amendment will enable the Bill when enacted to be disregarded for the purposes of Section 1(4) of the Regulatory Reform Act 2001. I beg to move.
On Question, amendment agreed to.
Clause 1, as amended, agreed to.
Clauses 2 and 3 agreed to.
Schedules 1 and 2 agreed to.
House resumed: Bill reported with an amendment.

Asylum and Immigration (Treatment of Claimants, etc.) Bill
3.10 p.m.
Lord Filkin: My Lords, on behalf of my noble friend Lady Scotland of Asthal, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Filkin.)
On Question, Motion agreed to.
Clause 14 [Unification of appeal system]:
Lord Goodhart had given notice of his intention to move Amendment No. 42:
Page 13, line 29, after "thinks" insert "it is reasonably arguable"
The noble Lord said: My Lords, we are content with government Amendment No. 42A, therefore I shall not move Amendment No. 42.
[Amendment No. 42 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 42A:
Page 13, line 29, after "Tribunal" insert "may have"
The noble Lord said: My Lords, on behalf of my noble friend Lady Scotland, I beg to move Amendment No. 42A.
I trust that the amendment's measures are largely self-explanatory. We recognise the arguments put forward by noble Lords in Committee that subsection 2(a) of new Section 103A was not as clear as we intended. That is why we have tabled Amendment No. 42A, which has the advantage of being a formula from the civil procedure rules.
The Civil Procedure Rule Committee, when considering the rules relevant for the purposes of Section 101 of the Nationality Immigration and Asylum Act 2002, decided that it would be appropriate to add the words "may have". That addresses the point that when dealing with an application on the papers the judge might not be able to be certain whether an error of law had been made. We wish to stick closely to the statutory review test, which already has the benefit of judicial interpretation.
Lord Kingsland: My Lords, in our original amendment, tabled on the first day of Committee, our test for review was more demanding, although it was predicated upon changes at the Home Office interview stage and the single-tier tribunal stage, which have so far not been forthcoming. So we will not contest it.
However, the Government will have to recognise that their amendment will have implications for their legal aid proposals. You cannot have a test for review consisting of the Government's new definition on the one hand, and a legal aid regime that gives legal aid
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only ex post facto for wins or near-misses on the other. That legal aid regime is clearly no longer appropriate. The list for provision of legal aid should clearly match the new government review test; otherwise the legal aid system will block access to rights now to be granted by legislation.
Lord Goodhart: My Lords, we feel that the amendment deals with the problem that we outlined in Committee. We are satisfied with its drafting. The noble Lord, Lord Kingsland, has rightly raised the question of legal aid; we shall speak on that when we get to the appropriate group of amendments.
On Question, amendment agreed to.
Lord Goodhart Lord Goodhart moved Amendment No. 43:
Page 13, line 33, leave out "5" and insert "10 working"
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 44, 51, 52 and 59.
New Section 103A of the Nationality Immigration and Asylum Act 2002, added by this Bill, imposes a draconian timetable on applications for review of tribunal decisions. It allows a period of five days, beginning with the date on which the appellant is treated as receiving the notice of the tribunal's decision in accordance with the rules. Frankly, that is a ridiculously inadequate period.
First, the date of the actual receipt of notice may be later than the deemed date under the rules, particularly if the now notoriously unreliable postal service is used. It is perfectly proper to include a deemed date in a Bill, because it prevents problems of uncertainty about when notice was received. However, a deemed date is acceptable only if the time as a whole that is provided is reasonable and it can be accepted that the deemed date may be a day or two in advance of the actual date of receipt. In other circumstances such as those in the Bill a deemed date is not acceptable.
Secondly, the period allowed is not even five full days; in reality, it is more like four. As the Bill is drafted, the day on which the notice is deemed to have been received is the first day of the five-day period. Therefore, even if notice is deemed to have been received on a Monday and is indeed received on that day, that constitutes the first day of the five-day period, and the second, third, fourth and fifth days are Tuesday, Wednesday, Thursday and Friday. So the application received on Monday will have to be submitted before the court closes for business on Friday afternoon. That is inadequate time.
Let us look at what needs to happen. The appellant's lawyer, if he or she has one, cannot set out grounds of appeal before seeing what the tribunal has said and the grounds on which it has decided the case. The lawyer will therefore have to read the tribunal's decision, to consider further the legal issues involved in the decision and possibly consult the client—that may involve arranging a meeting at which an interpreter must be present. The lawyer will have to draft grounds of appeal, get the application in proper order and submit it to the appropriate court before it closes for business on the last

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available day. Lawyers are likely to be busy and have several cases running simultaneously, with the result that the one who handled the first stage may have other commitments, meaning that a new lawyer must be found to submit the application.
We recognise the power in subsection 4(b) of new Section 103D to extend the time, but that safety valve is not an adequate reason for allowing much too short a time for the basic period. If applications made out of time become frequent, it leads to unnecessary time-wasting and cost-wasting satellite arguments about whether there is adequate justification for the delay. Ten working days is quite a short period but would be just sufficient for these cases.
Amendments Nos. 51 and 52 follow on from the earlier Amendments Nos. 43 and 44. We recognise that there may be a need for power to vary the timetable by secondary legislation. But that power can be used not only to extend the time but to reduce it to a period shorter than that stated in the Bill. We believe that if it is used for that purpose, the order should require the affirmative resolution procedure. We feel that among the many defects of Clause 14, given that it is a considerable improvement on its predecessor, the extremely and unnecessarily short timescale that is provided for making the application is one of the worst. I beg to move.
Lord Clinton-Davis: My Lords, I support what the noble Lord, Lord Goodhart, has said. We are grateful that there has been some improvement in Clause 14. The Government ought to be congratulated as far as that is concerned. However, as the noble Lord, Lord Goodhart, said, the period of five working days is wholly inadequate. The purpose behind my support for these amendments is to improve rather than diminish the practicability and effectiveness of this clause. It is the view of the Law Society that the amendments that have been moved are likely to be more realistic in the circumstances. As the Law Society has contended, the crucial matter is that justice should be done and be seen to be done. Speed is significant, but it is not the whole argument. For that reason, I support the proposal of 10 working days.
The time limit is in many cases impracticable, and it will have the unfortunate consequence of persuading more applicants to apply to the court for an extension of the statutory time limit. The essential issue is that the case ought to be properly prepared and presented; that cannot be done in five working days. I speak from some experience as far as this provision is concerned, both direct and indirect. We are talking about people's right to present their case properly. There have been many incidences of this concern in practice.
The amendment is supported by the Law Society for the reasons that I have elaborated. As I understand it, the Law Society has explained its purpose to Ministers. What have Ministers said to the Law Society in response? The House is entitled to know. After all, the Law Society is concerned—as is the Bar Council—to make these provisions practicable and enforceable. I
16
hope, notwithstanding the initial response, that my noble friend will have second thoughts about this important matter.
Lord Newton of Braintree: My Lords, I rise to speak only briefly, reminding the House, as I did when I spoke in the original debate on the ouster clause, that I am chairman of the Council on Tribunals, which I hope may be seen as a qualifying interest, rather than a disqualifying interest in this context.
Looking carefully in the direction of the Minister, I wish to express my support—and I think I can safely say the support of the Council on Tribunals—for some extension of this five-day rule. Like everyone else, we focused our principal attention on the original ouster clause, and share the gratitude of all that it has disappeared in its original form.
However, this was one of the various points of detail on which we had focused. I can only say that we believe—I certainly do—that five days is much too short a period to obtain proper advice about applying for a review and help in preparing it, and much too short a period for an appellant with no means of obtaining advice or assistance. In general, there is a risk that this would run contrary to what we would all agree, however difficult the problem, should be an open and proportionate system of review.
I do not think that I need to say more, but I hope that we shall receive a positive response from the Minister. Whether 10 days is the right figure is not a matter that I would want to die in a ditch on, but I am clear that five days is too little. I hope that the Government will be prepared to look at this again.
The Lord Bishop of Newcastle: My Lords, I support the amendment standing in the name of the noble Lord, Lord Goodhart. I am grateful for some of the changes that the Government have made in Clause 14. They have gone some way to satisfying some of the objections that some of us have had. In my view, they have not yet gone far enough. I am particularly bothered about the five-day limit. I do not believe that it is workable. A much-respected immigration solicitor in the city of Newcastle, where I live and work, says that she spends some 20 hours preparing a case with a client. She believes that her job will no longer be viable if these regulations are to come in. In an asylum system that anyway is operating with a culture of disbelief, how on earth will vulnerable people be able fully and effectively to put forward their evidence within those five working days of the notification of the decision?
Grounds of appeal prepared in great haste do not give the best material on which to make difficult decisions. The five-day limit is not a proposal for a fair system, let alone an effective one. Therefore, I strongly support this amendment in the name of the noble Lord, Lord Goodhart.
Lord Avebury: My Lords, I am glad that the right reverend Prelate has raised the question of the time that is required to obtain the legal advice that is necessary, because this is a matter that has been raised with all your Lordships by the Refugee Children's

17
Consortium. It says that this is a universal problem. It is not just the particular adviser who has informed the right reverend Prelate of this problem; all advisers are in the same boat. They already must spend a great deal of time accessing legal advice on behalf of their clients, and these regulations will make life almost impossible.
In the representation that the consortium has made to your Lordships, it says that its staff already spend hours on the telephone seeking a legal representative, or to make an appointment with a legal representative. The first lawyer that they approach many not be willing to take the case on, and there may be several iterations of the calls. The original lawyer who dealt with the case at an earlier stage may not be prepared to act in this instance.
It is almost universally agreed that the time limit of five days is impossible. It was referred to particularly in the JCHR sixth report of session 2003–04, which says that,
"the UNHCR has expressed the same concern about the five day limit and the likelihood that it may result in … contravention of the fundamental principle of non-refoulement in Article 33 of the 1951 Convention Relating to the Status of Refugees".
They say that it falls short of international standards of fairness, while seriously compromising the ability of asylum applicants to access their rights of appeal. Faced with this barrage of opinion from all quarters, I cannot imagine that the Home Office will stick with its original decision. It must bow to the weight of professional and legal opinion and make the concession that my noble friend has asked for.
3.30 p.m.
The Countess of Mar: My Lords, may I remind noble Lords of my interest in this subject? I am a lay member—currently an endangered species—of the Immigration Appeal Tribunal. I support the noble Lord, Lord Goodhart, and all the other noble Lords who have spoken in favour of this amendment. Already the number of lawyers who are registered as being allowed to represent asylum seekers is limited and, from my own knowledge, they are extremely hard-working and hard-worked individuals. If they are not given time to prepare a case properly it is going to defeat the objective of this Bill, which is to speed up decision-making, so I offer my support.
Lord Plant of Highfield: My Lords, I intervene as a member of the Joint Human Rights Committee, whose report the noble Lord, Lord Avebury, has just mentioned. The Committee deliberated long and hard about the new clause and all its various ramifications, and we looked at a great deal of evidence. I remind noble Lords, with their indulgence, of precisely what the Committee said on page 21 of its recent report; it is pretty categorical. It stated:
"We consider the five day time limit to be far too short for the right of access to the High Court and beyond to be practically effective. The number of tasks to be performed between receipt of a decision and lodging an application for a review makes it simply impracticable to require applications to be lodged within five days. An application for reconsideration will require the applicant's legal representative to receive a copy of the Tribunal's decision, to read and consider it, to marshal any necessary evidence (which may require a meeting with the
18
applicant at which an interpreter might well be required), to draft the legal grounds of challenge, and to lodge the application at the High Court. We consider that, more often than not, completing all these steps within a five day time limit will be a physical impossibility for most asylum seekers".
We come to the conclusion that this provision may in effect impede the idea of a right of access to the higher courts.
Lord Ackner: My Lords, it is obviously desirable that any time limit should be fair, but it is even more important that it is practical. If it fails in that, there is a real risk it will defeat itself, and there will come before the necessary authorities something that may be looked upon as half-baked. To bake it properly will waste time, which will be due entirely to the defect that has been pointed out. The offer to increase the five days by another five is an extremely reasonable and sensible approach, which involves the Government in no cost of any significance.
Lord Kingsland: My Lords, so many of your Lordships have spoken to the same effect on this amendment that I have little to add. We have added our name to the amendment moved by the noble Lord, Lord Goodhart, and so your Lordships would naturally expect me to support it, which I happily do.
We on these Benches have always been opposed to the five-day period for the reasons that the noble Lord, Lord Goodhart, and others of your Lordships have so eloquently expressed. In an amendment tabled in Committee, we suggested a seven-day limit. However, that suggestion was based on a number of assumptions about the rest of the Bill that no longer apply, of which I shall mention just two. The current appeals rules—that is, the rules of 2003—allow for the interests of justice to be taken into account when considering an extension of time. That provision is in paragraph (2) of Rule 16. We should contrast that with the test for extension of time found in Clause 14(6), which sets out the terms of subsection (4)(b) of new Clause 103A. The test is expressed thus:
"the appropriate court may permit an application under subsection (1) to be made outside the period specified in subsection (3)"—
in this case, it is five days—
"where it thinks that the application could not reasonably practicably have been made within that period".
I am sure that your Lordships will agree that that is a much more severe test for the applicant than the test under the existing rules.
Our second reason for supporting the noble Lord, Lord Goodhart, is that our suggestion—seven days—also assumed that oral hearings would be permitted in the review, where they were considered by the High Court judge to be in the interests of justice. In the absence of the ability to make such oral submissions, the quality of written submissions and their degree of comprehensiveness must be very high. We do not see how that can be achieved within the short period of five days.

19
For those reasons and for others that have been amply expressed by your Lordships, we support the amendment moved by the noble Lord, Lord Goodhart.
Lord Filkin: My Lords, in responding to the many noble Lords who have spoken to the amendments, I thank those who paid tribute to the fact that the Government have listened to representations made in this House and elsewhere. That is appreciated. As a consequence, we have crafted a system that still enables us to achieve the essential thrust of the policy, while listening to the concerns that have been raised.
Amendments Nos. 43, 44 and 59 would extend the time limit for making a review application and for opting in under the transitional provisions from five working days to 10 working days. As the House knows, we wish to make the review process as swift but as fair as possible. We are confident that, in practice, five working days allows an appellant sufficient time to consult a legal representative and lodge the application papers for a review. It should also allow sufficient time for an applicant to opt for the review application to be looked at by the High Court under the transitional provisions in Schedule 2.
I shall explain why we have come to that view. It is important to remember that we are not talking about the appeal against the initial decision by the Secretary of State or entry clearance officer. The review is a process that we will put in place to allow a tribunal decision to be reconsidered, if there may have been an error of law by the tribunal that affected the tribunal appeal determination. In those circumstances, the shorter time limit of five working days best achieves the balance between speed and fairness.
The reason why we believe that the timetable is practical is that the grounds for appeal will already have been covered at the appeal before the tribunal. There will have been a clear statement of reasons for the appeal that will focus the appeal on the key points at the hearing. The process is not a rehearing of the case requiring new grounds but a process to allow errors of law by the tribunal to be corrected, if it affected the original appeal decision. That should not be over-onerous on the legal representative, as, first, the legal representative should already be familiar with the case through the earlier work on the appeal and, possibly, the initial claim to IND. Secondly, the kind of issues that we are talking about with regard to an "error of law" should be familiar to the lawyers from their experience of judicial review and statutory review. If there is a genuine exceptional reason why the application could not be made in five days, it is down to the judge to decide whether to allow a late application.
The noble Lord, Lord Kingsland, explained as elegantly as one would expect why he has moved from supporting a seven-day timetable to supporting one of 10 working days. When my noble and learned friend
20
the Lord Chancellor announced at Second Reading that we would introduce measures to provide for oversight by the higher courts, he stressed that we would balance them with the aims of speed and reduction of abuse. We must bear those objectives in mind at the same time. It is important to ensure that there is a fast, end-to-end process. It is not in the interests of genuine appellants to drag out the appeal process. Shorter time limits would help to dissuade people from abusing the process or wrongly believing that they can.
Lord Kingsland: My Lords, I am grateful for the Minister giving way so courteously. I understand his point about expedition, which was made by the noble and learned Lord the Lord Chancellor at an earlier stage. But does it not fit ill with the refusal of the Government to include in the Bill either a limitation period for the period between the asylum application and the application decision by the Home Office or the additional refusal of the Minister or the Home Office to accept any time limitation between the end of the statutory review process and the moment of deportation? What relevance has five days within the appeal process if the Government have dug their heels in on those other periods, which often amount to years?
Lord Filkin: My Lords, I shall now relay the remarkable reduction in the overall speed of decision making that has taken place on asylum and immigration matters since 1997. I am sure that the noble Lord, Lord Kingsland, is well aware of the significant overall reduction. We are debating the specific time limit of the appeal in order to see whether we have allowed a process that gives an appellant an adequate time in which to put forward his or her case. With the leave of the noble Lord, I shall continue my explanation about why we believe that we have got it pitched right.
As I have said, we accept that there will be exceptional circumstances when, for reasons outside the control of the applicant and his or her representative, it will not be possible to lodge an application within the five-day time limit. The Bill recognises that and makes provision for applications to be accepted out of time in those circumstances. The discretion in doing so will rest not with the Government but with the High Court judge who is considering the issue.
Amendments Nos. 51 and 52 would make the order-making power to vary the time limits subject to the affirmative resolution procedure. The Delegated Powers and Regulatory Reform Committee scrutinised the order-making and regulation-making powers in Clause 14 and published its recommendations in its 15th report of this Session. The committee recommended that regulation-making powers under Section 103D of the 2002 Act, which concern new legal aid arrangements, should be subject to the affirmative resolution procedure. I have brought forward an amendment to give effect to that recommendation.
However, the committee did not recommend that the order-making power to vary time limits should be subject to the affirmative resolution procedure. If the order-making power is used, both Houses would have

21
the opportunity to give detailed consideration to the order. If they felt it necessary, they could of course pray against it.
Perhaps I may turn to some of the specific points—
Lord Clinton-Davis: My Lords, I am much obliged to my noble friend the Minister for giving way. I am sure that he has had an adequate opportunity to advance all those arguments to the Law Society, the Bar Council and others, but would he care to mention who supports the Government where this is concerned? After all, the House is entitled to know that. When my noble friend advanced those arguments to the powers that be, what was their response?
Lord Filkin: My Lords, I was not privileged to be privy to all of those discussions with the relevant professional bodies. In response to the question about who supports the attempt of the Government to ensure that we uphold our traditions in this society of giving fair and proper consideration to people who apply to us for refuge and asylum, the public are clear that they want government and society generally to ensure that the abuse in the system is stamped out. There is strong support for that position, not just—how shall I put it?—among the more extreme elements of the popular press, but also among those who hold dear the tradition of this society, and its responsibilities, to consider applicants for asylum. That is my answer to my noble friend.
Lord Clinton-Davis: My Lords, I am much obliged. It is astonishing to say that to extend the time limit from five to 10 working days is extreme. I do not believe that. What I said at the beginning is wholly true. I want to make these considerations workable and practical. Nothing that my noble friend has said draws me to an opposite conclusion.
Lord Filkin: My Lords, I have no doubt that that is the thrust of my noble friend's intention on this measure, as it has been on many asylum and immigration matters. I am saddened that I have not managed to persuade him at this point.
Perhaps I may turn to a number of points that were raised in discussion. The noble Lord, Lord Goodhart, raised the important issue of deemed service. The five days starts two days after the issue of the notice of decision from the AIT. Therefore, for very good reasons, it is effective not from the date of being sent out but from two days after that date. The last day of deemed service would not overlap with the first day of the five-day application period. We will ensure that that is done and set out in the rules.
The noble Lord, Lord Avebury, also referred to the UNHCR disapproving of the five-day limit. The UNHCR comment relating to a five-day limit refers to filing an asylum claim. We are not referring to that in these measures, but to a subsequent time limit for seeking a review and reconsideration.
22
We do not wish to ignore the representations of the House, but we have given the issue very careful consideration. In the vast majority of cases, an asylum applicant will have had a lawyer at the original asylum and immigration tribunal hearing. In many cases, during the hearing, the points of law on which it seems likely that the tribunal's determination will turn and hinge will be identified, so the lawyer and the applicant will not come cold to the thrust of the likely decision by the tribunal. Therefore, in most cases, a lawyer and his client would have been in a position to have discussed whether, if the hearing did go against them, they would wish to lodge an appeal. Often, the lawyer would be well prepared about what should be the thrust of the case that he or she would put before the High Court when seeking an ex parte application.
Therefore, for those reasons, we think that five days is workable. However, that should be cautioned, of course, by the fact that there is a discretion for the High Court judge to waive that when he or she thinks that the interests of justice require it.
Lord Avebury: My Lords, I am most grateful to the noble Lord. My quotation from the UNHCR was not direct, but it came from paragraph 1.81 of the 6th report of the JCHR. That was in the context of the shortness of the time limit for applying to the High Court for a reconsideration. It was not in terms of the first application at all. If the noble Lord refers to the JCHR report, he will find that my quotation was relevant to this discussion.
Lord Filkin: My Lords, I thank the noble Lord, Lord Avebury, for his correction.
Lord Goodhart: My Lords, the Government have said that their objective is to have a procedure that is swift but fair. We agree with that objective. Unfortunately, the Government's proposals, while plainly swift in this respect, are blatantly unfair. The Government say that they are confident that an appellant will have sufficient time because—so they say—the grounds for appeal will already have been covered in the argument at the first hearing before the asylum and immigration tribunal.
The idea that the judgment of the tribunal is so predicable that, in effect, it is possible to draft a notice of appeal in advance is utterly unrealistic, as, I believe, anyone who has practised in the courts will agree. Many speakers in this debate have said that a five-day period is utterly impracticable. The five days' limit will be only a very minor factor in extending the time before the removal ultimately of an unsuccessful asylum seeker. The five days' limit will be a major factor in creating unfairness in the system.
I am most grateful for all the support that this amendment has received from all parts of your Lordships' House. The amendment echoes the views of the highly respected Joint Committee on Human Rights. In those circumstances, it is proper for me to seek the opinion of the House.
3.50 p.m.
On Question, Whether the said amendment (No. 43) shall be agreed to?
Their Lordships divided: Contents, 143; Not-Contents, 94.

Division No. 1

CONTENTS

Ackner, L.

Laming, L.

Addington, L.

Lamont of Lerwick, L.

Allenby of Megiddo, V.

Listowel, E.

Alton of Liverpool, L.

Lloyd of Berwick, L.

Ampthill, L.

Luke, L.

Anelay of St Johns, B.

Lyell, L.

Astor of Hever, L.

McColl of Dulwich, L.

Attlee, E.

MacGregor of Pulham Market, L.

Avebury, L.

Baker of Dorking, L.

Mackay of Clashfern, L.

Beaumont of Whitley, L.

Mackie of Benshie, L.

Biffen, L.

McNally. L.

Blaker, L.

Maddock, B.

Bledisloe, V.

Mar, C.

Bridgeman, V.

Mar and Kellie, E.

Brittan of Spennithorne, L.

Marlesford, L.

Brooke of Sutton Mandeville, L.

Methuen, L.

Brougham and Vaux, L.

Miller of Hendon, B.

Caithness, E.

Monro of Langholm, L.

Campbell of Alloway, L.

Montrose, D.

Carlisle of Bucklow, L.

Murton of Lindisfarne, L.

Carnegy of Lour, B.

Newcastle, Bp.

Chadlington, L.

Newton of Braintree, L.

Chester, Bp.

Noakes, B.

Colwyn, L.

Northesk, E.

Cope of Berkeley, L.

Northover, B.

Craig of Radley, L.

Oppenheim-Barnes, B.

Crickhowell, L.

Oxford, Bp.

Cumberlege, B.

Park of Monmouth, B.

Darcy de Knayth, B.

Peel, E.

Deedes, L.

Perry of Southwark, B.

Dholakia, L.

Plant of Highfield, L.

Dixon-Smith, L.

Platt of Writtle, B.

Donaldson of Lymington, L.

Plumb, L.

Eccles of Moulton, B.

Plummer of St. Marylebone, L.

Elles, B.

Prior, L.

Elliott of Morpeth, L.

Rawlings, B.

Ezra, L.

Rawlinson of Ewell, L.

Falkland, V.

Razzall, L.

Feldman, L.

Reay, L.

Freeman, L.

Redesdale, L.

Geddes, L.

Renton, L.

Glentoran, L.

Roberts of Conwy, L.

Goodhart, L.

Rodgers of Quarry Bank, L.

Goschen, V.

Roll of Ipsden, L.

Hamwee, B.

Roper, L. [Teller]

Hanham, B.

Saltoun of Abernethy, Ly.

Hannay of Chiswick, L.

Seccombe, B. [Teller]

Harris of Peckham, L.

Selsdon, L.

Harris of Richmond, B.

Sharman, L.

Hayhoe, L.

Sharp of Guildford, B.

Henley, L.

Sharples, B.

Hooper, B.

Shutt of Greetland, L.

Howe, E.

Skelmersdale, L.

Howe of Aberavon, L.

Skidelsky, L.

Howe of Idlicote, B.

Slim, V.

Howell of Guildford, L.

Smith of Clifton, L.

Hunt of Wirral, L.

Soulsby of Swaffham Prior, L.

Hurd of Westwell, L.

Stern, B.

Jenkin of Roding, L.

Strathclyde, L.

Jopling, L.

Swinfen, L.

Kimball, L.

Tanlaw, L.

Kingsland, L.

Taverne, L.

Kirkham, L.

Tebbit, L.

24

Tenby, V.

Wakeham, L.

Thomas of Walliswood, B.

Walmsley, B.

Thomson of Monifieth, L.

Walton of Detchant, L.

Tope, L.

Warnock, B.

Trenchard, V.

Watson of Richmond, L.

Trumpington, B.

Weatherill, L.

Tugendhat, L.

Williams of Crosby, B.

Waddington, L.

Windlesham, L.

NOT-CONTENTS

Ahmed, L.

Hollis of Heigham, B.

Alli, L.

Howells of St. Davids, B.

Amos, B. (Lord President of the Council)

Howie of Troon, L.

Hughes of Woodside, L.

Andrews, B.

Hunt of Kings Heath, L.

Archer of Sandwell, L.

Irvine of Lairg, L.

Ashton of Upholland, B.

Jeger, B.

Bassam of Brighton, L.

Jones, L.

Berkeley, L.

Jordan, L.

Bernstein of Craigweil, L.

Lea of Crondall, L.

Blackstone, B.

Lipsey, L.

Borrie, L.

Lofthouse of Pontefract, L.

Bragg, L.

McCarthy, L.

Brooke of Alverthorpe, L.

Macdonald of Tradeston, L.

Brookman, L.

McIntosh of Haringey, L.

Brooks of Tremorfa, L.

McIntosh of Hudnall, B.

Burlison, L.

MacKenzie of Culkein, L.

Campbell-Savours, L.

Marsh, L.

Carter, L.

Mason of Barnsley, L.

Christopher, L.

Massey of Darwen, B.

Clarke of Hampstead, L.

Merlyn-Rees, L.

Corbett of Castle Vale, L.

Mitchell, L.

Crawley, B.

Morgan, L.

David, B.

Morris of Aberavon, L.

Davies of Coity, L.

Morris of Manchester, L.

Davies of Oldham, L. [Teller]

Nicol, B.

Dean of Thornton-le-Fylde, B.

Patel of Blackburn, L.

Desai, L.

Pitkeathley, B.

Dixon, L.

Richard, L.

Dubs, L.

Rogan, L.

Eatwell, L.

Rooker, L.

Elder, L.

Scotland of Asthal, B.

Evans of Temple Guiting, L.

Sheldon, L.

Falconer of Thoroton, L. (Lord Chancellor)

Simon, V.

Farrington of Ribbleton, B.

Smith of Gilmorehill, B.

Filkin, L.

Stallard, L.

Fyfe of Fairfield, L.

Strabolgi, L.

Gibson of Market Rasen, B.

Symons of Vernham Dean, B.

Golding, B.

Temple-Morris, L.

Goldsmith, L.

Tomlinson, L.

Gordon of Strathblane, L.

Triesman, L.

Gould of Potternewton, B.

Turner of Camden, B.

Graham of Edmonton, L.

Varley, L.

Grocott, L. [Teller]

Whitty, L.

Harrison, L.

Wilkins, B.

Hayman, B.

Williams of Elvel, L.

Hilton of Eggardon, B.

Woolmer of Leeds, L.

Hogg of Cumbernauld, L.

Resolved in the affirmative, and amendment agreed to accordingly.
4 p.m.
Lord Goodhart Lord Goodhart moved Amendment No. 44:
Page 14, line 2, leave out "5" and insert "10 working"
On Question, amendment agreed to.
Lord Goodhart Lord Goodhart moved Amendment No. 45:
Page 14, line 13, leave out "applicant" and insert "parties to the appeal"
The noble Lord said: My Lords, I hope to be quite brief. It is undesirable that, where reconsideration is ordered because an error of law may have been made, the case should be referred back to the same member of the tribunal who made the original decision to decide whether in fact he or she got it wrong the first time round. There may be exceptional cases where it is legitimate, but they are few and far between. It is also usually desirable that, where an error of law may have been made, the case should be reconsidered by a panel of three rather than by a panel of one.
It is true that under Schedule 5 to the 2002 Act the president of the asylum and immigration tribunal will have power to direct, where in his view it may be appropriate, that the case should be reconsidered by a different member of the tribunal from the original one or should be reconsidered by a panel of a different size. But it seems appropriate that the judge of the High Court or whichever is the appropriate court in Scotland or Northern Ireland who has actually heard the application and is therefore aware of the issues involved should have power not only to direct a reconsideration on the grounds of an error of law, but also to decide on the form of tribunal which is to hear that reconsideration.
I do not suggest that the judge should be bound to exercise the power, but in cases of this kind it would be appropriate for the judge, if he or she has clearly decided that it cannot go back to the person who made the original decision, to decide there and then who is to hear the reconsideration. I beg to move.
Lord Mackay of Clashfern: My Lords, I thought that Amendment No. 45 had been called, but the statement by the noble Lord in support of it appears to be more appropriate to Amendment No. 46.
Lord Goodhart: My Lords, I apologise. The noble and learned Lord is quite right. The amendments are grouped together, but Amendment No. 46 is the substantial amendment. Amendment No. 45 suggests a minor point to make it clear that this provision should apply to both parties of the tribunal, not only to an appellant.
Lord Ackner: My Lords, will the noble Lord assist me on one point? Since the emphasis of the whole of this part of the Bill is on expedition, and since we are dealing with a point of law and a tribunal which is a qualified judge, why should not the judge himself make the decision that there was an error of law and the consequences are as would be appropriate? Why would it need to go back in every case?
Lord Goodhart: My Lords, I am pleased to be able to help the noble and learned Lord, Lord Ackner. I am sorry if what I said was confusing, but the purpose of this amendment is exactly that: it is to make sure that the judge who hears the application for an order for reconsideration should be able himself or herself to
26
say, on the spot, "We need not bother the president of the asylum and immigration tribunal. I myself am convinced that this is a case which should not go back to the member of the tribunal who took the original decision. The issue is so important that it requires a panel of three". So I am grateful to the noble and learned Lord, with whom I think I am in entire agreement.
Lord Renton: My Lords, pages 1 and 2 of the Marshalled List state:
"An order … may direct that the decision of the Tribunal may be reconsidered by—

(a) a member who made the decision;

(b) another member; or

(c) a panel of 3 members".

Why should it be necessary to insert a provision for three members if one member is enough? I should be grateful if the noble Lord could help me on this point.
Lord Goodhart: My Lords, I am grateful to the noble Lord. There is an existing power for the president to declare that a case is sufficiently important to require it to be heard by more than one member of the panel. Therefore, if the judge is to be given a choice, he or she should be given the same choice as the president would have, which would include the power to direct that the case should be heard by a panel of three members.
Three members seems the right number here. Two members would be unsatisfactory, as even numbers tend to be when taking judicial decisions, and rising to five members would be to over-egg the pudding.
Lord Kingsland: My Lords, Members on these Benches support the amendments tabled by the noble Lord, Lord Goodhart, save for one qualification. The noble Lord will see that Amendment No. 57A would require three members to be the normal number to sit on the tribunal,
"unless the President from time to time directs".
Were that amendment ultimately to find itself included on the face of the Bill, I suggest that a slight modification would need to be made in Amendment No. 46 to new subsection (5A)(a) and (c). Subsection (5A) would have to read, "member or members who made the decision", while (c) ought to read, "or another panel of 3 members". However, the changes would be necessary only if the contents of Amendment No. 57A were to find their way into the Bill. I apologise to the noble Lord for not drawing his attention to this point earlier.
Lord Mackay of Clashfern: I had proposed to say a few words about Amendment No. 45, because I am not sure of the Government's attitude towards this amendment. I assume that, for the sake of brevity, they would want to have the case decided without the necessity of inviting the respondent to make representations. I think that Amendment No. 45 implies a right, or at least a power, to require representations from the other parties to the appeal.

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The point made by the noble and learned Lord, Lord Ackner, seemed to be that, if it is apparent that there has been an error of law, the simplest way to correct it is perhaps to make a new decision immediately which has the opposite effect. The problem about that is, unless and until the basic opening of the clause is changed, the only power in the court is to remit the case to the tribunal. If the point made by my noble and learned friend were to be given effect, some further amendment would therefore be required. I do not think that Amendment No. 46, moved by the noble Lord, Lord Goodhart, would have that effect.
So far as Amendment No. 46 is concerned, for my part I would be willing to take it that the judge hearing the case in the High Court would have these powers in any event. If there is any doubt about that, however, I see no reason why these amendments should not be made.
Lord Donaldson of Lymington: My Lords, if on review the judge decides that there has been an error of law, I do not think that it follows that the lower tribunal, with one or three members, would necessarily reach a particular conclusion. For instance, if the decision is that an irrelevant matter has been taken into account, it still leaves open the question of what happens when the relevant matter is taken into account. On the face of it, that would not be a matter for the High Court judge.
While judges are perfectly capable, when looking at a decision which overturns their own decision, of saying, "That is what that court says"—they probably got it wrong, but that is beside the point—"They have the last word, so of course I will follow it". We know, or at any rate those who are involved in the law know, that that is so, but the lay public do not. If there is a situation in which a decision is sent back to the original member, who then says, "Having taken account of the guidance I have received from the High Court, I still think that the answer is what I said it was", it is probably a perfectly possible answer but it is not one which would carry conviction with the public.
It would therefore be important that the judge of the High Court should consider very carefully before sending it back to the same member as had it in the first place—unless he is quite satisfied that the answer will be a different one.
The Countess of Mar: My Lords, there are occasions when it is appropriate to send it back to the person who made the decision in the first place. Sometimes that person will not have taken all matters into consideration and will need to be reminded that this should have been done and, if he had taken all matters into consideration, what then would have been his decision.
On the other hand, in most of the cases that have been through my hands, when it has been sent back to a lower level for a rehearing, it has been to a fresh hearing as opposed to a filling-in of what has already been heard. There is therefore room for both cases.
4.15 p.m.
Lord Filkin: My Lords, in responding to an interesting debate, it may be helpful if I start by emphasising what the Government are seeking to do under Clause 14 in this respect.
Essentially, and for reasons which will be well known to the House, we think that there is a need for and merit in a single process in the new Asylum and Immigration Tribunal to deal with issues, rather than a second two-stage process. However, the House and others have made representations to us that the ouster of judicial review went too far and did not allow an adequate supervision by the higher courts of points of law or failures by the tribunal.
Therefore, in the amended Clause 14 we are seeking to ensure that the single-tier tribunal, the AIT, has the capacity, skills and competence to deal with these issues, but allow an opportunity, when there appears to have been a case where there is an error in law, for that to be considered by a higher court, normally the High Court and, if the judge hearing that case believes that an error in law has been made, to send that back for reconsideration.
We are not trying to reconstruct a two-tier process built on the AIT—for very good reasons, because that would in large part take us back to where we are at present.
That is why we are not sympathetic to Amendment No. 45. The noble Lord, Lord Goodhart, suggests a requirement for the High Court or Court of Session to determine review applications by reference to the written submissions of all parties to the appeal, and not only the written submissions of the applicant. That effectively puts the High Court—if the High Court is hearing it—in the position of deciding on the substance of it. That is not what we want to do, and for good reason.
It is important to recognise that new Section 103A has been drafted to reflect the fact that the review procedure will be ex parte: in other words, if a person who has agreed with the decision of the AIT has an opportunity to direct to a higher court a challenge that there has been an error of law by the AIT, and if the judge in that case is persuaded by that to direct a reconsideration.
The current permission stage to the AIT and the statutory review procedure under Section 101 of the 2002 Act, for similar reasons, are both ex parte and we think that it is necessary and right to continue with this.
Requiring the High Court to determine review applications by reference to the written submissions of all parties to the appeal would effectively put it in the position of determining the appeal, would add delay to the process, and is unnecessary.
It is also undesirable for other reasons. One of the problems experienced has been that the High Court has been swamped by appeal applications of this type. That has put an inappropriate burden on the High Court. Therefore, the procedure as crafted by new Section 103A allows for the proper exercise of High Court supervision on points of law, but does not take

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away from the specialist tribunal the reconsideration of those matters. In other words, it has been carefully crafted—we believe for good reason.
If the High Court or a senior member of the tribunal considers that there may have been an error of law and orders a case to be reconsidered by the tribunal, at that point all parties to the appeal will have the opportunity to make written and, if appropriate, oral representations. We therefore believe that the provision is well constructed. The substantial hearing, if there has been a finding on a point of law, is back into the tribunal following the determination by the High Court judge.
Amendments Nos. 46 and 57 will enable the High Court or the Court of Session to direct how the tribunal should be composed when it reconsiders an appeal. As it stands, the president of the AIT will direct the composition of the tribunal under paragraphs 7 and 8 of Schedule 1 of the Bill. We believe that is where that discretion should lie.
We agree that the reconsideration process will need to vary. Some appeals will be best reconsidered by a full hearing but, for others, this may not be necessary. Some appeals will require a panel of judges to hear them, because it is seen by the president as potentially a pivotal case that will set a precedent relevant to other cases. In such circumstances one would expect that there would be three judges in the AIT hearing such a case. In other cases it will not be so, and therefore we believe that the president should take into account any recommendations made by the High Court or Court of Session but should have the discretion within that to make a determination on how best the appeal should be reconsidered in the AIT, depending on the particular circumstances. Ultimately, the president is best placed to take these decisions on the deployment of judiciary within the tribunal.
This has been a helpful debate. I do not think that I have replied to the point made by the noble and learned Lord, Lord Ackner, as to why the High Court should not be given the power to reverse. I may have done so in passing, because I have signalled that it is a different function for the High Court. It is not to hear the substance but to hear whether it considers that an error in law has been made. As the noble and learned Lord, Lord Donaldson, helpfully signalled, that does not imply that in every single case—even where an error of law may have occurred—the reconsideration decision will automatically be reversed. It will depend on the circumstances of the case.
I hope that my comments have been helpful to noble Lords who have spoken to the amendment.
Lord Goodhart: My Lords, I am not wholly unsympathetic to the Government's view. I do not think that it would be appropriate for the judge to turn what is, in effect, an application for leave to appeal into a substantive hearing. I understand that and the amendment was not intended to achieve it.
Although the Government have taken some care to avoid saying so, they are trying to create an internal appeal system within the tribunal itself in which, if the case arises in England, the judge of the High Court effectively gives leave to appeal from one part of the
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tribunal to another panel or individual within the tribunal. It is a fairly ingenious way of handling the issue. From the Government's point of view it has the advantage that, albeit the leave to appeal—if one can call it that—is given as part of the jurisdiction of the High Court, it is not in itself subject to judicial review.
Amendment No. 46 would save time because a judge could say, "Having looked at this matter on an ex parte basis, it seems to me that there is plainly something that needs to be looked at seriously". That would avoid the delay involved in having to refer the papers to the president of the tribunal and he or she having to read up the papers and come to a decision as to what is the appropriate form of the tribunal.
However, I am also aware that, unlike the previous group of amendments, a refusal to accept these amendments will not lead to any injustice in the procedure. In those circumstances, I do not wish to press them further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 46 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 46A:
Page 15, line 42, leave out from beginning to "applies" in line 43 and insert—

103D RECONSIDERATION: LEGAL AID
(1) Subsection (2) applies where the appropriate court has made an order under section 103A(1), or a reference under section 103C(1), on the application of an appellant under section 103A.
(2) The appropriate court may order that the appellant's costs in respect of the application under section 103A shall be paid out of the Community Legal Service Fund established under section 5 of the Access to Justice Act 1999 (c. 22).
(3) Subsection (4)"
On Question, amendment agreed to.
Lord Goodhart Lord Goodhart moved Amendment No. 47:
Page 15, line 42, leave out from beginning to end of line 36 on page 16.
The noble Lord said: My Lords, I was expecting a slightly more substantial speech from the Minister. However, I am happy that he should leave that until he responds to this amendment, which is grouped with Amendment No. 46A.
We do not object to Amendment No. 46A and have not sought to do so; we welcome it so far as it goes. It will undoubtedly fill a lacuna if it gives the court which hears an application for an order to reconsider the power to order the payment of the costs of that application. The problem is that Amendment No. 46A does not go nearly far enough.
Once the High Court has ordered reconsideration, it seems plain to us that legal aid should be granted for that reconsideration. The High Court will not order reconsideration unless there is at least an arguable case that there has been an error of law; nor will it order reconsideration if it is apparent that that error of law makes no difference because the case is hopeless on the basis of the facts or on some other legal issue
However, we believe that it is essential that the appellant's lawyer should know that if the case is reconsidered, he or she will receive legal aid for appearing in the case. Of course, if the lawyer in some way misconducted himself or herself by misleading the court and concealing material facts, he or she would be deprived of the right to legal aid anyway. But the Government are suggesting, basically, the extension of no win/no fee litigation to asylum and immigration cases.
No win/no fee funding may be here to stay for civil actions for damages—that is an entirely different matter—but it is completely inappropriate for litigation of this kind between an immigrant and the state, with terrible potential damage to the immigrant if he or she is wrongly sent home. I was horrified by the noble and learned Lord the Lord Chancellor's suggestion in Committee that "success fees"—that is, an uprating of the fees that would be otherwise due—could be paid where a decision is overturned on reconsideration. If an application is strong enough to justify an order for reconsideration, the appellant is entitled as a matter of justice to have the case presented by a lawyer who has been paid to do the job.
Amendments Nos. 47, 48, 48A, 49 and 50 tackle this issue in two different ways: one way is through Amendment No. 47; the other way is through the remainder of the amendments. Amendment No. 47 seeks to remove the whole of the new Section 103D of the 2002 Act. Its purpose is to ensure that legal aid for applications and reconsiderations should be provided in the normal way, with none of the special restrictions imposed by the Bill.
Amendment No. 48 is something of a compromise. It would retain new Section 103D but require the tribunal to make an order for legal aid unless it is satisfied that there were no reasonable grounds for making the application. It would eliminate all the issues we discussed in Committee about near misses. A lawyer with reasonable grounds for making the application would not lose his or her fees on the grounds that the miss was not quite near enough.
Amendment No. 48A would require the tribunal to give reasons for refusing legal aid. If those reasons were irrational, the decision could be reversed. Amendments Nos. 49 and 50 back up Amendment No. 48. They would remove the provisions for payment by results.
We believe that the test—and the only test—for the grant of legal aid should be whether there are reasonable grounds for seeking reconsideration. If there are reasonable grounds, it would be wrong to deprive the appellant's lawyers of the fees because they are unsuccessful when the reconsideration takes place.
I find the attitude of the Government to legal aid in these cases extraordinary. They have failed to take into account measures that have already been put in place to curb the abuse of legal aid, which I recognise has happened in asylum cases. Such measures include the fact that decisions on appeal funding have been taken in-house by the Legal Services Commission since last April; the fact that nearly 100 poor-quality firms have had their
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Legal Services Commission contracts terminated; and the fact that a compulsory accreditation scheme of the Law Society will come into force in April of next year. Those measures are surely sufficient to justify treating legal aid for leave of appeal to the AIT in the same way as any other cases and for hearings for reconsideration.
The Government have not so far said that criminal defence lawyers will be paid only in cases where their clients are acquitted, yet the wrongful refusal of asylum can have consequences even more damaging than a wrongful conviction for crime.
The way in which the Government have treated the right to legal aid in this case is plainly wrong and it needs fundamental alteration. I beg to move.
4.30 p.m.
Lord Clinton-Davis: My Lords, like the noble Lord, Lord Goodhart, I am deeply concerned about this issue. I am concerned about the principle to introduce, in due course, the no win, no fee arrangements. The noble Lord elaborated on that.
The Government have it in mind to replace the Legal Services Commission with the judiciary in determining whether costs should be ordered. The judge would so order only if he decided that a case was either successful or a near-miss. Solicitors are therefore bound to be unduly cautious in approaching such matters.
The system that is envisaged is likely to have deleterious effects. First, solicitors are likely to give up legal aid work in that field because they feel that they are unable to work at all, or properly, under the circumstances that are envisaged. Secondly, there is a by no means remote possibility of a conflict of interest between the lawyer, whose attitude is likely to be that he will act only if the application is almost certain to succeed, and the lay client, who will want the application to proceed if he has an arguable case. Why, therefore, should there not be representation in all arguable cases?
Unmeritorious cases should not be publicly funded. I entirely agree with that proposition. That, in summary, is the view of the Government. However, do the Government not recognise that effective filters already exist? First, there is the Legal Services Commission, which imposes cost assessment audits, Quality Mark audits and peer review, where firms undertake immigration work, which is publicly funded. Secondly, the Legal Services Commission, rather than the solicitor, determines at present whether the case has enough merit and whether an appeal to the Asylum and Immigration Tribunal should be publicly funded. Thirdly, from 2005, the accreditation system will apply to all lawyers who practise publicly funded work in such cases.
Complex issues of law and fact are the rule rather than the exception. To decide them, it is often desirable that the applicant should give evidence. Why should we find that unacceptable?
Many sound claims are too often refused at the initial stage, where Home Office decision-making is often found to be wanting. Representation at that stage is therefore often indispensable.

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There is likely to be an increase in unrepresented applicants, however unmeritorious they may be, and the courts will be hopelessly overloaded. In such circumstances, the Government will incur, rather than save, costs. I therefore hope that my noble friend will think again about his propositions.
Lord Newton of Braintree: My Lords, I indicated earlier that when the Council on Tribunals looked at some of the proposals, though it concentrated on Ulster in particular, it was concerned by a number of points of detail. This is another of them.
I shall not attempt to speak with the eloquence of the noble Lord, Lord Clinton-Davis, with his much wider knowledge of the operations of the legal profession, but it seems to be a matter of layman's common sense that if public funding is to be dependent on the ultimate outcome, which is what appears to be envisaged, there must be a risk that lawyers will feel strongly discouraged from taking on cases that may be meritorious in the normal use of that term, but not 100 per cent certain of being meritorious. In the area of asylum and immigration, it is singularly open to question whether that is a proper path to follow.
Being a natural seeker after the middle way, of the two amendments moved by the noble Lord, Lord Goodhart, I think that I prefer his compromise amendments to his complete "throw out this bit of the Bill" amendment, but I hope that the Government will look again at the issue.
From our experience at the Council on Tribunals—as was touched on by the noble Lord, Lord Clinton-Davis—there is considerable evidence that suggests that the absence of legal representation can extend the time and complexity of the hearing and make it much more difficult to handle matters in a manageable way. Any former Member of Parliament will know from discussions in his surgery that many complainants, claimants or applicants often find it difficult to distinguish the points that really matter from those that are not necessarily essential to the issue. Legal representation really can improve the smoothness and efficiency of the working of arrangements of that kind. With the best will in the world, I hope that the Minister will be prepared to take another look at the matter.
The Lord Bishop of Newcastle: My Lords, I too wish to ask the Government to give further consideration to these matters. They are of concern to all those noble Lords who have spoken today. While I am pleased that the Government have amended their proposals to allow for costs to be paid out of the Community Legal Service fund, I would like some reassurances about how that is going to work out in practice, especially in cases involving children and families.
A no win, no fee approach puts children and families at risk from the unscrupulous or the faint-hearted, who may tell them that they do not have a strong enough case to take on, and that if they want to appeal, they must pay privately. It is worrying to find a child or a family being told to produce a significant sum. The Children's Society
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has experience of upfront payments of £200 being demanded from a child, to be produced in a short space of time, before a case would be taken on.
The Countess of Mar: My Lords, I am sorry to interrupt, but would the noble Lords on the Benches opposite mind confining their sub-committee to outside the Chamber? I am finding it difficult to hear what the right reverend Prelate is saying.
The Lord Bishop of Newcastle: My Lords, equally it is becoming difficult to find good legal representatives for children and families. We need to remember that the best protection against incompetence or unscrupulousness is a sufficiency of good representatives. I am not at all sure that these proposals will enable that.
My other concern is about a no-win/no-fee arrangement in this case. I am not aware of such a scheme operating in any other areas that are about fundamental human rights. That seems to be the basic point, which is why I fully support the amendment in the name of the noble Lord, Lord Goodhart.
Lord Avebury: My Lords, the right reverend Prelate is right. I do not think that any of us can produce an example where human rights are at stake and where a no-win/no-fee proposal has been made, let alone introduced. I wish to refer to the representations that we and perhaps other noble Lords have received from the Medical Foundation for the Care of Victims of Torture. It says:
"Where torture has been alleged it cannot possibly be in the interests of justice to allow the decision to challenge a flawed Asylum and Immigration Tribunal (AIT) decision to rest on lawyers' financial interests in the success of the case. This will prejudice those of our patients whose representatives are less able to bear the financial risk of proceeding even where a legal error of law is clear. This is particularly relevant given the Medical Foundation's current experience that quality firms are closing their immigration departments due to the recently imposed financial constraints".
The Medical Foundation has drawn our attention to two cases. I will give the Minister the references in case he wants to look them up. The first is Neutral Citation No: CO-2174–00, which was heard on 21 November 2000 before Sir Richard Tucker. The adjudicator had rejected the applicant's claim for asylum mainly on credibility grounds. Mr Justice Tucker, however, allowed the judicial review application saying that he did not agree with the counsel who appeared on behalf of the Secretary of State that the adjudicator's findings of fact were sustainable. In his view they were not and the case had to be reviewed and should be taken before the immigration tribunal. The claimant was later recognised as a refugee.
The second example is where a chairman of the tribunal determined an application for permission to appeal. The appeal number is HX/42009/2003, which took place on 8 December 2003. The chairman said:
"An adjudicator is entitled to use his own experience in assessing evidence, including how scars might be formed but not to set himself up as an expert".
In that case a decision is still awaited, but it is not clear how an adjudicator would come to have the experience necessary to make a forensic judgment, nor the extent

35
of that particular adjudicator's medical knowledge, although he was permitted to attack the Medical Foundation expert who had written the report before him for failing adequately to explain her conclusion.
The Medical Foundation says that it cannot predict whether those two cases would have been successful under the Bill's terms or how the courts would have made a decision on referring them back. It shows that no-win/no-fee is a gamble and that, although there are serious doubts about the way in which such cases were decided, no one has any idea whether the applicants would have had the right to pursue their claims if this system had been in operation.
With the Medical Foundation's experience and that of other agencies referred to, we are looking at a situation where the rights of asylum applicants who may have had the experience of torture will be seriously undermined. I am sure that your Lordships would not want that to happen.
4.45 p.m.
Baroness Carnegy of Lour: My Lords, as a Member of the House with no legal qualifications who has not been involved with the process, this seems to me a matter of simple common sense. I shall listen with great interest to what the Minister has to say if he does not accept the amendment's principle. The Law Society's case, which it put before many of your Lordships, was well made by the noble Lord, Lord Clinton-Davis. It seems common sense to me.
My noble friend Lord Newton from his experience of the Council on Tribunals made it clear that often an appeal is more complicated and takes longer if there is no lawyer involved. To have a situation where a lawyer may not dare to take on the case or may not want to because it seems too much of a gamble is a great mistake.
Lord Kingsland: My Lords, we have considerable sympathy with the general approach of the noble Lord, Lord Goodhart, in the amendments that he proposes, without necessarily agreeing with the specific approach that he takes in each case.
I have already indicated that there is a plain dissonance between the test for review that the Government have now adopted in the first amendment of the day and the criteria for furnishing legal aid in circumstances where someone meets it. That is a profound and inexplicable irrationality that goes to the heart of the Government's legal aid proposals.
Moreover, I share entirely the view of the noble Lord, Lord Goodhart, and many other noble Lords, that a conditional fee approach is wholly inappropriate to asylum cases.
I should say at the outset that I am opposed to conditional fees altogether. I said so consistently during the debates in your Lordships' House on the Access to Justice Act 1999. However, the objections to conditional fees are even more firmly based with
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regard to public law; and, in particular, the human rights aspects of public law; and, especially, in asylum cases involving human rights issues.
There are a number of reasons for that, some of which have already been canvassed by noble Lords. The first is that the outcome in asylum cases is particularly difficult to predict because of the central role that the issue of credibility plays. Yet a high degree of accuracy of prediction is vital for the operation of a successful conditional fee system.
Secondly, in a conditional fee system, the client insures himself against losing a case so as to reimburse the solicitor for his expenses in the event of losing. An asylum seeker will be in no position to do that, but who will pay the insurance companies if they are not paid by the asylum seeker?
Perhaps the most fundamental objection of all is this: conditional fees are not appropriate to human rights cases, which require, as the judges have repeatedly reminded us in the High Court and above, the most anxious scrutiny. That, indeed, is the view taken to human rights issues with respect to every other public law matter in the country. In this respect, I find the Government's disposition particularly bewildering. They introduced the Human Rights Act to make Strasbourg remedies available in English law, in English courts; yet they are not now prepared to live up to these new responsibilities, which they imposed on themselves, by seeing them properly reflected in the legal aid system.
Lord Filkin: My Lords, in responding to amendments moved by the noble Lord, Lord Goodhart, I shall speak—and not before time—to government Amendments Nos. 46A, 47A, 48B, 49A, 50A and 58A. In doing so, I shall also respond to Amendments Nos. 47, 48, 48A, 49 and 50.
Amendments Nos. 47, 48, 48A, 49 and 50 are concerned with the provisions for new legal aid arrangements for the review and reconsideration process. Essentially, we are considering how to craft a new system that allows cases in which there are good grounds for there being a fault of law by the AIT to be properly considered by the High Court. We are not trying to reopen the situation, which I hope the House recognises took place, in which a substantial number of judicial review cases were brought on asylum matters to the courts without substantial merits, with the predominant aim of gaining time so that the asylum applicant whose case had not been found to have merit could defer his removal from this country.
We should not fool ourselves: this is not the dilemma with which we in a liberal society are trying to grapple. We want applicants in whose cases an error of law has been made to have an opportunity for redress in the higher courts; we have listened to the House in that respect. However, we do not want to reopen a situation in which there is an incentive for the applicant to continue the case, since it is in his interest to string out the process for as long as he possibly can, as that will delay or perhaps even avoid the date when he can be removed. We want as well to avoid the

37
situation in which the lawyer himself is incentivised to take cases without merit because he will suffer no pain as a consequence of doing so.
While there have been cases that should have gone to judicial review—and it would be foolish of us not to recognise that—there have been very many cases without merit taken to judicial review, with considerable cost to the taxpayer and delay to the system. That has created the impression known to traffickers and others that when they get here the legal system in Britain—which is so good—means that they can string out their process and not be removed from the country. Therefore we are facing the question how we as a society, a Government and a House, can balance those two issues.
Let me explain why we believe that we have got it right.
Lord Avebury: My Lords, does the Minister agree that, considering the mechanisms that have been discussed by the noble Lord, Lord Clinton-Davis, and particularly the fact that the LSC will now have the responsibility of determining whether a case has sufficient merit, the kinds of abuse that have occurred in the past will still continue if legal aid is provided?
Lord Filkin: My Lords, the noble Lord, Lord Avebury, may have thought that I was concluding; I was not concluding but only beginning my response. I hope that we shall have an opportunity to address that point.
What we have done is to introduce an enabling power in new Section 103D to make regulations for a new legal aid scheme for the High Court review process and reconsideration by the tribunal. This will ensure that we focus legal aid on the most meritorious cases. Instead of the Legal Services Commission taking the funding decision, the power will be given to the judiciary to decide if legal aid should be paid in these proceedings. We are effectively asking lawyers to share the risk with the taxpayer when deciding whether an appellant should proceed with a review application. We believe that that will lead to lawyers giving a more rigorous examination to the prospects of a case succeeding. We recognise that good lawyers do that already, but that has not been universally the situation in our experience of asylum matters over recent years. This is not an attempt to remove those cases from the scope of legal aid, but a genuine drive to ensure that the focus of public funding is on deserving cases.
Amendments Nos. 47, 48, 48A, 49 and 50 would reverse that aim, and would mean that it would be easier to get legal aid for reconsideration proceedings than the original appeal, where the appellant would at least have to satisfy the merits test for legal aid applied by the Legal Services Commission.
As the Lord Chancellor said in Committee, the regulations constructed under the power will set out the detail of the scheme. Broadly speaking, we envisage that the tribunal will order legal aid to be paid in the following cases: in a case which has been successful and the original appeal decision has been reversed, or in a case which the judge has decided was
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a near miss, which was meritorious and could have succeeded but did not. In such a case it can decide that it is right that there is a payment.
I am grateful to the noble Lord, Lord Clinton-Davis, for acknowledging that unmeritorious cases should not be publicly funded. A number of noble Lords who have spoken have been concerned about whether the provision might lead to lawyers ceasing to be prepared to take cases to the High Court in these circumstances. That is a perfectly proper and right question. The thrust is that if lawyers get paid only when they succeed—and it is not perfectly possible to predict when they will succeed, for obvious reasons—they will be under a strong disincentive to take cases.
For those reasons—and with no hint of feeling that that is anything other than proper—we believe that a success fee should be paid and that it should be substantial. I shall not go into the exact arithmetic, because we have not come to a conclusion on that. What we want is a situation in which good immigration and asylum lawyers would know, in taking cases over a period of time, that if they exercise proper professional judgment in the interest of justice and their client—
Lord Clinton-Davis: My Lords, I cannot see why the Legal Services Commission should not apply the usual standards which are applied in considering particular circumstances. After all, at the present time the Legal Services Commission determines whether the applicant, plaintiff or defendant has a good legal case, and it can refuse or acknowledge that the matter ought to proceed. What is the essential difference between that situation and the one that applies in cases at the present time?
Lord Filkin: My Lords, I give an undertaking to the House that when I have finished what I have to say and if I have not addressed certain points, I shall be grateful to receive interventions. However, I hope that the House will have patience with me until we get to that point of failure rather than assuming that I am failing on it already.
I was seeking to explain why a success fee achieved the right balance in view of the fact that a lawyer would take on a level of risk on an individual case. The noble Lord, Lord Kingsland, is right that it is not like a conditional fee agreement, which involves an insurable risk, and that it is unlikely that the appellant himself would be in a position to reimburse the lawyer in the vast majority of such situations. It stands to reason that that is the situation.
We shall discuss the level of the success fee with the professions. Essentially we want to discuss what is likely to be the level of uplift on a fee that would ensure an adequate supply of good lawyers prepared to bring cases to review in this way. That is a consultation process that we cannot currently have, but it will be fundamental to crafting this accurately to get the balance right so that good lawyers will make judgments that they will take cases. They may lose on some but they will know that if they exercise good professional judgment they will get adequately remunerated over a period of time. We do not want a

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situation such as the current one, where bad lawyers will not be in any way limited from taking forward unmeritorious cases.
5 p.m.
I turn to government Amendment No. 46A, in conjunction with government Amendments Nos. 47A. 48B, 49A and 50A. This enables regulations to be made under Section 103D to make provision for the High Court to order legal aid to be paid. In Committee, the noble and learned Lord the Lord Chancellor outlined this component of the proposals for new legal aid arrangements.
The High Court will also have the power to order the costs of an application under Section 103A to be paid if it orders the tribunal to reconsider its decision on an appeal or if it refers a case to the Court of Appeal. This proposal is important so that we can design the scheme flexibly. For example, if a case raises a question of law of such great importance that the High Court refers it to the Court of Appeal, it is appropriate that the High Court should have the power to order the costs of the review application to be paid. Government Amendments Nos. 47A, 48B, 49A and 50A are consequential to government Amendment No. 46A.
Government Amendment No. 58A makes the regulation-making power for new legal aid arrangements in Section 103D subject to the affirmative resolution procedure. The Delegated Powers and Regulatory Reform Committee recommended that the regulation-making power should be subject to affirmative resolution and in Committee the noble and learned Lord the Lord Chancellor said that he would bring forward an amendment to this effect.
I now turn to the question of the noble Lord, Lord Goodhart, about legal aid being paid only at reconsideration. The merits of a case will often come to light only when the case is fully tested and explored by the tribunal. The panel at the reconsideration will be best placed to order legal aid if a successful or near-miss application has been made. The High Court judge can order payment in exceptional circumstances.
The noble Lord, Lord Avebury, raised questions about the Medical Foundation cases. We are asking lawyers to focus on the fundamentals of cases and whether errors of law have affected the outcome of the cases. If they consider that a genuine case should succeed, they will be given legal aid if the case succeeds or is a near miss. As I signalled, the uplift mechanism will not deter them from taking cases that they consider have merit.
The noble Lord also spoke about no win, no fee costs being unprecedented for cases affecting human rights. It is already the position that conditional fee agreements are used in relation to judicial review proceedings, which frequently include issues of human rights. I should emphasise that we are talking about public funding only, not cases that are privately funded.
The noble Lord, Lord Clinton-Davis, and other noble Lords raised the question of why the LSC's applied merits test is not good enough. Any LSC-applied merits test will delay the review and reconsideration procedure. The test applied beforehand is hypothetical. We consider it entirely justifiable for the test to be applied by judges at the conclusion of cases. Judges are best placed to make a proper judgment on whether cases had merit because they succeeded or because they were close enough, or that there were other circumstances that they judge appropriate.
We are facing a real problem about how we get meritorious cases brought forward without over-incentivising the system so that cases without merit continue to be brought to appeal. I think that the way that we have crafted this after consultations is right, workable and will meet the test of justice.
Lord Clinton-Davis: My Lords, will my noble friend give way?
The Countess of Mar: My Lords, may I remind the noble Lord that the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords, in rules of debate on Report says:
"On report no Member may speak more than once to an amendment".
That also applies with questions to the Minister.
Lord Clinton-Davis: My Lords, I am not speaking, I am intervening. I think you can do that.
Lord Bassam of Brighton: My Lords, I remind the House that interventions should be only for elucidation and that once the Minister is on his feet, he should be responding to points. The only person who can speak thereafter is the mover of an amendment.
Lord Mackay of Clashfern: My Lords, I am going to respond to the noble Lord's invitation to ask if there is a matter that does not appear to be covered.
As I understand Amendment No. 46A, these reconsideration of legal aid provisions apply only where the court has made an order of recommitment to the tribunal or to a higher court. It does not apply where the application has failed. It seems to apply only if the application for reconsideration has succeeded. Is that right?
Lord Filkin: Yes, my Lords. The noble and learned Lord is correct.
Lord Goodhart: My Lords, I regard the Government's response to our amendments as deeply disappointing. I am also seriously concerned about some of the human rights implications. The Government are being illogical. They are not proposing to modify the present rules about the grant of legal aid for the first hearing before the tribunal. That is something that has undoubtedly been abused at certain times in the past, but I think that the Government recognise that, where a merits test is satisfied, it is necessary to grant legal aid for the first hearing before the tribunal. Of course, the number of first hearings is far larger than the number of appeals so

41
that is the level at which the real cost is incurred and there will be no real saving on that from any of these amendments.
The Government are proposing to withdraw legal aid from only some cases of the making of an application and from cases of reconsidering following the making of an application where the application has been granted. We on these Benches are prepared to accept an amendment in a form that would mean that legal aid can legitimately be withheld in cases where there are no reasonable grounds for an application. What we find completely unacceptable is that legal aid should be withheld in cases were there is a reasonable ground for application, and not only withheld, but withheld retrospectively, at the end of the case, when the lawyer who has taken on the case has no guarantee whether that case is going to be successful.
The Minister referred to the need for more rigorous examination by lawyers. We are now facing a situation where a lawyer will have to say to himself or herself, "This case has a reasonable chance of success but it is not certain. I simply cannot afford to take that case without a guarantee of payment". Success fees are wholly inappropriate in order to deal with this situation. Success fees are about cases involving money. I perhaps go a little further than the noble Lord, Lord Kingsland, but I would be prepared to accept success fees in cases where money is at issue. In those cases a lawyer can, and indeed should, say, "You have a 50:50 or perhaps even a 55:45 chance of success but it will cost you far more money if you lose than you will get from it if you gain. It is not therefore in your interest, or in mine, to start these proceedings. Therefore, I am not going to take this case, which in the old days I would have taken because the test was whether it had a better than even chance of success". That sort of financial cost-benefit analysis is wholly inappropriate for asylum cases, as of course it would be in criminal cases.
I am not suggesting that one can equate asylum cases with criminal cases completely. In criminal cases, it has long been accepted, quite rightly, that a defendant in a criminal case is entitled to be defended by a lawyer who is paid through legal aid and can expect the lawyer to put forward a defence which is seen to have no reasonable chance of success whatever. We do not go as far as that in asylum cases. We are simply saying that an asylum seeker—someone who is an appellant in a case of this kind, seeking reconsideration—should be entitled to have legal aid except in cases where there is no reasonable chance of success.
This is an issue about which I and my noble friends feel very strongly. So far as today is concerned, we are in a bit of a practical quandary because the noble Lord, Lord Kingsland, has made it clear that he is not at present in a position to support our amendments fully. It certainly seems to us, therefore, that the appropriate thing to do today is to ask the leave of the House to withdraw the amendment which I have moved in order to give an opportunity for further consideration of the matter in the hope of achieving a consensus. However, we would in those circumstances wish to bring this back. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Filkin Lord Filkin moved Amendment No. 47A:
Page 16, line 4, leave out from "of" to end of line 5 and insert "that Fund"
On Question, amendment agreed to.
[Amendments Nos. 48 and 48A not moved.]
Lord Filkin Lord Filkin moved Amendment No. 48B:
Page 16, leave out line 7 and insert "powers in subsections (2) and (4)"
On Question, amendment agreed to.
[Amendment No. 49 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 49A:
Page 16, line 10, leave out from "to" to end of line 12 and insert "the result of the reconsideration or of the reference under section 103C);"
On Question, amendment agreed to.
[Amendment No. 50 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 50A:
Page 16, line 32, leave out first "the" and insert "a"
On Question, amendment agreed to.
Lord Filkin Lord Filkin moved Amendment No. 50B:
Page 16, line 38, after "appeal" insert "under section 82 or 83"
The noble Lord said: My Lords, in moving Amendment No. 50B I shall speak also to Amendments Nos. 57B and 60. We are not moving technical Amendments Nos. 57C and 59A. My noble friend Lady Scotland wrote to the noble Lord, Lord McNally, and the noble Baroness, Lady Anelay, on 25 May indicating that the Government would be seeking to bring forward a small number of new policy amendments to the Bill. Amendments Nos. 57C and 59A are not being moved pending these new amendments.
Government Amendment No. 50B clarifies that Section 103E applies to a decision of the tribunal on an appeal under Sections 82 or 83. This amendment is a tidying amendment and simply brings the wording in Section 103E into line with the wording in Section 103A.
Government Amendment No. 57B ensures that all of Section 103A through to Section 103E applies to appeals against deprivation of citizenship. It was always the Government's intention that all sections should apply to deprivation appeals and the amendment simply corrects a drafting oversight.
Finally, I turn to government Amendment No. 60. This amendment is consequential to government Amendment No. 18. The noble Lord, Lord Bassam, spoke to Amendment No. 60 when he spoke to Amendment No. 18 in the earlier sitting at Report. I therefore beg to move Amendment No. 50B and commend Amendments Nos. 57B and 60 to the House. As I said, I shall not move Amendments Nos. 57C and 59A.
On Question, amendment agreed to.
5.15 p.m.
Lord Kingsland Lord Kingsland moved Amendment No. 50C:
Page 16, line 39, after "more" insert "legally qualified"
The noble Lord said: My Lords, in moving Amendment No. 50C I shall speak also to the other amendments in the group. From my point of view, the crucial amendments in this group are Amendments Nos. 54A and 57A. Amendment No. 54A, which is kindly supported by the noble Lord, Lord Goodhart, is very close to the amendment that he and the noble Lord, Lord McNally, have tabled.
The issue behind this group of amendments concerns whether the new tribunal should have lay members on it. The existing tribunal does and normally sits as three, with one legal member and two lay wingmen. The new tribunal apparently will sit with only one legal member.
Anyone who has an even passing acquaintanceship with asylum applications will know that the credibility of the applicant is more often than not the determining issue. Credibility is an issue of fact. Indeed, credibility in an asylum case is a particularly difficult issue of fact, both because it is based on evidence given by applicants born and brought up in a world alien in religion, language and culture from our own; but also because it is extremely difficult to get reliable documentary or oral corroboration of alleged facts. Yet it is crucial that the new tribunal is, and is seen to be, competent in reaching accurate final conclusions about credibility.
That is so because the Home Office interview procedure is widely regarded as deeply flawed—the statistics speak for themselves on this matter; because the Home Office is not an impartial forum and becomes a party to any later appeal; and because, most important of all, the new tribunal is to be the one and only occasion when the factual issues are heard, assessed and determined by an impartial forum. Review of its decisions are only on errors of law, and then only on the papers.
So what steps have the Government taken to ensure that this impartial new tribunal is up to its task? The short and, indeed, long answer to that question is "none". Indeed, they have made the chances of an objective assessment of credibility even less likely. There are at least three reasons for that. First, the new tribunal is not a tribunal at all. The Government have not kept the existing three-person tribunal and expunged the single-person adjudicator. They have destroyed the three-person tribunal and replaced it with a single member. If any noble Lords want further proof of that, they should simply look at the schedules. The basis of the new scheme is not the schedule to the 2002 Act on tribunals, but the schedule on adjudicators. Indeed, it is hard not to detect a degree of hypocrisy in the use of the expression, "tribunal".
Secondly, the arrangements for the new so-called tribunals are just plain wrong, because applicants are entitled to have the factual aspects of their case heard, fairly and impartially, and assessed properly. If the tribunal were dealing with a criminal matter, the person appearing before it would have their case determined by
44
tribunals of either three lay members in a magistrates' court, or 12 lay members in the Crown Court. However, the consequence of making factual errors in an asylum case can be far graver than in any criminal trial in this country.
Moreover, it is not only wrong of the Government to exclude lay adjudication from such tribunals, but plain foolish. The central object of the design of the statutory regime should be to make it sufficiently fair to discourage the courts from providing a parallel remedy in judicial review, as other statutory regimes have done successfully. One example is that of enforcement appeals. If the courts are not confident that issues of fact are properly dealt with by the system, they will permit judicial review on grounds of either perversity or disproportionality, following oral argument on permission applications—oral arguments that are denied under the proposed statutory regime.
That third consequence is much less likely to be the case if the tribunal is composed of three members. I accept that having three lawyers would be extremely expensive; but, much more importantly, it would be much less desirable than having one lawyer and two lay members, with the selection of lay members geared to employ individuals with long experience of assessing character, a reasonable proportion of whom should come from the ethnic minorities to reflect the backgrounds of the applicants. That would vastly improve confidence in the fairness of the objective fact-finding procedure. In doing so, it would make the statutory regime impervious to judicial review.
I hope that the Minister will forgive me if I express some scepticism about the Government's motives on the matter of lay representation on bodies that have a mixture of fact-finding and legal duties. That mistrust is most colourfully manifested in the Government's attitudes to jury trials, as we saw in the great debates on the then Criminal Justice Bill last year. We have also seen attempts—some successful—to remove lay members from tribunals, such as the social security tribunals. There seems to be a growing lack of trust by the Government in the judgment of our citizens. Is that because they perceive that our citizens have a growing lack of trust in them? I beg to move.
Lord Goodhart: My Lords, three of the amendments in the group—Amendments Nos. 54, 55 and 56—are in my name and that of my noble friend Lord McNally. Two of the others—Amendments Nos. 54A and 57A—were tabled by the noble Lord, Lord Kingsland, and I have also put my name to them.
There is enormous value in having some lay members of the tribunal. A purpose of many parts of the tribunal system is that it is possible to bring into tribunals that exercise judicial functions people who have practical experience, even if they do not have legal qualifications. Employment tribunals are a well known example. For the reasons very clearly expressed by the noble Lord, we think it of particular importance that the AIT should not be restricted purely to people with a legal qualification. Many lay people have the common sense, understanding of human nature and so on to make them at least equally good judges of fact as

45
people with legal training. As the noble Lord explained, in very many aspects such judgment is particularly important.
That is more the case than it would be otherwise because of the notoriously inadequate record of the initial decisions made by the immigration officers, of which a strikingly high proportion are overturned on appeal. We see no prospect of the standard of those decisions being substantially raised in the immediate future, although we hope that it will be a target in the longer run. Whatever our views might be if that standard were higher than now, unless it is substantially raised there is a very strong case—it would remain in any event—not only for the inclusion of lay members on the tribunal, but for saying that the initial decision of the tribunal needs to be taken by a panel of three. Then one or two lay members could be included on the tribunal, with a legally qualified chair. Again, that pattern is very frequently adopted in other tribunals, such as employment tribunals.
The amendments would very substantially advance the cause of justice. As the noble Lord said, where there has been a failure of justice by the tribunal, the consequences could be very serious—more so than those of a wrongful criminal conviction. We are happy to make common cause with the noble Lord over all the amendments.
The Countess of Mar: My Lords, I have resisted the temptation to speak on the subject throughout debates on the Bill. I reiterate that I am a lay member of the Immigration Appeal Tribunal. One factor not covered in the debate is the amount of stress on the current chairmen of the tribunals, let alone the adjudicators. They have political and public pressures on them to do the job and get it right. In many cases, they work in isolation on case after case, and write up very often late at night. On many occasions, I can see the exhaustion in my colleagues' faces. Occasionally, a legal member can go off the rails. If he is sitting on his own, that may not be picked up for quite a long time.
5.30 p.m.
I find it difficult to support my job in the face of the fact that the Government do not like it. At the same time, Her Majesty's Government should consider the pressures that they are putting on these people. There is a backlog of thousands of cases, and the pressure is on to clear that backlog. It is very important to have even one lay member to support them, to discuss the case with them, and, as the noble Lord, Lord Kingsland, made clear, to come to conclusions on the credibility of the applicant in the first place.
We must remember that this is the only jurisdiction in this country that has the power of invoking the death penalty—that is a very dramatic way of putting it. We can also impose on people an awful prison sentence. Some of the conditions in the countries that asylum seekers come from are appalling. One need only have someone who is very tired and not quite
46
concentrating to make a little mistake. A lay member may just be able to prevent such a mistake from being made.
Lord Newton of Braintree: My Lords, I am encouraged by the presence of my distinguished predecessor, the noble and learned Lord, Lord Archer of Sandwell, to intervene briefly. I wish to quote from something that the Council on Tribunals, under the noble and learned Lord's chairmanship, said on an earlier proposal of this kind in its 1999 report. Page 11 states:
"We were troubled by the removal of the lay element from the Immigration Appeal Tribunal. Although we recognise that lay members may be unnecessary in cases concerned solely with issues of law, we believe that they have a valuable contribution to make when issues of credibility arise, particularly in asylum appeals".
As it happens, and as the noble and learned Lord will certainly remember, that proposal was changed during the passage of the Bill and the Lord Chancellor's power to appoint lay members to the Immigration Appeal Tribunal at that stage was preserved. This is not a point to which the Council on Tribunals has addressed quite the same attention on this occasion. Being more preoccupied with some of the other matters that I have touched on today, and given its less than full enthusiasm for the proposed single tier in this area, it has focused on other things.
In fairness to the Minister, we should acknowledge that the position is a little muddier in this area than has so far been acknowledged in this debate. The report published two or three years ago—I have forgotten the exact date—by Sir Andrew Leggatt, Tribunals for Users, which underpins the Government's forthcoming proposals for reform in that area, pointed out that it was curious that lay members are in the second-tier tribunal and not in the first-tier tribunal. That is the opposite of what one would expect, and what we would urge, in most systems.
I realise that the world has changed, because Sir Andrew recommended a general two-tier approach to tribunals, which the Government have now rejected in this area. It was in that context that he made the following proposal, which I quote from paragraph 23 of his report:
"There should be a first tier immigration and asylum tribunal, within a separate Division, which should be the sole judge of issues of fact. Complex factual issues are a regular feature of immigration and asylum cases, ranging from the circumstances of an alleged marriage or the obligations within an extended family abroad to the political situation in a country from which asylum is sought. Many cases would not be suitable for hearing by a chairman, even legally qualified, sitting alone and expert members should be used when appropriate at this level. In setting the qualifications for appointment to the tribunal, and to sit in particular cases, we believe"—
that is to say, Andrew Leggatt and his team—
"that special care should be taken to ensure that those selected bring relevant experience and skills to the decisions to be taken, such as knowledge of conditions in particular countries concerned, or of refugees".
In the context in which Sir Andrew reported, he said that there should be a second-tier tribunal, which would consist of lawyers sitting alone—that is to say, the more normal model.

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I recognise that in one sense the world has moved on from the one in which Sir Andrew made those proposals. Nevertheless, the core of this is the argument that he sets out in the paragraph from which I have just quoted, which links very nicely with some of the remarks made in this debate about the nature of the decisions taken at what I will express in shorthand as the first-tier level. I have in mind the factors that need to be considered, the importance of credibility and the involvement of relevant experts—that was the word he used; it was certainly non-lawyer participants—in making those judgments of fact.
It would be helpful if the Government could clarify why they have rejected this line of argument, which appears to have at least as much merit in the context of the single-tier proposals as in the context, which I acknowledge is different, of what Sir Andrew said.
Baroness Carnegy of Lour: My Lords, I wish to reiterate a point that my noble friend Lord Kingsland made: the possibility of having lay members and an ethnic minority member, or perhaps two, to make the process more credible in the eyes of the public and the asylum seeker concerned. Several noble Lords have pointed out that this is the one opportunity when the facts can be ascertained. It is an absolutely critical time for an asylum seeker. To extend the possible membership of the tribunal by making it possible to have a suitably experienced—as the Bill requires—ethnic minority member is a very important point that we should not forget.
Lord Filkin: My Lords, I wish to place on the record that I am well aware of the value that lay members have brought in the past in these matters, and of the value that they bring to tribunals in a range of circumstances, not least employment tribunals, as the noble Lord, Lord Goodhart, indicated. As the noble Lord, Lord Newton, signalled, we shall shortly publish our proposals for taking forward Sir Andrew Leggatt's proposals, which I hope will pick up the essence of his approach. However, that is for another time.
Amendments Nos. 54 to 56 have been grouped with Amendments Nos. 50C, 54A and 57A as they relate to the appointment of members of the asylum and immigration tribunal, and how the members are deployed within the tribunal. Amendments Nos. 54 to 56 when read together would mean that a person is eligible for appointment as a member of the tribunal if, in the Lord Chancellor's opinion, he or she had legal or other experience that made them suitable for appointment. The thrust of these amendments would be to retain the existing provisions in the Nationality, Immigration and Asylum Act 2002 for the appointment of adjudicators with eligibility for judicial posts not based solely on legal qualification.
Amendment No. 54A is very clear that its purpose is to enable lay people to be appointed to the tribunal. The noble Lord, Lord Kingsland, tabled a similar amendment in Committee, which was not debated then.
Amendment No. 57A is new and would require appeal hearings to be conducted by three member panels, unless directed by the president. Amendment No. 50C would
48
ensure that determinations made by panels composed of lay members would still be subject to review in the High Court.
Let me seek to explain why we do not feel that these amendments are appropriate. After considerable thought, as a product of how we craft a new single-tier structure, we have taken the decision to ensure that the judiciary in the new asylum and immigration tribunal are appointed on the basis of qualified legal experience, or, in the opinion of the Lord Chancellor, they have legal experience which makes them suitable for appointment.
In setting out the reasons why we do not agree with the amendments, I will go back into history a little to explain how we have got to the current situation with the role of lay members in the appellate system.
The existing two-tier appeal system was introduced by the Immigration Act 1971. Lay members participated in panels formed as part of the Immigration Appeal Tribunal, as appeals to the IAT could be made on the grounds of errors both of law and of fact. However, the system of appeal introduced over 30 years ago by the Immigration Act 1971 bears little relationship to the complex system that we have today.
Compared to 1971, asylum and immigration appeals now raise many complicated legal issues that require close legal scrutiny and consideration. In these circumstances, a judge who has been appointed on the basis of legal experience is considered competent to conduct an appeal hearing on their own. However, it would be impossible to allow a lay member to conduct an appeal hearing on their own, and so this means they may be deployed only as part of a panel, as they are at present on the IAT.
However, even within the IAT it has become open to question whether lay members can claim to be an essential component to panel determinations on points of law, especially since the Nationality, Immigration and Asylum Act 2002, which restricted appeal to the IAT to points of law only. Lay members have made a valuable contribution to the IAT over the past 30 years or so, but these changes have diminished the role of lay members and placed them in an anomalous position—a position that the Government have addressed as part of their proposals for the new Asylum and Immigration Tribunal.
The majority of cases in the new tribunal will be heard by a single immigration judge. As adjudicators do now, they will need to consider points of law and of fact, and will therefore need to be legally qualified, legally experienced and competent to do this effectively. This rules out the deployment of lay members in this role, as their sole contribution to the decision-making process is restricted to matters of fact. It might be argued that lay members should be utilised in three-member panels, as is done now. However, in the new Asylum and Immigration Tribunal, the intention is that panels will usually be set up to hear only appeals that raise novel or complex points of law, or those that help to set authoritative case law for the tribunal. It goes without saying that the judicial bench hearing these appeals must be legally qualified.

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The requirement in Amendment No. 57A that nearly all appeal hearings must be by three-member panels would, of course, also have a detrimental impact on resources and the speed of the appeal process. First, it would be wasteful of tribunal resources, as in the existing system just over half of appeals stop at the adjudicator stage, and only a minority of cases are ever considered by a three-member panel in the IAT. There is no need to have a panel for every case. Secondly, if the new tribunal had three-member panels within the faster times we expect, it would have to recruit many more new members, which would have to be paid for. Thirdly, if the tribunal were to keep to its existing resources, the number of appeal hearings it would be able to do per month with three-member panels would fall dramatically. There are some 56 lay members, and they are part time, sitting on average 40 to 50 days per year. That would inevitably lead to backlogs and delays. Lastly, in respect of lay membership within tribunals, the Leggatt report concluded that,
"There is no justification for any members to sit, whether expert or lay, unless they have a particular function to fulfil".
That is the essential thrust of why we believe that these proposals are consistent with Andrew Leggatt's proposals, recognising, like the noble Lord, Lord Newton, that times have moved on.
While lay members have had a role in the existing system, the Government have considered the needs of the new tribunal very carefully. We have concluded that the case for retaining lay members is no longer sustainable. To retain their services purely on the basis of custom and practice—which is what these amendments call for—would not be appropriate, courteous or right.
On the point made by the noble Lord, Lord Kingsland, about credibility, the future members of the IAT, adjudicators and legal members of the IAT are well able to assess credibility issues. They are trained and able to do so. The tribunal will be flexible; it will have both panels and single judges for cases. The tribunal is also well able to consider points of fact, that is, the purpose of the appeal when facts and law are considered together. If facts are not properly considered, that might amount to an error of law, and could be the subject of a review in the High Court.
In the new IAT, the judiciary are able to assess facts, as I have signalled, and if expert advice is required, as referred to by the noble Lord, Lord Goodhart, no doubt this can be requested. The low percentage of cases that result in the adjudicator's determination being overturned points to that credibility.
On the point raised by the noble Countess, Lady Mar, we are seeking to improve the quality of the tribunal through a new judicial structure that would allow the monitoring of individual members of the AIT. If a member made an error of law in determination, again that could be subject to appeal.
I have touched on the points made by the noble Lord, Lord Newton, about Sir Andrew Leggatt's report. The central point is that he was describing what was appropriate for a two-tier system; we are discussing a single-tier system. I share the desire for diversity expressed by the noble Baroness, Lady Carnegy of Lour. We are clear that that is subject to a merit test, as has been
50
signalled previously. The way to address that is to look at how to ensure that there is a pool of suitable, qualified lawyers available for appointment if they meet the merit test to be considered as judges in the new AIT structure.
I hope that I have been able to explain why, with some sorrow, we feel that the contribution that lay members have made in the past has now come to an end as a consequence of the substantially different role that the AIT will perform.
5.45 p.m.
Lord Kingsland: My Lords, I am not sure whether to conclude that the Minister completely missed the point of all the submissions which have been made by your Lordships, or if he simply did not want to know about them. I will leave it to your Lordships to reach your own conclusions. I will not repeat my speech, although the Minister did not answer any of the central issues that I raised in my submission.
I am most grateful to all noble Lords who contributed. I will, if I may, single out my noble friend Lord Newton of Braintree, who brought the telling argument of Lord Justice Leggatt to bear on the lack of logic of the Minister. The Minister seemed to suggest that, because the only grounds of appeal from the tribunal to the High Court are errors of law, the only people who are qualified to sit on tribunals ought to be lawyers. Yet the basis of all the arguments that have been deployed on this amendment this evening is exactly the opposite. It is because grounds of fact are not appealable to the High Court that we need to be confident that they will be properly determined at tribunal level. The Minister has simply not confronted that question, let alone answered it to the satisfaction of the Opposition. The noble Countess, Lady Mar, observed that this is the only tribunal that can send a person to their death because it does not find a story credible. That is particularly and conclusively telling.
I want to test the opinion of the House. The first amendment in this group is Amendment No. 50C. Will the Minister accept that—if by any chance the Opposition and our supporters should succeed in this Division—Amendments Nos. 54A and 57A are contingent upon Amendment No. 50C? Will he accept that the group of amendments goes together in the vote?
Lord Filkin: My Lords, I would be grateful if the noble Lord, Lord Kingsland, would allow me to reflect on that and give him an answer after we have seen the outcome of that Division.
Lord Kingsland: My Lords, the issues have been widely canvassed in the debate this evening. It would be most extraordinary if—were we to win this vote—the Minister then said that we had to go through all the other amendments in this group as well. Be that as it may, I would like to test the opinion of the House.
5.49 p.m.
On Question, Whether the said amendment (No. 50C) shall be agreed to?
Their Lordships divided: Contents, 151; Not-Contents, 98.

Division No. 2

CONTENTS

Addington, L.

Hunt of Wirral, L.

Alton of Liverpool, L.

Hurd of Westwell, L.

Anelay of St Johns, B.

Inglewood, L.

Astor of Hever, L.

James of Holland Park, B.

Attlee, E.

Jenkin of Roding, L.

Avebury, L.

Jopling, L.

Baker of Dorking, L.

Kimball, L.

Barker, B.

Kingsland, L.

Beaumont of Whitley, L.

Kirkham, L.

Blaker, L.

Laing of Dunphail, L.

Blatch, B.

Listowel, E.

Bradshaw, L.

Luke, L.

Bridgeman, V.

Lyell, L.

Brittan of Spennithorne, L.

McColl of Dulwich, L.

Brooke of Sutton Mandeville, L.

MacGregor of Pulham Market, L.

Brougham and Vaux, L.

Burnham, L.

Mackay of Clashfern, L.

Buscombe, B.

Mackie of Benshie, L.

Caithness, E.

McNally, L.

Campbell of Alloway, L.

Maddock, B.

Carlisle of Bucklow, L.

Mar, C.

Carnegy of Lour, B.

Mar and Kellie, E.

Chadlington, L.

Marlesford, L.

Chester, Bp.

Masham of Ilton, B.

Clement-Jones, L.

Miller of Chilthorne Domer, B.

Cobbold, L.

Miller of Hendon, B.

Colwyn, L.

Monro of Langholm, L.

Cope of Berkeley, L. [Teller]

Montagu of Beaulieu, L.

Craigavon, V.

Montrose, D.

Crickhowell, L.

Moynihan, L.

Darcy de Knayth, B.

Murton of Lindisfarne, L.

Deedes, L.

Naseby, L.

Dholakia, L.

Newby, L.

Dixon-Smith, L.

Noakes, B.

Donaldson of Lymington, L.

Northbrook, L.

Eccles of Moulton, B.

Northesk, E.

Eden of Winton, L.

Northover, B.

Elles, B.

Oakeshott of Seagrove Bay, L.

Elliott of Morpeth, L.

O'Cathain, B.

Erroll, E.

Oppenheim-Barnes, B.

Ferrers, E.

Park of Monmouth, B.

Flather, B.

Patten, L.

Forsyth of Drumlean, L.

Peel, E.

Fowler, L.

Platt of Writtle, B.

Freeman, L.

Plumb, L.

Garel-Jones, L.

Plummer of St. Marylebone, L.

Geddes, L.

Prior, L.

Gilmour of Craigmillar, L.

Quinton, L.

Glentoran, L.

Rawlinson of Ewell, L.

Goodhart, L.

Razzall, L.

Goschen, V.

Reay, L.

Hamwee, B.

Redesdale, L.

Hanham, B.

Renton, L.

Hanningfield, L.

Roberts of Conwy, L.

Harris of Richmond, B.

Rodgers of Quarry Bank, L.

Hayhoe, L.

Roper, L. [Teller]

Home, E.

Rotherwick, L.

Hooper, B.

Russell, E.

Howe, E.

Saltoun of Abernethy, Ly.

Howe of Aberavon, L.

Seccombe, B.

Howe of Idlicote, B.

Selsdon, L.

Howell of Guildford, L.

Sharman, L.

52

Sharp of Guildford, B.

Tope, L.

Sharples, B.

Trenchard, V.

Shaw of Northstead, L.

Tugendhat, L.

Shutt of Greetland, L.

Ullswater, V.

Skelmersdale, L.

Waddington, L.

Smith of Clifton, L.

Wakeham, L.

Stern, B.

Wallace of Saltaire, L.

Stewartby, L.

Walmsley, B.

Strathclyde, L.

Walton of Detchant, L.

Swinfen, L.

Watson of Richmond, L.

Taverne, L.

Weatherill, L.

Thomas of Gresford, L.

Wilcox, B.

Thomas of Walliswood, B.

Williams of Crosby, B.

Windlesham, L.

NOT-CONTENTS

Ahmed, L.

Hollis of Heigham, B.

Amos, B. (Lord President of the Council)

Howells of St. Davids, B.

Howie of Troon, L.

Andrews, B.

Hoyle, L.

Ashton of Upholland, B.

Hughes of Woodside, L.

Bassam of Brighton, L.

Hunt of Kings Heath, L.

Berkeley, L.

Jay of Paddington, B.

Bernstein of Craigweil, L.

Jones, L.

Billingham, B.

Jordan, L.

Blackstone, B.

Kirkhill, L.

Borrie, L.

Lea of Crondall, L.

Bragg, L.

Lipsey, L.

Brooke of Alverthorpe, L.

Lofthouse of Pontefract, L.

Brookman, L.

McCarthy, L.

Burlison, L.

Macdonald of Tradeston, L.

Campbell-Savours, L.

McIntosh of Haringey, L.

Carter, L.

McIntosh of Hudnall, B.

Christopher, L.

MacKenzie of Culkein, L.

Clarke of Hampstead, L.

Marsh, L.

Clinton-Davis, L.

Mason of Barnsley, L.

Corbett of Castle Vale, L.

Massey of Darwen, B.

Crawley, B.

Merlyn-Rees, L.

David, B.

Mitchell, L.

Davies of Coity, L.

Morgan, L.

Davies of Oldham, L. [Teller]

Morris of Aberavon, L.

Dean of Thornton-le-Fylde, B.

Morris of Manchester, L.

Desai, L.

Nicol, B.

Dixon, L.

Patel of Blackburn, L.

Donoughue, L.

Pitkeathley, B.

Dubs, L.

Radice, L.

Elder, L.

Richard, L.

Evans of Parkside, L.

Rooker, L.

Evans of Temple Guiting, L.

Scotland of Asthal, B.

Falconer of Thoroton, L. (Lord Chancellor)

Sheldon, L.

Farrington of Ribbleton, B.

Simon, V.

Filkin, L.

Symons of Vernham Dean, B.

Fyfe of Fairfield, L.

Temple-Morris, L.

Gale, B.

Thornton, B.

Gibson of Market Rasen, B.

Tomlinson, L.

Golding, B.

Triesman, L.

Goldsmith, L.

Turnberg, L.

Gordon of Strathblane, L.

Turner of Camden, B.

Gould of Potternewton, B.

Varley, L.

Graham of Edmonton, L.

Watson of Invergowrie, L.

Grantchester, L.

Whitty, L.

Grocott, L. [Teller]

Wilkins, B.

Harrison, L.

Williams of Elvel, L.

Hayman, B.

Woolmer of Leeds, L.

Hilton of Eggardon, B.

Young of Old Scone, B.

Hogg of Cumbernauld, L.

Resolved in the affirmative, and amendment agreed to accordingly.
[Amendments Nos. 51 and 52 not moved.]
6 p.m.
Lord Kingsland Lord Kingsland moved Amendment No. 52A:
After Clause 14, insert the following new clause—

REVIEW AFTER EXHAUSTION OF RIGHTS OF APPEAL
Where a person's statutory rights of appeal have been exhausted with respect to an immigration decision, and where that person subsequently makes an application to the Secretary of State for his deportation to be stayed on the grounds that here has been a change of circumstances—

(a) if the Secretary of State decides that there has been no change in circumstances or accepts that there has been a change of circumstances but decides that they do not justify a stay of deportation, the applicant within 10 days of the decision may apply to a High Court judge or a judge of the Court of Session to review the decision;

(b) the review shall be conducted on the papers save in exceptional circumstances;

(c) the decision of the High Court judge or the judge of the Court of Session is Final."

The noble Lord said: My Lords, the reason for introducing the amendment is to try to make the statutory review scheme in the Bill comprehensive in such a way that it excludes the possibility of judicial review. We can only succeed in doing that if the statutory review procedure, throughout all stages of the asylum decision, is considered sufficiently fair for the courts not to exercise their discretion to use the judicial review remedies that our courts have so proudly developed over the past 40 years.
I am trying to confront the following scenario: an asylum seeker has exhausted his statutory rights and is due to be deported. At some stage before his deportation, a new set of circumstances arises, say, in the country to which he is to be deported. There is a regime change. A benign regime is replaced by an autocratic and brutal one. In those circumstances, the asylum seeker, who is about to be deported, communicates with the Home Office. He says, "My decision ought to be reviewed on the grounds that the circumstances of my case have changed since the final tribunal decision was made. The country to which I am to be deported is a country that will, if I go there, treat me at a standard below the standards required by English law".
The Home Office considers such applications. In some cases, it has accepted that there is a change of circumstances and consequently has stayed deportation. But in other circumstances, it has either said that it does not accept that the circumstances have changed or that the circumstances have changed but not sufficiently to stay deportation. If it reaches one of those two latter decisions, the asylum seeker will often seek judicial review. As a consequence, the whole case, including all the issues that were raised during the statutory procedure, is rerun, to everyone's unnecessary expense and, in some cases, to the mental detriment of the asylum seeker.
The amendment seeks to prevent all that by ensuring that where the Home Office decides that there has been no change of circumstances or that there has been a change of circumstances but that it does not believe that they are sufficient, the matter will be reconsidered by a High Court judge. It is not necessary to go back to the
54
tribunal again. The only issue at stake is not the personal circumstances of the asylum seeker, but the factual situation in the country to which he is about to be deported. That can be swiftly, effectively, successfully, credibly and comprehensively dealt with by a High Court judge. There is no reason why his decision ought not to be final.
In my judgment, if that amendment is incorporated in the Bill, it will succeed in achieving de facto what the Government sought, so clumsily, to achieve with their ouster clause; namely, to persuade judges who sit in the administrative courts considering judicial review matters on change of circumstances applications that judicial review is not necessary because an alternative and satisfactory statutory procedure is already in place. I beg to move.
Earl Russell: My Lords, I think that we all feel that it is in the initial stage of the asylum hearing where most of the worst mistakes are made. At the weekend, I was looking at the report compiled on behalf of the Mayor of London on the effects of Section 55 of the 2001 Act. It quoted an official from the Home Office who is used to hearing initial applications, who said, "When I get an application from Afghanistan, I simply repeat one of the standard formulae from the country assessment. When I get tired of doing that, then I repeat a different sentence from the formulae about the country assessment". Afghanistan has seen quite a lot of changes over the past few years. If one is doing that, one is almost bound to be wrong and severely risks being totally irrelevant to the case under consideration.
The number of mistakes that are made in that way is considerable: for example, the assertion that used to be made regularly under President Mobutu of Zaire. Under President Mobutu, opposition parties were allowed to flourish freely: well, so President Mobutu said. But President Mobutu is not granted and was never granted infallibility and it is not compulsory to believe him. One must question those assessments. One must question the picture of the country.
I also very much took the point made by the noble Lord, Lord Kingsland, about the drafting of a statute in such a way that it does not leave an opening for people to say those wonderful words of judicial construction: namely, Parliament cannot possibly have intended that. I think that the noble Lord would be wrong to suggest—as he sounded as if he might be doing at one stage, but he probably was not—that this is only a development of the past 40 years.
One can take this back right through the centuries; for example, to the Dissolution of Chantries in 1549. It had a proviso which had the effect of providing that when the King bought chantry land he had to do feudal homage to one of his subjects. The court concluded there that Parliament could not possibly have intended that that should happen. On that occasion, I think that the court was right.
My favourite example of Parliament not intending something was the Bologna ordinance, which laid down the death penalty for shedding blood in the

55
piazza. One of the judges went to the barber in the piazza, who cut the judge in the course of shaving him. He was put on trial under the statute. The court ruled that that was contrary to the intention of the statute and that the barber was innocent.
Time spent here on getting the drafting of the statute right is likely to be time better spent than we realise. It will save a great deal of time later.
Lord Donaldson of Lymington: My Lords, I support the amendment. Once the stage of a deportation order has been reached, everything has been looked at in due order and in proper circumstances. But if there is a fundamental change in circumstances thereafter, it is idle to say, "Well, that has been decided by the earlier proceedings". By definition, the circumstances did not then exist. The intention, as set out by the noble Lord, Lord Kingsland, might almost have been made by him from the Front Bench since it admirably meets the intention so often reiterated by the Government that we must stop these endless appeals and judicial reviews. I do not think that they ever were endless, but that is beside the point.
The amendment does that very neatly. The only improvement that I should like is a pure drafting matter, which is a point raised by the noble and learned Lord, Lord Mackay, at an earlier stage. Paragraph (b) of Amendment No. 52A states that,
"the review shall be conducted on the papers save in exceptional circumstances".
I would like to know who will decide about the exceptional circumstances, but I assume it is the tribunal and the High Court judge hearing the quasi-judicial review application. But, obviously, it would enable the Government to make an application to the court that they may also be heard, and there might well be a cause for it. If the issue is whether there has been a sufficient change in the regime of the place where the deportee is to be sent, his evidence on the matter may be, not unnaturally, extremely one-sided. I would not want to see a repetition of the situation not many months ago when the Home Secretary complained bitterly that he did not seem to be able to appeal. I hope that the Home Secretary would be given every opportunity to have his say in these circumstances, but even his say will not take very long. So the Government's main objective will be met as will the interests of justice.
Lord Filkin: My Lords, in the specific example that the noble Lord, Lord Kingsland, gave for why he believed that this amendment was desirable, he talked about circumstances which, while not likely to be commonplace, are certainly possible—that is, a regime change in a country from one which was basically benign and no real threat to the life and liberty of the asylum seeker to one which was hostile in general and posed a real and specific threat to the applicant. That is not commonplace but it is possible.
However, in that situation there is a relatively straightforward way that the applicant or their solicitor would signal to the Home Office that they
56
wish to apply for asylum because the circumstances had changed suddenly and significantly, affecting their liberty. In that circumstance the Home Office would make a decision about whether it was a new application for asylum, and, if so, consider whether it met the tests and should be accepted.
If the Home Office, through IND, came to the conclusion either that it was not a change of circumstances, or that the change of circumstances did not justify granting asylum, then the applicant would have a right of redress on judicial review, as the noble Lord, Lord Kingsland, signalled.
While I respect that the noble Lord is genuinely seeking to persist in this—no doubt that is the case—in these particular cases judicial review is a more flexible remedy than a statutory right of appeal. Under the proposal, a person would have 10 days to apply, but, if a person applies with judicial review at the last moment, they are required to apply within three days. The amendment would make it harder to remove when there was not a meritorious case. There is also no means to stop the person reapplying again and again for the appeal to the High Court, or else a person would go to judicial review as there was not adequate remedy.
I turn to some of the drafting points where this amendment is not appropriate. We do not believe it will be an effective solution or one that is necessary because a process for dealing with new representations made after appeal rights have been exhausted already exists, as I have summarised. The 2002 Act built on the one-stop appeal process first introduced in the Immigration and Asylum Act 1999. The Act provides for one application, one decision and one appeal. This has broadly been a success. For example, an asylum seeker who makes a claim is required to provide all their reasons for wishing to remain in the country. If their appeal is dismissed, or they decide not to make such an appeal, but then later make new representations, those representations will be considered under paragraph 346 of the immigration rules to decide whether they constitute a fresh claim.
If it is decided that the representations do not constitute a fresh claim, but rather that they are simply further representations on the original claim, the Secretary of State may maintain his original decision, so no new right of appeal arises. However, if the new representations are considered to be a fresh claim, a new decision, as I signalled, would be made by the Secretary of State which would give rise to a new right of appeal unless the case is certified under Section 96 of the 2002 Act. Certification under Section 96 may take place where a new claim relies on facts which should have been raised at an earlier stage. Clearly, that would not be the case in the situation advanced by the noble Lord. Certification prevents a further statutory right of appeal to the appellate authority or the courts, although it would be open to the claimant to bring a judicial review.
So, whether the approach is a fresh claim or simply further representations, the applicant always has a remedy—be it a fresh appeal right or the option of applying for judicial review.
6.15 p.m.
We also have concerns about the effectiveness of the procedure proposed in the amendment. It is flawed in a number of ways. It would not make provision for the other party to appeal to make representations. An ex parte paper review process is not appropriate in this context. Statutory review under Section 101 of the Nationality, Immigration and Asylum Act, and the proposed system of High Court review under new Section 103A, are used as a means of identifying whether an applicant has an arguable case that the decision on their case is wrong.
If the High Court is of the opinion that there is an arguable case to be made, the appeal receives substantive consideration by the tribunal and both sides are given the opportunity to make written and oral representations. However, Amendment No. 52A would require the High Court judge to come to a final substantive decision without the benefit of representations from the other party.
The amendment also leaves the grounds open to challenge the Secretary of State's decision. It does not restrict the ground, for example, to an error of law. The failure to restrict the ground of review would mean that the High Court would be reconsidering errors of fact and law. If matters of fact are permitted in the review, it would therefore risk producing something akin to the original appeal hearing in the tribunal, but one that is one-sided and being decided by an inappropriate court not best placed to test that.
In addition, Amendment No. 52A would rule out the Court of Appeal involvement in the deportation process. The Court of Appeal plays an important role in establishing case law. But these are perhaps more technical points than ones relevant to the central issue raised by the noble Lord, Lord Kingsland. As I sought to address at the beginning, there are remedies available to the applicant, as there should be in the circumstances advanced by the noble Lord. If, despite there being evidence that a regime change had taken place, an IND official still made a judgment that that was not a new application, then the remedy of judicial review is there and we believe that that is appropriate in these circumstances.
Lord Kingsland: My Lords, before the Minister sits down, I would like to express frankly to him my perplexity at his answer. We started the Bill in another place with an ouster clause. The ouster clause sought to oust judicial review from asylum decisions. The Opposition pointed out to the Government another, more satisfactory, way of creating a comprehensive statutory regime which is sufficiently fair to have the effect of ousting judicial review without actually saying it, from the beginning of the process to the end.
Between Second Reading and Committee stage in your Lordships' House, the Government withdrew the ouster clause. We are now told by the Minister that our attempt to create a comprehensive statutory regime, in the absence of an ouster clause, is insufficiently flexible because it does not have the flexibility of judicial review.
58
So the Government have now shifted from a position which began, in another place, with wanting to oust judicial review altogether. Since then they have travelled all the way across the spectrum to say, now, in your Lordships' House that, in some aspects of the asylum decision-making process, judicial review is preferable to a statutory regime because it is more flexible. All I can say to the Minister is: well, really. Where do the Government think they stand on the issue of judicial review?
It was appropriate for the noble and learned Lord, Lord Donaldson, to raise one technical matter. During his response the Minister in turn raised one or two technical questions about my amendment. I think I had a signal from the noble Earl, leading for the Liberal Democrat Benches, that he would like to reflect further on this issue. In those circumstances, although I wish to bring the amendment back at Third Reading, for the moment I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Kingsland Lord Kingsland moved Amendment No. 52B:
After Clause 14, insert the following new clause—

APPEAL TO TRIBUNAL: PROCEDURE
(1) Initial decisions by the Secretary of State on asylum application shall be made and notified to the applicant within six weeks of the application being made.
(2) Notice of appeal from the decision of the Secretary of State to the Asylum and Immigration Tribunal ("the Tribunal")—

(a) must be made in writing,

(b) must be lodged with the Tribunal within 14 days of the decision appealed against, and

(c) must list all the grounds on which the appeal is made.

(3) Within 14 days of receipt of the notice of appeal the Tribunal shall hold a direction hearing at which all parties to the appeal shall be present."
The noble Lord said: My Lords, we have just dealt with the final stages of the decision-making process of asylum applications. This amendment takes us back in the other direction, to the beginning. We are told that one of the objectives of the Bill is to reduce delay. It is well known that one of the biggest causes of delay in the asylum system is the gap between the application for asylum made by an asylum seeker to the Home Office and the decision reached by the Home Office—technically, the Secretary of State. This amendment would insert into the Bill a time constraint requiring the Secretary of State to decide on an asylum application within six weeks of it being made.
It is my submission that the adoption of this amendment would make a far bigger contribution to resolving the problem of delay in the asylum system than the reduction of time available during the appeal process itself, to apply for a review, to a period of five days. That is a minor point in the context of the overall problem of delay in the asylum process and I urge the Government to accept the amendment. I beg to move.
Lord Filkin: My Lords, I was almost fooled by the noble Earl, Lord Listowel, in that I thought he was rising to speak. If I understand the noble Lord, Lord Kingsland, correctly, this amendment is essentially a debating point to put pressure on the Government to ensure that the earlier

59
parts of the process are dealt with expeditiously. We are four-square with the noble Lord on that as a goal of policy. But we could not adopt such an amendment because the consequences would be ones which I suspect neither he nor we would wish to see.
The new clause introduced by this amendment is concerned with both the initial decision stage in asylum cases and the appeal stage. Subsection (1) would require initial decisions on asylum applications to be taken and notified to the applicant within six weeks.
I suspect that the noble Lord, Lord Kingsland, is aware of how far we have moved since 1997. In that year, when we had the pleasure of inheriting the immigration and asylum situation, the average decision-making time was 22 months. By 2002 that figure, including decisions on backlog cases, was provisionally brought down to six months. We have since set ourselves a target to decide 75 per cent of new asylum applications within two months, a target that we look to be on course to beat, as well we should. Recently we have been deciding around 80 per cent of new cases within two months.
We have also made massive inroads into the backlog. From a peak of over 120,000 cases, it is now below 18,100, and falling fast. So we have no difficulty in being open to public scrutiny on our ability to address cases, turn them around and crack the enormous backlog that had built up when we came into government. This is relevant because, as noble Lords know, if the wider world—and in particular traffickers—sense that the pace is slow and the ability to remove difficult, that feeds the business of the traffickers very powerfully indeed. Fast but fair processing is fundamental to providing an effective deterrent.
Having said that, I do not see any merit in placing a rigid requirement in primary legislation stipulating that a decision must be taken within a specified time. In the majority of cases it is possible to decide claims quickly and fairly with efficient procedures, but there will be cases where more time will be needed if they are to be dealt with fairly—such as where medical evidence is considered crucial or further explorations need to be made in, for example, the person's home country to see whether their claim is well founded. Alternatively, a short-term disturbance may arise, making it essential to put a brief hold on decision-making for that country.
Under the constraints imposed by subsection (1) of the proposed new clause, we would be forced to take decisions without having the necessary facts at our disposal. The consequences would be that either we would make decisions without the relevant evidence—and thus would not be acting fairly—or we would fail to make decisions within the time-frame. I am not sure what consequences are implied by the noble Lord, Lord Kingsland, in that situation. If the Government did not deal with applications within six weeks, would the applicants be granted asylum in all cases? I cannot believe that that is the thrust of his proposal. There are
60
better ways of ensuring that claims are decided promptly than the crude instrument of primary legislation.
Rather than going into more detail at this point, I repeat that I am four-square with the noble Lord on why we have to keep up both the political and managerial pressure to deal expeditiously and fairly with asylum applications. We have made enormous progress over recent years, but there is still further to go. While not welcoming it, I respect the challenge laid down for us to achieve more, but I do not think that this is the way to do so.
Lord Kingsland: My Lords, I am grateful for the Minister's reply. I accept that progress has been made in reducing the time-frame between the application and the decision. I also accept that, at this stage of the passage of the Bill, this amendment is not word perfect. Clearly we would need to introduce a saving clause to deal with situations where a decision within six weeks was not genuinely possible.
On the other hand, the Government argued strongly earlier this afternoon—unsuccessfully, I am pleased to say—that increasing the time available for making applications for judicial review from five days to 10 days would introduce a serious delay to the process. But compared with the kind of delays that we face in the initial stages of the asylum seeker's journey through the statutory system, the delays in the appeal process are trivial. The House has already expressed itself on that point.
I submit that it would be desirable to have on the face of the Bill something along the lines of the amendment I have proposed. I accept that it needs to be more flexible than the straightforward six weeks proposed here, but I shall take the opportunity between now and Third Reading to give the matter more thought. I may reintroduce the amendment at that point. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
Lord McNally Lord McNally moved Amendment No. 52C:
After Clause 14, insert the following new clause—

IMMIGRATION DECISION PROCEDURE
(1) Any interview with the applicant shall be conducted—

(a) by personnel experienced in interview techniques and trained in cross-cultural communication;

(b) by personnel of the applicant's own gender if requested by the applicant.

(2) An accurate, verbatim and legible written record shall be kept of any interview held under subsection (1).
(3) The applicant may request the record be read back to him and to request his alterations be included or, if rejected, recorded.
(4) Any decision on the applicant's claim shall be determined—

(a) by the same personnel as conducted the interview;

(b) on the basis of up-to-date and accurate information on the applicant's country of origin;

(c) after careful consideration of any medical evidence bearing out allegations of torture.

(5) An independent inspector shall be appointed after consultation with relevant organisations—

(a) to report annually on the quality of decision-making in asylum cases;

(b) to lay that report before Parliament.

(6) Section 14 shall not be enacted until and unless the independent inspector is satisfied that the quality of initial decision-making has been improved."
The noble Lord said: My Lords, the tone of many of these amendments acknowledges that there is no easy fix for some of the dilemmas here. The Minister appears to recognise that the Opposition Benches are trying to be constructive in their approach, and certainly the thrust of Amendment No. 52C reflects that. I return to the tale of the Irishman who, when asked for directions, replied by saying, "If I were you, I would not start from here". We suggest that, in a Bill whose main thrust seems to be to eradicate the overly cumbersome appeals procedure, it misses the more basic fact that the real fault in the system lies in the initial judgments.
In 2003 over 64,000 initial decisions were made for asylum. Well over 16,000 of those were subsequently overturned. That indicates a massive waste of resources; it is massively unfair to claimants; and it damages public confidence in the system. In Canada only 1 per cent of initial decisions are overturned, which suggests that perhaps the Government have approached this whole problem from the wrong place and in the wrong way.
We are encouraged in this approach by the opinion of the Home Affairs Select Committee, which said,
"The real flaws in the system appear to be at the stage of initial decision-making, not that of appeal".
The Constitutional Affairs Select Committee said,
"we recommend that the removal of a formal tier of appeal should not be undertaken until it can be shown that there has been a significant improvement in initial decision making and the rise in the number of successful first tier appeals has been substantially reversed".
That would seem to be the sensible way to get this system right. As the noble Lord, Lord Kingsland, has indicated, we do not ignore the Government's initiatives and attempts to improve the system. We welcome the widespread consultation that has taken place. We welcome the setting up of the Advisory Panel on Country Information, although it might have been better if the Government had taken advice from that panel before extending their defined safe countries. Nevertheless, there are good and well intentioned attempts to get this right. We also welcome the involvement of the UNHCR in conducting an audit to report regularly on the quality of initial decision-making.
This amendment, however, puts forward some specifics to improve initial decision-making. We want to see better, more accurate, timely and impartial information relating to countries of origin. We want to see better expertise in relation to caseworkers. Time and again, those who have given evidence or briefed us have complained about the low quality of personnel involved in initial decision-making. That is not fair to the personnel involved and does not help in addressing some of the problems that we are concerned with.
In process we want to see greater continuity of human contact between decisions at the initial and appeal stages. We also think that there are too many perverse incentives built into the system. Surely the main thrust is not in getting the decision fast but in getting it right. That is why we suggest that a little more investment at the initial stage will produce that result.
We believe that there should be a better appreciation of medical evidence as it relates to allegations of torture, and available and adequate legal aid and advice at the initial stage.
I hope that the Minister will see this as very constructive and, in terms of what both the Home Affairs and the Constitutional Affairs Select Committees have recommended, as going right to the core of the problem—rather than what the Government have tried to do in their meander through this legislation in both Houses—to address some of the consequences of the imperfections at the initial stage. I beg to move.
Baroness Park of Monmouth: My Lords, I strongly support this amendment and, in particular, subsections (4)(b) and (c).
My grounds, which relate to Zimbabwe—the only area on which I have any special knowledge—are that the Home Office has repeatedly decided that Zimbabwe is a safe country, despite the fact that the country reports from the FCO and the UNHCR took a totally contrary view. The enormous influx of refugees into Botswana and South Africa suggests that it is not exactly a safe country.
With regard to subsection (4)(c) I hope that the Minister can tell us at some stage, perhaps not now, whether the panels which are deciding whether there has been torture ask the Amnesty International specialists and the Amani Trust—who know torture when they see it.
The Countess of Mar: My Lords, I thank the noble Lord, Lord McNally, for this amendment but I do not think that it should be on the face of the Bill.
The Home Office is suffering from a managerial problem. Staff need to be motivated; they need to be informed as to how important their work is; and perhaps they should be paid properly. I am sure that a lot of the problems could be resolved with proper training and proper management.
Lord Newton of Braintree: My Lords, I am tempted to rise because of what the noble Countess, Lady Mar, has said. I share the view that this amendment, in its exact form, should not be on the face of the Bill.
On the other hand, I want to express my support for the general thrust of some of the points the noble Lord, Lord McNally, has made, while acknowledging—with a wry smile in the direction of the Minister—that here he is effectively having to answer for matters that are primarily for the Home Office rather than for the department which leads him to be in his present place in the House.

63
If there have been two long-running concerns regarding what happens in this area—probably going back to the time of my predecessor, the noble and learned Lord, Lord Archer of Sandwell, as chairman of the Council on Tribunals—it is the quality of initial decision-making combined with something that has not so far been touched on in this debate, which is the astonishing proportion of hearings before the adjudicators at which no one comes from the Home Office. There is no Home Office presenting officer—known in the trade as a HOPO—to present the Home Office case.
Given the combination of question marks—I put it no stronger than that—over the initial decision-making, coupled with the fact that a surprisingly high proportion of hearings take place with nobody there to put the case for the Home Office, it is perhaps not surprising that the amount of overturning at the initial stage has been rather high.
Whether or not that is a fair line of argument, there is one thing on which all would agree there is concern, whether it be the great committees to which reference has been made by the Liberal Democrat Front Bench, or the experience of the Council on Tribunals, or anybody who has looked at this. It is the need, whatever is done with the tribunal system, to improve the quality of initial decision-making and to make sure that the Home Office's case is sensibly represented when an appeal hearing takes place.
Lord Filkin: My Lords, I could not agree more with quite a lot of what has been said, particularly by the noble Countess, Lady Mar, that, while these may in many cases be proper goals of policy, they should not, for a variety of reasons, be on the face of the Bill.
I am not sure whether the noble Lord, Lord Newton, expresses congratulations or sympathy that I am answering for the Home Office. It is not for the first time nor for the last, and it is always a privilege to do so.
Lord Newton of Braintree: My Lords, I will not define whether it is congratulation or sympathy, but the Minister may be able to guess.
Lord Filkin: My Lords, I shall say no more.
In essence, I agree with the central thrust of what the noble Lord, Lord McNally, has said: we want the right decisions to be made in IND—that is easy to say but not easy to do—and for them to be made as expeditiously as possible. That is the aim of the policy and the aim of the process. We are committed to high-quality decisions being made in IND for obvious reasons; it will lead to a more robust system.
We have introduced a range of measures to improve the quality of the decisions it takes. These include work on identifying the right candidates for asylum casework; looking at additional ways of strengthening the training and development of caseworkers; having samples of asylum decisions quality assured by senior caseworkers and external assessors; extending the
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feedback we obtain from appeal decisions; and doing further work on the country information products and instructions we issue.
While we consider the quality of initial decisions to be good we accept that more can be done and we are taking active steps in this area. In taking forward this work we are keen to involve outside help, as appropriate—as we are doing, for example, with the UNCHR. However, I do not consider that primary legislation is the appropriate vehicle for this.
Let me say a little more about what we are doing in regard to some of the specific issues raised by the noble Lord, Lord McNally. All asylum caseworkers attend a three-day intensive training course following their basic asylum training. After that, they have an opportunity to sit in on live interviews and the first interviews they themselves conduct will also be observed by a senior officer or an experienced colleague. There is also a certain amount of "learning on the job" as a typical asylum caseworker may conduct around 200 interviews during the course of a year.
There is a substantial cultural diversity in the workforce of IND, which is desirable given the wide range of nationalities—in excess of 150—with which it deals. Wherever operationally possible, we offer an interviewer of the same gender as the applicant upon request. Where a request has been made in advance, there has been no difficulty in doing this. If the request is made on the day, we still do our best to comply.
It is standard practice to keep an accurate, verbatim and legible manuscript record of the interview and to provide the applicant with a copy of the same at the end of the interview. Under current procedures, the interviewing officer has the discretion to allow a read-back of the interview to vulnerable applicants. Our experience is that the present system works well and that there is little demand for interviews to be read back generally. Any complaint about the accuracy of the interview record may be made after the interview and may also be raised at appeal if asylum is refused. We have received very few complaints about the conduct and the manuscript recording of interviews.
In many cases the person conducting the interview will be the person who decides the claim. This clearly has some advantages. However, with caseworkers being absent on leave or training and with some caseworkers working part-time, it would be operationally inefficient for the system to be too rigid and to always have the interviewer as the decision maker. It is possible for a person who has not interviewed the applicant to reach a decision on the claim, given that he or she will have available the full interview record and the relevant background information.
We recognise that accurate, balanced country information is vital to an effective system. As the noble Lord, Lord McNally, indicated, the 2002 Act established the advisory panel, and the UNHCR has cited the creation of the panel as an example of good practice. The panel's work has demonstrated that it is fulfilling its function in a robust and effective manner and the Home Office is keen to respond positively to its

65
recommendations. With the assistance of the panel, we are confident that we can ensure that Home Office country material meets the highest standards.
Careful consideration is given to medical evidence bearing out allegations of torture. We are delighted that the Medical Foundation now provides regular workshops to asylum caseworkers to better equip them to interview victims of torture and to take proper account of medical evidence when reaching a decision on an applicant's claim.
The other elements of the amendment relate to an independent inspector. We do not consider that an inspector needs to be appointed. As I have outlined, we have many measures in hand to improve further the quality of original decision making and we are involving outside bodies in that work where appropriate. We believe that the quality of decision making is good—it has certainly significantly improved over the past seven years or so—and we are satisfied that the new appeal structure will provide a robust, independent means of challenging adverse decisions.
I turn now to deal with some of the other points raised in the debate. As to torture, our country reports reflect a wide range of information and sources, including Amnesty International, in regard to conditions in particular countries, and we take account of medical reports and reports from the Medical Foundation when assessing asylum claims. As to Home Office presenting officers, we wish to have presenting officers at as high a percentage as possible of appeals before the IAT, for the reasons given by the noble Lord, Lord McNally.
We do not believe that primary legislation is the place for these measures. However, many if not all of them are proper goals of policy and of management and we are working to achieve them. I hope that the noble Lord, Lord McNally, will withdraw his amendment.
6.45 p.m.
Lord McNally: My Lords, two matters always encourage the mover of an amendment: one is a steady stream of papers coming from the officials' box and the other is the quality of supporting speakers. I have had both with this amendment.
As the noble Countess, Lady Mar, said, I realise that some of the objectives may be matters for practice and training rather than legislation. I shall study the Minister's reply before deciding how to take this forward at Third Reading.
Having listened to those who have worked on this subject, I should tell the Minister that part of the problem at the initial stage has been a culture that somehow everything will be swept up at a later stage. That may explain the point of the noble Lord, Lord Newton, about the absence of Home Office personnel at key meetings. That is the kind of thing that undermines confidence and perhaps introduces slack practice.
I have been encouraged by the contributions that have been made. I hope that the Minister and his colleagues will read them carefully. We will return to this matter at Third Reading, when I hope we will see further evidence that the Government are addressing
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the problem of the initial stage in the process—which, as I have said, two committees have already indicated may have been the right place for the Government to have started this journey in the first place. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 53 not moved.]
Schedule 1 [New Schedule 4 to the Nationality, Immigration and Asylum Act 2002]:
[Amendment No. 54 not moved.]
Lord Kingsland Lord Kingsland moved Amendment No. 54A:
Page 34, line 17, after "legal" insert "or lay"
On Question, amendment agreed to.
Lord Goodhart Lord Goodhart moved Amendments Nos. 55 and 56:
Page 34, line 18, leave out first "as"
Page 34, line 18, leave out from "appointment" to end of line 19.
On Question, amendments agreed to.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 56A:
Page 34, line 24, leave out "(which may include provision for dismissal)"
The noble Lord said: My Lords, in moving Amendment No. 56A, which stands in my name and that of my noble and learned friend Lord Archer of Sandwell, I shall speak also to Amendment No. 57D.
These matters have been dealt with sensibly in correspondence between his honour Judge Henry Hodge and my noble and learned friend Lord Falconer. However, we ought to refer to them in order to obtain more certainty about the issues involved. I do not believe that they should be dealt with entirely through correspondence.
The provision in paragraph 3(1)(c) of the schedule states that members of the new single appellate authority,
"shall hold and vacate office in accordance with the terms of … [their] appointment".
If we were to stop at that particular point, there would be no issue between us at all. It would follow in that respect all similar provisions in statutes which create judicial posts in courts and/or tribunals.
I accept that terms and conditions of appointment have to include terms for removal from office for good cause. In that category, I include incapacity, misconduct, a substantial diminution of work and so on. However, the Bill goes entirely beyond that. It states that the terms and conditions of members of the new tribunal "may include provision for dismissal". I have certain objections to the word being used. "Dismissal" is the language of employment. It is not the language of those holding judicial office. Judicial office holders are not employees. They are independent judicial appointees.
There is no need to go beyond the existing law, which simply states that existing officers, adjudicators and immigration tribunal members hold and vacate office in accordance with their terms of employment. Adjudicators

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and AIT members fear that their terms of employment may deteriorate after commencement as a result of policy. Any change in terms and conditions is seen to be a threat to judicial independence.
On a number of occasions, my noble and learned friend the Lord Chancellor has given assurances that the arrangements for disciplining and removing judicial office holders will continue to apply in the new single tier, but there is no need whatever to state that terms and conditions of employment may include provision for dismissal. That adds absolutely nothing to the existing provision, save to arouse fears that the Government intend to promote an adverse change.
It is accepted that there is no longer any intention to include a requirement that members of the new single tier should comply with practice directions which are issued from time to time. I ask again if there is any compelling reason to go down the road of making express reference to dismissal at all. If the Government intend to embody in statute what currently happens, why is there any need to change existing law? I therefore hope that my noble friend will think again about this issue. I do not intend call a Division tonight, but I hope that he will think again between now and Third Reading.
I turn to Amendment No. 57D. It would simply delete the reference to "supervision" of judicial work and respect the authority of the Lord Chancellor in making rules for the new single tier. I know of no statute which contains provision for one judicial office holder to supervise another. If my noble friend can refer to any particular provision, I shall stand corrected.
The judicial hierarchy requires an appellate judge to overrule the decision of a judge who is less senior if it contains errors of law. That ensures that modern judicial decision-making receives modern methods of management. There is every reason for the new single tier to operate on a more collegiate basis than is the case at present. Existing adjudicators work alone and under great pressure of time, but those are not reasons for introducing a power to enable or, worse still, to require one judge to supervise another or, to put it in another way, to compel one judge to be supervised by another.
A collegiate atmosphere, discussions between judges, better training and personnel development of judges can be achieved without this unprecedented measure. Regardless of the Government's intentions, without an amendment, the Bill will be read as being inimical to judicial independence. In other words, we should not legislate to create something which we do not intend to apply. I beg to move.
Lord Archer of Sandwell: My Lords, I have not previously intervened in your Lordships' debates on the Bill, principally because, whenever it was to be debated at its earlier stages, it chanced that I was out of the country on parliamentary business.
I would have hesitated to intervene at this late stage, both in the progress of the Bill and in today's business, had the matter not been drawn to my attention by my
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noble friend Lord Clinton-Davis and the Council of Immigration Judges. It is surprising that so startling a provision seems to have received so little attention. As my noble friend said, had Schedule 1(3)(1)(c) ended with "the terms of his appointment", we might have assumed that a member could be appointed on terms which included reference to the termination of his appointment, because that is what happens in many tribunals and happens already in this area. In a sense, it is the drafting which creates the problem by adding the words "which may include provision for dismissal". That is what has occasioned my noble friend's anxiety. There is a constitutional eccentricity in stating so unambiguously that the executive should have an unqualified right to provide for the dismissal of a member of the judiciary.
7 p.m.
The Act of Settlement 1701 declared that judges' commissions should provide that they should hold office during good behaviour. Certainly in the case of the senior judiciary there was a provision about how that was to be decided by an address from both Houses of Parliament. As I understand it, all members of the judiciary since have held office so long as there was no complaint about their behaviour.
As my noble friend has pointed out, we now have a reference to "dismissal" taken from the vocabulary of employment law, not constitution law. A little earlier in our debate the noble Lord, Lord Newton of Braintree, made reference more than once to the Council on Tribunals, of which he is so distinguished a chairman, and to the fact that I was privileged to chair that council in the past. I wonder whether the Council on Tribunals has been consulted on this provision.
I am throwing the question at my noble friend the Minister without having had an opportunity to warn him and of course I shall understand if he says he will let me know at a later stage. But it is a surprising provision that one would have thought might have occasioned some comment from those quarters.
It has certainly led to a sense of shock among the existing adjudicators. Of course they already hold and vacate office in accordance with the terms of their appointment, including the duration of their office. But now we are told in effect that they are to be treated as employees.
Of course I accept my noble and learned friend the Lord Chancellor's assurance that he has no intention to change the practice, but at present there is no certainty as to what the future may hold or who will decide on appointments and terminations. If it is intended that the present practice shall continue and that members shall continue to hold office during good behaviour, we are faced with the question that has just been asked by my noble friend Lord Clinton-Davis: why change the vocabulary?
The anxiety of the members of the tribunal is hardly alleviated by the provision that is the subject of Amendment No. 57D that members of the tribunal shall supervise others. Judges may be appealed, but if they are

69
to be supervised it is startling to find that they may be supervised by their peers—I presume specific members among their peers who have been delegated for that purpose.
Of course a collegiate atmosphere exists among adjudicators at the present time. They can discuss, but there is now a danger that this segment of the judiciary is beginning to feel its independence threatened. They find already, as the noble Countess, Lady Mar, pointed out, that targets are prescribed for their workload as though they worked on a conveyor belt; they feel that they have Big Brother looking over their shoulder; and they find that production targets are to be paramount even at the cost of the quality of their work. This has become a serious matter for some of them.
We are not debating a word in a statute but a philosophy of judicial practice. Of course judges should be industrious like everyone else and of course immigration and asylum cases should be heard quickly. But if that entails appointing more tribunal members, that may be a price that we have to pay. In the long term it will be a cheaper price than destroying the independence and the confidence of that section of the judiciary.
Lord Mackay of Clashfern: My Lords, I support the amendment in the names of the noble Lord, Lord Clinton-Davis, and the noble and learned Lord, Lord Archer of Sandwell. Out of consideration for the noble Lords expecting to take part in the debate on the Housing Bill I shall leave it at that.
Lord Goodhart: My Lords, the two amendments raise serious and substantial issues. We should be most grateful to the noble Lord, Lord Clinton-Davis, and the noble and learned Lord, Lord Archer of Sandwell, for raising them. I agree that there is not a case for a lengthy speech. The noble Lord, Lord Clinton-Davis, was right to regard the amendments as unsuitable for dividing the House over, but I hope that the Government will take on board the points made and of their own motion will decide to make the necessary amendments to clear up these matters.
Lord Kingsland: My Lords, I entirely share the views expressed by the noble Lord, Lord Goodhart.
Lord Filkin: My Lords, let me more in hope than expectation seek to attempt a full response to try to resolve the matter tonight rather than us having to return to it later.
Regarding Amendment No. 56A, we are aware of concerns that have been raised by the reference to "dismissal" in paragraph 3. The provision is there simply to ensure that the terms of appointment for a member of the tribunal can include provision for removal from office. It is already the current practice for adjudicators and members of the Immigration Appeal Tribunal that their terms of appointment include provision for removal.
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Why so? Why do it now? Although it may stretch credulity, parliamentary counsel felt that it would be beneficial to place the issue beyond doubt by using a suitable parliamentary opportunity to do so. In other words, it was felt desirable to give legislative clarity and to avoid any uncertainty that judges in appropriate circumstances could be removed from office.
The process for investigating any complaint against a judge is one that we know well and, as your Lordships know, under the disciplinary procedures no removal can take place without the concurrence of the Lord Chief Justice in England and Wales. The expectation of continuing to hold office during good behaviour is our custom and practice.
With regard to dismissal versus removal from office, without wanting to excite too much optimism I shall reflect on the matter to see whether there is any benefit in using different terminology.
With regard to Amendment No. 57D, we are also aware of concerns raised about the power to make rules providing for the supervision of tribunal members in paragraph 20 of Schedule 2. The reference to supervision reflects our intention to develop an organisational structure that will provide judges with better access to support and guidance.
The judiciary is a substantial body. There will be a judicial hierarchy. While individual judges have to make their own judgments on the facts before them without interference from anyone else, there is benefit in their being in a much more collegiate environment, which will be one of the aims of the tribunal.
We believe strongly that experienced judges working with and passing on their expertise to less experienced judges will help to improve the quality of decision making in the tribunal. We propose that immigration judges should be supported by a tier of supervisory judges who will be available to offer advice and guidance, appraise performance, identify training needs and other similar responsibilities that do not impinge on judicial independence. I can say categorically that draft determinations will not be subject to amendment by senior judiciary prior to promulgation.
As to the concerns that the briefing to the IAA judiciary suggested that the terms of appointment could be amended to require compliance with procedure rules or practice directions, officials were considering whether the terms of appointment should include compliance with procedure rules and practice directions. It was floated with the intention of ensuring quality, consistency and accuracy in decision making. However, that approach is no longer considered necessary.
I hope that I have gone a long way towards setting at rest the minds of my noble friend Lord Clinton-Davis and my noble and learned friend Lord Archer of Sandwell. I invite them to consider withdrawing their amendment.
Lord Mackay of Clashfern: My Lords, before the Minister sits down, this is a United Kingdom tribunal. Reference to practice in England and Wales, while useful, is not the whole story.
Lord Filkin: My Lords, the noble Lord is right. In discussion with officials this morning we reflected on

71
the Northern Ireland situation as being different. Nevertheless, as we know, while it is not exactly the same, there is a robust and strong process in place for ensuring that a judge cannot wrongly be removed from office, as should be the case.
Lord Clinton-Davis: My Lords, my noble friend the Minister has spoken of the need for him to reflect further on my original amendment, and I should like to avail myself of the same privilege. I should also like to think again about the subsequent amendment to which I spoke.
I want to thank my noble friend for his intervention, which was valuable, and I thank all those who have supported the ideas behind these amendments. I want to add only two things. First, I cannot give any assurances whatever tonight, but I hope that my noble friend the Minister will think again about what lies behind the amendments. Secondly, for the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 57 not moved.]
Lord Kingsland Lord Kingsland moved Amendment No. 57A:
Page 35, line 8, leave out from "by" to end of line 9 and insert "three members unless the President from time to time directs"
On Question, amendment agreed to.
Schedule 2 [Asylum and Immigration Tribunal: Consequential Amendments and Transitional Provision]:
Lord Filkin Lord Filkin moved Amendment No. 57B:
Page 37, leave out lines 39 and 40 and insert—
"(a) sections 103A to 103E (review and appeal),"
On Question, amendment agreed to.
[Amendments Nos. 57C to 58 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 58A:
Page 43, leave out line 1 and insert—
"23 (1) Section 112 (regulations, &c.) shall be amended as follows.
(2) In subsection (2) after "Regulations and rules under this Part" insert ", other than regulations under section 103D(3),".
(3) For subsection (6) substitute—
"(6) Regulations under section 103D(3)—

(a) must be made by statutory instrument, and

(b) shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament.""

On Question, amendment agreed to.
Lord Goodhart Lord Goodhart moved Amendment No. 59:
Page 44, line 24, leave out "5" and insert "10 working"
On Question, amendment agreed to.
Schedule 4 [Repeals]:
[Amendment No. 59A not moved.]
Lord Filkin Lord Filkin moved Amendment No. 60:
Page 51, line 10, at end insert—
"Asylum and Immigration Act Section 8(9)."
1996 (c. 49)
On Question, amendment agreed to.

Iraq
7.12 p.m.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, with the leave of the House, I shall now repeat a Statement on Iraq made in another place by my right honourable friend the Foreign Secretary. The Statement is as follows:
"With permission, Mr Speaker, I should like to make a statement on political and diplomatic developments relating to Iraq.
"Under a revised and accelerated timetable agreed on 15 November last year, and endorsed by the Security Council in Resolution 1511, full authority will transfer from the occupying powers—the United States and the United Kingdom—in just three weeks' time, by 30 June, to a sovereign interim Iraqi Government. That Government will be in office until 31 January next year, by which time national elections for a transitional government and constituent assembly are due to have been held. The transitional government and assembly will oversee, among other things, the drafting of a new constitution, with a view to its agreement and elections for a government on the basis of the new constitution by the end of next year.
"To facilitate this process, the United Nations Secretary General, Kofi Annan, appointed Ambassador Lakhdar Brahimi to nominate the interim Government. On 1 June, Ambassador Brahimi announced the appointment of Sheikh Ghazi Al-Yawar as the new president; two deputy presidents, Dr Ibrahim Jaafari and Dr Rowsch Shaways; and a new Prime Minister, Dr Iyad Allawi.
"Dr Allawi's Cabinet was also announced on 1 June in a joint press conference with Ambassador Brahimi. Twenty-two of its 31 members are newcomers—that is, not former members of the Iraqi Governing Council; and six of the 31 are women. In an address to the nation last Friday, Dr Allawi identified his Government's priorities as the restoration of Iraqi sovereignty; security; economic revival; national unity; and preparing for elections.
"Immediately following the announcements on 1 June, the Iraqi Governing Council dissolved itself and handed over its responsibilities to the new Government, including control of the 14 ministries already under full Iraqi authority. The remaining 11 ministries will be transferred to full Iraqi authority by 30 June, at which point the Coalition Provisional Authority will dissolve and the occupation will come to an end. I express my thanks to Ambassador Bremer, who has led the CPA, and the British representatives, Ambassadors Greenstock and Richmond, for their work.
"The announcement of the new interim Government was the fruit of many weeks of wide-ranging consultations conducted by Ambassador Brahimi and his team. The result is, I believe, a competent, professional and broad-based Government acceptable to the widest possible range of Iraqis and reflective of Iraq's diversity. The new Government have been welcomed by the United Nations, the European Union,

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many governments in the region, and by key figures in Iraq, such as Ayatollah al-Sistani, the leading Shia cleric. I am sure that the House will wish to join me in paying tribute to the outstanding work of United Nations Ambassador Brahimi and his staff; in congratulating all the members of Iraq's new Government; and in offering our fullest support.
"Meanwhile, Ambassador Brahimi has made recommendations for the membership of a Supreme Commission, to be formed within days to prepare a national conference to be held this July—next month. This conference will include a diverse range of Iraqi voices in the political process, thus providing for the broadest possible representation. It is expected to elect an interim national council of about 100 members, whose role will be to promote constructive dialogue and national consensus; to advise the presidency and the council of Ministers; to monitor the work of the executive, including the implementation of laws; to have the power of veto over executive orders; and to approve a national budget.
"The United Nations will be advising on the organisation of the national, regional and local elections which are to be held no later than 31 January 2005. We welcome the formation of an Iraqi independent electoral commission to prepare for those elections, with UN assistance. The commission's members have been recommended by the UN; and I pay tribute to the work of Carina Perelli, Head of the UN Electoral Assistance Division, and her team, for making that possible.
"As the House will be aware, the United States and the United Kingdom have proposed that there should be a new Security Council resolution to facilitate the transfer of sovereignty by 30 June. Drafts have been under discussion in New York and between capitals for some weeks. These discussions with our Security Council partners have taken place in a constructive atmosphere. I hope that this process may be brought to a conclusion very soon.
"Key elements of the resolution affirm the full sovereignty of the interim Government, and give the United Nations a lead role in support of the political process.
"The mandate of the multi-national force is dealt with both within the context of the resolution and in an exchange of letters to the president of the Security Council from the Prime Minister of Iraq on the one hand and the United States Secretary of State Colin Powell on the other, on behalf of the multi-national force. The draft resolution provides that the mandate of the force will expire in any event by 31 December 2005; but the Iraqi Government will have a clear right to review or terminate it earlier if they so wish.
"The draft resolution and the letters lay down in some detail the nature of the relationship between the multi-national force and Iraq's own security forces, and state the need to reach agreement on fundamental security and policy issues, including
74
policy on sensitive offensive operations. I am placing the text of the letters in the Libraries of both Houses.
"The Iraqi Foreign Minister, Hoshyar Zebari, addressed the Security Council last Thursday in New York. He asked that the international community endorse and support the Iraqi interim Government as quickly as possible; made clear his support for the resolution; and made a number of points about the provisions of the resolution, which are now being dealt with. The Security Council has been holding further discussions about the resolution over the weekend, and will resume those discussions later today in New York. A revised draft text is being circulated later today to Security Council members. As soon as it is, I shall lay it before the House and place a copy in the Library of the House of Lords.
"The biggest challenge which the new Government of Iraq will face is to build security. There will be those who will continue to seek to disrupt the transition to successful democracy in Iraq and to force decisions by the bomb, not the ballot box. But the Iraqi Government are firmly resolved to defeat the men of violence and we are resolved to help them to do so. The multinational force, including British troops, continues to work with the Iraqis to stabilise the country and to assist the process of reconstruction and political transition. The force is helping Iraq's own security forces to build their capacity. The Iraqi police force now numbers some 89,000 men, the Civil Defence Corps some 29,000 men, the border police over 8,000 men and the Facilities Protection Service some 74,000 men.
"I pay tribute to the courage and bravery of all those in Iraq who are working to build peace and democracy. The British troops of the multinational force, along with many British police and civilians, are giving them vital and courageous help. There will be some difficult times ahead, but the path to a free and democratic Iraq is now clear. The British Government will remain committed to helping the Iraqi Government and people to achieve that historic goal".
My Lords, that concludes the Statement.
7.21 p.m.
Lord Howell of Guildford: My Lords, I am sure that we are all extremely grateful to the noble Baroness for repeating the Statement. Since we are looking at global affairs, I hope your Lordships will allow me to begin by paying the briefest of tributes to the former president of the United States, Ronald Reagan, who died yesterday. He helped to change the world for the better and did so by using his priceless gift of communication. He used the art of simple language to carry the world with him. That is an example that political leaders should always keep in mind.
We warmly welcome the announcement of a new Iraqi Government in Baghdad and the appointment of the new president-designate and the prime minister-designate. We see them as their own men, dedicated to

75
building a new Iraq after the nightmare past, and nobody's stooges or placemen. In our view, this is a clear step forward. Obviously while violence continues, as it sadly does, this arrangement refutes those who have been talking of the coalition's efforts so far as being doomed or in some kind of nosedive. Does not this new formation, this government-to-be in the next few weeks, provide the best chance of holding Iraq together and avoiding civil war between factions and tribes? In my view, it was never very likely anyway and was exaggerated by some pessimists.
As for the draft UN resolution, we know that the main debate has been over the meaning of full sovereignty for the new Iraqi Government. I, for one, have never seen the question of control of the security forces, now to be relabelled the multinational force, as all that complex and difficult, provided it is made clear between the parties. The status of foreign troops in relation to the civil power after a period of occupation is not a new problem. It was managed perfectly well in Germany after the Second World War and in Japan and, very much more recently, in Afghanistan.
The reality is that future security situations are bound to be unpredictable. We do not know what will work out. Surely these matters can best be handled flexibly, and by a suitable exchange of letters, which must obviously leave the operational chain of command with the military and its home country, while strategy and major events are discussed between allies. Allies are what the Iraqis now become under their new government. We should welcome that. Will the letters establish that sensible and practical relationship? We need to be reassured about that.
We also welcome the setting up by the Iraqi Government of a new national security committee with members from both the Iraqi side and the multinational force side, the former coalition forces side, which should help this process.
Can the Minister confirm that the militias are now to be disbanded? I am not sure whether this will include the al-Sadr militia, which has been causing so much mayhem. Are the Iraqi Armed Forces to be reassembled and properly reconstituted? We recognise that disbanding them in the first place was a big American mistake. It seems to me that we did not raise a murmur of objection to it, as we should have done as coalition partners.
More broadly, would the Minister agree that despite all the negative reporting, huge strides have been made in reconstruction, especially in the south, much of it with the able help of our brilliant and flexible Armed Forces? Would she agree that the constant predictions of disaster merely serve to undermine the morale of our troops quite unnecessarily when they are doing a good, but fiendishly difficult, job? Actually, I think that they are impervious to much of the chatter they hear. Will she rebuke those doom-saying critics robustly?
Finally, what proposals will Her Majesty's Government put forward this coming weekend at the G8 summit in Sea Island, Georgia, for a better and
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more structured dialogue, at an international level, between the leaders of majority moderate Islam and the Western world, for example on the lines put forward by my colleague, Michael Ancram MP, in a pamphlet today? Would it not be desirable, as he argues in his pamphlet, to set up a process of this kind so that united minds can focus not just on Iraq's future, but on making serious progress on the Israel/Palestine imbroglio, which continues to poison the whole region, as well as on combating the dangerous threats to stability in Saudi Arabia? The latest tragic outcome of that situation, the shooting of a BBC correspondent and the killing of his cameraman, which we deeply regret, are in the newspapers this very morning. Will she say something about these events in the Middle East and how they are to be addressed, since they are all part of the same jigsaw as are developments in Iraq itself and will help to shape the future of that country?
7.27 p.m.
Lord Wallace of Saltaire: My Lords, we on these Benches thank the Government for making this Statement and we hope that they will continue to keep both Houses well informed as this process continues over the coming months.
We welcome the clear central role that the UN is now, at last, playing and the restoration of sovereignty to an autonomous government. After so many mistakes have been made, we hope that we are now on the right path. I wish to stress from these Benches that those of us who were very doubtful about the path to war and the justification given for war nevertheless feel that we all have the strongest of interests in getting it right now and in ensuring, as far as possible, that we leave behind in Iraq a coherent, credible and united national government.
May I ask the Minister to explain a little what the full sovereignty of the Interim Government means? The noble Lord, Lord Howell of Guildford, referred to the parallel with the restoration of sovereignty to the Government of West Germany in 1955. That was very clearly a semi-sovereign state. Right up until 1989 it was governed by a whole set of agreements with the continuing occupying powers for some purposes.
I must say that the presence of an American ambassador in the shape of Mr Negroponte, given his past as an ambassador in central America, does not give all of us full assurance that this will be allowed to be a fully sovereign government. Can the Minister assure us that, while this resolution has been being negotiated, the British Government have consulted fully with their partners in the EU as well as with the United States?
Can she tell us a little more about the British role within the multinational force? Is it likely that the areas of the country that will be controlled by British commands within the multinational force will be extended, or is that not yet decided? Are we signing a separate status of forces agreement or is it covered by the exchange of letters with the US Secretary of State? Does that also cover British forces? Can she say a little bit

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about what sensitive offensive operations are? I understand that Sir Emyr Jones Parry, our ambassador to the UN, said yesterday that the policy on sensitive operations would require the assent of the ministerial committee for national security. Is that also agreed both by the United Kingdom and by the United States?
May I ask, as we have asked on many occasions from these Benches, what is going to happen to the Iraq Survey Group after 30 June? Will it, as the British Prime Minister appeared to suggest the other day, continue its operations until it finds something; or will it, as David Kay suggested, accept now that nothing is going to be found and wind up its operations?
Lastly, I echo and agree with the noble Lord, Lord Howell of Guildford, that this is a matter of concern to the entire region. Can the Minister assure us that there has been active consultation with Iraq's neighbours, including Iran and Syria, on the progress of restoring Iraq's sovereignty and stability? We are very conscious that Iraq's neighbours already have a degree of influence within Iraq. How do the Government see that fitting into what is now, I understand, called the "broader Middle East and North Africa initiative" which will be discussed at the G8 summit, and how do they believe the instabilities elsewhere in the region, in particular in Saudi Arabia and in Israel and Palestine, are to be addressed?
7.31 p.m.
Baroness Symons of Vernham Dean: My Lords, I begin by associating myself with the remarks of the noble Lord, Lord Howell of Guildford, about President Reagan. He was indeed a figure of enormous historical importance not only to the United States of America but to the West. As our newspapers rightly reflected this week, he did a great deal to change the tide of international relationships. We benefit from that today.
I thank both the noble Lord and the noble Lord, Lord Wallace of Saltaire, for what I think were very supportive comments about the Statement that I repeated on behalf of my right honourable friend the Foreign Secretary.
The noble Lord, Lord Howell, was right when he said that the new government who will be taking over—they have indeed taken over already, given that the CPA is handing over and that 14 ministries have already been handed over with the other 11 following on 30 June—stand the best chance of "holding Iraq together"—I think those were his words—in light of the way in which the representatives of different groupings have been brought together. I for one am very pleased to see that there is quite a lot of new blood among Ministers, and indeed a number of women among Ministers as well. The role played in all of this by Ambassador Brahimi has been enormously important, and the continuing role of Carina Perelli, the UN expert on elections, will continue to be of enormous importance into the future.
The noble Lord, Lord Howell of Guildford, asked me about the letters that Secretary of State Powell and the new Prime Minister Allawi have sent to the
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president of the Security Council. I agree very strongly with what the noble Lord said about the importance of flexibility in these arrangements. One is not going to be able to write out a blueprint, set it in stone and think that it is going to be able to deal with every eventuality that may arise. Both noble Lords will find copies of both those letters in the Library of the House. My right honourable friend made sure at lunchtime that both Houses would receive those letters.
If I may, I should just like to quote from what Dr Allawi said in setting out Iraqi consent to the presence of the multinational force:
"Until we are able to provide security for ourselves, including the defense of Iraq's land, sea, and air space, we ask for the support of the Security Council and the international community in this endeavour. We seek a new resolution on the Multinational Force (MNF) mandate to contribute to maintaining security in Iraq".
That is a very clear statement from the incoming Prime Minister about the need for the continuing MNF presence. In his letter to the UN he also set out the structures that will act as what he calls the,
"fora for the MNF and the Iraqi government to reach agreement on the full range of fundamental security and policy issues, including policy on sensitive offensive operations, and will ensure full partnership between Iraqi forces and the MNF".
I think that that is an enormously important exchange of letters given that both were sent on 5 June and both set out the ways in which, on behalf of the MNF, Secretary of State Powell has stated the position, and the way in which that position has been requested by the incoming Iraqi Government. I hope that that gives a clear view on that point.
The noble Lord asked also about militias. We understand that there has been movement on the militias today. I am not in a position to make an absolutely definitive statement about this, but as I left the Foreign Office earlier this afternoon, telegrams were arriving about the militias and the start of militia movement away from their aggressive stance. We hope that that will continue. At the moment we are on a watching brief to try to encourage that sort of movement. Obviously, it would be enormously welcome were that to be the case.
I agree, of course, with what the noble Lord, Lord Howell of Guildford, said about the importance of our British troops in and around Basra and the way in which they have operated in MND South-East. I have visited them on two occasions. Your Lordships do not need me to say it, but I say it none the less: they are an extraordinary example of peacekeeping at its very best and everything that we would expect of the way in which our troops operate when they deal with people in quite difficult local circumstances and quite volatile security situations. They deal with it with complete professionalism and competence.
So when the noble Lord invites me to "rebuke the doomsayers robustly"—I think those were his words—I say that although I rebuke them robustly, it is a very good thing to hear them rebuked robustly by Members on the other side of the House. If I may say so, his statement was much more positive than that which I heard from his right honourable friend in another place earlier today.
I think that the structure that we now have in place offers a very positive way forward. The noble Lord asked how we can translate this into what is happening elsewhere in the region. What is happening elsewhere in the region is of course very worrying in a number of different ways. The terrorist situation as it has developed in Saudi Arabia is causing enormous concern at the moment. I join him in sending condolences to the family of Simon Cumbers, the cameraman who was killed in Saudi Arabia yesterday, and to his colleagues and his friends. I join the noble Lord also in wishing Frank Gardner, the correspondent who was reporting at the time, a full and speedy recovery, although I understand that, sadly, he is quite badly injured.
However, in all of this, let us not lose sight of the fact that the Tunis summit of the Arab League came forward with some very positive statements about the future relationships between the region and the West—the EU and the United States of America. I think that a critical reading of the Tunis summit statement leads one to believe that we have a great deal on offer there with which we can work for the G8. I for one hope that we will take up some of the points made by the Arab League when we meet shortly at the Sea Island summit.
The noble Lord, Lord Wallace of Saltaire, was quite right. Whatever our differences, we all are now, I hope, working for a better future for Iraq. We are doing that with the active support—the key and central role—of the United Nations, something which I know the noble Lord and all his party have stressed to us throughout this dialogue—although I am bound to say that I do not think that we on this side of the House needed any persuading on that; we were always very keen to involve the United Nations. However, I would point out to him that the European Union, which as we know was pretty well in disagreement over the initial action in Iraq, has very warmly welcomed the formation of the new Iraqi Government. I hope that we will see real progress on the question of the United Nations Security Council resolution.
The noble Lord addressed the question of, "how sovereign is sovereign". They are a sovereign government. There is a self-denying ordinance for the next seven months which that sovereign government have taken unto themselves, which is not to prejudice the position of an incoming elected government. That is not something imposed on the Iraqi Government who will be taking over on 30 June. They themselves have stated that they do not want to take decisions that in the longer term may prejudice decisions that can be taken by an elected government.
The statement by Secretary of State Powell was made on behalf of the multinational forces. There will not be a separate statement from the United Kingdom. It may not have been crystal clear in the Statement, but it stated that he spoke on behalf of the multinational forces and dealt with the questions about the sensitive operations in relation to Prime Minister Allawi.
After the handover of sovereignty to an Iraqi Interim Government, the Iraq Survey Group will continue its activities, to clarify our understanding of
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Iraq's WMD programmes. The Powell-Allawi letters make that clear, and make it clear that it will be under the aegis of the multinational force. The ISG's operations will be Iraq-wide. There is no fixed schedule for the ISG to report further, but we look forward to seeing how those issues progress.
I hope that I have dealt with all the points, other than the question of how much Iraq's neighbours were consulted. Let us remember that the United States of America does not have the sort of relationship with Iran—nor indeed with Syria—that we in this country do. I have discussed the issues on behalf of Her Majesty's Government with very senior representatives of the Syrian Government, and my right honourable friend the Foreign Secretary has discussed them with representatives of the Iranian Government. However, everyone has not sat round a table discussing the matter in quite the way that the noble Lord implied. It was discussed at the Euromed meeting recently, and we have taken opportunities to try to make sure that we keep everyone—not only those two countries, but other neighbours—well up to speed on the developments that we hope to see come to fruition, which I am happy to say now are coming to fruition.
7.41 p.m.
Lord Mackie of Benshie: My Lords, will the noble Baroness give us some more information about how the present moves are being received by the different sections of the Iraqi public? We hear about the United Nations, but not how everything is progressing within the country. Also, has there been any improvement in the security situation? Will she assure us that neither of the main parties will withdraw troops—indeed, that they should supplement troops—until the situation is resolved?
Baroness Symons of Vernham Dean: My Lords, the security situation remains extremely volatile. It is important for noble Lords to remember that security is not at a dangerous level throughout Iraq, but it can erupt in a number of different places. We have discussed problems many times before about the Sunni triangle. Noble Lords will know about the difficulties in Najaf, which have been very different in character from those in Fallujah, but have none the less been highly disruptive. We have had some difficulties—of a very short-lived nature, I am happy to say—in Basra.
The incidence of security problems currently runs at a somewhat lower level than it did a few weeks ago. However, I remind the House that my right honourable friend's Statement made it clear that we expect the next few weeks to be very difficult in terms of security. That is because there are groups who inevitably still look for opportunities to get their slice of the action. I hope that the announcement of a government will to some extent mitigate such activity. However, as the Statement made clear, many people still do not wish Iraq to be a success. For different reasons of their own, they would like Iraq to be a failure for the future. That is not what the Iraqi people want; it is not what the Government of Iraq want. We will support them in their endeavour.

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The noble Lord asks how everything has been received by the Iraqi public. 1 cannot tell him what public reaction has been so far, but I remind him that the recent opinion polls have shown that the Iraqi people want to end the period of occupation, which will come to an end on 30 June, and want to take control of their own affairs, which will happen on 30 June, and that more than 70 per cent of them believe that they will have a better future than they would have had under Saddam Hussein.
Lord Campbell-Savours: My Lords, my noble friend said that sovereignty would be transferred. I take her back to the specific words of the Statement. Will the 100 elected members of the interim national council have the power of veto over executive orders, as referred to in the Statement, relating to decisions taken by Iraq's own security forces—decisions taken in conjunction with the multinational force? If they do not have that power, we may end up with a major row in the new interim national council.
Baroness Symons of Vernham Dean: My Lords, I see the point that the noble Lord makes, but I am bound to say that the matter is now one for the Iraqi Interim Government and the elected interim national council. They must sort it out on their internal basis. We may be able to add something more, because the Security Council resolution has still not been finalised; it is hoped that it will be over the next couple of days or so. The wording of questions around the precise nature of the relationship between the Iraqi Government and the multinational force is still under discussion. The Statement is very clear about the interim national council having veto over executive orders, as the noble Lord mentioned, but the detail of that is a matter for the Interim Government and interim national council to settle between themselves.
Lord Selsdon: My Lords, I am most grateful to the Minister for the way in which she has dealt with Iraq matters with great intelligence and dexterity. I have not agreed with much of what the Government have said before, but I agree totally with my noble friend Lord Howell that the time has come to look to the future. I have already declared my Iraqi interests, but I hope that the Minister will not mind if I share a few other recent experiences.
I had the pleasure of sitting with Dr Allawi in what I would call a non-aligned country not so long ago, to talk with him and other friends about what the British could do to help Iraq. I said that, personally, because of my relationships, I would do all that I could. As the Minister pointed out, the principal problems that he raised then were security, security, security.
We discussed the role of the Iraqi army—I have raised it in debate in this House—and why the British today did what they never did before. In the past, we always kept the army, and we paid it. The Iraqi army was not paid. We can argue about why people were members of the political parties in Iraq or not, but I have heard recently—it is nothing to do with the current relevant people in Iraq—that troops and
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others in Iraq are being offered bounties of 100 dollars for each American soldier that they kill. I have no reason to believe that that is true or untrue; that was the statement made to me earlier this week.
What can we do to get the Iraqi army back, equipped and loyal to its country, as it will be? Suggestions have been made that NATO should be involved as a peacekeeping force, in order to take the pressure off the United States. What can the Minister say about the steps that the British can take to improve and increase the security of Iraq? What else could we do to help that country? It is a great country with great potential, and we should put the past behind us.
Baroness Symons of Vernham Dean: My Lords, I thank the noble Lord for his support, and I am glad that he had the opportunity to have that discussion with Dr Allawi. Of course security lies at the heart of the issue. If security is not improved to the point at which people feel that they can participate in civil society—at which they feel that they can reconstruct their country—the difficulties for Iraq remain enormous. As I indicated, I hope that the security situation is improving. I do not want to make dramatic claims because, as night follows day, there would surely be some reason to regret that in the next few days.
Although security is vital, when I have talked to Iraqi interlocutors, I have also found them asking over and again why we cannot get out more positive messages about Iraq. Why it is that the messages about the reopening of schools and hospitals—the fact that electricity and water supplies are working in many parts of the country with literally hundreds of thousands of new jobs for Iraqi workers being created as a result of reconstruction—are not reported? My right honourable friend the Prime Minister said only this weekend that here is an economy that has recently imported 1 million cars. An economy that has imported 1 million cars cannot be struggling so badly. Indeed, those are positive messages.
The noble Lord, Lord Howell, asked me to be more robust with the doomsayers—but I shall not be alone in my robustness in dealing with doomsayers. I hope that many of your Lordships, including those on the Opposition Benches, will also be robust on these points. The Iraqis themselves feel that they are not getting a fair crack in the media. That is what it comes down to: they feel that they are not being recognised for the substantial steps that they have themselves made to reconstruct the country both politically and commercially. I hope that that will also change and that a more positive attitude will be adopted.
I saw some coverage about the bounty offered for individuals; I think that it was bounty offered by individual militias for servicemen and servicewomen, whom I understand commanded a higher price. None the less, that is a reasonably contained activity that we need to ensure that we deal with very robustly. As for the question of NATO, in the short term, there is not a prospect of NATO taking over a role in Iraq. What we can do to help improve security in Iraq is to go on with what we are doing in Iraq—namely, training their

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police and their armed forces and ensuring that, as far as we can, we involve Iraq's neighbours in that process; indeed, many of them are already becoming involved.

Business
Lord Grocott: My Lords, as we are about to start the Second Reading of the Housing Bill, perhaps I may say a few words about timing. As your Lordships know, the normal rising time on a Monday is about 10 o'clock; I fear that we are unlikely to hit that this evening. But we would not do too badly if Back-Bench contributions were restricted to eight minutes and the Front Benchers were to use their customary brevity and incisiveness.
We should then manage to complete our proceedings within three hours, which is not too badly past the target rising time, considering that we have had a Statement and that we took rather longer than anticipated to deal with the immigration Bill. I repeat: eight minutes, my Lords.

Housing Bill
7.52 p.m.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, I beg to move that this Bill be now read a second time. I assure my noble friend and the House that I will turn over a new leaf for brevity. It is Second Reading. It is the second most interesting Bill that I have introduced to the House in the three years I have been here—the first being the Anti-terrorism, Crime and Security Bill 2001. It is full of good things, all of which we can discuss in detail in Committee.
The Bill before us is improved. It is a large Bill: it comprises seven parts and 230 clauses. By consent and a Statement in the other place, which has been widely acknowledged, it has had good scrutiny—not every paragraph and every clause, but, nevertheless, good scrutiny. More clauses are to be added to the Bill for reasons that I shall explain. We think that the Bill will create a better and fairer housing market and protect the most vulnerable people in housing. It contributes to the Deputy Prime Minister's sustainable communities plan—launched in February 2003—which is a long-term programme of action backed by £22 billion of investment.
I shall briefly go through most parts of the Bill, but it will be a snapshot of each part and I shall not go into great detail, save for one area of the Bill.
We consider the private rented sector to be a key part of the sustainable communities plan. We want a vigorous and responsive private rented sector. The vast majority of private landlords are decent, responsible and professional. We will introduce licensing only where the risks are the greatest. The Bill will provide local authorities with new powers to license private landlords in areas of low housing demand and in areas suffering from anti-social behaviour, but they will not be able to
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go out on a spree, licensing willy-nilly for ideological or other reasons. They must be specific. That is made clear in the Bill.
As for houses in multiple occupation, the Bill will introduce mandatory licensing for larger—that is, the highest risk—houses in such occupation. They often exhibit some of the worst housing conditions in the country. Where management problems are widespread, local authorities can extend licensing to other, smaller houses in multiple occupation. There is a definition in the Bill; but, in certain circumstances, it is not practical enough to cover all of those at risk. As I say, where the management problems are widespread, there is a constraint and it is simply not possible to continue extending licensing for other reasons.
Part of the Bill is quite technical. We will hold a briefing in this respect on Wednesday for Members of your Lordships' House. It concerns the housing, health and safety rating system—a new rating system that will replace the current housing fitness standard both as an element of the decent homes standard and as a basis for enforcement of better conditions in the private sector. It will place health and safety at the forefront of a drive to improve housing conditions in all stock. That approach is welcomed by the British Medical Association, and others.
It is quite technical. There has been much consultation, going back to July 2000. A range of about 29 hazards are to be considered. It deals with the property and is person-based, unlike the present system, which is only property-based. A fairly technical, but nevertheless, substantial consultation has been undertaken and reports and guidance issued. Obviously, we have more work to do on that between now and the time that the Bill is enacted.
There are some modest measures to tackle exploitation of the right-to-buy option and to reduce the scope for profiteering, which have been widely welcomed; for example, we have extended the initial qualification period from two to five years and from three to five years the period during which the discount must be repaid where the property is resold.
I have no doubt that one part of the Bill will have substantial debate in Committee—it would be quite wrong to do so tonight—namely, grants to non-registered social landlords. The intention of the Bill is to increase the supply of affordable housing by enabling the Housing Corporation and the National Assembly for Wales to provide grants for organisations other than registered social landlords. Basically, they will operate under the same criteria as registered social landlords, such as the scheme standards and rents. The conditions set by the Housing Corporation will ensure that public money is fully safeguarded.
I turn now to one part of the Bill in a little more detail, which concerns the home information packs. I hope that all of your Lordships tuned in to the "PM" programme this evening and listened to the feature on home information packs. I only caught the second part of it myself; I was not aware that it was on, because I was coming into your Lordships' House to find out what was happening and what progress had been made.

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There is an issue, which is obviously one for substantial debate in Committee. Surveys show that almost nine out of 10 people are unhappy with the home-buying and selling processes in England and Wales. I emphasise that it is the "processes" with which people are unhappy. They usually love their solicitors and their surveyors and think their estate agents are the bee's knees. Overall, it is the whole process with which people can be quite unhappy.
The high cost of transaction failure means additional cost to almost everyone involved in buying and selling a home. The main problem is that key information is not available until after the terms are negotiated. I suspect that noble Lords, and certainly Members of the other place, will know that, in some cases, people spend less time buying a house than they do when looking for a summer dress or a winter overcoat. That is the reality for some people.
The home information packs will make key information available at the start of the process, because we think that it is nonsensical that key information is made available after the offers are made and accepted. We believe that it will make home-buying and selling easier, more transparent, more successful and, I must say, much less stressful.
The pack system works well in other countries. A number of schemes already operate successfully here. There is some evidence on that, which we can deploy in Committee. Evidence shows that packs must be compulsory so that everybody benefits. At the genesis of the Bill, when it was part of my responsibility as housing Minister, I was very aware of the implications of making packs compulsory all at once, but there are substantial reasons why it has to be that way. I shall be more than happy to debate and deploy those reasons in Committee.
Most transactions, although not all, involve chains, so delays affect almost everybody. One property in the chain marketed without a home information pack would negate the benefits of packs provided for all the other transactions. The Office of Fair Trading report makes it clear that those benefits are the most evident.
The home information packs manifesto commitment was fully supported by the Consumers' Association, the Royal Institute of Chartered Surveyors and the major mortgage lenders. Buyers and sellers will negotiate from an informed position—that is important. Any problems will be identified and addressed early on, before the sale is put at risk. The packs will help the seller and the estate agent to decide on a realistic asking price that reflects the true condition of the property, and will greatly reduce the risk of transaction failure, which in some areas runs as high as one in four or one in three, and the hassle of having to renegotiate terms.
Packs will also shorten the period of uncertainty between the offer acceptance and the exchange of contracts. We are not legislating to eliminate gazumping, but the space available for gazumping will be shortened by the process in the Bill.
We do not think that there is a reason for a significant increase in costs. Apart from the home condition report, everything in the pack must be
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provided at some stage in the process now. Industry accepts that costs will generally be deferred until completion, and we genuinely see no reason why packs should prevent homes coming on to the market.
Greater transparency will mean a significant reduction in wasted money. The estimate, which we can deploy in Committee, is that some £350 million a year is wasted through failed transactions. But, not to put too fine a point on it, some people are making a living out of that waste. We expect the packs to be cost-neutral overall and to result in significant savings in many cases. The Government considered the then sellers' packs at Second Reading of the Homes Bill in 2000 and have listened to the issues raised then. There are crucial differences between those provisions and the ones before us today.
Several noble Lords present today expressed concern about criminal sanctions. That has been reconsidered and is now subject to civil sanctions. We have also followed the advice of noble Lords opposite for buyers to be able to recover costs incurred when obtaining documents that should have been in the pack but were not there.
Other noble Lords raised concerns about the effect of the packs on low-value homes. We have taken powers in the Bill to deal with that in Clause 144(9)(c). The issue has been consulted on, and we believe that it is best left to the market to provide solutions. We look forward to hearing reports as the Bill progresses. I also have some personal experiences to share from the past 12 months in using this system for a property transaction.
The pilot was carried out successfully. The home condition report will provide energy efficiency information required by the EU energy performance of buildings directive.
We can concentrate today on the principle of home information packs. Concerns have been raised elsewhere about the practicalities of how they will be implemented, but I offer this House the same assurance as offered by the Minister in the other place, Keith Hill. The Government will not introduce the packs before the necessary pieces of the jigsaw are in place. Much of the detail will be in secondary legislation. The target date for introducing the compulsory home information packs is January 2007. It is demanding, but we think that it is realistic and achievable.
I shall outline briefly the other parts of the Bill. Part 6 introduces measures to tackle anti-social behaviour in social housing, to extend eligibility for a disabled facilities grant to all those who occupy caravans and to establish a social housing ombudsman for Wales. There are a few other provisions in the Bill that show that the Government have listened carefully to representations and responded.
Many noble Lords have urged action to strengthen the rights of park home owners. My noble friend Lord Graham of Edmonton, who lobbied me earlier on the matter, led a working party on park homes. We

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do not have all the answers in the Bill, but we are delighted to report that the Bill now includes six key measures recommended by the working party.
The Bill also provides for statutory overcrowding standards to be amended by secondary legislation. After the Bill had completed its passage in the other place, the Government announced their intention to add two further measures. Both have been widely welcomed and will be debated in this House. If I can, I shall bring forward proposals for Committee rather than wait. If I cannot bring them all forward, I shall present what is available—certainly enough to have a debate on the issue.
First, there is much support for measures to protect tenancy deposits. Twenty per cent of tenants say that landlords have unreasonably withheld their deposit. We will bring forward amendments to tackle this. We seek to guard against only the worst abuses; given the timescale, we cannot deal with everything. Tenants need assurance that their deposit will be safeguarded and that they will not face difficulties trying to enforce judgments, even in the small claims court.
The other issue is empty homes. There has been a lot of support to allow local authorities to make empty homes management orders on long-term empty homes. There was a limited debate on the matter in the other place; we will have a much wider debate in this House. We consulted on the issue last year, so it is not new; we received a positive response. Now is the right time to legislate to deal with the hard core of long-term empty homes.
Local authorities will be able to make management orders on empty homes similar to provisions already in Part 4, with certain modifications. This is not sequestration; it is not taking over the ownership of homes. The government amendments will set out the precise scope of intervention. The intention is to apply to genuine cases of housing vacancy. Of course we will build in the obvious exceptions, such as where the property is occupied, albeit irregularly. If further meetings are required after those held this week, we will be more than happy to offer facilities for those outside the normal Committee process.
We are currently considering the 10th report of the Joint Committee on Human Rights, which has an impact in looking at the Bill, and we look forward to receiving the report of the Delegated Powers and Regulatory Reform Committee of your Lordships' House. We will consider other government amendments as necessary. We have just given the committee a further memorandum.
We have done much to create sustainable communities. It is a panacea; we have a lot to do, and these are very early days. That is part of addressing the supply-and-demand issues in the housing market, but we need to create a fairer and more efficient housing market. Some 1.5 million homes change hands; there may be 2 million marketed per annum in this country, so there are a lot of people involved and a lot of stress.
There are people living in unsafe properties—we know that from the occasional tragedies that occur, and we are trying to address that. I am not trying to
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short change anyone whatever. My noble friend Lord Bassam will try to deal with as many points raised as possible when he replies to the debate. Certainly, we will have full and detailed debates in Committee, which I more than welcome. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Rooker.)
8.8 p.m.
Baroness Hanham: My Lords, I thank the Minister for his explanation of the contents of this Bill, which by and large affects the greater control of the private housing sector. However, there is no legislation now in the housing arena that will not need to be judged against the background of Kate Barker's report and, of course, the sustainable communities policies. There are a number of provisions in the Bill that affect the supply of housing, as the Minister indicated in his last sentences.
The introduction of home information packs and house condition reports has caused the most comment. That policy formed a significant part of the Homes Bill in 2001, but was dropped when it became apparent that there was so much opposition to it that the rest of the Bill, which dealt with homelessness, was in danger of being lost. In view of this history, it is interesting that the Government have returned to the fray in the face, still, of considerable hostility from the professionals involved in the sale of houses.
The potential of a licensing regime for houses in multiple occupation has also been around for some time, and some authorities are doing that on a voluntary basis. We do not deny that there are cases of appallingly managed housing in the private rented sector, but there are already many remedies available to local authorities if they are prepared to use them, through environmental enforcement, routine inspection, building and fire regulations. While not opposing the thrust of the proposals for licensing and registration of houses in multiple occupation, we are concerned at the amount of time this could take to introduce. The example of Scotland, where the scheme has still not been fully implemented, is not encouraging.
The properties that will be encompassed by the licensing are important, as are the costs of both administration and licensing itself, and the definitions of houses in multiple occupation. That could, and does in the Bill, include flats or houses which are shared by young people, but might also encompass flats and houses for young people that in the course of their early working lives or student days are owned and let to them by one set of parents. We want to be careful that we do not put too many people into this registration.
In a document published recently by the National Landlords Association, an analysis of fire fatalities in houses in multiple occupation concludes that even if legislation, such as that before us today, was in place, none of the fires analysed would have been prevented. The more prevalent factor seems to have been the vulnerability of the people in the properties, and this aspect may need to be looked at in more detail.

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The maintenance of a register of houses in multiple occupation is not controversial, but the provisions for the raising of standards by the introduction of the housing health and safety rating system needs more explanation, and I am glad to hear that there will be an opportunity to discuss that outside the House. In particular, we want to explore in Committee how housing standards can encompass health conditions without their implementation becoming unnecessarily onerous. Grants for social housing to private developers, rather than, as at present to registered social landlords, even if administered by the Housing Corporation, is a new development. It raises questions about the assurances that will be available that housing provided in this way will be used for affordable housing, whether for key workers or others awaiting low-cost housing, the management of such housing, and whether it is intended that such provision will be largely for sale, shared ownership, or accommodation managed by the developer or a management company, rather than a registered social landlord. The Minister touched on the licensing of landlords for low-occupancy areas, which are clearly causing problems and concern. There are other concerns on the other side of this, and those relate to the clauses on anti-social behaviour and the impact that those might have on private landlords. We will need, if we may, to explore that further as well.
The Government have already tinkered with the right to buy, by reducing the amount of the discount available in a number of local authorities. That situation has adversely affected, and will affect further, the possibility of selling local authority property and creating, even in a small way, a greater social mix on estates. Where there are abuses of the current provisions they need to be addressed. So long as what is proposed does not turn out to be a further assault on the right to buy system, it will have our conditional support.
Since the Bill was considered in the other place, the Government have announced their intention of introducing measures in the House to strengthen the law on the return of tenants' deposits—I was glad to hear the Minister confirm that today—and to enable local authorities compulsorily to take over, license and let empty properties.
While empty homes are an affront to those who have no home of their own, the definitions of empty homes will have to be carefully scrutinised. It is one thing to repair and bring back into use housing that has been left vacant for, say, structural regeneration purposes; but it is quite another where properties—genuinely owned either as second homes or as pied-à-terres of visitors from overseas, and vacant for considerable periods—could potentially be classified as empty, but it would clearly be a travesty to do so. The details of these provisions will be all-important, and I recognise that the Minister has acknowledged that.
There is one further matter that I will wish to raise as a possible amendment to the Bill, which lies within the park homes measures. I am conscious that these have been sought for a long time, and that the noble Lord, Lord Graham, in particular has fought long and hard to bring some semblance of security to those who
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live in them. Indeed, one of the first debates I ever took part in from the Front Bench was on just this matter—there were three of us in the Chamber altogether—and it struck me then that it was extremely important.
The same legal protections for security of tenure and freedom from harassment which this Bill brings forward need to be as applicable to those who reside in permanently moored houseboats. The problems are the same as for park homes, and while I know that discussions have taken place with the Minister, Keith Hill, they have so far not had any tangible results. I will table amendments to bring that matter forward for further discussion. I should declare here that some of the moorings are in Chelsea—part of the borough in which I am an elected councillor, so I am putting that interest forward—but by no means all of them; they are countrywide.
The most contentious provisions in the Bill are those relating to home information packs and house condition reports, which the current Government apparently believe will speed up the sale of houses and reduce the cost. Evidence of both seems at present to be remarkably slim, despite the Minister's happy experience, which I know he is going to tell us about, if not today, then on some future occasion. There are more issues raised than we can even touch on today, but in Committee we will be moving amendments to ensure the packs are not compulsory, and that they do not have to be produced on the first day of sale. We do not believe that these packs will be cost-neutral, and indeed at the moment the estimate of their cost comes to anywhere between £600 and £1,200. There are also great concerns about the length of the life of the information packs and about how often they will have to be renewed if, for example, a house is not sold at the earliest moment. We will also wish to discuss the relevance of the packs to new properties that already have a 10-year builder's guarantee and to properties that are being auctioned.
There are deep concerns about the whole regulatory process; about the difficulty of ensuring that there are sufficient properly qualified surveyors to carry out a survey that can be relied on not only by the vendor but, especially, by the purchasers and the mortgage company; and about whether an NVQ is an adequate qualification, particularly where surveys are currently carried out by qualified surveyors. There are also concerns about the regulation and inspection regime required to ensure that standards are met and maintained and about how a reliable insurance scheme can be established to protect all parties from an incompetent surveyor.
It is clear from the briefings that we have received that the Consumers' Association is entirely in favour of home information packs and that practically no other body is. Already, we have had more discussions on those provisions than on any of the others, and they will justify considerable time and thought.
We will also consider the desirability of providing a scheme for the registration of estate agents. Among the professionals involved in the sale of houses, estate agents are the only parties who are not regulated. Although few

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may be unscrupulous, it seems iniquitous that those who deal with such an important area of someone's life—the largest financial commitment that people are likely to make—should not be the subject of some form of registration. Subject to our discussions, we will consider tabling amendments to implement it.
This is an important Bill with a great many measures in it. We look forward to considering them in detail in Committee.
8.19 p.m.
Baroness Maddock: My Lords, before I speak on this important Bill, I shall declare a few interests. I am a vice-president of the National Housing Federation and president of the National Housing Forum. I am also patron of the Empty Homes Agency and a vice-president of National Energy Action.
We welcome many parts of the Bill and support many of the Government's aims. However, we have some concerns, which fall into two main areas. First, it is far from clear that many of the proposals for implementation will work. Some of the timescales are over-ambitious, and some of the systems over-complex. Secondly, there is a danger that some of the proposals will not achieve the aims and objectives of the Government.
Part 1 concerns housing conditions, which is an area that certainly needs attention given the age profile of our housing stock and the very poor conditions to be found in some of the private rented sector. Nearly half of the households renting from a private landlord—45 per cent—live in accommodation built before 1919. More than three-quarters of private rented homes have interior or exterior faults; for example, roof leaks, faults to drainage components and damage to ceilings, doors, windows and wall structures.
Although we welcome the new housing health and safety ratings system, we think that it may be inadequate to tackle disrepair in the following ways. It may make it more difficult to identify, evidence in court and enforce repairs through the rating system. It may not adequately cover a disrepair that causes inconvenience or misery to residents, but does not cause an immediate threat to health and safety. There are similar concerns to which we shall no doubt turn in more detail at a later stage.
There was considerable debate in another place on the repeal of Section 190 of the Housing Act. Many people believe that that is a rather straightforward and effective tool for authorities to ensure that landlords carry out repairs. It can also be a useful tool as part of wider prevention strategies to prevent a less serious disrepair in a property deteriorating into a far more serious disrepair. Professional and local government bodies are concerned about that. There was considerable debate in another place. Again, that is something that we will pursue later.
I have two other areas of concern in Part 1, one of which is the timescale that is given for people to put right a category 1 hazard. At the moment, the Government propose a five-year period. The Local Government
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Association favours three years. My honourable friend in another place suggested that perhaps it should be one year, but that there should be an ability to extend that depending on the circumstances.
We would also like to see here and elsewhere greater emphasis on energy efficiency improvements. Dealing with climate change is the big debate at the moment. We know that reducing the amount of energy that we use is really important in that respect. I feel that in many areas the Government have been rather slow to respond to that. I hope that the Minister can assure us that the Government have done all that they can in this Bill to line up with other strategies to deal with energy efficiency: for example, their own energy strategy, the Warm Homes and Energy Conservation Act, the fuel poverty strategy and the Sustainable Energy Act. Those are matters that we shall also pursue later.
Part 2 concerns the licensing of houses in multiple occupation. The last time that I discussed that issue in any detail was in another place regarding the Housing Act 1996. Indeed, the present Minister, the noble Lord, Lord Rooker, and I were both in another place at that time. I am only sorry that it has taken us so long—seven years or more—to talk about it again. I strongly support the measures in the Bill. Some of the worst housing in this country is houses in multiple occupation.
However, the Government could be a little more courageous and ambitious. I should like to see more measures to give landlords a more positive role. Landlords' organisations are anxious to be involved in raising standards through their training and accreditation schemes. I know that the Government have been in discussion with landlords' organisations on those matters and such schemes. Perhaps the Minister could comment on the Government's thinking and where they are in their discussions.
We would particularly like to see a couple of areas changed, one of which is the definition of a house in multiple occupation. In his opening comments the Minister gave his reasons about why they were to apply only to buildings of three storeys or more with more than four residents. From my experience in Southampton, where I represented a ward that was close to the university, there were a lot of houses in multiple occupation. Many of the houses that had been converted into housing of multiple occupation were only two storeys, which also happens in inner city areas. Other organisations support us, including the Local Government Association, the National Union of Students and Shelter.
As regards university students, the licensing of accommodation that is occupied by full-time students and run by education institutions, such as halls of residence, should be brought within the survey. There is evidence from the British Gas housing survey of 2004 that some of these buildings have considerable problems with damp and mould.
The Bill will give further authority for local authorities to extend licensing in selected areas. We welcome this, but perhaps it should not be quite so restrictive as the Government have made it. As I understand from the Bill,

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where there is poor landlord management in areas of low demand, that is the area that the Government are trying to tackle. That should be widened. In other areas where there is bad management, even if there is not low demand, the local authorities should be able to step in. I heard what the Minister said in his opening remarks, that there would be possibilities to extend that in other areas for HMOs that were not three storeys.
There is considerable detail in the Bill, in the areas that I have touched on, but a lot of extra detail will come through regulations and guidance. I already have here a very large pile and I am sure that there will be more. We have tried to find out exactly what is available now, and I would be grateful if the Minister would update us.
As the Minister and the noble Baroness, Lady Hanham, said, the most controversial part of the Bill seems to be Part 5 on home information packs. It certainly is for these Benches. But we are not alone in our criticisms, some of which the noble Baroness outlined. The Law Society particularly feels that some of the new processes already in place are fairly satisfactory and that the packs will not help them—they will not sit very well with new developments in the market.
The National Association of Estate Agents is very concerned about the proposed timescale for the implementation of Part 5. I welcome the Minister's reassurance that the Government will not implement it if it is not ready. That is very important because there are concerns about getting enough trained home inspectors.
The House Builders Federation is also concerned about the shelflife of the pack. One of the interesting points it made was about the problems that it will create for frail and elderly people who want to buy homes, particularly being forced to have the pack upfront when they start, and the fact that it is compulsory. I am sure that we will discuss that in detail; I do not have time to go through all the objections, but we share many of the concerns on these Benches.
Above all, we believe that the bureaucracy that will be set up will not achieve the Government's aim. The Minister shared with me his experiences of using that system; I shared with him my experiences of not having a system, and one going well and one not going well—it was nothing to do with whether you had a pack.
It seems to me that the one sector of housing in this country that really works is the private ownership section: where 70 per cent of people own their own home that does not seem to be the area that has the most problems—but more of that later. My noble friend Lady Hamwee and I discussed that the last time we had a housing Bill here, and I am sure we will be doing it again. My noble friend Lord Phillips of Sudbury has very strong views on this; unfortunately he is not able to be with us tonight, but he hopes to take part later.
We support the changes made by the Government in Part 6 on the right to buy. Over the years we have seen a huge erosion of the number of rented houses, particularly, which means that families in the social
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rented sector often have to be put into flats. Quite frankly, some individuals have made enormous personal benefit from that: if they happened to be in the right place at the right time, they did very nicely, thank you. I do not begrudge them that, but we need to get the balance across the sectors.
I am still concerned about rural areas. We ought to look much more carefully at how we deal with that. My noble friend Lady Miller of Chilthorne Domer will touch on that in her contribution tonight. However, Members on these Benches have always thought that it is for individual local authorities to decide how to operate their schemes, which should be based on their overall housing strategies.
Clause 186, covering grants for social housing, is an important provision that the Minister has already referred to, but which has been little discussed. It allows social housing grants to be paid to bodies not registered with the Housing Corporation such as private developers. It would allow unregulated bodies to bid for public funds to develop affordable housing. I understand that the Government believe that they may be able to get better value for money in this way, but can the Minister tell us what evidence backs that up? When my honourable friend in another place, Ed Davey, asked about average build costs in both the public and private sectors, the answer he was given by the Minister, Keith Hill, was that the average cost of a new building for social rent in England in 2003–04 was £116,000. The Office of the Deputy Prime Minister does not keep comparable information on the private sector. I hope that we will be given rather fuller information than that when we come to discuss the clause.
Questions need to be asked: whether private developers can build more cheaply; will standards suffer; can standards be enforced through contract terms; will there be cherry-picking from other projects, and what about the sustainability agenda? I am sure that we will pursue these matters at later stages.
Some new issues have already been added to the Bill. Both speakers referred to the park home provisions. I was part of the group, along with the noble Lord, Lord Graham of Edmonton, that pursued this matter. When I was a Member of Parliament, my constituency contained a huge number of park homes. They provide many advantages as homes for elderly people. The sites are secure and they take up only a small amount of land. However, they lack the kind of protection enjoyed by people in normal housing. I have sought for a long time to ensure that park homes become a part of mainstream housing. I pay tribute to the Minister, Yvette Cooper. She listened to the arguments, went away and did something about it. We particularly welcome that.
Amendments will be tabled on two issues: to provide a statutory basis for tenancy deposit schemes and provisions to enable councils to compulsorily lease long-term empty properties. We support both of these proposals and we shall look at the details. I recall tabling amendments on deposit schemes to the Housing Act 1996. People have campaigned for a number of years,

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and plenty of information is available from voluntary schemes that have already been set up. I hope that that will inform how regulations are formulated, and that those who are operating reasonable schemes are not compromised by new legislation.
Last, but not least, I turn to empty properties. I have been involved in this issue since my earliest campaigning days and I am pleased that the Government are at last going to provide an extra tool for local authorities. Much good work has already been done. As patron of the Empty Homes Agency, I recall giving an award to South Somerset District Council for its good work, undertaken while my noble friend Lady Miller of Chilthorne Domer was there.
This legislation should be several Bills. Housing never rises high enough up the agenda to get into the programme. Whenever a housing Bill comes along, everyone wants to add something to it, resulting in very complicated legislation. Despite what the Minister has said, some parts of the Bill were not adequately scrutinised in another place. The Report stage was appallingly truncated.
We support much of the Bill, but we want to improve the detail and throw out the unworkable in our quest for decent, affordable homes for everyone in our country.
8.34 p.m.
Lord Graham of Edmonton: My Lords, it is a pleasure to follow the noble Baroness because she shares with me a deep interest in housing matters, based upon the same experience as mine. It has been 45 years since I started as a councillor, then a Member of Parliament and subsequently came to this House.
I know that the Minister has his heart in the right place. He started by saying that this was the second most important, interesting Bill that he has dealt with. I cannot think of any other aspect of our lives more important than the possession of or ability to occupy a home.
As a constituency MP in Edmonton in the 1950s, 1960s, 1970s and 1980s—and, speaking to colleagues, their experience was a similar one—night after night, one would listen to people who one knew were genuine but who had drawn the short straw. By virtue of circumstance they had found themselves living in either inadequate accommodation or in what in the old days would have been called slum accommodation. They were ready to be evicted; they were victims of circumstances, and it made my heart bleed. As I have told the House before, on two occasions I left my surgery on a Friday night, sat in my car and cried, because I knew that I could do nothing about it.
The Minister and his colleagues should earn the undying gratitude of untold thousands if not millions of people for whom this Bill might be the answer to their problems. Over the past few months, the Minister and his colleagues have been persistent in making sure that this Bill has reached its present stage and, in particular, have come along later with provisions for park homes.
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I would like to say a word or two about the right to buy. I strongly opposed the right-to-buy principle when it was introduced, because I knew that in Edmonton there were thousands of homes built by direct labour, which were solid, reliable and well worth the money. Inevitably, however, with the prospect dangling in front of them of making £5,000, £10,000, sometimes £20,000, it made it very difficult for people—who had been desperate to get that house when they had been homeless—not to capitalise on it.
One of the things that has stuck in my craw over the past 20 years has been the argument put forward then: that people had the right to buy the house in which they had lived all their lives and in which they wanted to continue to live. We now see from surveys that 48 per cent or more of the people who exercise the right to buy immediately sell the property at a profit. This is a profit which takes the ratepayer and the taxpayer for granted. The party opposite has always said, "We are not in favour of wasting ratepayers' or taxpayers' money". Yet the beneficiaries of the right to buy were being given a grant. All of a sudden, council tenants were specially selected people: people who deserved this opportunity.
I have read the research papers in the Library and, without going into the detail, there have been an absolutely scandalous number of scams growing out of the right to buy. I do not know whether the Minister and his colleagues are able to stop them. The noble Baroness, Lady Hanham, was quite right that the right-to-buy principle will not be breached, but the manner in which it has been operated and abused needs to be tackled. I suggest that the Minister should continue to try to deal with that.
One reads the briefs that one receives—and I have never been so well served in preparing for a Bill as I have been for this one—and generally, of course, they are to be welcomed. As has been referred to, Which?, or the Consumers' Association, welcomed the introduction of the Housing Bill. I believe that the noble Baroness, Lady Hanham, said that they were the only ones who welcomed the Bill. Quite frankly, I do not know of anyone who does not welcome the Bill in general terms.
Baroness Hanham: My Lords, I believe I said that the Consumers' Association were the only people who welcomed the home packs, not the Bill. Perhaps I had better make that clear for the record.
Lord Graham of Edmonton: My Lords, I accept that.
In its brief, the Residential Landlords Association has stated,
"The RLA supports the Government in wanting to stamp out rogue landlords",
and the Local Government Association believes that the Bill is a positive move towards dealing with the problems associated with private sector housing.
Although the Council of Mortgage Lenders has stated,
"Whilst we support the Government's aim of securing a better quality and better managed private rented sector",

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it then continues, quite rightly, to enter caveats and criticisms.
The Law Society has stated that it,
"welcomes many aspects of the Bill, in particular measures aimed at improving standards in the private rented sector"—
that is great—and the Disability Rights Commission is delighted at the prospect of legislation
Clearly there are some criticisms of the Bill's content and omissions, so the Minister should be under no illusion that it will have an easy passage in general. But I feel a great deal of warmth towards him and his colleagues because at long last they have been able to do something.
Over the past seven or eight years the problems of park homes have been debated. We first went to Hilary Armstrong, who set up a working party in a genuine attempt to help. Nick Raynsford, Sally Keeble, Keith Hill, Yvette Cooper, my noble and learned friend Lord Falconer and my noble friend Lord Rooker have all played a part in keeping the ball rolling. As parliamentarians, we know that we have to be very lucky in respect of timing and opportunity, and I am very grateful to them. I am certainly grateful to the noble Baroness, Lady Maddock, for her continuing support on the park homes front.
Let me rehearse some of the provisions in relation to park homes which were spatchcocked into the Bill in the other place. It now requires a written statement of terms to be given to a prospective purchaser before the sale of a park home. That was not there before, but it is so simple. The Bill creates a power by which the Secretary of State can add additional implied terms to the agreement and repeal and vary those in the Mobile Homes Act. One of the things to my credit is that I am the only living Member who served on the Mobile Homes Act in 1983. 1 have lived to pay the penalty because everyone comes to me and says, "What a rotten job you made of it".
The Bill will also help to deter a site owner from unreasonably withholding approval of a prospective purchaser. It will remove the age of a home as a criterion for ending an agreement and give discretion to courts to adjourn termination proceedings on the grounds of the condition of a park home to allow for repairs to be carried out. And it brings protection from eviction to park homeowners up to that for tenants of houses, a point made by the noble Baroness, Lady Maddock. Park homeowners have felt inferior—and certainly they were in terms of protection from the law.
The Minister and his officials have had to be persuaded and pushed, but they have recognised the problem and I am very grateful. They have consulted about the model standards and will be undertaking some work on the statutory instruments in the Housing Bill which relate to park homes. It is the good news that we have been waiting for. If I knew how to spell "hallelujah" I would say it properly. It is "hallelujah" for the people who live in park homes. We have come a very long way and we are very grateful to the Minister and his colleagues.
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Before I sit down, I should like to mention Roy Waite, a man who has carried the burden of ensuring that the case was made for people who live in park homes. He is not well and I just wanted to mention his name. I should also like to mention Frank Jagger, who has resigned as secretary of a group. Both of them have worked very hard for almost 20 years and are now beginning to see progress.
The Minister can count on my support, not only in general but almost without exception. These aspects of living need the spotlight of Parliament turned upon them. It is our job to reflect upon and revise what was said in the other place; it will be put to good purpose here. I thank the Minister most sincerely for what he said.
8.44 p.m.
Lord MacGregor of Pulham Market: My Lords, it is always a pleasure to follow the noble Lord, Lord Graham, but if he will forgive me, in view of the time available, I shall concentrate on Part 5 this evening. Whenever we introduce major new regulations and regulatory requirements, with new regulators and inspectors usually following to monitor and police them—I suspect that that will happen in this case too—we need to be fully convinced that the benefits justify the costs and outweigh the difficulties involved and the burdens imposed.
I readily agree that there are arguments in favour of the scheme. I have no doubt that there is much frustration and stress for both buyers and sellers because of some aspects of the present system. I do not think that the present system is a "shambles'', as the Minister in another place put it, but some of the delays and uncertainties could surely be eliminated or shortened.
I attended the other day a seminar of an organisation called CHIPS, or Consumers Home Information Pack Supporters, in Portcullis House, chaired by the noble Lord, Lord Borrie. I was particularly impressed by evidence provided by that organisation—it has a voluntary scheme—that in the period between the offer subject to contract and the completion and exchange of contracts, all the transactions in which those particular estate agents were involved were completed. There was no one-third drop-out rate in that period and transactions were completed much more quickly. However, it was a small sample.
I was concerned about imposing a new cost on the seller, but I accept that most sellers are also buyers and benefit from that. I accept also that first-time buyers will benefit most from a scheme of this kind. However, a surprisingly large proportion are sellers only. I was struck by a sentence in the Government's regulatory impact assessment document, which states:
"The cost of providing the pack could be added to the purchase price of the property being sold".
That sentence was tucked away. It has not been shouted from the rooftops by government Ministers. The Minister made other points in favour of the scheme.

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Therefore, I am prepared to consider the scheme, but as I looked further—I was not involved in the original debates—and considered both the Government's regulatory impact assessment document and the many representations that we have received on Part 5, many of my original doubts remained. My noble friend Lady Hanham and the noble Baroness, Lady Maddock, have already referred to some of them and the Minister is aware that this is clearly a major part of the Bill to be explored in Committee, but I shall refer to a few that most strike me.
The Government originally announced the scheme in 1998. That was six years ago. In this rapidly changing world, six years is quite a long time. I was struck by a survey conducted recently by the Council of Mortgage Lenders, to which it referred in its submission to us. Research that it undertook last year highlighted the fact that there have been "significant improvements" in the past five years, with many more to come. We know that one of the main reasons for introducing Part 5 was the delays that occur between the offer subject to contract being made and the ultimate completion. There is much that is happening now that will reduce those delays anyway. The average 12-week delay should come down substantially due to the technological developments in relation to local authorities, mortgage lenders, the Land Register, the National Land Information Service and so on. The regulatory impact assessment states that those developments,
"will enable search results to be delivered within minutes rather than days or weeks".
Is not technology outstripping the original arguments?
My next point relates to the key additional costs, which are quantified in the regulatory impact assessment. The major additional cost is the compulsory home condition report. The Government argue that that will replace the existing survey for many and therefore the cost will not be as great. However, the Consumers' Association states on page 10 of its report to us:
"The HIP is a guidance document for people looking round a property and caveat emptor will still apply".
I thought that was a very interesting sentence, but I suspect that that means—the Government will have to make it clear in relation to HIPs—that many people who currently conduct a search of their own will still wish to do so, so there is a considerable additional cost for them. More importantly, the Council of Mortgage Lenders states at various points in its representations that, as matters stand now, lenders will often still have to have a physical valuation of their own. That is one aspect of costs that has been underestimated.
I am particularly struck by the fact that we cannot properly assess the costs until the outcome of what we know will be prolonged consultation on the details of the scheme. Clearly at the moment, as the Council of Mortgage Lenders and others have pointed out, many costs to lenders, local authorities and so on have been left out of the current cost assessment. I am doubtful about some of them; for example, I am sure that the
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assumed cost to local authorities and the trading standards officers of £2.2 million will be a considerable underestimate in practice.
I am interested in who has the title to the home improvement pack because it is clearly relevant to who can be sued. Who owns it? I presume that it is the person who paid for it; or is it the home inspector, estate agent or lawyer? I would like an answer to that question, because, bearing in mind the Consumers' Association's point about caveat emptor, there will be considerable issues. In particular, if there are concerns about the home inspector's report and it turns out to be inaccurate, can the home inspector be sued or how is the issue to be resolved?
The Minister in the other place made brief reference to a resolution of disputes procedure, as does the regulatory impact assessment document, but at the moment I am not at all clear what that disputes procedure and what the costs would be. I hope that the Minister will be able to fill us in with considerable details.
As has already been mentioned, home inspectors are a key issue. Is the qualification good enough at NVQ4? Clearly the Council of Mortgage Lenders does not think so, because it says that that level of training is significantly below that of a chartered surveyor. The problem is that if the lenders are to rely on the information collected within a home condition report for use in valuations and underwriting, they must be persuaded that the training and ongoing monitoring of home inspectors is of a sufficient standard, otherwise there will be additional costs.
The sufficiency of inspectors will clearly be crucial to a national compulsory scheme. Who will pay the costs of training? I was glad to hear the Minister guarantee that the introduction of this part of the Bill will not take place until he is fully satisfied that all the conditions are in place. One of them, critically, must be a sufficient number of fully qualified inspectors in place, taking into account that many are expected, indeed intended, to be part time.
One of the key issues in that context is insurance, which is a crucial part of the scheme—and not only for consumers and lenders. No home inspector in his right mind should take on the job if there is not professional indemnity insurance. At this stage I understand that that issue is still unclear; indeed the Consumers' Association is saying that if there is no clear indemnity for home inspectors, the Government must be insurers of last resort.
So one could go on. Many other points were raised by the noble Baronesses who spoke before me, but they are summed up in the Council of Mortgage Lenders' point:
"it is our view that a vast amount of work remains to be done prior to there being any possibility of successful implementation".
I was glad to hear the Minister say that he would not proceed with this part of the Bill unless there was an assurance that all the many areas of doubt and difficulty had been resolved. The starting date looks optimistic, but I hope that it will be possible for us to return to these issues not only in Committee and on

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Report, but as so much will happen in regulations after the Bill becomes an Act. I hope that a revised and more realistic regulatory impact assessment available to both Houses is made before proceeding.
That leads me also to the conclusion that the Government should revisit the idea of a voluntary scheme. I did not find convincing the Minister's answer on that point in another place, nor was I convinced this evening. I can see that there are some difficulties in having a voluntary scheme alongside the home improvement pack scheme, but nothing like as many difficulties as with a compulsory scheme without all the problems that have been drawn to our attention having been satisfactorily ironed out.
I suspect that a voluntary scheme would enable a home improvement pack to be tried and tested in the market place, which could be the best way.
8.54 p.m.
Baroness Miller of Chilthorne Domer: My Lords, my noble friend Lady Maddock said in her excellent speech that a housing Bill does not come along very often. Indeed, it does not; and it is perhaps with that in mind that I should like to share with the House and the Minister my extreme disappointment that this Housing Bill does nothing to address the issues of affordable housing in rural areas.
The problem of affordable housing has been highlighted year after year, particularly strongly in 2002 and 2003, by the Countryside Agency, which felt that it was the most severe unaddressed problem facing rural areas. So far as I could see, the Government's only reaction to that has been to abolish the Countryside Agency—or they are about to do so. However, the rural advocate, the last chairman of the agency, is shortly to join your Lordships' House, so I hope that his voice will be added to those calling for action in this area.
Last year, the agency underlined how serious the matter was. Since then, house prices in rural areas have gone on rising—particularly in my own area of the south-west, by some 20 per cent a year, which I believe is higher than in many areas of the country. The supply of new-build affordable homes is pathetically, shockingly small. I hope to ask the Minister for some reasons why the Government have not only felt unable to address that problem robustly but made some moves that have been unhelpful.
In almost any forum that one cares to go to—whether local authority meetings or strategic partner meetings—the issue of affordable housing comes up time and again. The Minister himself mentioned sustainable communities. Affordable housing is the bedrock that is needed for rural communities. Without those affordable homes, not only will the key workers be unable to live there but so will all those occupations that are not classified as key workers but which certainly are in a rural area—whether they are car mechanics, plumbers, care home workers or taxi drivers.
Without that sort of affordable housing, the community will fade. As young people cannot afford to buy in, there will be no babies, no children, no school,
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and consequently much less of a community focus. Eventually we will end up with a cluster of individual households, which are not only less supporting but much more of a call on the public purse in terms of social services. Generations cannot stay together; older people are not there to babysit and child-mind in the towns where there are young people, and the young people are not there to carry out errands for the elderly people left in the rural communities. It will simply not be a sustainable community. The Government cannot claim to support sustainable communities while ignoring a swathe of those in rural areas, which simply will not be able to remain sustainable.
The Bill addresses the issues of licensing houses in multiple occupation. That is good—indeed, it is essential. However, rural areas do not have many HMOs, although there is a need for HMOs and small flats in rural areas. It is not as though young people from rural areas suddenly go from being aged 18 to 28 with no intervening years; they go through the same process as young people in urban areas. They look to become more independent and to move out when they get a job—only there is nowhere to go, except to move away to a large town or city. It is with some regret that I observe that the HMO part of the Bill will not have much relevance to rural areas.
One of the least helpful moves that the Government made recently was, last year, to remove the local authority housing grant. It was removed almost overnight. The speed of the decision and the lack of warning made planning for its removal very difficult. I appreciate that it was not a large amount, but it was enough to allow local authorities to fund small village schemes, or part-fund with RSLs. Often that pump-priming response is what is needed to respond to the housing needs survey.
When the Minister comes to say why the grant was abolished, I suspect that he will say that it was because it discriminated in favour of richer authorities. But even richer authorities in rural areas have hidden pockets of deprivation and they have those in housing need, which the strategies identify. That grant really helped. The Minister may say that that grant has gone to the Housing Corporation but has the total amount of money that it has to allocate increased by the equivalent amount of money or has the Treasury simply allocated less funding to housing overall? Clause 190 allows some grant to be given to private developers but I believe that this will not make up for the fact that local authorities themselves, which are the democratically elected bodies asked by the Government to respond to housing need, cannot do much about it.
In the mid-1990s, 2,500 homes per year were built in smaller villages with Housing Corporation funding and a further 2,000 with local authority grants. I believe that the figure last year was a total of some 1,750. I return to the fact that that is a pathetically small figure of the whole of England. I urge the Minister to give some thought to whether there should be something in the Housing Bill to give some cheer to rural areas. One area he might like to consider is exception sites: sites that would not normally get

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planning permission but which can do so in a rural area when it is for affordable housing. They were first recognised in 1989. Since then some 4,000 sites have been brought into use. The Minister may say that that is not an issue for the Bill but I understand that his colleagues in the ODPM are thinking of a rewrite of PPG3, which would put the exception site policy at risk. I believe that, in the face of any other way of addressing affordable housing in rural areas, that would an extremely retrograde step. If it were abolished, a massive grant programme to buy land in rural areas would be needed and that is not a good way to use public funds.
I would like to mention a couple of other issues. I am pleased that park homes are in the Bill. I could not agree more with the noble Baroness, Lady Hanham, when she says that houseboat owners too need similar protection. I look forward to debating that issue further in Committee where I would also like to address the issue of homes for owners of genuine smallholdings, which have come under more and more pressure as the countryside becomes very precious.
The Government claim that their aim is a living, working countryside. At the moment, it is a joke. One can work in the countryside but live in town or work in town and live in the countryside, if you are young, but it is very difficult to do both. I hope that the Bill will do something to address that situation.
9.3 p.m.
Lord Best: My Lords, I welcome the Bill, which contains a number of important changes for housing in the UK. I declare my interests as the chief executive of the Joseph Rowntree Housing Trust and I have long-standing links with many other housing organisations.
Last week, I spent time with Jacky Peacock and her colleagues from the well respected Brent Private Tenants Rights Group. I listened in on the week's caseload of private sector tenants in need of advice and support. There were cases of accidents in unsafe properties, cases of harassment by unscrupulous landlords waiting to gain possession of properties and many cases of landlords illegally withholding the deposits that they had collected from tenants. For example, an incredulous Australian returning home after working here in the health service was astonished to discover that his landlord systematically withheld tenants' deposits of between £500 and £1,000. Such landlords know that tenants from overseas cannot wait for cases to be organised and heard in the small claims court some months later. Tenants who need to use their deposits to secure their next rented homes here can find themselves homeless, simply because landlords refuse to return their money. The recent addition to the Bill of new measures on tenants' deposits to protect against exploitation of this kind is very welcome indeed.
I also visited a number of houses in multiple occupation last week, some of which will be subject to the new licensing arrangements. I have to tell
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noble Lords, and the noble Lord, Lord Graham of Edmonton, in particular, that the evil slums of yesteryear are still very much with us. There was the woman occupying a single room at £85 a week in the back addition of a house in Harlesden where the rain came through in three places. There was the hospital porter's miserable hovel above a shop in Wembley with cockroaches and plumbing that did not work. There was the couple in the house in Brent which had been shoddily converted into multiple "apartments" infested with mice and suffering from disrepair, condensation and mould growth. Harassment and intimidation of tenants who complain is only too common in this seedy end of the housing market.
The landlords of these properties are a disgrace to the majority of respectable and sensible operators. It is good news that the Bill will introduce regulations to improve the position. But we know that exploitation is always likely when there are acute shortages. And we know from Kate Barker's excellent review for the Treasury that the shortages of homes at rents affordable to those on low incomes are set to grow worse if we cannot increase supply, not least in rural areas, as the noble Baroness, Lady Miller, explained.
The private sector has much to offer to the middle market of those on the move or not yet ready or able to settle into owner occupation. But this sector cannot provide the answer for those who need decent homes at low rents, on a secure, permanent basis. Nor are those landlords who are investing in renting—and £40 billion has gone into the buy-to-let schemes in recent years—currently building any extra housing. They are simply buying existing property, and that can add to inflationary pressures on house prices. That is why successive governments have funded the direct provision of extra social housing at present provided through housing associations.
That brings me to the proposals in the Bill mentioned by the noble Baroness, Lady Maddock, for paying social housing grant to house builders and developers—grants which hitherto have been available only to regulated housing associations. In place of the current and very welcome trend to partnerships between house builders and housing associations, this approach sets the two groups into competition with each other. The idea is that increased competition will mean efficiency gains and secure more subsidised homes for the same amount of public money. As always, the Treasury is hoping for more for less.
I should be grateful for reassurances from the Minister on three points. The first is that there will be a level playing field between house builders and housing associations in the regulations on rents, security of tenure, tenant participation, redress through the housing ombudsman and so on.
The second is that the increase in the value of properties that have been grant-aided will be locked into providing continuing social benefits in the future. The housing associations of today use the gains they have obtained from the rising property values of homes produced in the past to borrow cheaply, to withstand losses on rents in the early years of new

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schemes and to upgrade properties and provide important services to tenants. It would be a tragedy if the new arrangements for giving grants to house builders and developers meant that the benefits of rising property values were lost to social purposes and went instead to commercial interests and private shareholders.
Thirdly, reassurance from the Minister would be greatly appreciated on safeguards against house builders winning bids for social housing grant by building more cheaply, as they do for comparable properties for outright sale. It is possible to use less robust components in houses for sale, because homeowners are prepared to do their own maintenance and DIY, and because they under-occupy the premises, usually having a spare room, which means less wear and tear. However, in rented housing, lower quality means higher costs in the future. My fear is that if, on day one, house builders and developers appear to offer more for less, tempting the Housing Corporation to pass over public money to them, the gains may prove illusory in the longer term.
The Bill contains an array of important improvements for the UK's housing. In particular, I hope that it will help those worst affected by the bad practices of a minority of private landlords, and will in no way undermine the provision of additional, badly needed affordable homes through housing associations. I look forward to discussion of the details of the Bill over the weeks ahead.
9.10 p.m.
Baroness Dean of Thornton-le-Fylde: My Lords, I, too, welcome the Bill. Like other noble Lords, I have received enormous amounts of briefing, the majority of which has welcomed the Bill. Of course, the devil is in the detail, as always. I also welcome the not unexpected statement from the Minister that he looks forward to a robust debate, because parts of the Bill will bring that.
There have been many contributions about the home information pack. Mine is probably one of the few voices in the debate thus far to welcome it—it is a good thing. The fact that the Consumers' Association is the only organisation to have welcomed it in no way discredits either the standing or the quantity of its briefing. It conducted a survey last October of more than 1,000 people who had bought their homes. The disgraceful figures to come out of that were that more than 50 per cent were unhappy with the transaction, 70 per cent felt that the estate agents had given them misleading information, and 82 per cent thought that the home information pack would be very useful to them. All that I have read has led me to one firm belief, which is total agreement with the noble Baroness, Lady Hanham, that we should look at licensing or regulating the estate agency sector. It is the only group in the house-purchase chain that does not have either a professional or a regulatory backing.
The issue of rural housing is very fraught. It is a real issue in rural areas, and I am sure that we shall have a debate on it. The noble Baroness, Lady Miller, was a bit unfair to the Government, who have more than
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trebled the number of houses built in rural areas since they came to office. So desperate are we to get houses built—it is difficult to reach the targets—that the Housing Corporation, with the Countryside Agency, funded the employment of 20 people for three years up and down the country looking for sites or buildings that could be converted for rural housing. Such is the commitment behind trying to improve it. I accept that it is nowhere near what is needed, but it is certainly much better than it was. It is unfair to criticise the Government as strongly as the noble Baroness did, but I look forward to the debate on the issue.
I want to concentrate on Part 6. It has the rather innocuous title of "Other provisions about housing", but I believe that it is part of the beef of the Bill itself. It is a substantial part of the Bill and deals with a number of areas, not least of which is disabilities. Because of time, I shall not speak on that subject; I think that my noble friend Lady Wilkins and the noble Lord, Lord Rix, will concentrate on that in their speeches.
Last year, I was asked by the Deputy Prime Minister to chair a group of what turned out to be 16 people, to look into how we could increase the number of people in this country who could afford to buy their own homes. Currently, 70 per cent do and 90 per cent would like to. How do we increase the market for low-cost home ownership? The Barker review is a major contribution to that. My review was submitted to the Deputy Prime Minister last October. It received nowhere near the publicity of the Barker review; it was not so high-pitched. However, I was delighted a few weeks ago to receive a letter from the Housing Minister, Keith Hill, confirming acceptance of the majority of the 45 recommendations in that report, many of which are in the Bill. I place on record my thanks to the Government for that.
The Minister said in his opening address that some small changes had been made to the right to buy. That was a recommendation of my small working group, which comprised not only housing officials but private developers and a range of others outside housing.
I welcome the changes in the Bill, but they do not go far enough. Among other things, the working group conducted a series of meeting with people who lived in rented property or had shared ownership—part rental, part buying—but who wanted to buy their own home. What came through was the unfairness—they are so right—of the difference between the discount in the right to acquire from housing associations and that given by local authorities. The blunt fact is that it depends where the dice falls for an individual: if you are in a local council house, the discount and what you get is far better than if you are in a housing association property. We felt that that should be rectified. The Government have not done that; nor have they dealt with the variation between the regions. Nevertheless, I welcome without reservation Clauses 157 to 165, because they reflect my task force's recommendations. We want to see good value and improvement in affordable home ownership.

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One of the other areas that the Government did not accept related to increased value when a shared ownership tenant of a housing association property sells and moves on. We wanted to see the housing association share of that profit recycled within affordable home ownership. I hope that the Government will look at that again.
I welcome Clause 87, which deals with overcrowding. The standard was last set in 1935, I think; so the Government's commitment to review it is very welcome. It would be very helpful if the Minister could indicate the timescale for the consultation and what the Government are looking at on the issue of overcrowding. He might not be able to give the answer today, but perhaps he could do so during the course of the Bill. As with overcrowding, the issue of decent homes is so big that it must be dealt with in a timescale; you cannot do it overnight. It would be good to have within the Bill, which the Government intend to make active at the beginning of 2005, a timetable for dealing with overcrowding. That would certainly help local authorities. It would be helpful if the Minister could give some indication on that.
Until last year, I was chairman of the Housing Corporation, so I welcome the Bill's updating of the corporation's powers and the improvements on the present arrangements, but there is an omission. The Housing Corporation has the sanctions of either gentle persuasion or, at the other extreme, what I used to call the nuclear bomb—statutory inquiry. It needs some intermediate sanctions by which it can bring housing associations along when they are not meeting the standards needed. Yes, you can put people on a board under supervision—you have them there part time. It would be good to have intermediate powers and a special manager. I gather that the Treasury rejected that recommendation because a special manager would remove housing associations' independence. However, that is not the case in Scotland, where the proposal has been accepted, so I question why we cannot have such provision here.
Like other noble Lords, including the noble Baroness, Lady Maddock, and the noble Lord, Lord Best, I am concerned about the issue of grants to non-registered landlords. There are lots of questions on that, and I am sure that it will take some time in the Bill. It is not new; it has been tried before and it failed.
I welcome the commitment on the tenancy deposit scheme, and we will wait to see the content of that.
9.19 p.m.
The Earl of Caithness: My Lords, like other noble Lords, basically I welcome the Bill. I want to concentrate on Part 5. I declare my interest as a surveyor and as having set up an estate agency in 1995.
I fear that Part 5 replaces light-touch regulation with heavy-handed, socialist bureaucracy, which will at least lead to the stigma of a two-tier housing market. In Denmark, which the Government have often quoted as having home information packs, the size of the pack has risen from 100 pages to 800 pages. They have a small housing market in comparison to ours.
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We have made little progress in the six years of discussion with the Government on the sellers pack, or home information pack as it is now called. The only notable achievement is to have moved them away from criminal penalties to civil penalties, and I welcome that. The idea of a home information pack is admirable. It is agreed that there is a need to speed up the housing market, but the Government's proposals are not a solution to our problems. Let us look at the cost. The Minster said that the alleged cost of aborted transactions is about £350 million. We will come back to that on Report, but that figure is wildly out of date and it is misleading—it is much less than that. However, the cost of a home information pack will add about £650 million annually to existing selling costs. The average cost of a home information pack will generally be over £600, or more like £1,000 in London.
As my noble friend Lord MacGregor pointed out, the regulatory impact assessment is a flawed document, as it does not take into account many of the additional costs. The Government have seen fit not to include those. The result will be that extra costs will go up, and some estate agents will be able to push up their fees as well. That happened in Denmark, where fees have practically doubled since the introduction of their equivalent of the home information pack.
A home condition report is a pretty worthless document if it is not accepted by the mortgage lenders. The lenders will always want the right to commission their own valuation and survey. Contrary to what the Minister implied, the Council of Mortgage Lenders has not welcomed the idea of home condition reports. The survey has the wrong name; it is not a survey of a house, it is an inspection by a partially qualified person. That person will not be qualified up to Royal Institution of Chartered Surveyors standards, and that inspection will not reveal any of they key information that a house buyer wants. It is a surface inspection; it does not look at the expensive things that are always hidden, the drains, the electricity, the gas, the damp, the subsidence. They are totally ignored, so it will not help in the way that the Government want.
My noble friend Lord MacGregor also raised the question of surveyors and insurance. That is a huge problem. Let us look north of the Border, where a similar scheme is under way, except that it is voluntary. The whole scheme is grinding to a halt because the insurance companies are terrified of what will happen. At the moment, one gets a survey carried out by a professional. That person will probably be RICS certified, which will not be the case in the future. The survey goes to one person; that is one insurance claim. Now, the insurance companies will be faced with a home condition report going to perhaps 50 different people, all of whom can sue. That problem is by no means resolved yet.
Let us look at the shelf life of the property. The Government state that the home condition report should not be more than three months old at the time marketing commences. At the moment, 25 per cent of open market sales take about six months, so that inspection will be at least six months out of date. Whose responsibility will it be to update that? In the

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past few years, we have been used to a strong, bullish market. There is no question that that will end. By whatever means, the market will slow down, back to what it used to be when properties took a long time to sell. The home information pack will be out of date, the searches will be out of date, and the home condition report will be out of date. Having spent a vast amount of money preparing it for the beginning of the sale, whose responsibility is it to update it, and how are they going to find the extra costs? It is going to have a big impact on the housing market, far more than the Government give it credit for.
There is also going to be a conflict of interest between the surveyor and the home condition report inspector. They can sit in the same office, at adjacent desks. If that home condition report has got to be accepted by the vendor and the purchaser, there is no way they should be allowed to be in the same building, and agents should not be allowed to own or take part in a firm that is producing home condition reports. There is too much of a conflict of interest, which would not be allowed in any other line of business.
Let us look at the qualifications for estate agents. When the Minister is looking for a new job after the next election, he can set up an estate agency the next day and sell a £10,000 house, or even a £10 million house. He needs no qualifications, nor does he have to meet any threshold, but if he wants to sell £100 worth of stocks and shares he has to go through every hurdle the FSA can produce for him. It is nonsense, and I strongly support my noble friend Lady Hanham. She knows I have been banging this drum for many years—us estate agents need to be properly regulated, along with the rest of the financial sector.
I want to ask the Minister what has happened to SAVA, that great institution that was launched with such a flourish. In 2001 the noble Lord, Lord Whitty, was telling us all about its goodness. Who owns it now? What happened to the house that was suddenly found among its assets?
The Minister has said absolutely nothing about how he is going to monitor Part 5. What are the Government's plans for monitoring? How are they going to assess whether this has produced value for money and improved the market? How are they going to differentiate what the Bill does, as opposed to all the other changes that have been mentioned that are coming through in the housing market?
There are a lot of problems. I hope the Minister gives us enough time to debate this in Committee. We started today at 7.53 p.m., exactly the same time as we were allowed to start the Bill in 2001. I fear we are going to be horribly squeezed in Committee.
At Second Reading in 2001, the Minister—the noble Lord, Lord Whitty—said that the seller's pack or HIP, as it is now going to be called, was going to be ready for 2003. Yet in July of that year the Select Committee looking at the draft Housing Bill in another place savaged the Government's proposals, and said that a great deal more work needed to be done before they could be introduced. They were not convinced that HIPs were going to solve any of the problems that the Government have identified.
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Let us be absolutely clear; England and Wales are stepping into the unknown so far as this part of the housing market is concerned. No other country in the world is going to be doing what the noble Lord proposes, and therefore we need to get it right.
We have ludicrous situations; I shall give your Lordships one last example. Gone will be the freedom to market a house at day one, when you want to market it. If your office is in England or Wales, you will not be allowed to market the house. However, if you sell the house from Scotland or market it from France, you can tell everybody. If you have a multinational firm, it will be easy to let people know beforehand that a house is going to come on the market, which will be a civil offence in England and Wales. That is going to be a nonsense. Will the Minister clarify that if I was part of a multinational and I was based in Edinburgh, my other partner in England could not mention that a house was going to come on the market, but being in Scotland I could tell that to anybody in England? That is one of the many nonsenses that this Bill, as drafted, leads us to. We are moving into uncharted territories that need a great deal of examination.
9.30 p.m.
Lord Rix: My Lords, I shall not detain your Lordships for long, but as the Disability Rights Commission's 14-page parliamentary briefing on this Second Reading includes Mencap writ large on the cover and as Mencap's Housing Timebomb report is quoted on page 3, I felt that, as president of that organisation, I should take this opportunity to say a word about access to housing for people with learning disabilities.
The policy discussions of recent years have highlighted what I might call the four key facts. First, most of the housing progress of community care over the years has done no more than replace hospital accommodation with community housing without adding to the total. Secondly, most adults with learning disabilities still live with their families, as they did before modern community care began.
Thirdly, accommodation is not enough. If people with learning disabilities are to live in their own homes in the community, they need—to varying degrees—support, as well as accommodation. Fourthly, we have invested rather a lot of resources and nervous energy in implementing and then scrapping and replacing models of accommodation and support, without focusing on what the person who is going to live there, and be supported there, actually wants. It is as if a surgeon were to work on the basis of doing a particular sort of operation, quite irrespective of what the individual patient needed or, indeed, wanted.
We need a housing policy that makes the best use of existing housing stock. Best use means appropriate to the needs of those who need the housing. In the case of people with learning disabilities, that means, in particular, catering for the needs of the verb large numbers of people with learning disabilities now in middle life who are still living with elderly parents. For

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some of that number, the right answer might be for the family home to be made more appropriate now to the changing needs of the parent or parents and the person with learning disability; that is, to put in extra support now and to plan for the person to carry on living in his or her familiar surroundings once the family who had made the house "home" have gone.
Physical accessibility is not an issue for many people with learning disabilities, whereas having a home of their own to access is. However, the more severe the learning disability, the greater the likelihood of there being associated physical disabilities. In addition, the longer people with learning disabilities live, the greater the likelihood that they, like the rest of us, will acquire physical disability.
My personal dream is of a housing and support programme which—in place of the traditional approach of putting people where we think they ought to go and moving them when it is convenient to move them—enables people to live where they want to live and to stay there as their disabilities increase, if that is their preference. Such a policy requires better assessment of needs and wishes, a starting point in those needs and wishes rather than our theories, registration of demand and of supply, flexible funding policies and speedy availability of the disabled facilities grant and other funding in order to maintain accessibility.
I have been partially reassured by the Government's response to the Learning Disability Task Force on the issue of funding in the Supporting People scheme. It is vitally important that that level of funding is sustained. However, I am still nervous, given the long history of housing benefit cutbacks, that promising housing policies will be retrenched the moment that it becomes clear that they will, for perfectly good reasons, cost rather more than had been originally anticipated.
It has been clear from the earliest days of trying to get that right for people with learning disabilities that a home in the community, with the support needed to live well in that home, is an essential prerequisite for being present in and participating in the community. There is more than one way of funding, managing and monitoring housing and housing support, but the valuing of people and the housing policies that are being developed offer a real prospect of getting it right this time, always provided, of course, as the good book says, that having put our hand to the plough we do not turn back.
When I read of the size of some new private sector developments, and when I notice that local authorities are still unclear how many people with learning disabilities are living with elderly parents—let alone having plans for them—I do worry that we might turn back and stumble and fall on the very brink of success.
9.35 p.m.
Lord Borrie: My Lords, I propose to concentrate my remarks on Part 5 of the Bill: 25 clauses containing important and desirable consumer-protection proposals whereby vendors provide home information packs, including home condition reports, whenever a house is put on the market.
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To be most cautious, at least, I should declare an interest as an honorary life member of the National Association of Estate Agents. Though—as other noble Lords have said—that body seems to be officially opposed to the Bill's proposals, I think that the association is divided. Many members—including its very well respected former chief executive, Mr Hugh Dunsmore-Hardy—are very much in favour of Part 5.
Part 5 was fought over on several occasions during the passage of the Bill in another place, but I believe that in this House we should support the mandatory requirements for home information packs because they are intended to make more transparent, more speedy and more effective what is—it is commonplace to say—the most economically important transaction that people make in a lifetime, and very often several times in a lifetime. Key information is to be made available at the outset of the process. Particularly because a house purchase is typically part of a chain with the vendor buying another home, and so on up the chain, I believe that opposition pressure in another place—and from what the noble Baroness, Lady Hanham, says, perhaps here too—to make the whole idea voluntary would seem a worthless outcome of what the Government are trying to achieve because sales without packs would slow down the connected sales with packs.
It is not surprising that the Government's proposals have received warm support from the Consumers' Association, because there have been so many instances where ignorance on the part of the purchaser about some vital aspect of the property's condition has meant that only when he commissions a survey—usually at a very late stage of the transaction—do the defects come to light. The first-time purchaser is particularly hard hit at present because he or she has to pay for such a survey upfront before he gets on the first rung of the property ladder.
It is even worse if the purchaser is unwise enough not to commission a survey of any kind before committing himself to a price that has been agreed on a false basis of the apparent superficial soundness of the property. Surely Part 5 is good news, for the first-time purchaser in particular. The vendor will provide and—this is a partial answer to some things that the noble Lord, Lord MacGregor's said—be legally responsible for paying for a home condition report with legal responsibility as well behind the wording, the assurances and the terms of that report.
At present, several prospective purchasers may each spend money on separate surveys of the same property, only to end up—or at least most of them—with an aborted transaction. The only profit is to the various surveyors who have undertaken the separate surveys.
The beauty of the Government's scheme—I emphasise the word "beauty" before coming to the criticisms, many of them legitimate, at least in terms of queries to the Government made by the noble Earl and the noble Lord, Lord MacGregor—is that when a vendor proposes to put his property on the market he commissions a survey and that is made available to every genuine intending purchaser.

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That is a major cultural shift from the situation in which at present a purchaser makes an offer for a property on the basis not of what it is, with the reality of its imperfections as well as its good points, but on its superficial appearance and a spot of estate agent's hyperbole. It is not surprising that at present a high proportion—many estimate as high as one third—of all transactions fail when only at a late stage does a survey reveal what lies behind the false mask of the so-called particulars of sale.
Some noble Lords may recall an estate agent called Roy Brooks who operated during the 1960s. He never used hyperbole in his particulars of sale, rather he was blunt to the point of extreme frankness. He would refer to "this rundown dump which is in need of extensive renovation". He was a successful estate agent, but sadly no other estate agent—a rather unimaginative lot, I think—seems to be bold enough to follow that example.
The noble Lord, Lord MacGregor, and the noble Earl, Lord Caithness, raised a number of serious issues. It is impossible to cover them all this evening, but I am very glad that they have raised these important matters. Certain questions have to be answered by the Government. In so far as the Government did not respond to them fully in the other place, they need to be answered here. Among them is the costs, not only the overall cost of the new scheme but also the cost of each transaction. Also to be detailed is the recruitment and qualification of the inspectors. I mention the question of indemnity and the legal rights people will have if a home condition report turns out to be inaccurate. Those are important issues which I believe can be answered, even bearing in mind the Minister's important statement about the intention that the scheme should come into effect not tomorrow, but in 2007. I think that Part 5 is a worthwhile part of this Bill.
9.42 p.m.
Lord Dixon-Smith: My Lords, I bumped into the Minister earlier this afternoon. He expressed the hope that I would not take him past 10 p.m. I am fortunate that that privilege will fall to another poor Member of this House, due to the rather late firing of the starting gun.
I welcome the Bill, although I want to talk about an issue that is not included in it. Anything that seeks to improve the general housing situation must be welcomed. Housing is what I would call another fence in the endless steeplechase of life. We are dealing with the problems of housing as the Government see them today, and providing solutions for today. With a great deal of hard work, I do not doubt that this will be a good Bill in the context of today. But we should face the reality that must be faced by all legislation: while we may solve many problems, we will create problems for others in the future. We should not presume that we are going to provide a Utopian solution here.
I am not quite as euphoric about Part 5 as the noble Lord, Lord Borrie. I recall that when I bought my first flat in London, I was advised to have the property
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professionally surveyed. I did so, but some weeks later—and with a much lighter wallet—I received the wonderful document, which told me nothing that I could not see for myself when I took the care to take a thorough look at the property. So we should not assume that buyers' packs, to use the shorthand phrase, will necessarily be the perfect answer.
I want to talk about social housing in the context of Section 106 agreements. I declare an interest as an Essex landowner who has been involved in a major development where there was a heavy Section 106 agreement, which did produce a great deal of social housing. This is a significant issue.
During the proceedings on the Planning and Compulsory Purchase Bill, the noble Lord, Lord Best, talked in considerable detail about the reasons why the Government should not take a formulaic approach for community gain on major developments. He was right, because the circumstances of each development are dramatically different.
If one considers that the Minister's right honourable friend in another place, the Deputy Prime Minister, wants to land the south-east—which is my particular part of the country—with another 400,000 houses, and if one then considers that this will be major new development, some of it on brownfield sites but all resulting in immensely enhanced values, that development, negotiated properly through the Section 106 system, will produce 20 per cent, possibly 30 per cent, of social houses out of the total number of units provided. My Lords, 400,000 houses at 20 per cent is 80,000 social housing units; at 30 per cent, it is 120,000.
These things are achievable. This is a huge sum. If the Minister's right honourable friend, the Chancellor of the Exchequer, has his way and we get from the Treasury the additional million houses that are being talked about, it would mean vast numbers of social housing units being constructed across the country.
The issue I want us to touch on, however, is how such properties are paid for. There is the idea that the developer pays for them. There is a sense in which he does, of course. He will almost certainly construct the properties and in that sense he will pay for them. The housing does not come from nowhere; it has to be paid for. It actually comes from the original landowners, who are party to this negotiation and want to see the benefits of the money that they are putting back in the community going into their communities and staying there.
There is a little fly in the ointment here. It is the right-to-buy scheme. The one thing that those landowners do not want to see is the social housing that they enable to be created subsequently going out of the social housing sphere, possibly within five years, at a discount. These are, if you like, their resources. It is their payment to their community. I would like to think that housing in that situation should at any rate have a 20-year exemption from the right to buy.
One could also argue that, where land is given up in small communities for social housing—small plots of five or 10 acres to provide social housing in towns and villages across the country—by landowners who are prepared to

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accept a very low value for their property in order to provide the housing that is required by their community, it is again important that the right to buy does not come into play. I know that there are ways over this. It can be done by charitable housing associations; it can be done by such things as shared occupancy, and so on. It ought to be clearly understood from the start, however, that this is an issue where the right to buy should not apply, at any rate for a time.
This Bill gives an opportunity for a clause of that nature to be added, so that this matter can be taken care of. In my view, if this existed it would make it easier to negotiate Section 106 agreements. It is something which can be done in detail in Committee, and I do not need to take more of your Lordships' time.
9.50 pm
Baroness Wilkins: My Lords, I greatly welcome the introduction of this Housing Bill and the opportunity which it gives us to tackle some of the barriers which face disabled people in finding accessible and affordable homes. I declare an interest as a patron of HoDis—the National Disabled Persons Housing Service—and as a member of the Joint Committee on the draft Disability Discrimination Bill.
I also declare my interest as a wheelchair user. While there have been enormous changes in the opportunities available to disabled people in the 40 years since I became disabled, the housing sector is an area which has been left in the shadows. For physically impaired people the lay-out of our homes can either enable us to live full and independent lives or it can disable us completely, making us dependent on other people for the very basics of our existence—washing, eating, sleeping and going to the loo.
But it is not only about our lives in our own homes. The ability to go into other people's homes, to visit our friends and family, is regarded almost as a luxury—and yet that ability is essential if we are to be fully equal participants in society. I have come to accept that none of my family or non-disabled friends has a home that I can get into without help. This is not because they do not care or are unthinking but because accessible housing stock is not available. This means that I can only ever be on the receiving end of their good will. If they are sick, I cannot visit them or take them a meal; if they go away, I cannot feed the cat or water the garden; if I get my neighbours' post by mistake, I cannot take it to them. It is all that give and take of life that makes relationships equal.
I hope that I can convince your Lordships that equality of access to housing is an issue of basic human rights which provides the foundation for independent living and all manner of social and economic opportunities. However, for many disabled people it is a right denied. The evidence is shocking. One-quarter of wheelchair users are virtual prisoners in their own homes because of poor access and location; thousands of disabled children are living in homes which blight
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their life chances, restrict their social development and cause their parents acute stress, back injury and sometimes loss of employment.
Many, many barriers obstruct disabled people's access to appropriate housing and independence. I suggest that this Bill and the forthcoming Disability Discrimination Bill together offer a critical opportunity to remove many of these barriers and address the growing accessible homes crisis.
The Joint Committee on the draft Disability Discrimination Bill, of which I was a member along with my noble friend Lord Rix, received a large body of evidence asserting the need for a more proactive approach to meeting the housing needs of disabled people by local housing authorities, public housing associations and the providers they fund.
There has been widespread concern—which the committee's report, published on 27 May, strongly echoes—that the draft Disability Discrimination Bill does not go far enough towards securing the right to a decent home for disabled people. We therefore recommended that the full Bill should include specific provisions preventing landlords and management committees unreasonably refusing consent to disabled people who need to make physical changes to their properties, including communal areas, in order to enjoy fundamental rights of access. Some 18,000 disabled tenants living in unsuitable accommodation report that they have been prevented making essential alterations or adaptations because their landlord has refused consent. I hope that the Government will feel able to accept the recommendation.
But the committee went further, endorsing calls from the National Housing Federation and the British Council of Organisations for Disabled People that premises which have been appropriately adapted to accommodate disabled tenants should be put on an accessible housing register as a way of systematising the supply of suitable accommodation to a suitable group of people who would be in need of it. This proposal is strongly supported by HoDis, which has pioneered the development of such registers, and by many other organisations. The Housing Bill offers the perfect opportunity to take this forward.
Despite the acknowledged shortage of housing built or adapted to various accessibility standards, when a property becomes available landlords frequently have difficulty in identifying someone who needs it. Social landlords are under some pressure to let empty properties quickly. Consequently, if someone whose needs match the equipment or adaptations in the vacant property is not identified within a couple of weeks, it will be let to someone who does not need the adaptations. Even worse, the adaptations, which could have cost several thousands of pounds, may be removed. This is a calamitous waste of resources.
A statutory duty on housing authorities to maintain databases of accessible or adaptable properties and of disabled people in housing need, and to use these to provide an information and matching service, would have a plethora of benefits. The number of empty properties would be reduced, along with admissions to hospital and

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residential care. Unnecessary spending on adaptations would be avoided and disabled people would be in a position to choose suitable accommodation much more quickly. Local authorities which operate such a service have achieved quite staggering savings and are in a position more accurately to map and plan for current and future levels of need.
Given the appalling lack of accessible housing, we must surely grasp this opportunity to make the best use of the resources that we have. The introduction of housing registers is one simple and effective solution, but given the competing demands placed on housing authorities, that will not happen without legislation. The Housing Bill could and should mark the beginning of a concerted campaign to remove some of the barriers to decent housing for disabled people. I trust that this opportunity will not be missed.
9.55 p.m.
Lord Selsdon: My Lords, the noble Lord, Lord Borrie, pointed out that buying a house is one of the most expensive purchases that one makes in one's life. I shall approach it from the other direction: death, divorce and moving house are the most stressful events in a person's life. Presumably, the Bill seeks to make life easier and more comfortable for all those concerned. It is on the principle, on Second Reading, and not on the devil in the detail, as the noble Baroness, Lady Dean, said, that I would like to speak.
I was very impressed by the Minister when he spoke in the housing debate initiated by my noble friend Lord Lucas. At the end of that debate, as I was sitting on the steps of the Throne and watching both sides, he said with supreme confidence that he would cut through bureaucracy and build some 920,000 houses and please everybody. The next day, it was reported that the cost of houses had gone up.
I have declared an interest as a director of a construction company which builds houses. We do Section 106 and Section 52 agreements; we do urban regeneration schemes and we build on brownfield sites. I have been a rather unsuccessful landlord and I have been reluctantly involved in enfranchisement and leasehold reform. I have sat in your Lordships' House over the years and asked why we could not have one simple Bill that made it easier for us all.
I have been amused during the past week. Since your Lordships' House scrutinises and improves legislation, the briefs began to arrive during the Recess. They came by e-mail when my machine was down. It told me that the service was not available and there was a red cross on the screen. In the end, I found that paper is not sent any more. When you receive the briefs on your e-mail system, you try to print them out, but the printer will not connect and there is no one to help in the computer office. You cannot find any paper and Dixons is shut, so one cannot get the brief. Therefore, I rang the department up, but most of them were not there. One answered on his mobile from the Test match and told me the score. I then realised that input into Ministers is quite difficult. We have a government who are
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willing to do what they possibly can in the housing sector to make things easier, more secure and better for people, and to build more houses.
When we turn to social housing, I think back to the Leasehold Reform Act. We had Smiths charities, which we thought were charities trying to help people have cheap houses. I think that they originally built houses for widows of pirates. We found that they were concentrating only on the maximum value that they could extract from their portfolio, complaining that leasehold reform was unfair to them. A few weeks later, they sold their portfolio to the Wellcome Foundation for the largest amount that they could get. I ask myself where are the great philanthropists such as Thomas Salt, Peabody and others, who, instead of giving money to political parties, set out to do things within a community, to finance, build low-cost and own houses, as good, respectful landlords, knowing that people would respect them as well.
I do not like the term, "social housing". It is accommodation. Our previous debate brought me round to the belief that in rural areas, where only 10 per cent of the population now live, we should build more houses, yet my own attitude had been that we should not build any more in the rural areas because we will destroy the countryside. If one flies around in a helicopter, one sees the most enormously bad patches of land in rural areas. One sees farmers longing for some house builder to apply for permission to build on their land without telling them so as not to upset the local environmental lobby. The house builder would come back and say, "I say, sir. We've got some good news for you. We can get you planning permission for your house. We'll do a joint venture on your land". The farmer will say, "I didn't mean to do this. I'm a farmer. I'm part of the community".
The building of a good house and home—they are not necessarily one and the same—is one of the duties of government. I look at the noble Lord, Lord Rooker, wondering whether he can be a Harold Macmillan. Harold Macmillan said that he would build houses every year and that was the most important thing. At the moment, building houses at the right price—at the right cost for people—is the right thing. How do you do it?
We are not necessarily going about it the right way. Forty or 50 per cent of the costs of a house is often the land. There must be a way whereby under Section 52, Section 106—or whatever we may call it—that land may be put into the pot and the end price reduced, not instantly but for a long period of time because there are no land costs.
If we look at house builders, and I consider my own lot, we have to go out and spend maybe £40 million per year to buy a strategic land bank in order to be able to keep building houses. How much nicer if in some areas the Government would sit down, as they do, with house builders and say, "With our plan there are areas where we think it would be right, where there is a good local community and a council that wishes to have things".

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Although it may be the voluntary sector, I believe that there is a will in the country for people in the commercial world to work that one out. I repeat to the Minister that buy-to-let is a moral and acceptable notion. Throughout Europe people are better off putting their money and savings into houses that they can let that may be passed on to children, family or those at universities.
I wonder whether we might think of a radical policy whereby those in retirement who buy homes may not be taxed on the income from them; a TESSA for houses or something of that sort. Ultimately, whichever way we look at it, we are talking about money. I could repeat the words of my noble friend Lord MacGregor and point out that there are not enough surveyors or people in the land who could undertake the work proposed in the Bill; and more than that, there is not enough insurance capacity in PI insurance to permit that to happen.
Some of your Lordships may have had to help people who have had a survey that went wrong, with dry rot, deathwatch beetle, cockroaches and everything in the book. They turn to the surveyor on whom they spent £1,000, and he says, "It's not my fault", he disappears into the sunset, his professional indemnity insurance takes over and we hear no more about it.
I wish the Minister well because I believe that his heart is in the right place. The Bill may be over-bureaucratic, but during its progress let your Lordships make it work for once rather than all the previous legislation that has ended up half finished.
10.2 p.m.
Baroness Young of Old Scone: My Lords, I want to speak on Part 5 on the home information pack, in common with many of your Lordships. As the last on the list of the Bank Benchers after the 10 o'clock watershed, which I am grateful to the noble Lord, Lord Selsdon, for taking me safely past, I am glad that I am going to talk about something on which no noble Lord has touched on so far.
I should declare some interests, first, as chief executive of the Environment Agency, but also—strangely enough—as an honorary fellow of the Royal Institution of Chartered Surveyors. Those organisations are not of one mind on the issue, so I am probably free from the prejudices of either.
I commend the home information pack provisions in the Bill in principle. I believe that they can make a contribution to simplifying and speeding up the selling and buying process. More particularly, I want to consider two other important reasons for the home information pack being worthwhile pursuing and for a systematic examination of the details with a view to making it a practical possibility rather than thinking up every reason in the book for it not happening, as the noble Earl, Lord Caithness, did.
The home information pack and especially the home condition report are an opportunity for homebuyers to benefit from knowing about a range of material issues associated with the environment and the property in
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which they are interested. The pack will have to contain information on energy efficiency. That has benefits for prospective purchasers in terms of the size of future utility bills but also for the impact that they will be making on climate change, the greatest environmental threat facing us all.
About one-third of total carbon dioxide emissions are associated with energy use and domestic energy use is one of the sectors that continues to rise. Homebuyers should also be enabled through the home improvement pack to know about other environmental issues associated with the property that they plan to buy; for example, it is vital that they understand their flood risk status. They need to understand what the flood risk to that property is, what can be done to alleviate it and what impact it will have on the insurance costs for the property.
Alongside the Bill, the Office of the Deputy Prime Minister is consulting on the content of the home information pack, which will be subject to secondary legislation. I encourage the Minister to include all the environmental data in it as material for a house purchaser; otherwise we are really asking house buyers to buy an environmental pig in a poke.
The pack is one of the few opportunities to influence the resource efficiency of existing housing stock. Very simple steps may be taken to improve the environmental performance of homes, often at a very low cost. That is particularly true of water efficiency. Some parts of the south and east of England already have less water available per head of population than countries which noble Lords would regard as arid, such as the Sudan. There are big increases in house building proposed for those parts of the country, which will put even more pressure on water resources. We must make the housing stock more water efficient.
The Sustainable Buildings Task Force reported recently to ODPM and showed how water savings of up to 26 per cent can be achieved by installing more water-efficient fittings and appliances. Where water meters are installed, saving water also reduces bills by as much as 10 to 20 per cent. The information in the home information pack on the water efficiency status of a property should encourage householders to see water efficiency as an important issue and to take steps to increase the saleability of property by water efficiency measures, thereby reducing the impact on the environment and on their bills.
The home condition report could be an opportunity for water companies to promote water metering at change of occupancy, without the knee-jerk reaction that they fear at the moment—unwisely, I sometimes think. That would mean that there could be savings for householders and for the water environment as greater water meter penetration happened automatically at change of hands.
There are opportunities for the future. It would he impossible in the near future for there to be a reliable eco-labelling system for existing housing stock, showing its environmental efficiency overall. However, work is going on with the Building Research Establishment's eco-homes standard, which could

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make that a possibility in future. Will the Minister reassure me that the terms of the home information pack are drawn in such a way that there is an opportunity to include eco-labelling, or some sort of environmental kite-marking scheme in future?
Buying a home is often one of the most financially important decisions that people make; it is also one of the most environmentally important decisions, determining some of the biggest environmental impacts that we make as individuals throughout our lives. The home improvement pack can help home buyers to reduce bills, can reduce their environmental risk and can protect the environment.
As the Minister said—and certainly with respect to Part 5—this is a good Bill with a lot of good things in it. I hope that I can encourage the Government to include even more good things, in the Bill itself and in the secondary legislation.
10.8 p.m.
Baroness Hamwee: My Lords, anyone who has gone door to door over the past few weeks, taking our party's wares around like some modern version of the travelling salesman, will have been reminded how varied is our housing stock and how varied is its condition. One cannot tell everything from observing the front of a house, although I have noted over many years that there is a preponderance of Conservative voters among those whose gates are shut. I challenge noble Lords to deny that!
Anyone who has managed to find a voter at home will have found, too, that the supply of housing is often very high on that individual's list of concerns. People who deliver leaflets often find that slips of paper from decorators and pizza companies have got there just before them. I have never actually seen a note from one of those who encourages a tenant to exercise a right to buy and then buys the house from the new owner—but that is one of the abuses which I very much welcome being tackled in the Bill.
One evening last week, I was asked by a carer, who was just leaving, not to disturb Mrs "So and So" because she had just been settled for the night. The house, which was divided into several units, had a disabled parking bay outside and a chairlift on the long flight of steps up to the front door. It looked to me like a very good example of the services working together to keep someone in her own home, making the best use of existing stock. The Disability Rights Commission has given us many ideas as to how the Bill can be tweaked to deal with the interests and, indeed, rights of disabled people, as the noble Lord, Lord Rix, and the noble Baroness, Lady Wilkins, have reminded us.
Now that we have the Government's announcements about the tenancy deposit scheme and the empty homes management arrangements, I am happy that noble Lords from these Benches can be on the welcoming side of the line regarding the Bill. It will be our stamina, not programme motions or knives, that will determine the effectiveness of our scrutiny of it. Because so much of the Bill is welcome in principle, we are bound to spend quite a lot of time looking at the detail. Reading the Bill, it
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struck me that definitions will be very important, as will the balance between primary legislation and what the Secretary of State can determine or change through regulations and orders.
I must say that. I am finding it a little difficult to work out what has already been published in draft, a matter to which my noble friend has referred, but we can come back to the detail later. If the ODPM could produce a flowchart of what is an HMO within the legislation, it would be helpful. If it cannot produce a chart showing what falls within which bits of the Bill, that would prove the point of how difficult it might be for those affected by the Bill and those operating its provisions.
If the Bill is about protecting tenants—and it must be—then the number of storeys is not as relevant to the hazard as is being presented. Whether, at any given time, there are four or five occupants is another matter that we will have to look at. How long should one have to live with a hazard? These are points, among others, that the Local Government Association has raised. I have been surprised that it has not also said that local authorities will need the resources to operate the Bill. I hope that that means that it has had all the right reassurances from Government but it would do no harm for them to be repeated in this House a t some point.
Should scoring against ratings determine a judgment as to whether there is a hazard or rather inform that judgment based on qualitative assessment? Hope triumphed, as it often does, over experience and I was surprised when I found that the details of hazards are to be prescribed.
As to licensing, we have heard from the Council of Mortgage Lenders that it is concerned that investors should not be deterred or the buy-to-let market damaged. I am sure that they do not mean by that that bad landlords should be able to let unfit, in the broadest sense, accommodation. Like the noble Lord, Lord Best, having supported encouraging investment in housing, I am beginning to be concerned that it is pushing up prices and making things particularly difficult for first time buyers. I take the point of the CML about the complications of the proposal and the difficulties envisaged if different schemes operate in different areas.
The noble Baroness, Lady Hanham, mentioned the position of parents of students who buy a property for the student and let rooms to other students. Perhaps, to put fears at rest, the Minister can tell the House the estimated cost of licensing for a good landlord. On the question of students, I have been far from convinced by the Government's arguments about excepting student accommodation. In a world of PPPs and PFIs, I do not think that one can rely on saying that universities are responsible public organisations; I do not deny that, but I do not think that it is relevant to this issue.
On reading the Bill, I found a number of matters not easy to understand. I look forward to exploring how the Bill interrelates with provisions elsewhere about antisocial behaviour. I hope that the Government can

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convince us that this is not another example of a nanny government knowing best, and also convince us that licensing in designated areas will improve conditions and not confirm that area as undesirable, consolidating its reputation in a vicious spiral.
One of my first thoughts about the Bill was that the level of penalties against landlords in breach was pretty low for them to be an adequate deterrent. I then found, though, that the Secretary of State can uprate the level of fines for some offences if he considers that there has been a change in the value of money. I thought that that was a function of standard scales. I hope to explore just how all this will operate and whether the fines will be an adequate deterrent. Mind you, I then went on to read that the Secretary of State can confer jurisdiction by order on the residential property tribunal. So anything seems possible, I suppose.
On both the rent deposit schemes and empty homes management, we will have to see the detail, although my guess is that there will be heavy reliance on regulations, which is where the devils mentioned by the noble Baroness, Lady Dean, may be. However, perhaps the Minister can tell the House tonight what consultation there will be on the detail of both of those matters.
One issue that has been raised but on which the Government have barely moved is the protection of houseboat owners and occupiers, to which both the noble Baroness, Lady Hanham, and my noble friend Lady Miller of Chilthorne Domer have referred. I say "barely" because until recently there was no movement at all. Indeed, I have seen a letter from an official at the ODPM to a houseboat owner that was almost entirely about park homes. And then the official said at the end,
"unfortunately the issues of harassment"—
of houseboat owners—
"seem similar to that of park home owners, but there are important differences between the two tenure types … I am unclear of the extent and nature of the problems with houseboats and whether statutory intervention would be justified is not clear. I hope this information is helpful to you in setting out the bill's provisions in relation to park homes".
I think the answer to the last sentence is, "No, not very".
However, there is now a glimmer of light. In a more recent letter, Keith Hill wrote:
"I am in no doubt that the plight of houseboat owners is no less important than those of mobile homes. Officials in Defra are looking into ways these problems can best be addressed".
So I say to the Minister, can Defra and the ODPM please join up and find it in their hearts—and if necessary by changing the Long Title of the Bill—to "spatchcock", to use the term used by the noble Lord, Lord Graham, the protection that the Bill extends to park home owners to houseboat owners and occupiers so that we do not have to hear tales of uncontrolled service charges levied by the licensors of moorings, charging for 25 years in advance, cutting off water and electricity in order to move a houseboat owner on, and so on?
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As so often, there is far more in the Bill than one can hope to address at this stage, although the array of expertise available to the House and contributing to tonight's debate has meant that we have given it a pretty good airing. But for my final remarks I should declare an interest. I am still a practising solicitor—although I have to say as regards conveyancing matters that "practising" is probably still the right term. But my real interest is in achieving the best for the consumer—for both the buyer and the seller, not for the professional. So I take seriously the support of the Consumers' Association. I take very seriously, too, its campaign to regulate estate agents, who are too often not clear who is their client.
Returning to the issue of home information packs, I take seriously, too, the concerns of the Council of Mortgage Lenders and the Law Society, which the noble Lord, Lord MacGregor, used to such great forensic effect. If the packs are to be useful and if they are to include a home condition report, that report must be acceptable to lenders for mortgage purposes.
At the time of the Homes Bill three years ago, I recall being very surprised to find that only about 30 per cent of purchasers arranged their own surveys. I suspect that part of the reason for that is their cost. By imposing that new requirement on sellers, very many of whom are also buyers, the Government will make things more difficult and more expensive. The Government are talking up a solution that is not a solution to the real problems of the time and complexity of assembling a chain of vendors and purchasers. My observations do not lead me to the same conclusions as those of the noble Lord, Lord Borrie.
I attach less importance to the packs than some but, if we are to have them, let us sort out their validity, their contents—the remarks of the noble Baroness, Lady Young, were very useful on that—their format, and questions of liability insurance and inspection. I am with those who want to make them voluntary. If they are as useful as is claimed, they will catch on very fast. We will have an interesting time at further stages of the Bill's passage.
10.21 p.m.
Lord Hanningfield: My Lords, it has been an interesting and constructive debate on an extremely important issue. There have been many valuable contributions from all parts of the House, and I shall endeavour not to detain the House too long at this stage of the evening.
The need for secure housing is one of the most crucial issues facing today's society. It is a basic right that those holding a position of influence—like us—must acknowledge and respect, and that those disadvantaged and alienated must expect. Housing has a fundamental impact on an individual's life chances. Put simply, without a stable home environment, both education and health opportunities are likely to suffer. Equally, employment prospects will be seriously affected. For people caught in the cycle of despair, access to housing is crucial in attempting to break free from its shackles. I have said that because I wanted to

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echo the remarks of the noble Baroness, Lady Wilkins, and the noble Lord, Lord Rix. We very much support them on the issue of disabilities.
I fear that the Government have missed a valuable opportunity to bring about a real change and improvement to the housing sector. What could have been a progressive and forward-looking Bill is still rather undistinguished. What could have been a clear and insightful Bill is somewhat muddled and confused. Furthermore, the Bill introduces unwelcome elements that will do nothing to ease the current problems in the housing market. Indeed, the Government have taken the opportunity to load even more bureaucracy and burdens on almost everyone involved in housing, from the private individual who merely wants to sell their house, to the good landlord who will have to cope with additional form-filling.
Paradoxically, there are also significant elements missing from the Bill. There is no mention, for example, of rural housing—several noble Lords mentioned that, particularly the noble Baroness, Lady Miller of Chilthorne Domer—and the particular problems of affordability in rural areas. We all know of those difficult issues. There is also nothing on the problems experienced in national parks, and nor is the issue of empty homes adequately dealt with anywhere in the Bill.
I would like to turn in detail to some of the key issues in the Bill. The plan for mandatory home information packs is an unnecessary and ill thought-out measure, merely acting as a burden and additional stealth tax on the individual. It will do nothing to speed up the house-buying process. It has received criticism from all quarters except one or two noble Lords tonight. Although the issue of sellers' packs has received the most attention, it is by no way the only contentious issue in the Bill. I must stress that in case the Minister thought that he would get off lightly in the scrutiny of the rest of the Bill.
If the Government feel that transactions will be quicker and more user-friendly, with reduced gazumping and benefits to the consumer, we would like to hear more about that. However, we feel that the packs will do nothing to speed up property transactions, as purchasers will still more than likely wish to commission their own surveys, hence the proposals will simply duplicate the number of surveys undertaken, adding to the cost of selling one's home.
As my noble friends Lord MacGregor of Pulham Market and Lord Caithness have so adequately covered all the problems with that part of the Bill, and as we shall follow up much of what they said through amendments and scrutiny of the Bill, I need not say much more about that tonight, except that comparisons with Denmark and Australia are irrelevant as their processes and, especially, their volumes are nothing like those in England.
Furthermore, I am especially worried about the problems of the elderly. Much of our correspondence has come from elderly people. The introduction of such complex, expensive legislation with potential
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legal problems has concerned many elderly and other disadvantaged people who could be dissuaded from moving until an absolute crisis point has been reached. Again, the issue was most adequately raised by my noble friend Lord MacGregor, who referred to those who sell a house but do not buy another one—such as many elderly people. Those issues need to be scrutinised and queried as we examine the Bill.
The Bill also seems to attack the principle of the right to buy by introducing restrictions in what the Government deem to be high-demand and rural areas. We have doubts about the Government's real commitment to the scheme, but we are of course willing to consider and support any measures that stop naked abuse of it. We want an assurance that those restrictions are in no way likely to have a negative impact on people's ability to acquire property of their own.
The right to buy has allowed ordinary people who would otherwise not have been able to do so the opportunity to own their own home. Perhaps the Minister would like to tell us what assessment has been made of the restrictions that have been introduced during the past year about the number of people taking part in the right-to-buy scheme. My noble friend Lord Dixon-Smith raised an issue that we shall pursue further in Committee concerning the right-to-buy scheme and private developers. We will consider that further.
The licensing scheme for houses in multiple occupation is also an important part of the Bill. Although we must be mindful of the balance between regulation and the proper protection of vulnerable citizens, we are concerned about the intrusion of officialdom into private residences, together with the resulting red tape and bureaucracy. We support the intent to bring a degree of order where genuine abuses are occurring. However, a balance must be struck that does not act as a disincentive to those who want to provide much-needed accommodation for rent, as several noble Lords have mentioned tonight. Also, would such a licensing scheme cover those in greatest need?
The Bill would also allow local authorities to take and rent out property left empty. We have grave and substantial concerns about that aspect of the Bill, which gives rise to serious issues about the intervention of the state into the affairs of the individual. We will argue that hasty action by councils could cause distress where there is good reason for a property to remain empty temporarily, such as a family bereavement. We want to explore those issues further in Committee.
On the additional provisions on park homes, surely, as my noble friend Lady Hanham and others mentioned, it would seem sensible to include houseboat owners. Houseboat owners own their boats but not the mooring to which the boat is attached. The owners enjoy no rights vis à vis the licensed moorings manager. Surely the Minister will agree that they are in a similar position to owners of park homes and should be included in the Bill.
The Bill will give public money to the private sector for the construction of social housing. Does the Minister agree that such a step is being adopted merely to speed up the delivery of many more homes and an

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unwanted housebuilding programme in some parts of the country, including mine? Furthermore, questions need to be answered about the percentage split of social housing grant between the registered social landlords, local authorities and the private sector. What would happen were a private company using public cash to go bankrupt?
Finally, I touch on the issue of fitness standards and the introduction of new housing health and safety rating systems. Although we can support the intent of such measures, I wonder about the cost of implementation for local authorities. As the noble Baroness, Lady Hamwee, said, there have been no guarantees about where that money might come from. Reports have suggested a figure of around £5 million. Perhaps the Minister could assure us that they have sufficient financial resources and capacity to cope with such new responsibilities. We all know, and it has been said many times, that local authorities are given responsibilities without any cash. This is an opportunity to explore that issue.
This is a wide-ranging Bill covering many extremely important issues. We have major concerns, and we hope to improve on the Bill as it stands. As I said at the outset, it is a very important Bill. The Government's legislation is now under scrutiny and will go into Committee, when I look forward to working with my noble friend Lady Hanham.
10.30 p.m.
Lord Bassam of Brighton: My Lords, this has been an excellent debate. Like my noble friend Lord Rooker, I think that this is one of the most interesting Bills that I have had the pleasure of spending time looking at and preparing for. From the wide-ranging comments made during what was a long debate given how late we started, I can tell that we will have fascinating debates in Committee, on Report and at Third Reading as we go through the detail of the legislation.
It was interesting to note the areas where there was consensus, where there was disagreement and where most of the disagreement was focused. It does not take a brain surgeon to work out that we ran into most criticism on the part dealing with home information packs. From what has been said, I can predict that we will spend a lot of time on that in Committee. That is fair enough. Having listened to the intensity and the detail of the questions on the matter, my noble friend Lord Rooker and I will deal with those as extensively as we can later, in the amending process. However, I will pick up some of the points raised during the debate.
The Bill is extensive; it covers a wide range of subjects relating to housing and the housing market. As such, it is part of a comprehensive action plan to create sustainable communities. We have set out our plans very clearly on several occasions. We have backed that with a marked increase in resources—some £22 billion. I think that I can fairly argue that there has been a positive step-change on the part of government in tackling the many different housing
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problems, north and south, that this country faces. The Bill is a part of that action plan to create sustainable communities and to raise housing standards.
I want to begin with Part 1, which surprisingly attracted least interest and commentary. However. I pay credit to our colleagues on the Liberal Democrat Benches, as the noble Baronesses, Lady Hamwee and Lady Maddock, made important references to Part 1, and I shall come to their points. Unlike some of his Conservative colleagues, the noble Lord, Lord Hanningfield, also raised issues of concern; in particular, that relating to the cost of implementation for local authorities.
The current housing fitness standard dates back over 80 years, and there is agreement that it needs to be replaced. Tackling health and safety issues in housing is an approach that looks at the impact of the property on the individual as well as at the state of the house itself. The Bill paves the way for that approach with a rating system. This will help local authorities to prioritise activity and to target properties where there are health and safety hazards, and where risks to residents are greatest—that is its value. It will put those health and safety considerations at the front of the Government's drive to improve housing.
During the course of extensive scrutiny of the Bill, we have tried to pick up on many of the issues raised on that matter. One of the criticisms was that local authorities would not be able to take action to prevent houses falling into disrepair in future. We argue actually that local authorities will be able to take effective enforcement action where disrepair presents a risk to the health and safety of occupants. Of course, that will be a matter for local authority priorities. The housing health and safety rating system will become a useful evidence-based tool to tackle that range of problems.
From memory, it was the noble Baroness, Lady Hamwee, who raised the issue of consultation on this section of the Bill. An unfinalised draft of version 2 of the technical guidance has been published by the ODPM and was posted on its website towards the end of last year. Research on version 1 of this guidance identified some practical difficulties. The comments made have helped us in the development of version 2. We will continue to consult on this, as we have already consulted on the enforcement guidance earlier this year. We are still considering responses to that, and we will be providing guidance for landlords before implementation.
I remind the House why we are introducing licensing regimes. A vigorous and responsive private sector is an important part of developing sustainable communities, and it offers flexibility of tenure to a wide group of people, and a real and genuine alternative to owner-occupation and social renting. As my noble friend Lord Rooker said, the majority of private landlords in this sector are decent and responsible people. Licensing

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is important because it enables us to target and to improve the private rental sector and better promote its image. Good landlords will benefit from this scheme. They will not be tarred with the same brush as the bad landlords.
The licensing of houses in multiple occupation is an important part of our approach, and it has been welcomed notably by the Liberal Democrat Benches. Licensing will enable us to concentrate on management problems and the poor physical stock condition of many houses in multiple occupation. I do not think that anyone would pretend that this is a sector that can he left. Our aim is to use licensing to tackle poor management, and to identify properties where poor physical conditions will be targeted under the rating system. As the noble Baroness, Lady Hamwee, said, definitions will he important, and questions of definitions will no doubt come up in debates on that part of the Bill.
The noble Baronesses, Lady Hamwee and Lady Maddock, raised questions as to the extension of the licensing scheme to cover student accommodation. That was based on some experience that the noble Baroness, Lady Maddock, had as a ward councillor. I recognise the issue, as it is one that affected residents in my city. Obviously, a range of measures can he used to tackle such problems, and the housing health and safety rating system, which will be used by local authorities, will be able to attack many of them. Licensing will tackle the worst problems, but in our estimation we need to get the balance right between protecting tenants and unnecessary overregulation.
I want to spend a little time on home information packs, because that was a large part of the debate this evening. We had welcomes from the noble Lord, Lord Borrie, and concerned criticism from the noble Earl, Lord Caithness, the noble Lords, Lord MacGregor and Lord Hanningfield, and the noble Baroness, Lady Hanham. I can best summarise their criticisms as saying that it would be better if we did not have this, but if we have to have it, it should be voluntary. The noble Earl, Lord Caithness, said that it was a good idea in principle, but perhaps not in practice. I understand the import of the questions that were asked. We have given a long time-frame for the introduction of this part of the legislation. I look forward to more extensive debates on the questions of detail that were properly raised this evening.
I recognise that there will be concerns about the practical implementation of the home information packs. I want to correct one profoundly wrong impression that was given in some comments this evening; that there is not support for this out there in the market and among consumers. Clearly, consumers welcome this. The trials that have been conducted, particularly in Bristol, showed that there is widespread and extensive support among consumers, and that people thought that it was a valuable and vital change to make.
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As to the market itself, and those who are in the business of property transaction, there is support from the Halifax Building Society and from TEAM Conveyancing, one of the largest groupings of independent estate agency firms. We have also had support for the scheme from the director of Legal Marketing Services, Andrew Knee. He was supportive of the HIP proposals, and he looked forward to the opportunities they represent. He made the point that.
"we feel it is important that the industry receives further clarification regarding the timing and implementation of HIPs".
We all accept that, and we recognise that it is an important point.
Noble Lords questioned the cost and its impact. We do not accept those arguments. Some of the costs identified as being additional that have been criticised are actually costs that exist at the moment and will be defrayed by the implementation of the scheme.
It is important to look at the experience elsewhere. The Danish experience and that in New South Wales give us encouragement. In the end, the home information packs will be widely welcomed by consumers. The cost implications are likely to be neutral, and there will be a benefit to those who receive the packs in terms of the way in which transactions are conducted. The noble Lord, Lord MacGregor, made the point that market forces are important in this regard, and my guess is that they will dictate how costs will be met. I look forward to listening to more of the detailed comments that will come forward on this in Committee, because I recognise the importance of the issue.
The noble Baroness, Lady Young, raised the issue of water efficiency. I can, I think, reassure her and say that flood risk information is one of the items that will be considered for inclusion in the home information pack as part of the standard search agreements.
I shall move on to some of the other measures in the Bill, because they are important. There was extensive discussion of the changes we are intending to introduce to the right-to-buy provisions. We all recognise the important part that right-to-buy has played over the past two decades, and the Government remain totally committed to the principle of right to buy. This scheme has helped many thousands of ordinary families to realise their aspirations to own their own homes, and it has helped to create stable and mixed-tenure communities. The noble Lord, Lord Hanningfield, was concerned about the impact of the first range of changes that we made. I do not have that information here, but I am more than happy to write to him on that issue. We should move forward with the maximum knowledge and information about the impact of changes. The noble Baroness, Lady Maddock, supported the changes that we were making. My noble friend Lord Graham of Edmonton was also supportive, because of his concern about the impact of what he described as scams and abuses that needed to be tackled.
We are trying to mitigate some of the adverse impact of the way in which the current right-to-buy scheme works and its impact on the availability of affordable housing in some areas. It is for that reason that we wish to close off some of the exploitation of the current rules

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to curb profiteering and tackle exploitation. My noble friend Lady Dean of Thornton-le-Fylde said that we should consider going further to curb some of the more adverse effects of right-to-buy. Of course, if it is right for us to make such changes, we will, but they must be targeted and proportionate. That, I think, is the plea that the noble Lord, Lord Hanningfield, made.
Some concern was expressed about the grants by housing corporations to non-registered social landlords. It is an important part of the Bill. Demand for affordable housing is outstripping supply, causing prices to rise, and we want to use grants to ensure that we increase the provision of affordable housing. In the past, the noble Lord, Lord Rooker, has given detailed information on that. No doubt, we will have to look at it more closely in order to assure colleagues and those who are concerned about the impact of those provisions, as mentioned by the noble Lord, Lord Best, and the noble Baroness, Lady Maddock.
We want to ensure that we have value for money. The new approach is designed to ensure that more affordable housing is made available to those who need it while securing maximum value for money for our housing programme. We will work closely with the Housing Corporation to ensure that appropriate checks and balances are included in the appraisal procedure so that the respective merits or bids for grants from registered social landlords and their new private sector competitors can be accurately assessed by the Housing Corporation. That will consider not only the upfront costs of each bid but also the long-term sustainability of the products on offer.
A number of noble Lords referred to park homes. We should congratulate my noble friend Lord Rowlands on his part in keeping that issue at the forefront of people's thinking, as well as the noble Baroness, Lady Maddock, for her long campaigning on that issue. Your Lordships will be aware that the measures in the Bill are designed to afford protection, which is the overall thrust of what we are trying to achieve. Quite rightly, a question was asked about houseboat owners. I can give an assurance that those who occupy houseboats will be covered and will have an equivalent protection. I hope that that satisfies that particular concern, which was raised by a number of noble Lords.
The issue of overcrowding was raised by the noble Baroness, Lady Dean. We have included a provision that would allow Ministers to repeal existing standards and to empower, but not require, Ministers to set out overcrowding standards by secondary legislation. I can give an assurance that the Government will provide sufficient time and flexibility to consult widely and to consider carefully the way in which any changes to the standards should be made. We intend to use the consultation period to invite views on the role of national standards and the extent to which local authorities should have discretion to set their own local standards. We expect that consultation to take place during the summer.
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We gave an assurance that we would bring forward measures on tenancy deposit protection. The precise detail of that package is being worked out at present. Our intention is to legislate for the approval of schemes that will safeguard tenancy deposits. I am grateful for the support that we have had for that measure from the noble Baroness, Lady Maddock, and the noble Lord, Lord Best, who rightly described the exploitation that takes place in some areas and, in particular, his experience based in Brent.
We attracted some criticism from the noble Lord, Lord Hanningfield, for our empty homes strategy. In his opening remarks, he suggested that we were setting about dealing with the problem in a completely wrongheaded way and that our measures would not be very effective. We have to start somewhere. We think that we are right to bring forward a scheme, which will be based, I have little doubt, on the best practice that many local authorities have already established in that sector. The noble Lord probably knows more about that than I do. Certainly, the leaseback schemes that I was familiar with as the leader of a local authority in the early 1990s were very effective. Of course, we will consult very carefully on that.
Our intention is that local authorities will be able to make management orders on empty homes that are similar to provisions already set out in Part 4. We intend to make modifications to the Bill. Of course, we will table amendments in due course. That will provide us with the opportunity to have discussions in Committee. No doubt, we shall want to explore some of those issues in some detail with the Local Government Association and those interested in housing issues in particular.
Before I sit down, I should like to turn to accessible housing and the plea made quite rightly by my noble friend Lady Wilkins and the noble Lord, Lord Rix, for careful measures in that field. We recognise the importance of that range of issues. The plea for equality of access was one which I am sure all members of your Lordships' House would wish to share. I look forward to the debate when amendments will be tabled for us to consider. The noble Baroness, Lady Wilkins, argued perfectly properly for an opportunity for this measure to be given fair consideration.
We do not at present favour the creation of a registration scheme because it will place a disproportionate burden on local authorities. Some local authorities already exercise such a register to deal with the range of subjects which the noble Baroness outlined in her comments.
In introducing this debate, the noble Lord, Lord Rooker, set out how the Government are delivering their sustainable communities' programme and the important part that housing plays in that. We have backed that with considerable additional resources and have put increased resources into all areas of housing, not least rural housing, which was raised by a number of noble Lords this evening, in particular by the noble Baroness, Lady Miller. We have trebled the amount of money that we put into that sector. We intend to continue to invest in rural

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housing and ensure that we provide housing through the social landlord route.
We are now tackling low demand and transforming failing housing markets through nine Pathfinder projects backed with £500 million worth of market renewal funding. We are accelerating our new building programme where it is most needed. We are developing four growth areas in London and the wider south-east, which have the potential to deliver an extra 200,000 homes and over 300,000 jobs over the next 10 to 15 years. These are significant measures. This Bill will complement those measures.
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We have had an extensive debate on what is a very wide-ranging Bill, and I certainly understand and acknowledge the important points raised. I hope that in Committee and during the other stages we can begin to explore those issues in greater depth and detail than we have had the opportunity to do from the Government Benches this evening. I commend the Bill to the House.
On Question, Bill read a second time.
House adjourned at seven minutes before eleven o'clock.