Lords Sitting of 16 November 2004

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of St Albans.

Roadworks
Lord Gavron Lord Gavron asked Her Majesty's Government:
How successful the plan to charge rent to organisations involved in digging holes in the road has been in the pilot areas.
Lord Davies of Oldham: My Lords, the pilot schemes testing the lane rental powers in Camden and Middlesbrough ended in April. Copies of Halcrow's monitoring report which assessed the schemes were placed in the Library of the House in July. Halcrow concluded that the schemes as operated in those two areas had only a limited effect in reducing disruption caused by utility works.
Lord Gavron: My Lords, I thank my noble friend for his reply. On a typical day in autumn, on my four-mile journey through Camden from my home to my office, I pass 15 holes in the road, including one that is 30 yards long and one that is 50 yards long, which are controlled by traffic lights. At 10 o'clock in the morning, I have never seen more than three of the 15 holes—that is, 20 per cent—with anyone working in them.
Does my noble friend realise the substantial cost to the economy of journeys, including bus journeys, being prolonged by 50 per cent, and sometimes 100 per cent? There are dangers to our health and safety that are caused by the delays to ambulances and police cars, which are also affected by those holes in the road. Does the Minister agree that to encourage working—even overtime working—on those holes would be of benefit to our economy as well as to our health and safety?
Lord Davies of Oldham: My Lords, I am grateful to my noble friend for setting out his direct experience of those difficulties. Perhaps I may emphasise that the problems are greater than just the journey from Camden to Westminster. That is why last year we introduced the Traffic Management Act, which includes a whole range of measures to improve the way in which work by utility companies is done on our roads; for instance, they must obtain permits before they can begin work and there will be fines and penalties if they overstay their welcome.
The Government are seized of the fact that this is a very real issue, as my noble friend has indicated. It is an issue across the length and breadth of the land. We are tackling it.
Lord Rotherwick: My Lords, does the noble Lord agree that the pilot scheme was a total disaster?
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Camden High Street was dug up more than 144 times in one year. Glasgow's Great Western Road was dug up 223 times, which would be a new hole for nearly every working day of the year. Bearing in mind what the Halcrow report stated, will the Minister not go further down the road of pilot schemes?
Lord Davies of Oldham: My Lords, I hope that that was what I indicated in my initial Answer. We do not regard the evidence from this pilot scheme as being helpful with regard to lane rental. That is why the powers in the Traffic Management Act pursue other strategies, which will be implemented from 4 January 2005. So I accept what the noble Lord says.
However, it would be a little harsh to say that when a pilot is launched and proves that a particular scheme does not work, it is a failure. The pilot has identified that we need to think again, which is exactly what we are doing.
Lord Bradshaw: My Lords, in deference to the noble Lord, Lord Gavron, does the Minister agree that only by the introduction of a computer system, such as the London street works computer, can this horrendous situation be brought under control? Is the Minister planning that other local authorities will have such a scheme and that authorities at the lower level will co-operate with those at a higher level in bringing the Traffic Management Act properly into focus?
Lord Davies of Oldham: My Lords, the fact that local authorities will be charged with a network management duty anticipates that they will recognise that it can be effected not just in their own authority but in co-operation with others, particularly our major conurbations—for example, London, Glasgow and so on.
The assumption behind the Traffic Management Act and its consequent network management duty is that that level of co-operation will be sought. Of course, in our consultations thus far with local authorities, we have had positive responses.
Baroness Trumpington: My Lords, I agree with much of what was said by the noble Lord, Lord Gavron. Can the Minister explain why one sees people working on these beastly holes on so few occasions? I live on the Battersea side of Chelsea Bridge where for months and months there has been a hole. Somehow or other it has now been filled in. I can assume only that at midnight the fairies came along and did something about it.
Lord Davies of Oldham: My Lords, why so little work appears to be done may have something to do with the time of day at which one seeks to witness such activity. However, the most important question is whether the utilities which need to dig up the roads have as their major priority getting the work done in the shortest possible time by employing the most intensive amount of labour on it. From the pilot study, we have identified that the rental scheme will not work effectively, but our traffic management scheme will impose quite significant fines on utilities, which must first secure a permit for the length

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of their occupation of the road. Should they overrun the period of occupation, substantial fines will be imposed which ought to obviate the somewhat annoying problem of a road being closed and no one doing any work.
Lord Campbell-Savours: My Lords, surely if the rents were high enough, the pilots would have worked?
Lord Davies of Oldham: My Lords, the rents were pitched at quite a high level, but it seems clear that the contractors were prepared to absorb those costs. Of course the level of the rents may not have been high enough, but I should say that the Traffic Management Act envisages penalties substantially higher—four or five times more—than the fees charged in the rental system. We think that the utilities will take very seriously the sanctions imposed by that legislation.
Lord Peyton of Yeovil: My Lords, is the Minister aware that the supplementary question put by his noble friend is one of the most eloquent and cogent that I have heard on this subject? Is he further aware that his noble friend might be as disappointed as I that the Government's reaction to this problem has been notable for its lethargy? The Government's reliance on the fact that they have done some legislating is neither here nor there. When a sensible Act of Parliament has been passed, you want action to follow, but it does not.
Lord Davies of Oldham: My Lords, the eloquence of my noble friend in asking his questions has been matched only by the noble Lord, Lord Peyton, in his persistence on this issue. Of course he is right to point out that thus far the Government have only legislated. Nevertheless, the passage of the Bill took several months. We now have the legislation in place and we have conducted the necessary consultation with local authorities and others to implement it. As I have said, from 4 January next, when the network management duty on local authorities becomes established as a consequence of the Act, we shall see progress follow from that.

Burma: Human Rights
2.46 p.m.
Baroness Cox Baroness Cox asked Her Majesty's Government:
What action they will take in view of the apparent continuation of the violation of human rights of ethnic minority groups in Burma.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, as we have in previous years, the Government are working to ensure that human rights and the treatment of ethnic minority groups in Burma are fully addressed at the autumn United Nations General Assembly. We support the UN Special Rapporteur for Human Rights in Burma, Sergio Pinheiro, and at the ASEM meeting in Hanoi on 8 October, my right honourable friend the Deputy Prime Minister called for the release of Aung San
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Suu Kyi, the lifting of restrictions on the National League for Democracy, the start of a genuine dialogue and an early visit by the United Nations Secretary-General's Special Representative, Razali Ismail.
Baroness Cox: My Lords, I thank the Minister for that robustly encouraging reply. However, is she aware that the SPDC continues to subject ethnic national groups such as the Karen, the Karenni, the Shan, the Chin and the Kachin peoples to forced labour and to use as human minesweepers? It continues to burn their crops and villages, so that now more than 1 million of those people are living in appalling conditions as internally displaced people. Will Her Majesty's Government therefore put even greater pressure on the SPDC to open all of Burma to human rights organisations, as well as allowing access to Burma for the UN Special Rapporteur for Human Rights and the special envoy of the Secretary-General, both of whom have been refused entry in recent months?
Baroness Symons of Vernham Dean: Yes, my Lords; we are applying pressure for both United Nations representatives—the Secretary-General's personal representative and Mr Pinheiro—to have access to Burma. The noble Baroness is quite right to point out, as we discussed, that there is a great deal of suffering in terms of human rights in general. It is fair to say that, in relation to issues around the use of land mines, the ethnic groups suffer disproportionately. We have condemned such abuses and we will continue to do so. We will also continue to co-sponsor United Nations resolutions which point out such abuses.
Lord Archer of Sandwell: My Lords, why does the European Union's common position on Burma not include a prohibition on investment in gas, oil and timber, the regime's principal sources of income? Are the Government trying to persuade our Common Market partners to take sanctions more seriously?
Baroness Symons of Vernham Dean: My Lords, I am sure that my noble and learned friend knows that as a government we do not support trade with Burma. The EU common position chose to target the measures that would minimise the impact on the poor, but still attack those in power in Burma. The EU therefore chose to target the two military-owned companies, the Union of Myanmar Economic Holdings and the Myanmar Economic Corporation, along with their subsidiaries and joint ventures. We have spoken before about the importance of trying to target sanctions where it really hurts rather than in such a way as would further disadvantage those who are already poor.
Baroness Rawlings: My Lords, despite the European position and our position as outlined in the question of the noble and learned Lord, Lord Archer, what pressure are Her Majesty's Government putting on China, Japan and other countries to continue to support the free hospitals and schools for the people of Burma that were established by English companies

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such as Premier Oil? Is the Minister aware that British companies which were forced by the Government to leave Burma because of its human rights record have now been taken over by the Chinese, Japanese and Malaysians and are now trading very successfully despite all our sanctions?
Baroness Symons of Vernham Dean: My Lords, I am aware of that. The heart of the problem lies in the fact that there is not an internationally recognised position on Burma. We are able to get resolutions through the United Nations General Assembly, but we cannot get mandatory resolutions through the Security Council. We cannot do so because we cannot get consensus. Not all countries take the view that is rightly and properly taken on all sides of your Lordships' House on the question of human rights in Burma. I am very pleased to hear the noble Baroness speak up in the way that she has.
Lord Avebury: My Lords, has the noble Baroness seen the letter which was addressed by the general secretary of the International Confederation of' Free Trade Unions to the director general of the ILO last week citing a number of instances of forced labour in six different provinces and districts, involving in many cases women and children? Does the noble Baroness intend that we should raise this matter at the ILO meeting currently under way in Geneva? Does she have any information from the ILO liaison officer in Myanmar which corroborates what the ICFTU has said?
Baroness Symons of Vernham Dean: My Lords, as I am sure the noble Lord will recall, forced labour is one of the recurring human rights abuses that Her Majesty's Government have raised not only directly with Burma but in such forums as are available to us—such as the ILO and, certainly, the ASEM meeting at which my right honourable friend the Deputy Prime Minister led for the United Kingdom. The noble Lord is right to point out that we have ways of trying to deal with some of these issues through the ILO, but, as I said to the noble Baroness, Lady Rawlings, we need to create wider international consensus. We have gained some strength through the ASEM meetings, with Burma's representatives sitting there and having to listen to what we are telling them directly about such abuses.
The Lord Bishop of St Albans: My Lords, in the light of the appalling circumstances in Burma, does the Minister think that there is anything to be gained by considering the appointment of an EU special envoy on Burma?
Baroness Symons of Vernham Dean: My Lords, I am sure that there are those who espouse an EU special envoy on Burma. However, I believe that strength lies in supporting the envoys that we have already through the United Nations—the UN Special Rapporteur for Human Rights in Burma, Sergio Pinheiro, and the United Nations Secretary-General's special representative, Razali Ismail. We
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need to get those representatives, who speak for the international community as a whole, into Burma in order to receive reports from them. I would not wish to do anything that deflected attention from the efforts of the representatives we already have.

Northern Ireland Assembly: Ministerial Accountability
2.53 p.m.
Lord Glentoran Lord Glentoran asked Her Majesty's Government:
What is their policy on the future of' ministerial accountability in the Northern Ireland Assembly.
The Lord President of the Council (Baroness Amos): My Lords, accountability has been prominent among the issues discussed between the Northern Ireland political parties at the conference at Leeds Castle in September and subsequently. We are continuing to seek, consistent with the fundamentals of the Belfast agreement, arrangements that will command a substantial measure of support among the Northern Ireland parties. We need very soon to be able to reach agreement on accountability and other remaining issues, permitting the earliest possible restoration of devolved government in Northern Ireland in the context of a definitive end to paramilitarism.
Lord Glentoran: My Lords, I thank the Lord President for that Answer. I am seriously encouraged. In the previous Assembly, the situation was such that 11 ministries appeared to be 11 fiefdoms. The worst excesses were perpetrated by Martin McGuinness who, against the wishes of the Assembly Education Committee and 66 per cent of the respondents to a housing survey, attempted to remove academic selection. Bairbre de Bru"n, against the wishes of the Assembly Health Committee, removed the new gynaecological developments from the City Hospital into her own constituency. Do Her Majesty's Government accept in principle—which, from the noble Baroness's Answer, I believe that they do—that greater accountability and greater collective responsibility must be central elements of any deal that leads to the restoration of the devolved institutions?
Baroness Amos: My Lords, of course I recognise the concerns set out by the noble Lord, Lord Glentoran, about decisions that were made in the Northern Ireland Assembly. I repeat what I said in my Answer. There is general agreement among the parties that underpinning collectivity and accountability is important to the efficient working of devolved government in Northern Ireland. But there are differing views on how that should be achieved. There are already substantial mechanisms to ensure that Ministers take account of the views of others. For example, there are stringent safeguards if legislative or financial authority is needed from the Assembly, including the possibility of cross-community voting.
Lord Laird: My Lords, to date the cross-border implementation bodies have cost £67 million to put together and to administer; not to do the work but merely to put together and administer. Will they be much more accountable to the Assembly than they were after the first period? If there is no Assembly and no executive, can the Minister assure the House that there will be none of these money-wasting cross-border implementation bodies?
Baroness Amos: My Lords, I know that the noble Lord, Lord Laird, has expressed concerns about the cost of the north/south bodies. Perhaps I may remind the noble Lord that the £67 million figure represents costs over a four-year period, by both governments, in respect of the six implementation bodies, Tourism Ireland and the North/South Ministerial Council. At all times the bodies have been, and remain, fully accountable to Ministers in both Governments.
Lord Smith of Clifton: My Lords, does the Minister agree that the gerrymandering of facilities as well as votes is a long-established tradition in Ireland, north and south, and not unknown in Great Britain? Be that as it may, does she further agree that it is most important to get the devolved institutions up and working so that in time—and it will take time—greater collective responsibility and individual ministerial responsibility can take root?
Baroness Amos: My Lords, I agree that we must get the institutions up and running. The noble Lord may recall that the executive has to agree an annual programme for government and budget and that each Minister must act within it. The noble Lord may also recall that the previous executive adopted a code setting out which ministerial decisions had to be brought before it for decision. We want to build on these arrangements without undermining any of the fundamental principles of the agreement.
Lord Renton: My Lords, in order to maintain the sovereignty of the United Kingdom Parliament over each part of the United Kingdom, can the noble Baroness confirm that the Minister responsible for Northern Ireland affairs will be fully answerable for what goes on in the Northern Ireland Assembly?
Baroness Amos: My Lords, the noble Lord, Lord Renton, will know that in the Acts setting up the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly it is clear which issues remain within the purview of the UK Government—and therefore the national Parliament—and which rest within the purview of the Northern Ireland Assembly, the Scottish Parliament or the Welsh Assembly.
Lord Dubs: My Lords, does my noble friend agree that, whatever the detailed and specific criticisms, overall the Assembly in Belfast was doing pretty well when it was functioning, and that we ought to build on its success in ensuring that we get the institutions up and running as quickly as possible?
Baroness Amos: My Lords, my noble friend Lord Dubs is quite right. Overall, if we look back at the way in which the Assembly worked, Ministers had to seek agreement and consensus from their colleagues to get their programmes through. My noble friend is also quite right that we need to build on the arrangements which already exist without, as I said in reply to the noble Lord, Lord Smith of Clifton, undermining any of the fundamental principles of the agreement.

Commissioner for Public Appointments
3 p.m.
Baroness Howe of Idlicote Baroness Howe of Idlicote asked Her Majesty's Government:
Whether they intend to retain the Office of the Commissioner for Public Appointments in its present form and with its current responsibilities, once the present commissioner's term of office expires.
Lord Bassam of Brighton: My Lords, first I should like to take this opportunity to place on record the Government's appreciation of the fine work undertaken by Dame Rennie Fritchie in this important area.
As part of its 10th inquiry, the Committee on Standards in Public Life is looking at public appointments issues, including the work and role of the commissioner. The committee expects to report at the turn of the year. In these circumstances, we have asked Dame Rennie if she would be willing, exceptionally, to extend her appointment to the end of July to allow us time to consider the committee's findings before making any long-term decisions about future arrangements.
Baroness Howe of Idlicote: My Lords, I thank the Minister for his reply. Does he agree that in the years since the commissioner began her duties, there has been an impressive increase in public confidence in the independence of the appointments process? Can the Minister assure your Lordships that any future arrangements for public appointments will maintain at least that same guaranteed independence from ministerial interference as the present commissioner has achieved? Will he also confirm that pressure to encourage diversity in appointments will be maintained, particularly for chief executive and chairmanship roles?
Lord Bassam of Brighton: My Lords, I certainly agree that there has been a great improvement in public confidence in public appointments which are covered by Dame Rennie's post. Again, I pay tribute to Dame Rennie for the importance of that work and her part in it.
I also agree with the noble Baroness's latter comments and observations. It is very important that we keep the pressure up in terms of encouraging diversity. Progress to date shows that there have certainly been improvements

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since 1997 which build on the improvements that had accrued before that time. We now have a process of appointments which ensures that we are moving towards a more equal representation of men and women in public appointments, a pro rata representation of ethnic minorities and an increased participation of those with disabilities.
Lord Jenkin of Roding: My Lords, is not the real problem the very limited remit which Dame Rennie Fritchie has been given? I agree with the other comments the Minister made. However, I remind him—and I gave his office notice of this question this morning—of the controversy that surrounded the advertising for the chair of the Nuclear Decommissioning Authority. This appeared to be in breach of the Treasury rules that no new appointment of this kind should be made before the relevant Bill has had its Second Reading in another place. So why did Dame Rennie Fritchie say to me that although the wording of the advertisement made it "completely clear" that the position was for a chairman post, the issue that I raised of the propriety of the advertisement was,
"a matter which falls outside my remit"?
What is the point of having a public appointments commissioner if an issue of propriety such as that cannot be within her remit?
Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord for providing advance notice of his question. I am not in a position, unfortunately, to provide him with a full answer, although I am happy to ensure that we do so.
On the noble Lord's point about the commissioner's remit, the Government believe that the current powers of the commissioner are effective. The commissioner's role is to monitor, regulate and report on ministerial appointments, and I think that the current commissioner does an excellent job. It is worth reminding ourselves that her code of practice is, after all, mandatory for all departments, and she has a well established complaints procedure. Those provide a robust test. The noble Baroness, Lady Howe, paid great tribute to the way in which Dame Rennie has conducted herself, ensuring that the Government are kept on their toes and accountability is in place.
Lord Sheldon: My Lords, following last Friday's debate on the ageing population, will Dame Rennie Fritchie, or her successor, be taking account of the point that appointments in most cases will not be age-related but will be based on a person's suitability for the position that he or she seeks to occupy?
Lord Bassam of Brighton: My Lords, public appointments have to be made on merit. No doubt Dame Rennie will take note of the comments made in that very important debate. I shall play my part in drawing them to her attention.
Lord McNally: My Lords, does the Minister recall the outrage and indignation on the Labour Benches when it was reported that Mrs Thatcher's reaction to a
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particular public appointment was, "Is he one of us?"? Has he read Dame Rennie's comment in her annual report that says:
"I was concerned to discover in the course of the last year that four Departments were routinely shown shortlists privately to Ministers during the appointments process … I was particularly concerned that the unrecorded involvement of a Minister at such a late stage in the appointments process could be interpreted as political interference or personal preference"?
Is not Dame Rennie right? Can the Minister assure us that that practice has ceased? Will he also assure us that when the Government do get round to appointing somebody to succeed Dame Rennie, it will be somebody with her independence of mind, which is what this post really needs?
Lord Bassam of Brighton: My Lords, I certainly agree with the noble Lord, Lord McNally, on the importance of independence of mind. Dame Rennie's work tells us just how important that is; the way in which she has conducted herself says a lot for that post and the important role that it plays.
I am aware of the debate in Whitehall about the level and role of ministerial involvement in appointments. After all, Ministers are held to account for those appointments. I am also aware of the comments to which the noble Lord has drawn my attention; we have had this debate before. For that reason, the Committee on Standards in Public Life is looking at that issue. There are issues of concern, and a debate is taking place about the level of involvement and the appropriateness of Ministers having their attention drawn to particular shortlists at a particular time in the process. We recognise the importance of that issue. There is a debate to be had, and we await with interest the committee's findings.
Lord Cope of Berkeley: My Lords, I am interested to hear about this debate in Whitehall. Will the Freedom of Information Act allow the rest of us to join in the debate about the very serious accusations made by Dame Rennie, to which the noble Lord, Lord McNally, has drawn attention? Can we also expect that the welcome extension of her term of office will mean that the Government will be in a position to say what they will do about these accusations before she retires so that she can deal with them?
Lord Bassam of Brighton: My Lords, I rather hoped that the noble Lord would congratulate the Government on the way in which they have conducted themselves with regard to public appointments. After all, it is our Government who have ensured that we have the transparency that we currently enjoy, which enables the noble Lord to make the point he makes across the Dispatch Box.
Lord Lester of Herne Hill: My Lords, can the Minister explain why, having politely been given notice of a

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question by the noble Lord, Lord Jenkin, he is not in a position to answer the very serious matter raised in the question?
Lord Bassam of Brighton: My Lords, I accept that the noble Lord has made a serious point. It is for that reason that I want to be in a position to provide a thoroughly well researched response.

Personal Bankruptcies
3.10 p.m.
The Earl of Northesk The Earl of Northesk asked Her Majesty's Government:
What are the implications for the economy of the recent rise in the number of personal bankruptcies.
Lord Triesman: My Lords, the trend in personal bankruptcies has been steadily upward over the past 20 years and reflects the extent to which the use of personal credit has grown. However, the great majority of individuals are able to service their debts and the economic stability that we now enjoy—with low and stable inflation, low interest rates and low unemployment—means that the economy is far better able to withstand the effect of individuals' financial failure.
The Earl of Northesk: My Lords, I am grateful to the Minister for that reply. Notwithstanding his Answer, is it not the case that insolvencies in the self-employed sector have risen by 130 per cent year on year? Is that not a rather worrying development and trend in the economy?
Lord Triesman: My Lords, the biggest rises, which have been shown by research to have occurred right across the economy and not only in the case of the self-employed, are generally due to changes in the availability of credit in the economy and individuals' beliefs that they can sustain and manage that level of indebtedness. Of course, a smallish proportion of people find that they cannot, but that is the fundamental of it and there is no evidence at all in any of the research that there is sustained harm to the economy.
Lord Newby: My Lords, given the Minister's reply about the importance of credit in causing higher levels of bankruptcy and insolvency, does he accept that this arises in no small measure because of the reckless marketing of credit by financial institutions? Will he assure the House that the Government are proceeding with the review of consumer credit at a rather quicker pace than the snail's pace programme that was originally set out?
Lord Triesman: My Lords, I do not accept that there has been a snail's pace. A great deal is being done in terms of consumer credit on a formal level. We have
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also seen newspaper reports of Mr Matt Barrett of Barclays Bank giving advice as a senior banker on what people should be doing in order to secure their position in credit. The reality is that the rate of growth of assets and value held by individuals is at least 50 per cent greater than the rate of indebtedness. I make that point simply to illustrate that many people feel very much more confident about their prospects of handling debt. Of course, we would not encourage reckless indebtedness—that would never happen—but it is easy to understand, in a buoyant economy, why the processes are as they are.
Baroness Noakes: My Lords, may I clarify the Government's position on this matter? We often get a rather complacent view on these rising levels of debts. We have record levels of personal debt—more than £1 trillion. We now have record levels of personal bankruptcies. Do the Government believe that those are healthy signs in the economy?
Lord Triesman: No, my Lords; I do not think that anyone could conceivably believe that what was described as record levels of bankruptcy could be regarded as a healthy sign. No one wants to see individuals or businesses fail; that is axiomatic. However, in all of the advanced economies, research demonstrates that the relative level of rise of insolvencies of one kind or another—running in the United States at 10 times per capita the rate of the United Kingdom—is closely associated with the asset values that people have and the degree of security that they feel in the economy. It is actually a tribute to the economy.
On the last occasion when there was a very serious rise—I refer noble Lords to the period from 1989 to 1993—due to the wholly inappropriate management of the economy at that time, the level of insolvencies rose by more than 900 per cent and it was nothing to do with personal wealth.
Lord Barnett: My Lords, does my noble friend accept that, if the Chancellor is successful in persuading more young people to enter business at an early age, there is likely to be a further increase in bankruptcies, which would not necessarily be bad for the economy?
Lord Triesman: My Lords, I should think that it would be the wish of everyone, on all sides of the House, to live in a country where there is a spirit of entrepreneurship and where people are encouraged, particularly in the area of the new technologies. In an obvious sense, they involve a degree of risk because they are areas that people are breaking into and do not necessarily know as well. We want to see that entrepreneurship. We want to see at least some sensible taking of risk, because the buoyancy of our economy is dependent on those skills and that drive among our citizens.
Lord Burnham: My Lords, is it not true that the number of consumer debt issues that have come before

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the citizens advice bureaux has risen by 74 per cent over the past seven years? The Minister seems to be a bit sanguine about this country compared with the United States of America, but is that statistic not a very worrying one indeed?
Lord Triesman: My Lords, I am not sanguine about the level of indebtedness in the United States. Were we to match its levels and seek to emulate its levels of indebtedness and insolvency, we would have to get half a million people a year into bankruptcy and that would hardly be a prospect that any of us would advocate.
Lord Christopher: My Lords, does my noble friend agree that this is an important issue but almost the last issue about which one should generalise, which was the basis of virtually every observation from the other side? Unless one analyses the indebtedness and causes of bankruptcy to see how far they arise because people have gone into enterprises which are undercapitalised—a window cleaner requires only a bucket and sponge—it is ludicrous to make observations.
Lord Triesman: My Lords, I look forward to increased technology even in window cleaning, in which there will probably be developments. The most recent research in the area, by Professor Lawless at the University of Nevada, which involved several countries, suggests that it is a combination of life events—having a family or sadly getting divorced—plus wider economic issues, especially the movement of interest rates, that change how individuals deal with their debt portfolio. Individuals deal with it and some deal with it better than others. However, the border at which difficulties occur shifts with those life events and economic trajectories. We should always look at the research that shows how individuals deal with problems and not generalise.
Lord Mackie of Benshie: My Lords, is it not the case that most of the trouble is caused by the people who lend the money and then charge such enormous interest rates that they are able to stand the losses? There was a case in the papers recently when a judge wrote off a debt that had grown into hundreds of thousands of pounds.
Lord Triesman: My Lords, the rates of interest that are sometimes charged not only on credit cards but in relation to personal loans are bound to cause public apprehension and I wholly accept the noble Lord's point. However, generally speaking, consumers in this country have managed the levels of their indebtedness very well. In an overwhelming majority of cases, where people do get into difficulties—and difficulties are always to be lamented—much more advice is available. I drew attention earlier in my responses to the advice given by a senior official in Barclays Bank that one should always look out for wholly unreasonable rates of interest being charged and ensure that they are avoided.

Business
Lord Grocott: My Lords, with permission, I shall say a few words about business tomorrow and on Thursday. The House will be well aware that parliamentary life is not entirely predictable, but it is particularly unpredictable in the last two days before prorogation. Therefore, although my colleagues and I will obviously make sure as far as we can that everyone knows precisely the order of business, I ask noble Lords to keep an eye on the annunciator from time to time and switch it from whatever channel they are watching at the time. That would be appreciated.
On the precise timing on the Pensions Bill and the Hunting Bill, as the House will know, the Commons is currently considering those Bills. We shall have the Commons amendments in print tomorrow morning. So far as this House is concerned, the deadline for tabling Motions and amendments in respect of the Pensions Bill and the Hunting Bill will be noon tomorrow.

Health White Paper
3.19 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, with permission I wish to repeat a Statement made in the other place by my right honourable friend the Secretary of State for Health. The Statement is as follows:
"I wish to make a Statement concerning the publication of a White Paper outlining the Government's policy on health improvement.
"Over the past eight months of the consultation we have seen speculation after speculation of the content of this White Paper and alleged leak after alleged leak. Some of it has, unfortunately, been relatively accurate. Most of it has been highly inaccurate and some of it has been sheer fantasy. Today I want to tell the House the reality.
"Last century saw undreamt of progress in the health of the people of England, gathering pace after 1948 as the establishment of the NHS enabled free universal provision of immunisation, screening and treatment to make inroads into ill health and premature death.
"It should be a matter of pride that a child born today is likely to live nine and a half years longer than one born on the eve of the formation of the NHS in 1948.
"However, the role of government in the prevention of ill health during this time was often characterised by a top-down approach.
"This White Paper is different. It is about enabling people to exercise their choice; it is about extending opportunity and offering security to those who want to choose a healthier life; and it is about people improving themselves.

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"For in this White Paper it is the public, not Whitehall, who have for the first time set the agenda and identified what "for their own good" means. Over the past eight months we have consulted, discussed, listened, canvassed and calculated public opinion on a wider scale than ever before to get in touch with people's real concerns and to ask what they wanted and how they could be helped to realise their aims.
"They know that in recent years new opportunities have been opening up rapidly. But with them come growing inequalities, and, on the other hand, paradoxically, affluence and comfort bring their own health challenges—growing obesity, lack of exercise, more casual sexual relations.
"Faced with these many people want more opportunities to live healthier lifestyles. They know that they will become healthier only through their own efforts. However, they look to government to assist them with information about healthy and unhealthy choices—not to make the decisions for them, but to provide them with clear information to allow them to make the decisions.
"Now that the NHS is improving waiting times, reducing waiting lists and improving emergency care departments, that frees up the time, space and resources needed for effective action on prevention to help people make those changes.
"That is why this White Paper commits us to ensuring that health services such as sexual health services, NHS Stop Smoking Services and obesity services all now benefit fully from the same drive for modernisation and improvement that is spreading across the rest of the NHS.
"Our starting point is informed choice. That means an approach which respects the freedom of individual choice in a diverse, open and more questioning society. It also means addressing inequalities—the differences that locality and social conditions can make—so that everyone can have real choices. It is a sad fact that even today a male child born in Manchester lives at least seven years less than a child born in Kensington and Chelsea. Those inequalities cannot he tolerated any longer.
"To improve the nation's health we need everybody to have the chance to make more healthy choices—not just the better off.
"We will not be successful in tackling these inequalities unless we work in different ways. We need to reach people where they live their lives and provide services that are accessible to them but also derive from their own local communities.
"That is why the Deputy Prime Minister and I were determined that this White Paper would set out action that maximises the positive impact that local authorities and others can have to help people to make those healthier choices.
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"For example, beginning this coming spring, the Communities for Health programme will bring all parts of the community together—statutory and voluntary organisations, businesses and individuals—in campaigns to improve local health.
"Working with local government we will be targeting funding to give greater priority to areas of high health need. New investment in primary care facilities for some 50 per cent of the population by 2008 will focus on the most deprived areas of our communities.
"In our widespread consultation people made clear that they often want to change but that they lack accessible help and advice. So, to help the public to make healthy choices we will provide them with clear information on those choices. Building on the success of NHS Direct, which received 7 million advice and assistance calls last year, we will introduce a completely new service—Health Direct—a telephone, online and digital TV information service to make advice on health, nutrition and diet available to everyone in this country, not just the better off.
"We will give special help to specific groups. Thirty years ago almost half the adult population of this country—46 per cent—smoked. Today it is 26 per cent. We will take another 2 million people off that figure over the next five years. Ultimately, people need to make this decision to improve their own health themselves, and to give up smoking everywhere, not only at work and in the pub, but at home as well. The Government cannot make this decision; it is a personal decision. However, we can help, as we helped 125,000 quitters last year through the NHS Stop Smoking Services. That is why we will be radically extending our campaign against smoking and why we will extend our smoking cessation services.
"We will introduce action to put hard-hitting picture warnings on cigarette packets; further restrictions on tobacco advertising; tough action on shops that sell cigarettes to children; improvements in the way the NHS helps people to stop smoking and to stay stopped; further reductions in tobacco smuggling; and, as I will outline later, we will see smoke-free environments becoming the norm both at work and at leisure.
"Others have told us that they would like help too. Many people today, such as busy mums, have told us that they want their families to eat more healthily, but that they need more, easily accessible and simple information to guide them.
"That is why, together with the Food Standards Agency, retailers and the food industry, we will develop a simple code for processed food to indicate fat, sugar and salt content for shoppers to help people choose what they need for a healthy and balanced diet.
"Our general approach is, of course, to recognise the right of adults to make their own informed choices. However, people, particularly parents, feel differently about children. Parents know that their children's health is primarily their responsibility.

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but they told us during our discussions that government, businesses and anyone who has an influence, also share that particular responsibility to protect children from premature exposure to a world of adult choices. Parents want the security of knowing that will be done.
"That is why, along with the Secretary of State at the Department for Culture, Media and Sport, we will be asking Ofcom to consult on advertising to children on television and why we will work with the industry to limit other forms of advertising to children outside television. That is also why, led by the Education Secretary, we will develop our approach to health in schools which looks at the effect of everything the school does—lessons, sport, food, school nurses, personal, social and health education—to ensure that these are brought together in a co-ordinated "whole school" approach to health to start children on the right path to a healthy life.
"That is why we will increase activity for children in schools. The Government are investing an unprecedented amount—over £1 billion to 2006—in PE and school sport; developing more sports specialist academies; strengthening the protection for school playing fields; and helping more children to walk or cycle safely to school. This is an age when obesity has trebled in a generation, and where, if the number of obese children continues to rise, we face the prospect of children having a shorter life expectancy than their parents.
"To be effective, support has to be tailored personally to the realities of individual lives, with services and support personalised sensitively and flexibly and provided conveniently.
"That is why—by new technology and investment—we intend to offer everyone in England the opportunity to develop their personal health guide and, starting with the areas of greatest disadvantage, we will provide people with NHS health trainers to support people's motivation in making the difficult decisions to choose healthy lifestyles. That has been limited to the well off, but it ought to be available to everyone in England.
"Healthy living starts at a young age. That is why we have decided to provide funding so that, by 2010, every primary care trust will be resourced to have at least one full-time school nurse working with each cluster of primary schools and secondary schools in their area.
"One of our greatest challenges is in the field of sexual health. It is a staggering fact that no fewer than one in 10 sexually active young women is today infected with chlamydia. We have to bring this problem out of the shadows and into the forefront of our attentions. We therefore intend to: launch a new national campaign targeted particularly at those at risk of catching sexually transmitted infections or of unplanned pregnancies; accelerate the implementation of our chlamydia screening programme to cover the whole of England by 2007;
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and offer the same fast access to high-quality genito-urinary medicine services that patients expect of other NHS treatment. In other words, by 2008 everyone referred to a genito-urinary medicine clinic should be able to have an appointment not within weeks, but within 48 hours. We will make that a priority.
"We recognise the damage that excessive alcohol can have on individuals, families and society at large. That is why we will work with the Portman Group to cut down on binge drinking, and with industry to develop a voluntary social responsibility scheme for alcohol producers and retailers, to protect young people. We will support Ofcom to strengthen the rules on broadcast advertising of alcohol, particularly to protect the under-18s; and we will invest to improve services to help the NHS to tackle alcohol problems at an early stage.
"There is another area where people want a greater degree of security and protection in maintaining a healthy lifestyle for themselves and their families. I have stressed that our approach has been guided by informed choice on the part of individuals, with government playing our role in providing information, encouragement and support in order to assist individuals in making the healthy choices. We do that because we believe that, in a free society, men and women ultimately have the right within the law to choose their own lifestyle, even when it may damage their own health.
"But people do not have the right to damage the health of others, or to impose an intolerable degree of inconvenience or nuisance on others. We therefore intend to shift the balance significantly in favour of smoke-free environments. From 2006, we propose to introduce changes to ensure that all government departments will be smoke free; all enclosed public places and workplaces—other than licensed premises, which are dealt with separately—will be smoke free; all restaurants will be smoke free; and all pubs and bars preparing and serving food will be smoke free. Other pubs and bars—about 20 per cent of those in England—and membership clubs will be free to choose whether to allow smoking or to be smoke free, but smoking in the bar area will be prohibited everywhere.
"We will therefore ensure that people will be able to go to their workplace or choose to go out for a meal or a drink without the damage, inconvenience or pollution from second-hand smoke. However, we will try to do that in a way which, while protecting that right of the majority, still allows a degree of choice—albeit a much more limited one than before—to the minority. This is a sensible solution, which balances protection for the majority with personal freedom for the minority in England.
"This White Paper promotes the opportunity for healthy living in a mariner and on a scale unseen before. It envisages investing at least £1 billion over the next three years in public health. It treats our fellow citizens as adults capable of making their own decisions, while providing advice, information,

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encouragement, resources and personal support for those who want to make the healthy choices. It provides protection from the effects of those who do not wish to make healthy choices.
"It begins the transition of our healthcare away from just a national treatment system for illness, towards a true national health service. It offers the opportunity for healthy living to everyone who wants to take it and, for those who do, the security of knowing that a degree of protection will be afforded to them and their families. In doing so, it begins to fulfil at last the founding vision of a true national health service. I commend it to the House".
My Lords, that concludes the Statement.
3.34 p.m.
Earl Howe: My Lords, I thank the Minister for repeating the Statement. I welcome it as a long-awaited recognition by the Government that public health can no longer remain the poor relation, as I fear that it has tended to be during the past seven years, in the priorities that Ministers have set themselves in health policy-making. As the White Paper spells out, we are as a nation facing very considerable challenges under every main heading to which the Minister referred. We badly need a concerted programme of action to reverse some very damaging trends.
I remember very well listening to the noble Baroness, Lady Hayman, when she was a health Minister, announce the publication of the Government's previous public health White Paper, Saving Lives: Our Healthier Nation, five years ago. I fear that the shortcomings of that document are now apparent for all to see. Despite very clear indications even in 1999 of the growing threat from obesity, diabetes, alcohol misuse and sexually transmitted diseases, it contained no targets and no milestones for reducing any of them. Instead, we heard a lot about local partnerships—as we do again today—and suggestions for "possible" action plans in local areas. The tone then was neither ambitious nor urgent, and we are paying the price of that now both in human life and in statistics that are getting progressively worse across the board. The only ambitious and urgent initiative in 1999 was that of health action zones; goodness knows what has happened to them.
The tone has changed, and I think that we can all be genuinely glad of that. In other areas of health policy, I may sometimes criticise the Government for being too quick and too ready to set targets for the NHS, but public health, it seems to me, is a completely different case. It is an area for which the Government themselves shoulder direct responsibility and need to be held accountable in ways that are measurable and meaningful. The unfortunate thing is that, as a result of the recent reorganisation of the NHS, the means of delivering the public health agenda have been fragmented across PCTs, and it is that much more difficult to retain an adequate focus.
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There is not time to do more than scratch the surface of the White Paper's proposals, but I shall mention some of its welcome features. I am glad to see the emphasis on greater investment in deprived areas; co-ordinated action in schools; a national sexual health campaign; and better information about healthy lifestyles. Developed properly, those initiatives could produce worthwhile results.
I question some other features, however. We all agree that action to protect non-smokers from inhaling tobacco smoke is necessary. However, I cannot understand why the Government did not elect for a course of action that could have been taken more speedily. Our work in the area suggests that it would have been easier and quicker for the Government to adopt the voluntary approach rather than the statutory one, because progress to reduce passive smoking could have been made without the inevitable delay associated with bringing in legislation. As it is, the Government's proposals look somewhat bitty and complicated, as the BMA has observed. How will it be possible to enforce a smoking ban in, for example, the bar area, whatever that means? If the emphasis in the White Paper is on choice—I do not argue with that as a general approach—why have the Government not looked at the problem of passive smoking from the point of view of those unable to make choices? By that, I mean children. I cannot quite see the logic of making distinctions between licensed premises according to whether or not they serve food.
On tobacco consumption more generally, the Minister mentioned that action was to be taken to reduce tobacco smuggling. What is that to be?
On sexual health, why is the chlamydia screening programme not to be rolled out nationally for another three years? What is the reason for that delay in the face of the truly appalling statistics on chlamydia that have been published recently?
Regarding healthy eating, I am sceptical about the Government's proposals in terms of the advertising of fast foods. On what basis do the Government believe that such advertising restrictions will work, bearing in mind that Ofcom has described such measures as ineffective and disproportionate?
I am also sceptical about the suggested system of colour coding on processed foods. How is it possible to devise a code for individual foods that is not inherently misleading and simplistic? It is not individual foods that are good or bad, it is a person's overall diet and his or her lifestyle. Can the Minister assure me that nothing will be done in this area without the advice and approval of the Food Standards Agency, the Food and Drink Federation and the medical profession, so that we achieve a system which people can understand and rely on?
Lastly, I should mention alcohol misuse. The section in the White Paper on alcohol is the weakest of any. A voluntary social responsibility scheme does not sound all that inspiring. What plans are there to tackle hinge drinking? What plans do the Government have for improved labelling on alcoholic drinks, particularly with regard to pregnant women? What public information

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initiatives are being considered? The Minister will know that there has been criticism of the recent Alcohol Harm Reduction Strategy for England, in that it proposes little real action or delivery.
We all have an interest in seeing such initiatives succeed. I wish the Government well in their objectives, even if along the way I may be occasionally critical of the precise means by which they are seeking to reach them.
3.41 p.m.
Lord Clement-Jones: My Lords, I, too, thank the Minister for repeating the Statement made in the other place. The White Paper represents a considerable body of work, although it is rather belated, as the noble Earl pointed out. But I welcome it. We on these Benches welcome it as a clear statement of Government policy and, personally, it was worth returning to these Benches yet again to comment on it.
It is clear that public health is now, finally, a major priority for the Government. It took time—in fact, it has taken seven years. But, spurred on by Derek Wanless, who highlighted the £30 billion cost that would be incurred if nothing was done until 2020, the Government have started to grasp the nettle. But have they made a real estimate of the reduction of those costs that would result from the action set out in the White Paper? That would be telling.
There is much to welcome in the White Paper—and I shall not comment at length about those areas of common ground—but certainly the additional expenditure on a sexual health strategy, which has been underfunded for some considerable time, is much to be welcomed. Regrettably, despite the Prime Minister's words in October that the biggest advances have always been due to the boldest reforms, this public health White Paper does not live up to that.
The manner in which the White Paper proposes to tackle smoking is, in the view of many of us, the litmus test. The scientific evidence that second-hand smoke damages health is overwhelming. There are many, many questions that arise from the Government's proposals in that regard. I visited Eire in October this year and saw for myself the success of the Irish experience. Anecdotally, the total ban on smoking in public places in New York has been extremely successful. Perhaps the Minister can answer these questions: will not the proposal in the White Paper fail to protect the single group of employees that has been identified as most at risk—namely, staff in pubs and bars? Will not these proposals be legally unstable due to the certainty of civil actions for compensation from employees who have been made ill by exposure to tobacco smoke when working in those bars that will be exempt? Will the proposals not be highly complicated to operate and enforce?
The ability of the Irish authorities to enforce has been superb. There has been some 90 per cent compliance with the legislation. This proposal will be very complicated to apply. The Statement referred to the "calculation- of public opinion. In this case, I believe that the Government are miscalculating the level of public support that there would be for a total ban on smoking in public places.
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There a number of important other areas. Obesity is a major problem, particularly among children. We need to recognise the environment in which children are now growing; where fast food is glamourised—food that is high in fat, sugar and salt is advertised heavily on television at times when children are watching. I very much welcome the Government's proposals regarding advertising in terms of its initial voluntary nature. But I hope that if agreement is not reached with the manufacturers the Government will consider adopting a compulsory approach. In that context, the response of Ofcom has been extremely unhelpful in the past few days.
The proposals for a traffic light labelling scheme are welcome. We would prefer to see a mandatory scheme for labelling, but it remains to be seen how well that voluntary scheme will operate. What proposals do the Government have to monitor that voluntary scheme? How will they test whether it is working?
It is clear that schools have a vital part to play in reinforcing healthy habits of diet and exercise. I much welcome the pledge on action in schools. But vending machines in schools are a particular issue. What proposals do the Government have regarding them?
Generally, the White Paper says very little about poverty, poor housing, poor environment and the role of inter-departmental work across government in developing health-promoting policies. I hope that those will be expanded upon in time. Are there no plans to audit across the board the impact of government policy on people's health? The health gap between the richest and poorest in this country has widened in the past seven years, particularly with regard to life expectancy. Male life expectancy can differ by up to 10 years between different parts of the country.
I somewhat question whether the White Paper will be hold enough to make inroads into the enormous health problems that we face. I very much hope that this does not turn out to be a missed opportunity.
3.47 p.m.
Lord Warner: My Lords, I am grateful for the broad welcome from the Benches opposite and in the end I shall see the noble Lord, Lord Clement-Jones, make almost as many returns as Frank Sinatra.
We need to look forward, not backwards, and that is what the White Paper does. I am pleased to see that Members on the Conservative Front Bench have recently had a Damascene conversion to targets. I should also draw the attention of the noble Earl, Lord Howe, to the fact that on the ground we do have directors of public health. Whatever other organisational changes have been made, they are there and constitute a robust system. They are a major part of the local network that will take forward this agenda.
We accept that there are issues in deprived areas. Perhaps I may say, in response to the noble Lord, Lord Clement-Jones, that the Statement drew attention to the fact that primary care trusts in the most deprived areas would be first in line for the increased resources.
I was not expecting to receive fulsome accolades regarding second-hand smoke from everyone. So I decided to get my retaliation in first. We must draw

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attention to the fact that we have consulted everyone about this matter. The support for a total ban is different in this country as a result of that consultation. It showed that people clearly distinguish between places which serve food and those that do not. Even among non-smokers there is a fair degree of support for continuing to allow smokers, in a controlled manner, to exercise their right to smoke in pubs. After all, we live in a democracy. If you consult people and take their views seriously, you act on that evidence. We are trying to ensure that about 80 per cent of pubs—that is my right honourable friend's estimate—are smoke-free. In the remainder, controlled smoking will be allowed. People will not be able to smoke in the bar areas. There is scope for legislation in that regard, together with consultation on how "bar areas" are to be defined. But we are taking a major step towards ensuring that smoking is banned in the great majority of pubs where food is prepared and served.
Ultimately, people have a choice. They will be able to go to the 80 per cent of pubs which are totally smoke-free or they will be able to go to the small minority of pubs where smoking is permitted in a controlled way. I suggest that that is what democracy is about.
We are taking the issue of chlamydia very seriously. In response to the point raised by the noble Earl, Lord Howe, it takes time to build up resources in genito-urinary medicine. We have to put those resources in place to ensure that a full response within 48 hours is possible. So there will be a build-up during that three-year period.
I say to the noble Earl that we have already substantially reduced the level of tobacco smuggling. In 2002, about 18 per cent of cigarettes in this country were smuggled. Our target is to reduce that figure to 13 per cent by 2007.
I detected a slightly muted welcome for the idea of an easy-to-understand coding system for labelling food. We have to accept that the present arrangements for understanding the precise health risks from food products are extremely demanding. We shall he working with the Food Standards Agency and the industry to produce a workable system that is simple to understand. There would be no point in introducing a system that was doomed to failure, and so we shall consult widely and take advice from the Food Standards Agency in carrying out that work.
With regard to staff in pubs where smoking will be permitted, their employers will still have obligations under health and safety legislation. Staff will have the opportunity to choose not to work in those environments and to work in pubs and clubs where smoking is not permitted. Therefore, people will have a greater choice than they do at present.
We shall monitor the effects of all these changes. It is worth drawing noble Lords' attention to the fact that, in the new national standards for the NHS, one of the seven domains relates to public health. The Healthcare Commission will monitor adherence across the National Health Service to the standards in that domain.
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I think that I have dealt with most of the points raised by noble Lords. I shall read Hansard carefully and, where I have not responded, I shall write to noble Lords.
3.54 p.m.
Lord Clinton-Davis: My Lords, can my noble friend explain why the examples of Ireland and Scotland, where profound research has been undertaken, have been totally ignored? Why has the advice of the BMA, the Royal College of Physicians and, indeed, the department's own chief adviser, Sir Liam Donaldson, to axe all smoking in enclosed public places also been totally ignored?
Lord Warner: My Lords, the Chief Medical Officer regards the action that is being taken as representing significant progress in tackling the epidemic of smoking-related disease.
We have not ignored people's advice and, in addition, we have consulted the public. If, when consulting the public, you sometimes do not get the answer you expect or particularly like, it is still democratic to listen to those views and take them into account. We have not ignored all the advice that has been put forward by the medical profession or other people. In these proposals, we shall be taking very firm steps drastically to reduce the number of places where people are exposed to second-hand smoke.
Lord Walton of Detchant: My Lords, perhaps I may ask the Minister a question in relation to the smoking issue. There is no doubt that smoking is now one of the greatest health hazards of the age—if not the greatest. There is no doubt, too, that the evidence relating to the inhalation of second-hand smoke as a serious danger to health is now incontrovertible. But, in the Statement, the Minister said that all restaurants and all pubs and bars preparing and serving food will be smoke-free.
Like the noble Lord who has just spoken, I should have much preferred to follow the advice of the Royal College of Physicians and the BMA to make all pubs and bars smoke-free. But the next sentence in the Statement makes it clear that other pubs and bars and membership clubs will he free to choose whether to allow smoking or to be smoke-free. Is there not an incompatibility here? What is the position with regard to bars and restaurants in private membership clubs? Surely the ban should apply to them if all restaurants and all pubs and bars preparing and serving food are to be smoke-free. Can the Minister clarify that point?
Lord Warner: My Lords, the position is much as I set out in the Statement. If food is prepared and served in pubs, that means that smoking will not be allowed. With regard to membership clubs, by definition people make a choice to belong to a club where smoking is permitted. It is absolutely open to all people not to go to clubs where smoking is a feature. I acknowledge the

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noble Lord's views on this area but, as I said earlier, we are responding to what people told us in the consultation.
Lord Fowler: My Lords, does the Minister agree that one of the worst aspects of public health policy over the past few years has been the failure to deal with the enormous rise in sexually transmitted disease, particularly among young people? Obviously I welcome the promise of a new national campaign but, frankly, we do not need a White Paper for that. What was to prevent this being done at any stage over the past seven years? Had we done so, would we not have prevented some of the crisis that we see today?
Lord Warner: My Lords, I remind the noble Lord, to whom I pay tribute for his energetic work in this area, that in 2001 we published The national strategy for sexual health and HIV, and £54 million has been invested. A very effective national campaign—the Sex Lottery—has targeted 18 to 30 year-olds. We have recommended standards for HIV treatment and we have extended HIV testing and awareness campaigns for communities. This White Paper is building on that work to take forward what we all acknowledge is a serious problem of our time.
Baroness Andrews: My Lords, noble Lords may have noticed that the clock stopped during the power cut, so we shall continue until it shows 17 minutes, which I believe will give the House the full 20 minutes. I know that many noble Lords wish to speak.
Baroness Gould of Potternewton: My Lords, I declare an interest as the chair of the Independent Advisory Group on Sexual Health and HIV. I welcome that part of the White Paper and the efforts that the Government are making to counter the great concern about sexual health. The agenda is moving in the right direction. I would not put it any stronger than that, but I welcome the new national campaign and the increased sources of information for young people who are at risk from teenage pregnancy and STIs.
I am pleased also that there is to be an area roll-out of chlamydia services and faster access to GUM clinics. However, like the noble Earl, Lord Howe, I hope that the dates can be brought forward. I would appreciate my noble friend giving more detail of the financial support that will be given to make those events happen.
Will my noble friend also give more information about the role of the school nurse? I was interested to hear that there is to be a school nurse in each PCT. Will that school nurse also look at matters such as PSHE and SRE?
Lord Warner: My Lords, I pay tribute to the work that my noble friend has carried out in this area. I do not have the figures on the money available, but I shall investigate that and write to her. As I said in the Statement, there will
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be a school nurse for each cluster of primary or secondary schools. One of the areas in which they will be involved is the personal, social and health education curriculum which will include sexually transmitted infections and contraception issues.
Lord Addington: My Lords, I congratulate the Minister on presenting a document which draws attention to the link between sporting activity and health. Does he have a firm figure on the extent to which the Government want to increase sporting activity? Does he have any idea yet of the amount of resources required for physical facilities and trained personnel? On 4 November, I asked the noble Lord, Lord McIntosh, a similar question but he declined to give me any form of answer.
Lord Warner: My Lords, the White Paper will lead to the investment of £1 billion for sport in schools. We shall develop more sport specialist academies; we shall invest in successful initiatives to promote physical activity by young people; and we shall help more children to walk or to cycle safely to school.
Lord Chan: My Lords, I welcome the White Paper on behalf of the primary care trust of which I am a non-executive director with particular interest in public health. We have waited a long time to tackle health inequalities but at last it has come about. For that we congratulate the Government and look forward to the extra money that will be given—the £1 billion.
Will the Government give primary care trusts autonomy so that the money can be used to suit local needs and to work across boundaries with other primary care trusts and local authorities? In the north-west, for example, there are several areas of deprivation where people require and are in favour of the complete banning of smoking in public places. We would want to push for that, despite the advice in the White Paper. Can the Minister give his view on that as well as on other issues such as eating, exercise and alcohol consumption?
Lord Warner: My Lords, as the noble Lord knows, we are shifting the balance of power. PCTs, along with the rest of the local health economy and related services, can adapt the resources that they have to their local circumstances and adopt policies that meet the particular needs of their communities. I draw the noble Lord's attention to the fact that I mentioned health trainers in the Statement. They will be drawn from local communities, they will be people with whom the local communities can identify and they will he accredited, but they will be able to give a particular local dimension to the services and advice provided.
Lord Geddes: My Lords, I wonder whether the Minister has read the article in today's Sun which states:
"smoking in pubs should be a matter of choice—with smoking areas and non-smoking areas provided".

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I declare an interest as a proud member of the Lords and Commons Pipe and Cigar Smokers' Club. Why should smoking not be allowed in separate ventilated rooms when hot food is served on premises or at times when hot food is not served?
Lord Warner: My Lords, there is good evidence that ventilation systems do not guarantee that an area stays smoke-free. As I said in response to other noble Lords, once one consults people, one has to listen to them. That is what democracy is all about. There is an overwhelming wish to move away from being exposed to second-hand smoke where people eat.
Lord Faulkner of Worcester: My Lords, I declare an interest as a trustee of the Roy Castle Lung Cancer Foundation. My noble friend will be aware that Roy Castle died of lung cancer having not smoked a single cigarette in his life. He contracted the disease as a result of working in smoke-polluted clubs for the whole of his career. I recognise that the Statement is a very considerable step forward in terms of public health, but how will it protect those who work in bars and clubs from the effects of second-hand smoke?
Picking up a point made by the noble Lord, Lord Chan, can the Minister give an assurance that Her Majesty's Government will not seek to block, water down or undermine Private Bill legislation sponsored by local authorities, such as Liverpool City Council, to introduce a complete ban on smoking in public places and places of work in their areas? One has to bear in mind that such Bills arise as a result of the wishes of local people and democratic decisions taken by the councils and that they are designed to deal with particular problems of smoking-related diseases in their areas.
Lord Warner: My Lords, on the latter point, when I last looked, Liverpool was part of the country called England. It is on that basis that we legislate across the country. As regards banning smoking in public places, it is for the Government to take the necessary action on legislation at the appropriate time. There is nothing in the White Paper that stops people entering into voluntary arrangements in anticipation of that legislation and withdrawing smoking from particular pubs and clubs or any other public place. People can see which way the policy is going. The policy direction is very clear.
As regards the staff who work in pubs and clubs where smoking is permitted, there will be provision to ensure that smoking does not take place in the bar areas where they serve. There will be many more opportunities in the hospitality and entertainment industry to work in environments where one is not exposed to second-hand smoke.
Baroness O'Cathain: My Lords, I welcome the White Paper and the Statement. I thank the Minister and the usual channels for making the White Paper and Statement available to noble Lords some considerable time before the Statement was delivered
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in the House. My first question relates to the fact that the Statement given by the Minister varied from the written Statement by emphasising that it referred to England only. What will happen in Scotland, Wales and Northern Ireland?
Secondly, on a point of clarification, the Minister spoke of £1 billion to be spent on PE for schools, but the summary says that there will be an extra £1 billion spent on public health. Is that the same £1 billion? I suspect not. It would be useful to know whether the total is £2 billion.
The Portman Group is to get involved in consultation on alcohol, but it is not exactly disinterested. On passive smoking, 20 per cent of pubs and bars—the Minister has added that, compared with the printed Statement—will not be smoke-free, but that is a big no-no for those of us who are very concerned about passive smoking.
Finally, I should like to know how the Government will organise local groups to become the protagonists of this provision. It is going to be very difficult, I am sure.
Lord Warner: My Lords, the Government are trying to set a clear direction of travel in this area—smoking—and across the patch in terms of public health. We are giving clear signals on the future direction of policy. It is clear from the consultation that there is a good deal of public support for this particular direction of travel. People want more information and support.
We are working with the Portman Group, which has a reasonable track record in corporate social responsibility. We want to take forward those discussions in the context of this White Paper, which makes the Government's position extremely clear.
The £1 billion for sports facilities is over a three-year period and the money for public health is also over a three-year period. So there are two figures.
Lord Williamson of Horton: My Lords, I declare an interest as a non-executive director of Whitbread, which is the biggest hotel company in Britain, one of the largest restaurant companies in Britain and one of the market leaders in health and fitness clubs. Does the Minister agree that the industry is now making an effort on one of the important points which was mentioned in the White Paper? That is the question of fat, salt and sugar in foods. I make the point because this morning I visited a development kitchen, which has considerably reduced those products in foods in a huge number of restaurants across the United Kingdom. The issue is not only for government; unless the industry takes these practical steps we are not going to get any of the improvements we want. But I think we can do it.
Lord Warner: My Lords, I would agree that there has been movement within the industry in this area. We are faced with trying to find a signposting system that is easy for people to understand, so that when they are buying processed food they can understand what they are getting and what the health risks are. Clearly,

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we need to work with the industry and the Food Standards Agency to get a practical labelling system in operation as quickly as possible.
Baroness Hayman: My Lords, my noble friend will not be surprised to know that I, like many others who have spoken, believe that clarity and simplicity have a great deal to commend themselves in the area of passive smoking and smoke-free workplaces. I think that there will be grave problems in defining what is not the bar area of a bar and on the issues relating to the serving of food in private clubs and many other areas. However, perhaps I should confine myself to welcoming substantial progress in this area.
Perhaps I may ask the Minister about a separate issue. Paragraph 101 of the White Paper deals with further education settings and the support that young people need as they go through the transition into adult life. The rest of the section is very thin when compared with the progress that is being suggested in schools. Is it not true that in further education settings young people very often make extremely unhealthy choices about their sexual health, alcohol use and on diet, and, indeed, are at risk of mental health problems? Is not there a need for coordinated services in further education settings as well as in schools?
Lord Warner: My Lords, I suppose there may well be. The main focus of the White Paper is to bring home the point that you need to work much earlier with children in making them aware on all these issues, so that by the time they get to further education they are well steeped in the needs and information about healthy lifestyles.
Lord Maclennan of Rogart: My Lords —
Lord Forsyth of Drumlean: My Lords—
Baroness Andrews: My Lords, I am extremely sorry. Noble Lords have had slightly over the normal 20 minutes we allow for Back-Benchers. I know that this is an important debate, but we will have other opportunities for it.

Civil Contingencies Bill
4.14 p.m.
Read a third time.
Clause 1 [Meaning of "emergency "]:
Lord Lucas Lord Lucas moved Amendment No. 1:
Page 1, line 6, leave out "threatens serious damage to" and insert "seriously threatens"
The noble Lord said: My Lords, in moving Amendment No. 1, I shall speak also to Amendments Nos. 2, 9 and 10.
I cannot remember having had this effect on a Bill before. I tabled an amendment only to have the Government make exactly the opposite amendment to a piece of wording that I rather liked. I am sorry to
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have had that done on this occasion, but at least it will draw the Government into a discussion, which we did not get on Report, on the different implications of these two sets of words.
My understanding of "threatens serious damage" is that it does not have to be a serious threat in any way at all. I use my previous illustration. If I hold up an orange in Trafalgar Square and say, "This is a nuclear bomb and I am about to destroy London", then I am threatening serious damage, and it comes within this clause. It clearly would not come within "seriously threatens", because it could not be taken to be a serious threat and therefore that sort of created or peripheral threat to the security of the nation, to the environment or to human health would be ruled out in terms of triggering the enormous powers in the Part 2 of the Bill.
The current wording would allow something like the Reichstag incident to be used as a trigger for the powers in the Bill. Whatever safeguards there are, we are potentially giving enormous powers to government Ministers under the Bill. Once you have passed Clause 1 you do not have any look back to how serious the incident is. The controls that come under the triple lock after that all relate to the response proportionate to the threat—not to the seriousness of the threat, but to the threat itself. So the reaction the Government will be entitled to undertake in reply to me with my orange in Trafalgar Square would be in response to a nuclear detonation wiping out the centre of London, not to me holding an orange.
I find that difficult. I believe that the lock needs to be more serious than that. We need to be in a position where there is a really serious threat. I like the words "seriously threatened" that the Government put in their amendment at an earlier stage. That incorporates the balance between threat and seriousness very nicely in an ordinary English phrase which will be well understood by individuals, generals, courts and everybody. I find it difficult to change the words to "threatens serious damage to", particularly in relation to war.
None the less, I shall listen with great interest to how the Minister proposes his amendment. As I say, I should be very grateful if he would give some examples of the sorts of incidents, particularly in relation to subsection (c), which now will be permitted to trigger the powers in Part 2 of the Bill, which would not have been permitted to do so under the present wording. I also hope that he will give us a better understanding of those two phrases and tell us the degree of latitude which the Government wish to give themselves. So I shall listen with interest, but I find the current wording very disturbing. I beg to move.
Lord Peyton of Yeovil: My Lords, I shall briefly support the amendment. I do so because the whole Bill has a nasty odour about it. It conveys the impression that a personal liberty is not a very important thing

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and that any powers that Ministers take will always be very reasonably used and with restraint. I do not subscribe to that doctrine in any way.
I look forward to hearing from the Minister what is meant by "serious damage". I understand that he has been unable to do so so far in our proceedings; if he has, I am sorry, but perhaps he would give me the reference. If serious damage is threatened, huge powers are available to a Minister of the Crown. That is altogether rather loose. There is no need for me to prolong my remarks, but I want to have a clear idea of what the Government mean by the simple phrase "serious damage". Otherwise I shall have wasted my time, and your Lordships' time will also be wasted. It is far from clear at the moment.
Lord Pearson of Rannoch: My Lords, I shall concentrate on the remarks of my noble friend Lord Peyton. I regret that your Lordships have been spared any intervention by me on this frightening Bill until now. Like many of your Lordships and many people in the country at large, I have been viewing its passage through your Lordships' House with growing alarm as its true scope has become apparent. The noble Lord who moved the amendment and other noble Lords are of course to be congratulated on improving it considerably—or, rather, making it less draconian and anti-democratic than the Government clearly intended it to be.
In those circumstances, I have two questions for the Minister. This may have been touched on in Committee, but not entirely satisfactorily. First, what is the relationship between the Bill and the Scottish Executive, which has been given everyday control of the environment in Scotland? Who will operate the environmental clauses of the Bill, in particular: Westminster or Edinburgh? Is the Scottish Executive happy with whatever is the answer to that question?
Secondly, what is the meaning of the wording in the Bill:
"disruption or destruction of plant life or animal life",
which is consistently repeated throughout the Bill, although I do not need to weary your Lordships with precise references? It is consistently repeated throughout the Bill as giving rise to an emergency and the possible use of the powers of the Bill. The mind boggles as to what that could mean.
Does the Minister agree—if he disagrees, why?—that that could apply even to a large heath or moorland fire, perhaps in a site of special scientific interest or a special area of conservation? That would clearly be damaging to plant life. Could people undertaking the Duke of Edinburgh's Award Scheme, who have been known to cause such fires in the past, be prevented in future? A number of people in Scotland are worried about that and I should be grateful if the Minister could confirm the answer.
Lord Monson: My Lords, like the noble Lord, Lord Lucas, I am especially puzzled by government Amendment No. 3. Why talk about something
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threatening damage to the security of the United Kingdom, rather than threatening the security of the United Kingdom? Is not that a tautology?
Baroness Buscombe: My Lords, I immediately offer my support to the noble Lord, Lord Monson, in what he has just said. Some of the wording simply does not make sense.
I am extremely disappointed that we have been unable to persuade the Government to assist your Lordships in trying, as we have all been doing throughout the passage of the Bill, to raise the threshold of what can reasonably be described as an emergency. So I have enormous sympathy with the amendments proposed by my noble friend Lord Lucas. His argument is well rehearsed and the Government know full well how we on these Benches feel about that aspect of the Bill's drafting. The current drafting is too ambiguous, wide and open to misinterpretation. It is essential to get the drafting correct.
In response to the noble Lord, Lord Pearson of Rannoch, I must say that we have already debated a number of the issues to which he referred.
Viscount Goschen: My Lords, my noble friend Lord Lucas should be commended for persevering with the drafting of this vital clause concerning the meaning of emergency. On Report, as I understood it, the Government's argument against similar amendments tabled by my noble friend was that it was vital to retain the provision that the potential damage should be serious to trigger the Bill's provisions, as well as the level of threat. I accept that argument, but the Government have not given a convincing explanation of why the current wording of Clause 19(1)(a) achieves that. The House was at one that what is required to be serious is both the level of threat and the potential damage: a combination of both of those events to produce a combined threat of sufficient severity to trigger the Bill's provisions.
Having said that, I look forward to hearing the Minister's reply. As I read it, my noble friend's amendment transfers the emphasis to the level of threat—his orange in Trafalgar Square—but that reduces the emphasis on the level of potential damage, which must also be high. So I agree with both the Government and my noble friend and think that their provisions should be combined to provide for an event or situation that seriously threatens serious damage. I suggest that that would satisfy both parties. I regret that we do not have a Fourth Reading—although I doubt that the Minister agrees with me on that. However, if we were to pass my noble friend's amendment, there might be an opportunity for the House of Commons to insert the second "serious".
Lord Pearson of Rannoch: My Lords, the noble Baroness, Lady Buscombe, mentioned me from the Front Bench; I am of course aware that these matters have been debated. I was merely adding a fresh voice to say that they have not been satisfactorily answered.
Lord Elton: My Lords, the word "serious" is offered to us before and after the word "threat" in these alternative amendments. I remind your Lordships that

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the context in which we are debating is one in which what was thought to be a supremely serious threat from Iraq proved to be no such thing. For that reason, the most important thing is to put the word "serious" before the word "threat", as my noble friend has done.
Baroness Hamwee: My Lords, it is procedurally slightly awkward that we are unable to hear the Minister advocating his amendment before he is pre-empted by responses to it. The noble Lord, Lord Lucas, says that he is surprised at having had the opposite effect on the Government and that that might make him pause in future, but he is to be congratulated on pursuing a difficult issue. We think that the Government are right in effectively concentrating on the effect rather than the threat. For that reason, we will support them. I must say that the Government have caused my noble friends and me to dance on the head of a pin in private before reaching that point, because the matter is difficult.
The House having decided that the definition of emergency should be the same in both parts of the Bill, which is right, different issues now arise as to how one deals with the definitions. We have more protection in Part 2 than we had when we started. In any event, we have in effect a definition of what is damaged in Clause 1(2). I think that we are in danger of going so far in trying to pin the thing down that we begin to miss the point. One can go too far with definitions; one must reach a balance. As I said, we will support the Government.
Lord Bassam of Brighton: My Lords, I, too, am grateful to the noble Lord, Lord Lucas, for his energy and persistence on the matter and congratulate him on that, which has been most beneficial. The noble Baroness, Lady Hamwee, suggests that there has been a lot of dancing on the head of a pin over this. It is an iterative process. We have tried to respond sensitively to points made in your Lordships' House about definition, and that is how we have reached our current position. We are trying to develop threads of consistency.
4.30 p.m.
As currently drafted the definition of "emergency" in both parts of the Bill is,
"an event or situation which threatens serious damage to human welfare … an event or situation which threatens serious damage to the environment … or … war, or terrorism, which seriously threaten … security".
The amendments tabled by the noble Lord, Lord Lucas, would harmonise the drafting in Clauses 1(1) and 19(1) by providing that an emergency is an event or situation which seriously threatens human welfare or the environment. The purpose of the noble Lord's amendments is to increase the threshold for triggering the civil protection duties under Part 1 or the use of emergency powers under Part 2. However, that would not be the practical legal effect of the amendments. By specifically requiring the threat, not the damage, to be serious, the amendments would open up the possibility of a very serious threat with relatively low-level consequences being an emergency. It could be argued that, if anything, the amendments lower the threshold.
The Government in their amendments—mindful of the rule of the noble Lord, Lord Lucas, which requires drafting to be clear and consistent, and to use the fewest possible words—decided to look again at the drafting of Clauses 1(1) and 19(1). The draftsman chose to draft Clauses 1(1)(c) and 19(1)(c) in this way for largely linguistic and not substantive policy reasons. Different language is currently used in relation to security because of the difficulties of referring to the scale of damage caused to an intangible concept such as security. However, while the drafting is different, the Government's intention was the same: there must be a threat of serious damage before the situation can be considered an emergency.
Having looked at the issue again with parliamentary counsel, we can see the benefit, certainly as regards clarity and consistency, of harmonising the drafting for each category of damage. So the government amendments in this group would define emergency as an event or situation which threatens serious damage to human welfare, an event or situation which threatens serious damage to the environment, or war or terrorism which threatens serious damage to security. I hope that noble Lords see that that clarifies the definition. Certainly the noble Baroness, Lady Hamwee, sees that; as she says, it is more about consequences.
Before we move on to the next group of amendments, it is perhaps worth re-emphasising that the purpose of the definition of "emergency" is to set out the threshold of events, should they come to pass, that could trigger emergency powers. It is then the job of the triple-lock test, which is very important, to ensure that the threat of the events occurring is credible and that emergency powers are necessary to deal with those consequences. That is the important way to look at the issues. I hope that my remarks have covered the points raised in our short debate, but I wish to deal with specific issues not covered.
I wish to respond first to the noble Lord, Lord Pearson of Rannoch. As the noble Baroness, Lady Buscombe, suggested, we have been over these issues several times. Let us remind ourselves of the application of the legislation in Scotland. Emergency powers are a reserved matter, as I am sure the noble Lord will be aware, and are therefore outwith the competence of the Scottish Parliament. Part 2 will therefore apply to the whole of the United Kingdom. Civil protection, on the other hand, is largely devolved to Scotland, and quite rightly so. Following their own review of civil protection arrangements, consultation exercise and discussions with their stakeholders, the Scottish Executive concluded that it was appropriate to update the legislation as it applies to Scotland. The Bill is the most effective and efficient way of doing that, given that the arrangements that the Executive wish to put in place are more or less identical to those originally proposed for England and Wales.
The Scottish Parliament, as a consequence, agreed a similar Motion on 4 March this year, giving its agreement that the United Kingdom should consider the provisions of the Bill. The Bill reflects the devolution settlement. Following Royal Assent, Scottish Ministers

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will make regulations and issue guidance for bodies under their jurisdiction. The Scottish Executive will also conduct a public consultation following Royal Assent. The issues that concern the noble Lord, Lord Pearson of Rannoch, should be dealt with in that respect.
Lord Pearson of Rannoch: My Lords, before we go any further, does the Minister agree that the disruption or destruction of plant life could include trying to prevent a serious threat to a special area of conservation, a site of special scientific interest or whatever? Are we really brought thus low by the Bill?
Lord Bassam of Brighton: My Lords, I suppose that there might be circumstances when sites of special scientific interest get caught up in the way in which the noble Lord suggests. But I cannot see that, of itself, that would be a triggering event for the exercise of emergency powers. The noble Lord needs to reflect on what he suggests. Given the noble Lord's understandable concern about heathland, moorland and so on, perhaps the issue could be raised with the Scottish Executive in their further consultations. I do not think that we can deal with it in relation to these amendments. I have listened carefully to the noble Lord, but the issue does not have a great deal of bearing on the amendments. I have the greatest respect for the noble Lord but perhaps he could reflect on that point.
I wish to respond to the comments of the noble Lord, Lord Peyton of Yeovil. I cannot accept his premise that the Bill fundamentally undermines individual liberties. Perhaps the noble Lord has heard us say it across the Dispatch Box previously, but it is worth remembering that actions taken under the Bill must be compatible with the Human Rights Act 1998. That is an important failsafe provision. We have made specific concessions in this House and in another place because obviously the Government share some of the wider concerns that the noble Lord. Lord Peyton of Yeovil, worries about. This issue is important to your Lordships' House and the people of our country. We must put in place emergency planning procedures, civil protection schemes and the powers to deal with the most profound and serious threats to our liberties, our way of life and the conduct of life generally in a civilised society. This Bill does that: it provides the Government with powers in extrends and in difficult circumstances.
Lord Peyton of Yeovil: My Lords, the noble Lord is skating on rather thin ice around the point that I asked. The key is: what is serious damage? When does damage become serious enough to bring into effect the massive powers that Ministers will have under the Bill? Can the Government give me any idea when the damage will become serious enough to trigger these grave consequences?
Lord Bassam of Brighton: My Lords, we must make a judgment based on the circumstances of a terrorist attack or damage inflicted on infrastructure, the fabric of our life, perhaps by an accident of weather and
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incidents such as foot and mouth disease. The degree and severity of the problem will require appropriate action. Judgments will be made by those who exercise the powers that the Bill currently contains, whether in Parts 1 or 2. I hope that I have addressed most of noble Lords' questions in this short debate.
Lord Lucas: My Lords. I am grateful for that reply. I am sorry that I do not seem to have swayed the House with my arguments. I remain concerned. As the noble Lord said, one must be careful about threats to one's liberty and way of life. At the moment, the principle threats appears to be the Government, but there is nothing much that I can do about that now. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 3:
Page 1, line 10, leave out "seriously threatens" and insert "threatens serious damage to"
On Question, amendment agreed to.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 4:
Page 1, line 19, leave out "an electronic or other" and insert "a".
The noble Lord said: My Lords, as, I think, I said about the previous group of amendments, the Government are committed to ensuring that the drafting of the definition conforms to the Lucas principles of simplicity, clarity and consistency. It is in that spirit that I speak to the government amendments in the group.
Clauses 1(2)(f) and 19(2)(f) provide that.
"disruption of an electronic or other system of communication".
is capable of constituting a threat of damage to human welfare. With the advent of e-commerce and the networked society, electronic communications have become integral to our lives, and the failure of an electronic system of communication could precipitate an emergency or exacerbate its effects. However, the formulation "system of communication" clearly comprises electronic systems, and there is no need to refer to it specifically. In the spirit of the rule followed by the noble Lord, Lord Lucas, we propose to remove it.
The Government have looked again at Clause 1(3)(a) in the light of similar concerns raised by the noble Lord, Lord Lucas, in Committee. The Government are committed to striking the right balance between, on the one hand, economy of words and, on the other, ensuring that we give local responders the clarity that they need. The Bill refers to,
"contamination of land, water or air with—

(i) harmful … chemical or radio-active matter, or

(ii) oil".

On reflection, we think that we can rationalise the drafting. There can be little doubt that oil is a chemical that can cause serious damage to the environment. Given the reference to chemical matter, it is unnecessary to refer to oil separately.
We also agree that it is not necessary to refer specifically to "harmful" chemical, biological or radioactive matter. Contamination will constitute an

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emergency only if it poses a threat of harm to the environment, so the word "harmful" on line 5 is redundant. The clause will now provide that,
"contamination … with biological, chemical or radio-active matter",
may constitute a threat of serious damage to the environment. We agree with the noble Lord, Lord Lucas, that his amendments will make the drafting of the clause clearer, sharper and more concise and therefore we propose to accept them. I beg to move.
Lord Lucas: My Lords, that is a nice surprise to end the Session with. I am extremely grateful and, again, I thank the noble Lord's Bill team. They have been helpful throughout. This is not the greatest of their kindnesses to me, hut, none the less, I appreciate it as a final one.
Baroness Buscombe: My Lords, I thank the Government for considering the amendment again. It is similar to one that we tabled in Committee. After hearing the concerns expressed by the Law Society and British Telecom, we felt that the drafting was too ambiguous. I am pleased that the Government have reconsidered and tabled amendments that we find more satisfactory.
Lord Elton: My Lords, if nobody else wants to say anything, I shall congratulate my noble friend and thank the Government for recognising his ability to struggle through Committee and Report with the most appalling cold.
On Question, amendment agreed to.
Lord Lucas Lord Lucas moved Amendments Nos. 5 and 6:
Page 2, line 5, leave out "harmful"
Page 2, line 6, leave out sub-paragraph (ii).
On Question, amendments agreed to.
4.45 p.m.
Clause 2 [Duty to assess, plan and advise]:
Baroness Buscombe Baroness Buscombe moved Amendment No. 7:
Page 3, line 28, leave out -radiological" and insert "radioactive"
The noble Baroness said: My Lords, Amendments Nos. 7 and 8 refer to minor changes to the amendment successfully moved on Report last week by my noble friend Lord Jopling. Unfortunately, my noble friend cannot be present today, due to an important engagement that keeps him away from your Lordships' House, so I have agreed to move the amendment on his behalf.
The amendments would correct one word in my noble friend's amendment and ensure that the clause had the meaning that he intended. I hope that the Government will accept the minor changes. I beg to move.
Lord Garden: My Lords, I support the amendment. We discussed the matter on the previous occasion, and
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it was obvious that the change was necessary. The House was pretty well agreed then, so I trust that the Government will accept the amendment.
Lord Elton: My Lords, the word was suggested by the Government, so I think that they probably will accept the amendment.
Lord Bassam of Brighton: My Lords, I am not sure that we accepted it. The point came from the Cross Benches.
We will not contest the amendments this afternoon. The noble Lord, Lord Jopling, rightly moved his amendments, which were agreed by your Lordships' House. However, as I argued then and as we will continue to argue, the noble Lord's argument was fallacious. We believe that powers that were put in place—ironically by the government of which the noble Lord, Lord Jopling, was a member—during the 1980s and as late as 1990 already provide government with sufficient cover.
We will have to return to the issue, so I will remind your Lordships' House of the situation. Under the Airports Act 1986, the Secretary of State may give directions to the operators of airports in the interests of national security. The Aviation and Maritime Security Act 1990 gives the Government a wide-ranging power to require port authorities to undertake screening and monitoring. Detailed requirements relating to port and shipping security have been adopted at international level. In particular, there is the International Ship and Port Facility Security Code. At Community level, there is Regulation (EC)725/2004 on enhancing ship and port facility security. Those include provisions relating to security assessments for ports, provision of information and port facility plans. The provisions are enforced under the Ship and Port Facility (Security) Regulations 2004 (SI 2004/1495).
Under the regulations, ships and port facilities can be inspected for the purpose of ensuring that they are secure. The regulations also enable any property or apparatus found on the ship or at the port to be tested and allow steps to be taken to ascertain whether security practices and procedures are being followed. Under Clause 5 of this Bill, an order could be made requiring local authorities or any other category 1 responder to perform their functions in a particular way. That could include the purchase and deployment of equipment, as the noble Lord, Lord Jopling, suggested.
The powers conferred on the Government by the noble Lord's amendment are unnecessary and redundant. In addition, the new provisions could undermine the robust procedural safeguards set out in the existing powers. I forwarded correspondence to the noble Lord, Lord Jopling, setting out the way in which the existing legislation worked in much more detail, as well as the scope of the powers and the procedures to be followed when they were used.
If left on the statute hook, the noble Lord's amendment could cause significant confusion. I give notice that the Government will therefore seek to

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overturn the amendments in another place. The Government already have a wide range of powers necessary in this area. We are already taking decisive measures to detect the smuggling of chemical, biological, radiological and nuclear material and to ensure that we are prepared, should such material be deployed in a terrorist attack.
I have nothing further to add on the amendments moved today, but we reject the provisions they seek to change.
Lord Walton of Detchant: My Lords, before the Minister sits down, the two amendments relate simply to a point of terminology. Radiology is a discipline practised by doctors who are concerned with the interpretation of X-rays and other images of the human body and so on. The whole purpose of these two amendments is to correct that error of terminology by replacing "radiological" with "radioactive".
I comment no further on the nature of the amendment which the noble Lord, Lord Jopling, tables and which was accepted by your Lordships' House, but I want to make the point, as I did on the previous occasion, that the term "radiological" is incorrect and "radioactive" is the correct one.
Lord Bassam of Brighton: My Lords, I entirely accept that point, as I did during the course of the debate. I seek simply to ensure for the record that it is understood why we believe these amendments are unnecessary and why they could be damaging and cause confusion. I also want to counter the suggestion that we have in any way been complacent. In fact, the previous government were not complacent on this issue and the three pieces of legislation to which I shall specifically refer were all put in place under their watch—no doubt for the very reasons which the noble Lord, Lord Jopling, exercised in moving his original amendment. They wanted to ensure that adequate powers existed and that steps could be taken to ensure that the authorities, in whatever guise, could act effectively. We believe that those powers are more than sufficient for the job.
No doubt we shall return to that matter when the Commons has considered Lords amendments and I look forward to rehearsing the issues again.
Baroness Buscombe: My Lords, I thank the Minister for his response and I am grateful in particular to the noble Lord, Lord Walton of Detchant, for contributing to the debate. He came to my rescue, pointing out that these amendments relate to the terminology.
I shall repeat the closing words of my noble friend Lord Jopling in the debate on Report because I want to emphasise why this amendment is so important and why the main amendment was so important on Report. My noble friend said:
"It is essential that the Government have powers to direct local authorities and other public bodies to obtain that equipment in adequate quantities, to ensure—although this is not stated in the amendment—that a sufficient number of properly trained
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operatives is available to work it and find out whether this hazard exists. This is a crucial amendment. I hope very much that your Lordships will accept it".—[Official Report, 9/11/04; col. 777.]
Those were the words of my noble friend and we continue to support the amendment. I commend it to the House.
On Question, amendment agreed to.
Baroness Buscombe Baroness Buscombe moved Amendment No. 8:
Page 3, line 31, leave out "radiological" and insert "radioactive"
On Question, amendment agreed to.
Clause 19 [Meaning of "emergency"]:
[Amendments Nos. 9 and 10 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 11 and 12:
Page 13, line 9, leave out "seriously threatens" and insert "threatens serious damage to"
Page 13, line 18, leave out "an electronic or other" and insert "a".
On Question, amendments agreed to.
Lord Lucas Lord Lucas moved Amendments Nos. 13 and 14:
Page 13, line 24, leave out "harmful"
Page 13, line 25, leave out sub-paragraph (ii).
On Question, amendments agreed to.
Clause 22 [Scope of emergency regulations]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 15:
Page 15, line 17, leave out "an electronic or other" and insert "a".
On Question, amendment agreed to.
Clause 23 [Limitations of emergency regulations]:
Baroness Buscombe Baroness Buscombe moved Amendment No. 16:
Page 17, line 2, leave out from "service" to end of line 4.
The noble Baroness said: My Lords, your Lordships will now be more than familiar with this amendment as I have run it at both Committee and Report stages of the Bill. We have brought it back to Third Reading as, I am sorry to say, each time we have a debate on the issue the Minister, despite her best efforts, has not convinced me of the Government's way of thinking.
The amendment would leave out one of the two exceptions in the Bill; interfering with strike action. I have spoken about my objection to this exception at length, but I want to take a little time to outline our concerns one last time in the hope that I can persuade the Minister to accept the amendment.
We on these Benches do not believe that it is right or sensible to allow strikes to continue when the country is facing or about to face a national or serious emergency. It is obvious that in such a situation we may well need ambulance drivers and crew, firemen and workers in transport, most commonly London Underground workers. For one reason or another, which I will not go into now, these groups are also those which feature most prominently in the national news for industrial action. The point I made on Report

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about strikes during the Second World War was unfortunately misunderstood by other noble Lords and I shall try to explain it further today.
During Committee, the Government put forward the argument that during a time of crisis those on strike would come back to work without question. Unfortunately, the statistics I used on Report showed that goodwill alone cannot be relied upon during times of national crisis. It is sad to say that many withheld their labour during the Second World War; a time when to do so was frowned upon.
I move on to another of the Government's arguments; that we have always had the exemption and that it should remain because of historical significance. It seems a curious argument from a Government who want to get rid of the Lord Chancellor, want to get rid of hunting and seem determined to get rid of jury trial, which is one of the cornerstones of our legal system, that simply because we have had a law for 80 years we should keep it on the statute book.
The Government's final argument which has been most recently advanced is that there are criminal laws in place for individuals on strike who know that they are endangering lives. However, I am unsure how this would work in practice. If someone were already out on strike and did not know that there was some sort of emergency, clearly he would lack the mens rea required to commit a crime and incur criminal liability.
We have been working hard to try to put sufficient safeguards into the Bill. We have improved it in a number of ways, but this is a point about which we still feel strongly. The noble Baroness, Lady Scotland, said on Report that the right to withdraw labour within the law is a fundamental right that should be protected, even during emergencies; that the deliberate endangerment of human life or property, or causing illness or injury, are matters of criminal law. That is fine, but this does not—I repeat, does not—as the Minister believes, place a proper limit on the potential effects of industrial action.
I urge the Minister, at this late stage, to reconsider our amendments. I beg to move.
Viscount Goschen: My Lords, in disallowing strike action, the Government's position on my noble friend's amendment is inconsistent. This Bill is, without doubt, draconian and I suggest that the Government agree with that. It allows them to set aside virtually any Act of Parliament. It provides for immense reserve powers.
However, this Bill is not for likely eventualities; it is for unlikely eventualities. We are not saying that, for example, firefighters are likely to strike in the event of a national emergency. I am sure that they are highly unlikely to strike. But when examining the Bill, we are looking at worst-case scenarios.
We have the extraordinary circumstance in which, on the Minister's own admission, under the powers of the Bill people can be compelled to do things. The only people who cannot be compelled are those who refuse
1332
to do their own job. In that way, as I mentioned on Report, if there was a strike by Tube drivers, the only people in the entire kingdom who could not be ordered to drive Tube trains would be Tube drivers. That strikes me as a tremendous anomaly.
The Government have argued throughout all stages of the Bill that they need those massive reserve powers. I do not think that they should be coy about this one additional reserve power that may, in one set of circumstances, be useful. It is not likely to happen, but it may happen. Therefore, it should be in the Bill.
Finally, when we were faced with a firefighters strike not so very long ago, the Government made it known publicly that they were considering legislation to prevent firefighters going on strike. They used that tactic to negotiate with the firefighters in order to cause them to resolve their dispute. It has clearly been through the Government's mind that, just as the police are not allowed to strike, there could be circumstances when groups of people such as firefighters and other essential services might be brought within that ambit. I support my noble friend's amendment.
5 p.m.
The Earl of Onslow: My Lords, I believe that it is illegal to strike in the power industry. If things get very bad, there is really serious trouble and the power industrial workers basically say, "We are going to ignore the law and we are going to go on strike", that is a time when emergency powers are genuinely needed.
It would not be very sensible to say, "Oh no, we have got the power strike workers on illegal strike, but we don't have the power to take emergency measures". I find that a little odd. Does not the noble Baroness?
Lord Lester of Herne Hill: My Lords, I would be very grateful if the noble Baroness could help me in her reply. I am genuinely puzzled about why one needs either Clause 23(3)(a) or (3)(b). In Clause 23(5), the Government have sensibly and commendably accepted that,
"Emergency regulations may not amend … the Human Rights Act".
The Human Rights Act protects the fundamental right to be a conscientious objector, for example, which effectively is in Clause 23(3)(a), and the right to strike or take part in industrial action as part of freedom of association, which is in paragraph (b). Of course, those rights are not absolute. They are subject to the public interest, including national security, emergency and so forth.
I do not ask this question from a political perspective; I genuinely seek information. If the Government are to make exceptions of that kind, why do they not make an exception, say, for free speech? The answer is because that is covered by the Human Rights Act. So I do not see why—given that the Human Rights Act will give protection to trade unions and strikers, but subject: to a fair balance test, and similarly to conscientious

1333
objectors—those paragraphs have been put in. There must be a very good reason and I am being stupid. I should be grateful to be enlightened on that.
Lord Elton: My Lords, the reason would seem to a layman to be that when the human rights veto, as it were, is withdrawn because of the public interest, the phrases that we are now trying to remove will bite. In other words, even if public interest requires it, the Government still will not be able to,
"prohibit or enable the prohibition of participation in, or any activity in connection with, a strike or other industrial action".
As I understand it, it negates the freedom of action given by the limitation in the Human Rights Act.
We are talking about a time when the country is expected to be in extremis. The Government have said again and again that they will do that only if it is the last resort; for example, if national life is in danger, if the threat is serious and if the damage threatened is serious. Then we can start to put in a voluntary limitation beyond that already provided in statute.
I agree with the noble Lord, Lord Lester, who understands this much more than I, that there must be some other motivation. There must have been a deal struck or something that we do not know about. But if that is not the case, there cannot be any proper resistance to this amendment.
Lord Garden: My Lords, in debating this Bill we keep worrying if we put new constraints on our liberties and the like. In all the debates that I have listened to, I have heard nothing that has shown any evidence that having this exemption for trade unions has affected us over the past 80 years when we successfully got through a world war and we were threatened with nuclear annihilation for the best part of 40 years.
We are now into a different regime of security concerns. It seems extraordinary that we should now argue that we want to inhibit one of the liberties that we have enjoyed over that period. From these Benches, I am afraid that, whatever the answer to my noble friend's question, we would not wish to support an amendment that gets rid of a right that has not affected our security in the past.
Lord Elton: My Lords, before the noble Lord sits down, if the right exists already, why is this necessary in the Bill?
Lord Garden: My Lords, I will not respond at length. We are replacing old emergency legislation, which had that right in it, with updated legislation.
Baroness Scotland of Asthal: My Lords, I agree with the noble Lord, Lord Garden, in relation to that matter. As always, I regret any disappointment that I shall cause the noble Baroness, Lady Buscombe, but I
1334
fear that I shall cause her some disappointment today. This is not an amendment that the Government can support. So we will resist its inclusion.
Perhaps I may make a number of points clear, in case I was insufficiently clear at Second Reading, in Committee and on Report. Allowing the use of emergency powers to prohibit strikes would risk straying into the realm of political interference rather than emergency response. The Government have deliberately drafted the Bill to avoid the possibility of the powers being used for political purposes.
Prohibiting strike action would weaken that position and open up the possibility of the powers being used for the wrong reasons. I believe that that is something on which the House has been at one and in total agreement. That is something that the Government, Parliament and civil liberties groups have all made very clear must be avoided throughout the development and passage of the Bill.
The right to withdraw labour within the law is a fundamental right that should be protected even during emergencies. The noble Lords, Lord Lester and Lord Garden, are absolutely correct on that point. Emergency powers must comply with the Human Rights Act. The Government believe that that ensures that the fundamental rights of individuals are protected from any possibility of interference by the state. They believe that collective rights, in the form of the right to withdraw labour in accordance with the law, should also be protected.
The Government see that as a clear area in which the powers of the state could be misused in a way that threatens both individual and collective rights. Therefore, that requires express protection. I say to the noble Viscount, Lord Goschen, that there is no coyness in that. It is called respect for democracy.
Aside from civil liberties issues, there are very real practical problems with using emergency powers to ban strikes that may trigger the kinds of emergencies set out in Part 2 of the Bill. It simply does not fit well with the nature of emergency powers or the safeguards set out in the Bill. Given the temporary nature of emergency regulations and the fact that they can be used only where urgently needed, necessary and proportionate—the three areas that we have been talking about—we would risk ending up in a rather ridiculous situation where a strike is called and the powers are invoked to prohibit it. The strike is called off and therefore the powers are no longer justified. The regulations are then revoked, only for industrial action to be launched again now that the prohibition has gone. Are we then to invoke emergency powers again only for the same thing to happen, perhaps time and time again ad infinitum?
Lord Elton: My Lords, I think that the noble Baroness envisages a scenario rather different from ours. She is positing a case where the emergency is constituted by the industrial action. The case we see is where there is another national emergency and, within that framework, an irresponsible trade union decides to exploit its position by calling a strike. The powers

1335
would not be revoked until the emergency was over, and they would not be revoked when the strike was over.
Baroness Scotland of Asthal: My Lords, the noble Lord envisages a position where one would take action under emergency powers to prevent those who wish legitimately and within the law to go on strike doing so. We simply do not think that that is right.
Looking at the history, this action does not seem to be merited. The noble Lord, Lord Lester, asked why we need to provide for these issues. It is fair to say that the right to strike is protected in part by the Human Rights Act, but in this case we think that it is appropriate to go beyond the protection in that Act. Experience shows that strikes can be the kind of situation which may necessitate the use of emergency powers, and it is therefore appropriate to make additional and specific protection for the right to strike.
I should also say that it was present in the 1920 legislation. Here we have simply continued that which was present then because it appears to have worked well. We did not think it appropriate to expunge the provisions when we came to revise the 1920 legislation and to consider again what it was necessary to do.
I see that the noble Lord wishes me to give way.
Lord Lester of Herne Hill: My Lords, I do not completely understand the Government's position and I wonder whether I could have another go. What the Minister has said about the right to strike could apply equally to any other human right such as that to publish newspapers. The logic of the argument would be the same.
I acted for the trade unions before the European Commission on Human Rights when they sought to challenge the ban on GCHQ trade union activities introduced by the government led by the noble Baroness, Lady Thatcher. I am delighted to see the noble Baroness in her place. However, I lost because the commission held that there was a fair balance between the right to strike and the banning of the right to strike in the context of GCHQ.
I understand perfectly that we are following what was provided for in 1920, but in 1920 we did not have the Human Rights Act. Now that we have that legislation, I still do not understand why the fair balance that that Act maintains between collective or individual rights and the general interests of the community, including those in a national emergency, is not sufficient without the need for these two extra provisions. What form of right to strike do the Government have in mind that goes further than the fair balance contained in Article 11 of the convention? It is that which I simply do not understand.
I agree with the noble Baroness in her general approach towards the right to strike, its importance and the need not to interfere with it except in the direst and most exceptional circumstances. However, my
1336
point is about the method, given that the Government concede that the Human Rights Act is to be sovereign in this area.
5.15 p.m.
Baroness Scotland of Asthal: My Lords, in many ways this is part of the historical legacy. When one looks at what happened with the 1920 Act it is quite clear that jurisprudence and the way we have looked at it take into account the fact that that Act specifically preserved the right to strike. If we now seek to expunge that right, we do not in any way wish that to be misunderstood.
The noble Lord will know that when we went through the process of looking at the draft Bill, considering where, if at all, the 1920 Act should be amended and changed, we considered those sections which could safely and properly be retained and those sections which could safely and properly be expunged. Because of the importance of this issue, the Government came to the conclusion that it would be safer—perhaps in the manner of a belt-and-braces approach—to retain the provisions to put beyond doubt that these issues remain the same and unchanged by the new legislation.
One has only to go through our debates at Second Reading, in Committee and on Report to know why that clarity needs to be put in the Bill in this instance, as we move away from the 1920 construct into the new construct that we are seeking to develop and apply more generally. We need clarity of understanding and therefore we think that the paragraphs set out in Clause 23(3)(a) and (b) have utility.
Lord Stoddart of Swindon: My Lords, will the Minister give way?
Baroness Scotland of Asthal: My Lords, I would remind noble Lords that this is Third Reading. It is not Second Reading or Committee, and it is certainly not the Report stage.
Lord Stoddart of Swindon: My Lords, I rise only to ask a question, which I think we are entitled to do under the rules.
I appreciate that this is a difficult area, but am I right in thinking that for an official strike to take place, a period of 21 days' notice has to be given anyway? The limit of any emergency legislation under the Bill is 21 days unless it is renewed. Therefore any strike taking place within that period would be illegal, in particular if it was an unofficial strike. Can the noble Baroness help me with that point?
Baroness Scotland of Asthal: My Lords, I agree with the noble Lord that only lawful strikes are preserved in this Bill and that unlawful or secondary strikes are not included. We think that current appropriate legislation bites on this, which would mean that a strike should not be adversely affected by those rights.

1337
This refers back to what the noble Baroness, Lady Buscombe, said had happened in the past. The noble Baroness was concerned that even where industrial action is not the cause of the emergency it may still hinder the response—a point also made by the noble Lord, Lord Elton—if a strike is already in progress when an emergency occurs. However, I am not aware of any examples where this has been the case.
Noble Lords will be aware of the long tradition of those taking industrial action co-operating to minimise any risk to the public. For example, during the 1970 dock strike, for which emergency powers were invoked, dock workers continued to unload perishable items, while during the 2002 firefighters' strike, firefighters continued to respond to incidents where lives were at
risk.
During our debate on Report the noble Baroness referred to the fact that strikes did take place during World War II. I understand the point she was making, and it was of course correct. But I am aware of no evidence to suggest that they compromised the war effort in any way or put others at risk. It would be wrong to exaggerate their magnitude. At their peak in 1944, 3,714,000 days were lost to strike action. However, it is worth remembering that in 1974 the figure was 14,750,000 days, and in 1984 it was 27,135.000 days. It is also worth remembering that it was the preservation of fundamental rights and civil liberties for which the war was being fought. I for one am proud and reassured that we were able to maintain these rights wherever possible, even in our darkest hour. It was that refusal to restrict dissent and to uphold pluralism that set us apart from the totalitarian regimes of the day and helped to ensure that the United Kingdom remained a beacon of hope and freedom to those across the Continent whose rights and freedoms had been taken away. This Government have no intention of diminishing that light.
The Government believe that industrial disputes, so long as they remain within the law, are a matter for employees and their employers. The emphasis must be on their resolution, and the Government taking sides and interfering in a draconian manner would be likely only to inflame the situation.
As I made clear on Report, those who wilfully and maliciously go on strike where they know or have reasonable cause to believe that the probable consequence of doing so will be to endanger human life or cause serious bodily injury, or expose valuable property to destruction or serious damage, commit an offence under the Trade Union and Labour Relations (Consolidation) Act 1992. That places a real limit on the potential effects of industrial action. Any action that involves deliberate endangerment of human life or property, or causes illness or injury, is a matter of criminal law, be it in normal times or in the midst of emergencies. These laws apply to everyone, including those who take industrial action.
1338
The law in these areas is robust and effective and the Government's position, as set out in the Bill, is that existing legislation which has been approved by Parliament should always be used where it will be effective. The Government accept that industrial action may have a disruptive effect on services. The Bill ensures that action can be taken to mitigate the worst effects of a particularly disruptive strike without resorting to prohibition. As I have already made clear, the legislation this replaces contains an identical provision. We do not believe that there is anything in the past which would cause us to suggest that we should change.
On the point raised by the noble Earl, Lord Onslow, emergency measures can be invoked in order to mitigate the issues to which he referred. I have already described why we say that if a strike occurs in the midst of an emergency we shall be able to deal with it perfectly properly without denying people the liberty and opportunity to act in accordance with their rights, which are upheld and underscored by current human rights protection.
I am sorry to disappoint the noble Baroness, but we remain resolutely opposed to the expunging of the provisions.
Baroness Buscombe: My Lords, I shall he brief. I am deeply disappointed that, even at this stage, I have failed properly to explain our position and to persuade the Government that one of our real concerns is not that the strike may cause the emergency itself but that some unprecedented severe act may occur when certain trade unions are already out on strike. The Government are saying that it is all right to be on strike when there is a threat to our national security, but we on these Benches do not accept that.
The noble Lord, Lord Lester of Herne Hill, said that it was right for people to be allowed to go on strike except in the direst exceptional circumstances. We are talking about the direst exceptional circumstances. We are talking about an unprecedented act such as the 9/11 attack which, as we speak, could occur within minutes of now. Let us suppose that the Tube workers were currently out on strike. Are the Government saying that it would be perfectly all right for the chaos that could prevail across London to continue because those people have the right to strike? Are we saying that saving lives could happily be hindered because of the right to strike?
Baroness Scotland of Asthal: My Lords, I hesitate to interrupt, but I specifically said—I am sure that the noble Baroness heard me—that industrial action which threatens life is illegal and as such it would be stopped. Let me remind the noble Baroness that I also said that most people behave incredibly responsibly; they do save lives and they do go back to work when our country is at risk.
Baroness Buscombe: So why, my Lords, do we need this exception on the face of the Bill? I do not want to detain the House a moment longer. Let us agree to disagree. I beg leave to test the opinion of the House.
5.24 p.m.
On Question, Whether the said amendment (No. 16) shall be agreed to?
Their Lordships divided: Contents, 138; Not-Contents 200.

Division No. 1

CONTENTS

Alton of Liverpool, L.

Kimball, L.

Arran, E.

King of Bridgwater, L.

Astor, V.

Kingsland, L.

Astor of Hever, L.

Kirkham, L.

Attlee, E.

Laing of Dunphail, L.

Baker of Dorking, L.

Lamont of Lerwick, L.

Bell, L.

Lane of Horsell, L.

Blackwell, L.

Lawson of Blaby, L.

Blatch, B.

Liverpool, E.

Bowness, L.

Lucas, L.

Bridgeman, V.

Lyell, L.

Brittan of Spennithorne, L.

McAlpine of West Green, L.

Brooke of Sutton Mandeville, L.

McColl of Dulwich, L.

Brougham and Vaux, L.

MacGregor of Pulham Market, L.

Burnham, L.

Buscombe, B.

MacLaurin of Knebworth, L.

Byford, B.

Mar, C.

Caithness, E.

Mayhew of Twysden, L.

Campbell of Alloway, L.

Miller of Hendon, B.

Carlisle of Bucklow, L.

Monro of Langholm, L.

Carnegy of Lour, B.

Montagu of Beaulieu, L.

Chadlington, L.

Montrose, D.

Cope of Berkeley, L. [Teller]

Morris of Bolton, B.

Crathorne, L.

Mowbray and Stourton, L.

Crickhowell, L.

Murton of Lindisfarne, L.

Cumberlege, B.

Newton of Braintree, L.

Dean of Harptree, L.

Noakes, B.

Dixon-Smith, L.

Northbrook, L.

Dundee, E.

Northesk, E.

Eccles of Moulton, B.

Norton of Louth, L.

Eden of Winton, L.

O'Cathain, B.

Elles, B.

Onslow, E.

Elliott of Morpeth, L.

Oppenheim-Barnes, B.

Elton, L.

Palumbo, L.

Emerton, B.

Park of Monmouth, B.

Feldman, L.

Patten, L.

Ferrers, E.

Pearson of Rannoch, L.

Flather, B.

Peel, E.

Fookes, B.

Perry of Southwark, B.

Forsyth of Drumlean, L.

Peyton of Yeovil, L.

Fowler, L.

Platt of Writtle, B.

Gardner of Parkes, B.

Plumb, L.

Geddes, L.

Plummer of St. Marylebone, L.

Gilmour of Craigmillar, L.

Rawlings, B.

Glenarthur, L.

Reay, L.

Glentoran, L.

Rees, L.

Goschen, V.

Rees-Mogg, L.

Greenway, L.

Renton, L.

Hanham, B.

Roberts of Conwy, L.

Harris of Peckham, L.

Rotherwick, L.

Hayhoe, L.

Ryder of Wensum, L.

Henley, L.

Saatchi, L.

Higgins, L.

Saltoun of Abernethy, Ly.

Hodgson of Astley Abbotts, L.

Seccombe, B. [Teller]

Hogg, B.

Selborne, E.

Home, E.

Selsdon, L.

Hooper, B.

Sharples, B.

Howe, E.

Shaw of Northstead, L.

Howe of Aberavon, L.

Sheppard of Didgemere, L.

Howe of Idlicote, B.

Skelmersdale, L.

Howell of Guildford, L.

Soulsby of Swaffham Prior, L.

Hunt of Wirral, L.

Stevens of Ludgate, L.

Inglewood, L.

Stewartby, L.

Jenkin of Roding, L.

Swinfen, L.

1340

Taylor of Warwick, L.

Wade of Chorlton, L.

Thatcher, B.

Wakeham, L.

Thatcher, B.

Walker of Worcester, L.

Trefgarne, L.

Wilcox, B.

Trumpington, B.

Windlesham, L.

Tugendhat, L.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Gibson of Market Rasen, B.

Addington, L.

Giddens, L.

Ahmed, L.

Gilbert, L.

Alderdice, L.

Golding, B.

Alli, L.

Goldsmith, L.

Amos, B. (Lord President of the Council)

Goodhart, L.

Gordon of Strathblane, L.

Ampthill, L.

Goudie, B.

Andrews, B.

Gould of Potternewton, B.

Archer of Sandwell, L.

Graham of Edmonton, L.

Ashley of Stoke, L.

Grantchester, L.

Ashton of Upholland, B.

Greaves, L.

Avebury, L.

Greengross, B.

Bach, L.

Grocott, L. [Teller]

Barnett, L.

Hamwee, B.

Bassam of Brighton, L.

Harris of Haringey, L.

Beaumont of Whitley, L.

Harris of Richmond, B.

Bernstein of Craigweil, L.

Harrison, L.

Best, L.

Hart of Chilton, L.

Billingham, B.

Haskins, L.

Blackstone, B.

Haworth, L.

Bledisloe, V.

Hayman, B.

Boothroyd, B.

Henig, B.

Boston of Faversham, L.

Hilton of Eggardon, B

Bradshaw, L.

Hogg of Cumbernauld, L.

Bragg, L.

Hollis of Heigham, B.

Brennan, L.

Holme of Cheltenham, L.

Bridges, L.

Hooson, L.

Brooke of Alverthorpe, L.

Howarth of Breckland, B.

Brookman, L.

Howie of Troon, L.

Brooks of Tremorfa, L.

Hoyle, L.

Burlison, L.

Hughes of Woodside, L.

Cameron of Dillington, L.

Hunt of Chesterton, L.

Campbell-Savours, L.

Hunt of Kings Heath, L.

Carter, L.

Irvine of Lairg, L.

Clarke of Hampstead, L.

Janner of Braunstone, L.

Clement-Jones, L.

Jay of Paddington, B.

Clinton-Davis, L.

Jones, L.

Cobbold, L.

King of West Bromwich, L.

Cohen of Pimlico, B.

Kirkhill, L.

Colville of Culross, V.

Layard, L.

Condon, L.

Lea of Crondall, L.

Corbett of Castle Vale, L.

Leitch, L.

Craigavon, V.

Lester of Herne Hill, L.

Crawley, B.

Lipsey, L.

Dahrendorf, L.

Listowel, E.

David, B.

Lockwood, B.

Davies of Coity, L.

Lofthouse of Pontefract, L.

Davies of Oldham, L. [Teller]

McIntosh of Hudnall, B.

Dean of Thornton-le-Fylde, B.

MacKenzie of Culkein, L.

Desai, L.

Mackenzie of Framwellgate, L.

Dixon, L.

McKenzie of Luton, L.

Donaldson of Lymington, L.

Mackie of Benshie, L.

Drayson, L.

McNally, L.

D'Souza, B.

Maddock, B.

Dubs, L.

Mar and Kellie, E.

Elder, L.

Mason of Barnsley, L.

Evans of Parkside, L.

Massey of Darwen, B.

Evans of Temple Guiting, L.

Maxton, L.

Falkland, V.

Merlyn-Rees, L.

Falkner of Margravine, B.

Methuen, L.

Farrington of Ribbleton, B.

Michie of Gallanach, B.

Faulkner of Worcester, L.

Miller of Chilthorne Domer, B.

Filkin, L.

Morgan of Drefelin, B.

Fyfe of Fairfield, L.

Morris of Aberavon, L.

Gale, B.

Morris of Manchester. L.

Garden, L.

Neuberger, B.

1341

Newby, L.

Smith of Clifton, L.

Northover, B.

Smith of Leigh, L.

Oakeshott of Seagrove Bay, L.

Southwark, Bp.

O'Neill of Bengarve, B.

Stern, B.

Palmer, L.

Stoddart of Swindon, L.

Parekh, L.

Symons of Vernham Dean, B.

Patel of Blackburn, L.

Taverne, L.

Pendry, L.

Taylor of Blackburn, L.

Phillips of Sudbury, L.

Temple-Morris, L.

Plant of Highfield, L.

Thomas of Gresford, L.

Prosser, B.

Thomas of Swynnerton, L.

Prys-Davies, L.

Thomas of Walliswood, B.

Radice, L.

Thornton, B.

Randall of St. Budeaux, L.

Tomlinson, L.

Redesdale, L.

Tope, L.

Rendell of Babergh, B.

Tordoff, L.

Triesman, L.

Roberts of Llandudno, L.

Truscott, L.

Rodgers of Quarry Bank, L.

Tunnicliffe, L.

Rooker, L.

Turnberg, L.

Roper, L.

Turner of Camden, B.

Rosser, L.

Wall of New Barnet, B.

Rowlands, L.

Walmsley, B.

Royall of Blaisdon, B.

Warner, L.

Russell-Johnston, L.

Warwick of Undercliffe, B.

Sawyer, L.

Weatherill, L.

Scotland of Asthal, B.

Whitaker, B.

Scott of Needham Market, B.

Whitty, L.

Sewel, L.

Wilkins, B.

Sharman, L.

Williams of Crosby, B.

Sharp of Guildford, B.

Williams of Elvel, L.

Sheldon, L.

Williamson of Horton, L.

Shutt of Greetland, L.

Woolmer of Leeds, L.

Simon, V.

Worcester, Bp.

Resolved in the negative, and amendment disagreed to accordingly.
5.36 p.m.
Baroness Buscombe Baroness Buscombe moved Amendment No. 17:
Page 17, line 16, at end insert—

"(c) the Habeas Corpus Act 1816 (c. 100),

(d) section 7 of the Parliament Act 1911 (c. 13) (duration of Parliament),

(e) the Bill of Rights 1689 ( 1 Will & Mar. Sess. 2, c. 2),

(f) the Act of Settlement 1700 (c. 2),

(g) the House of Commons Disqualification Act 1975 (c. 25),

(h) the Life Peerages Act 1958 (c. 21), and

(i) the House of Lords Act 1999 (c. 34)"

The noble Baroness said: My Lords, we have raised this issue previously. The current drafting of the Bill allows the Government, by virtue of Clause 22(3)(j), to disapply or modify any enactment save the Human Rights Act.
The Government have changed their mind on the powers of the clause since it has arrived in your Lordships' House. At first, they argued that there was no need to exclude any Acts from the paragraph in question, and sent a strongly worded reply to the Joint Committee on Human Rights when the latter raised an objection to this enormous power. However, they have changed their mind regarding the Human Rights Act, and have decided that it does need protection, after all.
We are now asking the Government to do the same and protect the Acts outlined in my amendment. These are: the Habeas Corpus Act 1816; Section 7 of the Parliament Act 1911; the Bill of Rights 1689; the
1342
Act of Settlement 1700; the House of Commons Disqualification Act 1975; the Life Peerages Act 1958; and the House of Lords Act 1999.
We have tried to keep this list brief. It is certainly not as long as that suggested by the Joint Committee on Human Rights. However, we feel that the list we have proposed is sensible and adequate to protect from possible interference some of the most important legislation on the statute book.
These Acts have been around for so long it seems implausible that any government would ever wish to change them. If I may, I suggest that it would be wise for the Government to concede this point. There has been much discussion on the point, and it would bring peace of mind to many around your Lordships' House and beyond to know that these core Acts cannot be touched.
I very much appreciate the Minister writing to me following our debate on Report. However, as one who was called to the Bar some 27 years ago, I found her letter rather patronising. That said, let me respond to some of the points she made. I accept that no legislation is immune from change, which is why we have kept our list to the very core enactments that underpin our unwritten constitution. Notwithstanding the fact that the Minister has already conceded that we need to strengthen access to judicial review, and has sought to do so by bringing forward amendments on Report, we believe that it is important to go one step further.
We firmly believe that it is our duty, as Her Majesty's Opposition, to persuade the Minister that, given Clause 22(3)(j), we must safeguard those core enactments which protect the constitution of Parliament, the activities of Parliament and access to justice—in other words, our core freedoms and our democracy.
In her letter addressed to me regarding a similar amendment on Report, the Minister stated that the Government are convinced that the absence of an express power to amend constitutionally important legislation, coupled with the clear expression of the purposes for which regulations can be made and the safeguards set out in the Bill, ensure that substantive amendment to such legislation is not possible by way of emergency regulations. I am sorry, but I simply do not accept that as a convincing argument for standing back and allowing Clause 22(3)(j) to sit on the statute book without further safeguards.
In addition, in introducing an amendment on Report expressly to exempt the Human Rights Act from Clause 22(3)(j), the Minister stated that notwithstanding the Government's belief that it is not strictly necessary expressly to protect the Human Rights Act,
"in the light of concerns expressed by civil liberties groups and in Parliament, the Government believe that an express provision to the effect that emergency regulations cannot disapply or modify any provision of the Human Rights Act would offer the certainty and reassurances that some seek".—[Official Report, 9/11/04; col. 867.]
I urge the Minister to accept our amendment. In so doing, she would be responding to the many who have expressed their alarm and serious disquiet with regard to the extraordinarily wide powers which this enabling legislation confers upon individuals in government.
I was struck by the byline attached to the Home Office letterhead, which is:
"Budding a safe, just and tolerant society".
I suggest to the Minister that in proposing this amendment, we believe we are seeking to safeguard a safe and just society. I beg to move.
Lord Lester of Herne Hill: My Lords, I find this a curious amendment from the official Opposition, because it seeks to treat our system as if we are approximating towards a written constitution which guarantees basic civil and political rights to people of this country. My party and I strongly favour a written constitution similar to that which exists in every other European state and in most other Commonwealth countries. If that were done, the purpose that this amendment seeks to achieve would be accomplished in a proper constitutional way. Emergency powers could not be used in a way that violated basic constitutional rights.
However, as far as I am aware, that is not the position of members of the Conservative Party although, if they were true to their Burkeian traditions, they would actually move in that direction. What we have instead is a partial list of statutes, some much more important than others with omissions of others that are equally important. For example, we do not find the Magna Carta, the Claim of Right, the Act of Union in Scotland—or its modern counterpart the Scotland Act—or the Northern Ireland Act.
Instead, we have the Habeas Corpus Act which has been entirely superseded and made much more effective in practice by Article 5 of the European Convention on Human Rights which guarantees the right of liberty in a way that the Habeas Corpus Act 1816 failed to do. We have provisions about the Bill of Rights of 1688–89, most of which are either of no relevance or belong in a constitutional charter. The Act of Settlement is the same. I cannot for the life of me see why the Life Peerages Act should be treated as a great constitutional Act or, for that matter, the House of Lords Act.
Although I have more than sympathy with the need to protect our birthright—as it is quaintly described in the Act of Settlement:
"the laws of England are the birthright of the people thereof"—
I believe in protecting that birthright by a new constitutional settlement. That would make us stronger in negotiating with the EU, give us a greater sense of national identity, codify the basic political and civil values of this country, protect the church and state and the separation of church and state and so forth. I do not believe that a shopping list of miscellaneous old statutes, some important and some less so, is the right way to go about it. Nor do I believe that it is necessary in order to accomplish the movers of the amendment's needs.
Therefore, I very much hope that the amendment will not he pressed to a Division and that the noble Baroness will persuade her colleagues so that the official Opposition joins the Liberal Democrats and, I hope, the Government in due course in favour of a modern, coherent written constitution.
5.45 p.m.
Lord Peyton of Yeovil: My Lords, I rise to support my noble friend despite the observations of the noble Lord, Lord Lester. He may be right in saying that the list of measures could be improved and I do not doubt that my noble friend would be willing to consider that. However, what really matters is that there should be some important measures in the Bill. If the Government wish to add to them in another place, that would be fine.
I have always worried about this Bill as I remarked earlier this afternoon. It has an odour about it of casualness where personal liberty is concerned and I was only slightly comforted to hear the Minister, in that nice voice of hers, saying that the Government had been concerned all along to avoid large powers being used for wrong reasons. That helped me a little, but what worried me earlier was the unwillingness or inability of the noble Lord, Lord Bassam, to give any idea about what constitutes damage serious enough to bring into effect or make lively the powers conferred on Ministers by the Bill.
My concern remains and I am hopeful that the Minister will not just wave away the cogent arguments produced by my noble friend to see that really important traditional measures—whatever they may be, because I do not think that this list is in any way exclusive—that play a fundamental part in propping up the liberty of the subject are not lightly discarded by a Bill of this kind. If the Minister were to accept the amendment or even say that the Government would take it away and see what they could do with the Bill in another place, I would be very happy, but I am bound say that my suspicions were better founded than I originally thought if she waves aside the anxieties that have been expressed today.
I hope that the Minister will take no notice of the noble Lord, Lord Lester, who was rather cavalier in his treatment of personal liberties—too cavalier to support this amendment. I support my noble friend.
Lord Renton: My Lords, I also warmly support this amendment for a rather special reason. Forty-six years ago, I helped the late Lord Butler of Saffron Walden to pilot the Life Peerages Act 1958 through the other place. Now, all your Lordships except the 92 hereditary Peers, the Bishops and the Law Lords are dependent on that Act as part of our law and the composition of your Lordships' House. If any doubt whatever were thrown upon it, it would be disastrous for that composition. I hope that the noble Baroness, Lady Scotland, whose open mindedness I have admired on many occasions, will realise that my noble friend has moved a vitally important amendment.
Lord Monson: My Lords, we spoke on this matter at considerable length on the previous occasion. Subsequently I have seen copies of some of the correspondence that the noble Baroness, Lady Buscombe, received. I was alarmed to see that the Government maintain that it may be necessary to prolong the life of Parliament beyond five years in certain emergency situations. I find that very worrying. However, over and above that, I wonder what on earth is wrong with the belt-and-braces

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approach suggested by the noble Baroness, Lady Buscombe. It may not be entirely necessary but at least, as she said, it would give enormous reassurance to the millions of people throughout Britain of all parties and none who are extremely unhappy about this Bill.
The Earl of Onslow: My Lords, surely personal and individual liberties cannot be offhandedly dismissed in the way that the noble Lord, Lord Lester, did on the basis that the Human Rights Act was good enough. A whole part of our liberties—
Lord Lester of Herne Hill: My Lords, I am sorry to interrupt the noble Earl at this stage but I did not say that. I said that we needed a written constitution and not an anomalous list of old statutes, some of which are important and some less so.
The Earl of Onslow: My Lords, the noble Lord obviously does not understand human liberty in the way that I do. I understand human liberty as a Whig and as someone who seriously thinks that one of the greatest acts of human history was the 1688 settlement. To dismiss it as just pooh-pah, which I thought the noble Lord did, and to say that we need a written constitution along the lines of republican France seems to me rather an odd idea for a Liberal.
Be that as it may, we have had our little tit-tat. The serious point I hope to make is that a very serious longstop clause must be contained in a power given to Ministers to amend or repeal legislation by diktat. This collection of Acts is the minimum that should be safeguarded. I would not trust my own party with the power, let alone the noble Baroness, much as I love her, or some other parliamentarians. I simply do not trust human beings with that power. There must be a safeguard of some kind.
Lord Stoddart of Swindon: My Lords, I very much enjoyed the speech of the noble Lord, Lord Lester. I admired his adroitness in using what is a very limited amendment to give us a dissertation on a written constitution. No doubt he will return to that at some point in the future.
I am attracted to this amendment simply because I know that many people outside Parliament are very worried about this Bill. They need reassurance. It is all right for the Government and, indeed, the Opposition for that matter, to say, "You can trust us", but the fact of the matter is that none of the governments of the past few years have shown themselves to be utterly trustworthy. They come forward with all sorts of very important legislation at short notice that is not properly discussed, for example, the Anti-terrorism, Crime and Security Bill, which went through the House of Commons in three days, and was amended to some degree and improved only in this House over a period of, I believe, 11 days. People outside this House are learning not to trust governments in the way they used to.
Lord Archer of Sandwell: My Lords, I am most grateful to the noble Lord, but does he have it in mind
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that we are discussing a situation where there is an emergency, and that any power about which we are talking depends upon there being an emergency?
Lord Stoddart of Swindon: My Lords, I am perfectly well aware of that, but many people do not trust the Government to act in accordance with the legislation which is in operation. That is what I am getting at—that the general public do not trust governments in the way that they used to. That is why there is much concern outside this House among the general population about a Bill that gives the Government extraordinary powers. A number of letters that I have received mention these very Acts as being safeguards which could be swept aside under this Bill. It is not only myself and other noble Lords who are concerned about them; ordinary people outside, who have a concern for democracy and the continuation of the protection of our freedoms and democracy, are worried. That is why I believe that it may be necessary to include this amendment in the Bill.
The noble Baroness who is to reply to the amendment may well be able to assuage the fears not only of noble Lords but of others outside this House. She may be able to give us assurances that convince us in this House that the Bill will be all right without the amendment. I hope that she will give that matter much attention because many people will need much persuasion that the Bill is all right as it is.
Lord Elton: My Lords, the noble Lord, Lord Lester, said that the list in my noble friend's amendment is anachronistic because many of the items in it have been amended, and that it is incomplete because many items have been left out. However, the noble Lord, Lord Stoddart, rightly said that this is a symbolic list. The amendment is symbolic in much the way that my noble friend Lord Onslow is symbolic. He is also anachronistic, if I may say so, and he has doubtless yet to achieve all that he wishes in life. However, he is an extremely important ornament and functioning part of your Lordships' legislature.
This amendment may also be anachronistic, but, unlike my noble friend, it can go to the House of Commons and be brought up to date. The proper answer for the Government to give is not that (c), (d), (e) and perhaps (f) are not right and (g) and (h) ought to be altered and (i) is superfluous. The answer ought to be, ''We understand that the House of Lords, not for the first time, is resonating to an anxiety in the country and trying to allay it by reasonable measures". This is such a reasonable measure. I ask the noble Baroness in replying to the amendment to undertake to give such reassurance. The House of Commons is at liberty to produce its own amendment, or its amendment to this amendment. In that way she may yet satisfy us tonight.
Viscount Goschen: My Lords, in an undated letter to my noble friend Lady Buscombe the noble Baroness said the following:
"The Government shares the concerns expressed that emergency powers should not be capable of making substantive amendments, which undermine the constitution of the United Kingdom".

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I certainly agree with the noble Baroness, but, unfortunately, that is not what the Bill says. We seek to take the noble Baroness's sentiment and enshrine it in the Bill.
The noble Lord, Lord Lester, pointed out that the group of statutes which we propose should be safeguarded constituted a ragbag, or some such term—I forget his exact words. Perhaps it is but the fact is that we do not have a written constitution to write into this Bill, and I suggest that we are unlikely to have one by Prorogation on Thursday. Therefore, we have to protect what we do have. As we have an unwritten constitution which consists of a variety of statutes, we have to pick those that we think are the most appropriate. I agree with the noble Lord that the list is not exclusive or exhaustive and that other statutes could be added. I am sure that the noble Baroness will pray that in aid in her defence. However, we are at least drawing a line in the sand. We are saying that at the very minimum these important aspects of our constitution should be protected.
The Government, by their own admission, have no business in enabling a situation whereby emergency regulations can be used to alter the fundamental constitution of our country. That is the position in the Bill. I would certainly prefer a Bill that was much more specific and which said what these powers could be used to amend, but we have been denied that. Therefore, we must at the very least have a list of those important constitutional statutes that cannot be amended by this Bill.
6 p.m.
Baroness Scotland of Asthal: My Lords, I have had one of my most enjoyable 23 minutes in a very long time. I will always remember the noble Lord, Lord Elton, describing the noble Earl, Lord Onslow, as a symbolic functioning ornament; it will live long in my memory. However, I want to make a number of matters plain.
It was not my intention to appear patronising in the letter. The noble Baroness will know that, although I address my letters to her, I hope that they will be shared more broadly with noble Lords. Therefore, I try to phrase them in an inclusive rather than exclusive way. If I failed on this occasion, I beg her pardon. I hope that she will recognise that offence was by no means intended.
I understand the logic of the noble Lord, Lord Lester, in relation to the nature of a written constitution. I agree with him on why the provisions should not be in the Bill. In no way do I misconstrue his interpretation; we all know that he is one of the most valiant supporters of human rights and interests in the country. It would be impossible to misinterpret his intent in that regard.
I reassure the noble Earl, Lord Onslow, that republican France is still very different from Her Majesty's United Kingdom, and is likely to remain so. It is equal, but we in Britain greatly enjoy that difference.
I understand the suggestion of the noble Lord, Lord Peyton, that there is an odour of casualness. However, had he had the benefit of enjoying every part
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of the Bill, as I have, he would have noticed that there was no casualness in the way in which it had been treated. Every minute detail has been scrutinised, worried over and argued about. He can rest assured. I thank him for his flattery in relation to the nature of my voice; I shall seek to retain it for his pleasure in due course.
The noble Lord, Lord Renton, was concerned about the Life Peerages Act. Perhaps I should declare an interest, having benefited from it myself. Some outside the House would find it odd that we should say to the courts of England and Wales, and to the public and future governments, that it is more important to protect the ability of Her Majesty to create life peerages than to protect people discriminated against on grounds of race or sex. It is curious that it is more important to preserve the rights of 92 hereditary Peers than those of the devolved administrations.
Baroness Buscombe: My Lords, there is a serious reason why the Life Peerages Act 1958 is included. I am sorry; I had assumed that it was fairly obvious. We want to ensure that it is not possible for any senior Minister or Prime Minister to disapply an Act and so, in some way, interfere with the constitution of either House of Parliament. That it is included has nothing to do with anything external to your Lordships' House or another place. That is purely why it is included; I hope that the noble Baroness will understand.
Baroness Scotland of Asthal: My Lords, I hear what the noble Baroness says. However, I remind her that the Act itself simply provides Her Majesty with the right to issue life peerages, and that its protection would not protect those who sit as Members of your Lordships' House. It is the Writ of Summons issued by Her Majesty that enables such a person to sit as a Member of the House of Lords. Whether or not the statute was protected from amendment, Writs of Summons could be issued to enable their receivers to sit in the House of Lords. The nature of the Bill preserves the rights of Her Majesty to act in that manner. That is why the noble Baroness and others need not be overly anxious on the subject.
I reinforce what I said in the letter—it was referred to by the noble Viscount, Lord Goschen about the necessity to protect the rights so dearly cherished by us all. The Government are at one with noble Lords who wish to see our constitutional arrangements supported and preserved. Nothing in the Bill does violence to that sentiment.
As I made clear on Report, the emergency powers exist to make temporary changes to the law where effective response is prohibited by insufficient powers. The Government cannot run amok altering legislation as we see fit. Any changes will be temporary and can be made only for the purposes of preventing, controlling or mitigating an aspect or effect of the emergency in question. They must be necessary, proportionate and compatible with the Human Rights Act, and will be scrutinised by Parliament.
The possibility of temporarily amending legislation of constitutional importance was examined in great detail by the Joint 'Committee that undertook

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pre-legislative scrutiny of the Bill and during debates in both Houses. Discussions have also taken place at official level with the civil liberties groups. The Government share the concerns expressed that emergency powers should not be capable of making substantive amendments which undermine the constitutional arrangements of the United Kingdom. However, we are satisfied—we remain so—that the Bill cannot be used by this Government or any other government in that way, given the absence of any express power to do so. I understand the desire of the noble Earl, Lord Onslow, not to trust any government, perhaps particularly because of his experience with his own, but I shall say no more about that. The issues are protected.
I want to move on to why the list approach is inappropriate.
Lord Elton: My Lords, before the noble Baroness moves on, can she clarify a deeply important point? Under Clause 22(3)(j), a Minister can,
"disapply or modify an enactment or a provision made under or by virtue of an enactment".
Is she saying that that would lapse with the end of the emergency powers? In other words, is she saying that a Minister cannot break the tumbler so that it is irreparable when the order is revoked? I would be most grateful to hear the noble Baroness say, in terms and on record, that a disapplication or modification would be coterminous with the emergency.
Baroness Scotland of Asthal: My Lords, that is how it works. The emergency powers under the Bill enable a government to take those steps necessary to address an emergency. That is why we have the tight time frame. Noble Lords will remember our debates about seven days, 21 days, the importance of when the issues will lapse, the fact that we have to come back and get assent from Parliament, and that the powers last only so long. We have included those time limits. However, noble Lords will know that it will be open to Parliament on a number of occasions to shorten the time limits and to come back and have the powers disapplied. We have debated that at length.
The powers are there for the purpose of the emergency. Once the emergency goes, so do the powers inherent in the direction. Noble Lords will remember the clear comments made on Report about the utility of the provisions lasting for only so long as they were necessary. Opposition Peers commented that, although powers were taken on a number of occasions, they were not used. Some people prayed in aid September 11, where the substantive law, not the emergency powers, was used to deal with the situation.
We expect the ordinary laws of our country to be used if at all possible, unless and until we had an extreme situation, in which case the emergency powers would be available to address it. That is the whole thrust of the Bill. It is not to deal with the general situation, but to deal with a situation in extremis.
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We cannot agree that including a list of "constitutional enactments" to be protected from amendment is the right way to achieve that shared aim. As the noble Lord, Lord Lester of Herne Hill, said, we have no written constitution and no universally agreed list of legislation which is "constitutionally important". All Acts of Parliament have the same status, and it is common for them to contain both very important provisions and very minor ones. Acts may deal with the fundamental rights of individuals or the building blocks of our constitution but contain provisions that are—I hesitate to say "banal"—certainly technical.
The Human Rights Act, for example, one of our most treasured Acts, contains provision both for the pensions of judges and the right to life. Although I pay every respect to the noble and learned Lords who sit on our Judicial Committee, I do not believe that any of us would say that those two issues have quite the same importance.
Lord Lester of Herne Hill: My Lords, this is an important issue, which may be listened to with great care by the House. Does the noble Baroness agree that the Government have commendably treated the Human Rights Act as no ordinary law and made provision to ensure that future legislation, as well as past legislation, must where possible be read and given effect compatibly—so that in effect it is treated as a special constitutional measure and safeguard, pace Dicey, who revolves in his grave as a result of that? Is that not the position?
Baroness Scotland of Asthal: My Lords, it is. Noble Lords will know that we debated long and hard whether the Human Rights Act should be given that special position. The argument could run that because the Human Rights Act has to be referred to on the face of every Bill, and because the provision is already there, we do not have to have the same provision reflected on the face of the Bill. We have come to the conclusion that, due to the very special nature of the Human Rights Act, we can make the exception.
As a consequence of the way in which legislation is made generally, there is room for legitimate disagreement about which enactments contain provisions of constitutional importance. We do not believe that it is possible to prepare an accurate list of enactments which should be protected. For example, some will argue that the devolution Acts are of great constitutional importance; those less sympathetic to devolution may not. There are arguments in favour of both interpretations. Those Acts alter the distribution of powers and the way parts of the country are run. On the other hand, they do not affect the sovereignty of Parliament or the fundamental rights of individuals.
It is important to bear in mind that, regardless of whether it is believed to be constitutionally important, no legislation is immune from change through the ordinary legislative process, as can be seen by the myriad amendments and repeals to enactments that have been highlighted for express protection. I need only mention the case of Magna Carta—popularly considered to be of the greatest constitutional importance, while in practice

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the vast majority of it has been repealed and the protections that it still contains are better provided for in the Human Rights Act.
I note that, following discussion of the Magna Carta on Report, it has been removed from the list of enactments that it is suggested should receive express protection. That highlights the point that keeping any such list up to date and accurate would be impractical, as the importance and content of legislation changes over time. Indeed, many of the enactments referred to in the debate have largely been amended or repealed and the protections once guaranteed in many Acts are now largely to be found elsewhere.
Any list of protected Acts would inevitably be an inaccurate attempt exhaustively to list all such constitutional enactments. But this amendment would be a problem. The danger of an incomplete list of constitutional enactments which cannot be amended is that the courts could conclude that it was an exhaustive list and that Parliament envisaged that constitutional enactments which were not specified could he amended by emergency regulations. The effect of the amendment would be that a court might conclude that the Scotland Act could be modified so as to suspend the Scottish Parliament, or that the Data Protection Act could be suspended. That is not our intention.
In other words, the amendment would weaken the safeguards in the Bill. As the Bill is currently drafted, emergency regulations could not be used to make a substantive amendment which undermined the constitutional fabric of the UK. But once Parliament begins to list enactments that cannot be amended, there is a real risk that a court will conclude that, notwithstanding the other provisions of the Bill, any enactment which is not on the list can be amended. That is not how we have run our law in this country. It is against our tradition to do it in such a way.
I should make it clear that it is because this Government love the freedoms of this country and the constitutional arrangements that we have made that we feel that they are important. I heard the noble Baroness, Lady Buscombe, say, "hunting". I am not hunting in this Bill for anything other than justice.
6.15 p.m.
Lord Donaldson of Lymington: My Lords, why is it right to exclude the Human Rights Act but not the Habeas Corpus Act? I suppose that the courts might say that, after such a long time, they do not really derive their powers from the Habeas Corpus Act—it is inherent. But that is a different argument altogether. Certainly the argument put by the noble Lord, Lord Lester, does not run. Even if it is just to comfort me and one or two others, why can we not protect the Habeas Corpus Act?
Baroness Scotland of Asthal: My Lords, the noble and learned Lord knows that he can make no more powerful argument than to ask me to comfort him, because I would go a long way to try to comfort him. But, even for him, we feel that the Human Rights Act is enough.
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There have been strong arguments that, because of the way in which we interpret the law—as the noble and learned Lord will know well—technically, the Human Rights Act does violence to the principle that anything that is not expressly excluded is deemed to be implied. There was therefore a big argument about whether we should include the Human Rights Act. Although we regard those Acts as of equal importance, it was eventually agreed that, because of the special nature of the Human Rights Act—as the noble and learned Lord will know, many of the provisions in the Habeas Corpus Act are included in the Human Rights Act—this was an appropriate step.
I have said from this Dispatch Box on a number of occasions that the rights embedded in the legislation referred to are not changed and that anyone reading the Hansard report of our debate will know that, when passing this legislation, the Government of the day were absolutely clear that the constitutional and other Acts to which we have referred were not adversely affected by the passing of the Bill. Nothing in the drafting could possibly or properly be construed to do that.
I hope that that will be of comfort to the noble and learned Lord. I hope that he will agree that we have some of the best constitutional judges and lawyers in the world. I am confident that the combination of the Bill and the statements made in this House will not be misconstrued by the judiciary, unless the quality of that judiciary were to be materially changed. Thus far, this country has been blessed with exemplary care from the judicial officers who have discharged their duty with integrity.
Baroness Buscombe: My Lords, I wish that I could be as trusting as the Minister in believing that, once an emergency is over, any Acts that have been disapplied will automatically be enacted and respected in any event. Sadly, I do not find myself to be so trusting, and clearly nor did the Joint Committee which scrutinised the draft Bill. That committee recommended that 21 Acts should appear on the face of the Bill as not being liable to modification or disapplication under Clause 22(3)(j).
In comparison, my list of Acts is modest. Indeed, noble Lords have suggested that it is a symbolic list and, in a sense, it is. As the noble Lord, Lord Monson, said, in a sense it provides a belt and braces that we consider to he crucially important not only for all the reasons that we have expressed throughout the passage of the Bill in your Lordships' House but also because of all those beyond the House, as referred to by the noble Lord, Lord Stoddart. We want to respect their concerns and give them some reassurance with regard to a Bill that gives those in power such extraordinary powers. The Minister said that no legislation should be protected from amendment by the ordinary legislative process. But I suggest—in fact, I firmly believe—that this Bill is an extraordinary process.
There is a further point. First, we decided to remove Magna Carta 1297 from the list because, as the Minister said, we accepted that the Magna

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been largely repealed. But that does not mean that it is therefore otiose to list the Acts that we believe represent the core enactments to enshrine, protect and safeguard our Parliament and our access to justice. We believe, for example, that there is a strong case for protecting the Habeas Corpus Acts.
The point about derogation, to which I referred on Report with regard to the Human Rights Act, is important. The Government can, and do, derogate from certain provisions of the convention and can do so by certification by a Minister. We do not believe that the Human Rights Act is necessarily as robust as the Minister thinks. Perhaps I may suggest that at some point the Minister reads a recent article by Keith Ewing in the latest issue of Public Law entitled "The Futility of the Human Rights Act 1998".
We believe that the Government, through their willingness to change their mind throughout the passage of the Bill in expressly protecting the Human Rights Act, have shown that we should be firm in our resolve to protect those core enactments, as I have attempted to do in this amendment. I am sorry that the Government have not listened to us in that respect. I appreciate that the Government listened to us on earlier amendments in relation to safeguarding, or further ensuring access to, judicial review, but we believe that we should take that one step further. The amendment is right and it is symbolic. No list will ever be perfect, but we believe that we should be strong. I therefore wish to test the opinion of the House.
6.23 p.m.
On Question, Whether the said amendment (No. 17) shall be agreed to?
Their Lordships divided: Contents, 146; Not-Contents, 169.

Division No. 2

CONTENTS

Alton of Liverpool, L.

Cobbold, L.

Anelay of St Johns, B.

Colville of Culross, V.

Arran, E.

Colwyn, L.

Astor, V.

Condon, L.

Astor of Hever, L.

Cope of Berkeley, L. [Teller]

Attlee, E.

Craig of Radley, L.

Baker of Dorking, L.

Craigavon, V.

Bell, L.

Crickhowell, L.

Blackwell, L.

Cumberlege, B.

Blatch, B.

Dahrendorf, L.

Bowness, L.

Dean of Harptree, L.

Bridgeman, V.

Dixon-Smith, L.

Bridges, L.

Donaldson of Lymington, L.

Brooke of Sutton Mandeville, L.

D'Souza, B.

Brougham and Vaux, L.

Dundee, E.

Burnham, L.

Eden of Winton, L.

Buscombe, B.

Elles, B.

Byford, B.

Elliott of Morpeth, L.

Caithness, E.

Elton, L.

Cameron of Dillington, L.

Erroll, E.

Campbell of Alloway, L.

Feldman, L.

Carlisle of Bucklow, L.

Ferrers, E.

Carnegy of Lour, B.

Flather, B.

Chadlington, L.

Fookes, B.

Chester, Bp.

Fowler, L.

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Freyberg, L.

Noakes, B.

Gardner of Parkes, B.

Northbrook, L.

Geddes, L.

Northesk, E.

Gilmour of Craigmillar, L.

Norton of Louth, L.

Glenarthur, L.

O'Cathain, B.

Glentoran, L.

O'Neill of Bengarve, B.

Goschen, V.

Onslow, E.

Greenway, L.

Palmer, L.

Hanham, B.

Palumbo, L.

Harris of Peckham, L.

Park of Monmouth, B.

Hayhoe, L.

Pearson of Rannoch, L.

Henley, L.

Peel, E.

Higgins, L.

Perry of Southwark, B.

Hodgson of Astley Abbotts, L.

Peyton of Yeovil, L.

Hogg, B.

Pilkington of Oxenford, L.

Home, E.

Platt of Writtle, B.

Howe, E.

Plumb, L.

Howe of Aberavon, L.

Plummer of St. Marylebone, L.

Howell of Guildford, L.

Rawlings, B.

Hunt of Wirral, L.

Reay, L.

Rees, L.

Hurd of Westwell, L.

Rees-Mogg, L.

Jenkin of Roding, L.

Renton, L.

Kimball, L.

Reton of Mount Harry, L.

King of Bridgwater, L.

Roberts of Conwy, L.

Kingsland, L.

Rotherwick, L.

Kirkham, L.

Saatchi, L.

Lamont of Lerwick, L.

Saltoun of Abernethy, Ly.

Lane of Horsell, L.

Seccombe, B. [Teller]

Lawson of Blaby, L.

Selborne, E.

Liverpool, E.

Selsdon, L.

Lucas, L.

Sharples, B.

Lyell, L.

Skelmersdale, L.

McAlpine of West Green, L.

Soulsby of Swaffliam Prior, L.

McColl of Dulwich, L.

Southwell, Bp.

MacGregor of Pulham Market, L.

Stewartby, L.

Stoddart of Swindon, L.

MacLaurin of Knebworth, L.

Strange, B.

Mancroft, L.

Sutherland of Houndwood, L.

Mar, C.

Swinfen, L.

Mayhew of Twysden, L.

Taylor of Warwick, L.

Miller of Hendon, B.

Tebbit, L.

Monson, L.

Thomas of Swynnerton, L.

Montagu of Beaulieu, L.

Trumpington, B.

Montrose, D.

Tugendhat, L.

Morris of Bolton, B.

Wakeham, L.

Mowbray and Stourton, L.

Wilcox, B.

Murton of Lindisfarne, L.

Williamson of Horton, L.

Newton of Braintree, L.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Brooks of Tremorfa, L.

Addington, L.

Burlison, L.

Ahmed, L.

Burns, L.

Alderdice, L.

Butler of Brockwell, L.

Alli, L.

Campbell-Savours, L.

Amos, B. (Lord President of the Council)

Carter, L.

Chandos, V.

Andrews, B.

Christopher, L.

Archer of Sandwell, L.

Clarke of Hampstead, L.

Ashton of Upholland, B.

Clinton-Davis, L.

Avebury, L.

Cohen of Pimlico, B.

Bach, L.

Corbett of Castle Vale, L.

Barker, B.

Crawley, B.

Barnett, L.

Davies of Coity, L.

Bassam of Brighton, L.

Davies of Oldham, L. [Teller]

Beaumont of Whitley, L.

Dean of Thornton-le-Fylde, B.

Bernstein of Craigweil, L.

Desai, L.

Billingham, B.

Dixon, L.

Blackstone, B.

Drayson, L.

Bradshaw, L.

Dubs, L.

Bragg, L.

Evans of Parkside, L.

Brennan, L.

Evans of Temple Guiting, L.

Brooke of Alverthorpe, L.

Falkland, V.

Brookman, L.

Falkner of Margravine, B.

1355

Farrington of Ribbleton, B.

Mason of Barnsley, L.

Faulkner of Worcester, L.

Massey of Darwen, B.

Filkin, L.

Maxton, L.

Fitt, L.

Michie of Gallanach, B.

Fyfe of Fairfield, L.

Miller of Chilthorne Domer, B.

Gale, B.

Morgan, L.

Garden, L.

Morgan of Drefelin, B.

Gibson of Market Rasen, B.

Morris of Aberavon, L.

Giddens, L.

Neuberger, B.

Gilbert, L.

Northover, B.

Golding, B.

Parekh, L.

Goldsmith, L.

Patel of Blackburn, L.

Goodhart, L.

Pendry, L.

Gordon of Strathblane, L.

Plant of Highfield, L.

Goudie, B.

Prosser, B.

Gould of Brookwood, L.

Prys-Davies, L.

Gould of Potternewton, B.

Radice, L.

Graham of Edmonton, L.

Randall of St. Budeaux, L.

Grantchester, L.

Rea, L.

Greaves, L.

Redesdale, L.

Greengross, B.

Rendell of Babergh, B.

Grocott, L. [Teller]

Roberts of Llandudno, L.

Hamwee, B.

Rodgers of Quarry Bank, L.

Harris of Haringey, L.

Rooker, L.

Harris of Richmond, B.

Roper, L.

Harrison, L.

Rosser, L.

Hart of Chilton, L.

Rowlands, L.

Haskel, L.

Royall of Blaisdon, B.

Haskins, L.

Russell-Johnston, L.

Haworth, L.

Scotland of Asthal, B.

Hayman, B.

Sewel, L.

Henig, B.

Sharman, L.

Hogg of Cumbernauld, L.

Sharp of Guildford, B.

Hollick, L.

Shutt of Greetland, L.

Hollis of Heigham, B.

Simon, V.

Hooson, L.

Smith of Clifton, L.

Hoyle, L.

Smith of Leigh, L.

Hughes of Woodside, L.

Symons of Vernham Dean, B.

Hunt of Chesterton, L.

Taylor of Blackburn, L.

Hunt of Kings Heath, L.

Temple-Morris, L.

Irvine of Lairg, L.

Thomas of Gresford, L.

Jay of Paddington, B.

Thomas of Walliswood, B.

Jones, L.

Thornton, B.

King of West Bromwich, L.

Tomlinson, L.

Kirkhill, L.

Tordoff, L.

Layard, L.

Triesman, L.

Lea of Crondall, L.

Truscott, L.

Leitch, L.

Tunnicliffe, L.

Lester of Herne Hill, L.

Turnberg, L.

Livsey of Talgarth, L.

Turner of Camden, B.

Lockwood, B.

Wall of New Barnet, B.

Lofthouse of Pontefract, L.

Wallace of Saltaire, L.

McIntosh of Haringey, L.

Walmsley, B.

McIntosh of Hudnall, B.

Warner, L.

MacKenzie of Culkein, L.

Warwick of Undercliffe, B.

Mackenzie of Framwellgate, L.

Whitaker, B.

McKenzie of Luton, L.

Whitty, L.

Mackie of Benshie, L.

Wilkins, B.

McNally, L.

Williams of Elvel, L.

Maddock, B.

Woolmer of Leeds, L.

Mar and Kellie, E.

Worcester, Bp.

Resolved in the negative, and amendment disagreed to accordingly.
6.33 p.m.
Clause 34 [Commencement]:
Baroness Buscombe Baroness Buscombe moved Amendment No. 18:
Page 22, line 2, after "Act" insert ", except for the provisions of Part 2"
The noble Baroness said: My Lords, in moving Amendment No. 18 I shall speak also to Amendments Nos. 19 and 20. The amendments would add three new subsections to Clause 34 entitled "Commencement". Essentially they would act as a sunset clause for Part 2 of the Bill; in other words, the emergency powers. They would ensure that Part 2 is in force for three years before Parliament has the opportunity, once again, to discuss what we on these Benches regard as vast and draconian powers. Part 2, if ratified, would continue in force for another period of three years, when it would be debated again.
When I first introduced the concept of a sunset clause, the Government stated that the timeframe we have selected for review—that of one year—was too short a period to allow for long-term planning. I believe that that was a concern of the Liberal Democrats as well. We listened to that concern and so increased the review to three years in accordance with that view.
We also dropped the proposal for a review on Part 1 of the Bill, so we confine our concerns to Part 2. However, contained in the Bill are large powers that potentially could affect much, including the constitution. We on these Benches would feel happier if we knew that Parliament had the power to debate and amend, as it sees fit, the provisions of Part 2 every three years.
On Report, the Government seemed to believe that in bringing forward a sunset clause we were saying that any possibility of an emergency would fall away after a year. On the contrary, we take the state of our nation very seriously. We accept that there is a need to have strong emergency regulations and emergency powers, but from day one in the debates on the Bill we have endeavoured to ensure adequate safeguards, access to Parliament and access to justice. We believe that it is vitally important that your Lordships and colleagues in another place should have the opportunity, once every three years, to debate the workings of the Bill in both Houses. That is why we feel strongly that it is right to have a sunset clause. I beg to move.
Lord Avebury: My Lords, the noble Baroness says that she wants the opportunity to debate the Act once every three years, but that is not what is proposed in the amendment. It proposes that Part 2 will cease to have effect three years after it comes into force, notwithstanding the fact that, as your Lordships have agreed throughout every stage of the Bill—
Baroness Buscombe: My Lords, perhaps I can reassure the noble Lord, Lord Avebury. We have worked on the amendment very carefully with the Public Bill Office. Yes, it would cease to have effect, but it would be debated in both Houses of Parliament, and assuming that the powers were re-enacted, it would automatically come into power again for a further three years. It simply mirrors the antiterrorism laws with which your Lordships may be familiar, where a similar sunset clause exists, but on an annual basis. That is also the case in the Northern Ireland Acts.
Lord Avebury: My Lords, no doubt the noble Baroness has taken advice on the matter. As I read the

1357
amendment, at the end of the three years, either the legislation would have to be re-enacted so consuming parliamentary time, or alternative legislation would have to be put in its place. Either way it would not be a matter simply of a one-day debate, but would require the usual procedure for legislation with Second Reading, Committee stage, Report and Third Reading. If that is not the effect, no doubt the Minister in her reply will be able to explain, from the Government's angle, how they see the provision working.
If, at the end of the three years specified in the amendment, Parliament considers that the list of events or situations constituting an emergency under Part 2 needs to be modified, or that the scope of the emergency regulations needs to be widened to accommodate some yet unforeseen danger, it would be perfectly possible to deal with the matter in the normal way. However, both the definition and the scope of Part 2 are in such extensive terms that it would seem unlikely that such a need would arise.
My noble friend Lord McNally said that,
"we should not leave this kind of legislation on the statute book without an opportunity for Parliament to check on it".
He went on to say that,
"a sunset clause is well worth considering".—[0fficial Report, 9/11/04; col. 878.]
Since then we have given further thought to how Parliament should best exercise the kind of oversight envisaged by my noble friend. We reached the conclusion that the sunset clause would not be the ideal way to achieve that objective. If, at the end of the three years, or whatever period is considered most appropriate, no amendments are seen to be necessary to the legislation, we do not want to force Parliament to re-enact the present Bill as that would be a nonsensical waste of time. Instead we are attracted to the idea of a review and a report which would enable Parliament, as the noble Baroness suggested, to debate the operation of the whole Act, including Part I, without occupying legislative time unless it proved to be necessary at that point.
There are precedents for that. The precedent I looked at was under Section 126 of the Terrorism Act 2000 under which my noble friend Lord Carlile reports to Parliament, having had access to all relevant information, including sensitive material and intelligence. In his last report to Parliament in April of this year, my noble friend said that the Terrorism Act was necessary and fit for the purpose, so there has been no need for a debate on the matter. We have not requested time for a debate on the Terrorism Act, and I do not think that any of your Lordships would suggest that we should occupy parliamentary time unnecessarily to look at that legislation.
My noble friend also carries out an entirely separate review, which is non-statutory, on the operation of Part VII of the Act, which refers to Northern Ireland. So there is a precedent for having a non-statutory review as well as the statutory review of the Terrorism Act that I have already mentioned.
1358
When the noble Lord, Lord Lucas, moved an amendment on Report for a more limited form of report to Parliament, the Minister said that because the Government were already transparent about their civil contingencies work and the Home Office regularly reports on these issues there was no need for an annual report of any kind.
The same arguments could have been applied to the Terrorism Act. The crucial point there, which I think the noble Lord, Lord Bassam, may have overlooked, is that Parliament could repose greater confidence in an independent person, such as my noble friend, who has access to a great deal of relevant but confidential or secret material, than in a Home Office Minister, even the noble Baroness, Lady Scotland, or the noble Lord, Lord Bassam. If the noble Lord, Lord Bassam, told us in a year's time that the Civil Contingencies Act is fit for the purpose, the reaction might be, "Well, he would say that, wouldn't he?". But, if someone like my noble friend said so, then we would he reassured that he had examined the matter on our behalf and from a different perspective from that of a Home Office Minister.
So what we would like is for the Minister to say that the Government will now invite an independent person of the standing of my noble friend Lord Carlile to review the working of this Act and to report back to Parliament. If the noble Lord can give me an assurance on that, even though it is not on the face of the Bill, then I think that I and my noble friend would he satisfied. If not, and subject to what the Minister has to say, we would be inclined to support the amendment in the name of the noble Baroness, Lady Buscombe. That would at least give the other place an opportunity to reconsider the matter at a later stage.
Lord Elton: My Lords, perhaps I may reassure the noble Lord, Lord Avebury, who, from the phrases he uses, appears to be speaking for his Front Bench. There is a nodding of heads, so geographically he is not where he is sitting.
The interpretation he has put on the amendment is in my view entirely mistaken. I am very familiar with the working of the Terrorism Act from the ministerial office I held for many years, in which it was necessary to renew an Act every year under terms similar to this. The first line of the amendment in proposed new subsection (2A) provides that the,
"Act shall come into force in accordance with provision made by a Minister of the Crown by order".
Proposed new subsection (2B) limits the efficacy of that order for three years,
"unless both Houses of Parliament resolve that it shall",
continue. This is not a three-stage process, it is a single debate.
An order thereafter, under proposed new subsection (2C), may be subsequently renewed, again for periods of up to three years. In Northern Ireland the review used to be annual; in this case it is triennial. Normally it takes a couple of hours, unless something is going badly wrong. If it is going badly wrong and the Government know that it is they will

1359
bring in legislation; if it is going badly wrong and the Government do not know, then it is high time that this House or the other place intervenes to prevent it continuing to go wrong.
So, perhaps I may reassure the noble Lord that he will be taking no dangerous step in supporting the amendment but rather that he will be strengthening the protection which it provides.
The Earl of Onslow: My Lords, there is one other precedent from about 1688 to 1956. The Army Act used to be renewed every year because in those days we were frightened of standing armies. There is no excuse for saying that there is no time for Parliament to legislate.
My noble friend Lord Elton made the point that if something goes wrong the Government can correct it and if it goes wrong and the Government have not noticed it then Parliament can correct it. This is such serious legislation, especially with the powers to repeal and re-enact legislation, that a sunset clause of some sort on the face of the Bill is essential.
6.45 p.m.
Baroness Scotland of Asthal: My Lords, in answer to the point of the noble Lord, Lord Avebury, he is correct in relation to Amendment No. 19 to the extent that Amendment No. 19 provides a sunset clause for Part 2 oldie Bill. Clause 34(2A) provides for Part 2 to come into force by order of a Minister of the Crown, and reflects what is currently provided for in the Bill. Clause 34(2B) ensures that part of the Bill ceases to have effect three years following commencement unless both Houses of Parliament agree to its extension.
So one has the uncomfortable position on this amendment that unless both Houses agreed to the extension—one assumes unamended—the Bill would fall and we would have to re-argue which provisions, if any, were to apply. I have taken it that that was the intent of the amendment.
Clause 34(2C) has the effect of ensuring that, following agreement, any order to extend the provisions of Part 2 of the Bill can be only for a maximum period of three years each time. So there is, in effect, an opportunity—
Lord Elton: My Lords, did the Minister refer to Clause 34(2)(b), which is about the provisions of the Act coming into force in accordance with provision made by Scottish Ministers by order, or is she referring to some other provision?
Baroness Scotland of Asthal: My Lords, I refer to the way in which Amendment No. 19 seeks to deal with the matter. I am dealing with the amendment of the noble Baroness, Lady Buscombe, and the impact it seeks to have on the way in which this Bill would operate. So, to that extent the noble Lord, Lord Avebury, is correct in terms of the impact that that amendment could have in relation to it.
Amendments Nos. 18 and 20 are consequential. The Government cannot support the amendments. We shall resist their inclusion.
1360
Of course I hear what the noble Lord, Lord Avebury, says in relation to the new construct. However, one has to make a clear choice at this stage because it is important to appreciate the significant differences between the Terrorism Act and this legislation. We do not think that legislation is an appropriate model for the Bill. Your Lordships will know that the differences between Part 2 of the Bill and the Terrorism Act is that things will be done as you speak and need to be reviewed. If you compare that to Part 2 of this Bill, we would hope that it would remain unused on the statute book for years to come, unless and until an emergency arose and regulations had to be made.
One would then have to ask what the review team would be reviewing because the review would merely be a re-run of the arguments in the course of the Bill's passage. Your Lordships will remember that under the old Act a period of 29 years went by without the legislation ever being used at all. So it is a very different situation from the Terrorism Act where what the noble Lord is being asked to review is very much alive, very much in use and happening immediately. The House is right to seek to have it reviewed, but that is a very different situation.
Lord Avebury: My Lords, I was contending that the review should cover unforeseen emergencies which might have arisen since the Act came into force and which would require some change in the scope of the emergency regulations or even in the definitions at the beginning of Part 2. But if such a thing did not materialise, then, as with the report that I referred to written by my noble friend Lord Carlile on the workings of the Terrorism Act 2000 in April 2004, it would be a nil return. He would say that the Act is working satisfactorily and he has nothing to report, and then there would be no need to take up the time of Parliament.
Baroness Scotland of Asthal: My Lords, I understand the way that the noble Lord puts it. The reason that we say that it will not apply in that way is that the whole purpose behind the Bill's construction is to allow the House and Parliament to debate the regulations that would apply in any given situation. Very unusually, the House and Parliament have an opportunity to amend regulations. Your Lordships will know that usually, under the affirmative resolution procedure, we either accept or reject and there is no opportunity for us to amend. It is therefore a bit of a curate's egg: you either take it all or reject it all. Because of the particular, fast-moving nature of these regulations and because we will have to adapt them, we have provided that opportunity to amend in Parliament.
While we are discussing commencement and sunsetting, I inform the House that we intend to commence Part 2 immediately following Royal Assent. That is because we recognise the inadequacies of existing legislation, which represent a weakness in our capability to respond to the most serious emergencies that should not be allowed to continue any longer than necessary. We think that the convention of allowing two months to pass between

1361
Royal Assent and commencement is unnecessary because Part 2 is purely a mechanism for making legislation that will affect no one simply by its being commenced. That decision is based purely on the need to fill the gap in our capabilities.
Sunsetting legislation is appropriate where the powers that it contains are expected no longer to be needed after a certain period, after which their use should be reviewed by Parliament. As I have said before, the Bill does not meet those criteria. The issue in this case is not timekeeping. I think that the noble Baroness, Lady Buscombe, accepts that. No one believes that emergencies will stop happening in three years' time. I understand her point, but we would say that that is when sunsetting is appropriate.
Sunsetting is justifiable when legislation is enacted to deal with short-term issues or where the exercise of powers conferred by the Act will not be subject to further parliamentary scrutiny, as in the case of the Anti-terrorism, Crime and Security Act 2001, but not in the case of the Bill. The purpose of an annual or, as has been suggested, triennial, review is that, given the nature of the powers, Parliament should assess whether it is appropriate for them to continue to exist in the light of how they have been exercised. I understand that we do not agree on that. The Civil Contingencies Bill does not fall into that category of legislation; it is a long-term mechanism, as I have said many times.
I was of course interested to hear how the noble Lord, Lord Avebury, put it. This is a clear case of where we must see what helpful things we can do. This House and the other place always have an opportunity to propose a debate or call for papers and your Lordships will know that we have always responded and the House has always make provision for proper debate, scrutiny and discussion. I am confident that if those matters continue to cause concern, that will happen. Indeed, knowing how this House has worked in the past five years, I am confident that if we exercised the powers under the Bill, the House would do that.
That is a perfectly proper way for Parliament to scrutinise: first, to scrutinise the regulations in detail and to amend them when necessary; but, secondly, if the House feels it appropriate, to call for a report or debate. That is perfectly possible within our current rules. Therefore, we do not think that the provision adds significantly; it is unnecessary. As I have said several times, we hope that the powers will never have to be used; they are there just in case, as a safety net to be used in extremis. That is why I am unable to accede to the urging of the noble Baroness on the sunsetting clause.
Baroness Buscombe: My Lords, I am very disappointed by the Minister's response. I have tried to tell the noble Baroness, Lady Scotland, that we are here trying to insert an important safeguard. Sensibly, we believe, we are considering only a review of Part 2 emergency powers. We have opted for a modest, triennial review. I am grateful to my noble friend
1362
Lord Elton for his confirmation that we seek a review that might take up two hours of debate in your Lordships' House which, let us face it, is hardly a great deal of parliamentary time, compared to the time given to other Bills, such as the Hunting Bill.
We are trying to find a way to have the opportunity to review extraordinarily wide powers if something is going badly wrong. These are extraordinarily wide powers. We want the opportunity, if necessary—and only if necessary—to put right anything that is wrong in the Bill. Yes, in that case, we would be debating amendments, which we believe is a sensible option, given these extraordinary powers. We appreciate that the legislation may be unused for years to come. I hope that the noble Baroness is right. If that is the case, great, but let us have the safeguard.
If nothing is going wrong, all that we are asking for is, once every three years, a two-hour debate or something similar, to be sure that we all remain content that this is the right legislation to have in place to protect our nation. I believe that we are right to push for this and I beg to test the opinion of the House.
6.56 p.m.
On Question, Whether the said amendment (No. 18) shall be agreed to?
Their Lordships divided: Contents, 162; Not-Contents, 126.

Division No. 3

CONTENTS

Addington, L.

Dykes, L.

Alderdice, L.

Eden of Winton, L.

Anelay of St Johns, B.

Elles, B.

Arran, E.

Elliott of Morpeth, L.

Astor, V.

Elton, L.

Astor of Hever, L.

Erroll, E.

Attlee, E.

Falkland, V.

Avebury, L.

Falkner of Margravine, B.

Barker, B.

Feldman, L.

Beaumont of Whitley, L.

Ferrers, E.

Blackwell, L.

Flather, B.

Blatch, B.

Fookes, B.

Bowness, L.

Fowler, L.

Bradshaw, L.

Freeman, L.

Bridgeman, V.

Freyberg, L.

Brooke of Sutton Mandeville, L.

Garden, L.

Brougham and Vaux, L.

Gardner of Parkes, B.

Burnham, L.

Goodhart, L.

Buscombe, B.

Goschen, V.

Byford, B.

Greaves, L.

Caithness, E.

Greengross, B.

Carlisle of Bucklow, L.

Hamwee, B.

Carnegy of Lour, B.

Hanham, B.

Chadlington, L.

Harris of Richmond, B.

Chester, Bp.

Hayhoe, L.

Cobbold, L.

Henley, L.

Colville of Culross, V.

Higgins, L.

Colwyn, L.

Hodgson of Astley Abbotts, L.

Cope of Berkeley, L. [Teller]

Hogg, B.

Craig of Radley, L.

Home, E.

Craigavon, V.

Hooson, L.

Crickhowell, L.

Howe, E.

Dahrendorf, L.

Howe of Aberavon, L.

Dean of Harptree, L.

Howell of Guildford, L.

Dixon-Smith, L.

Hunt of Wirral, L.

Dundee, E.

Hurd of Westwell, L.

1363

Jenkin of Roding, L.

Pearson of Rannoch, L.

Kimball, L.

Peel, E.

King of Bridgwater, L.

Peyton of Yeovil, L.

Kingsland, L.

Phillips of Sudbury, L.

Kirkham, L.

Platt of Writtle, B.

Laird, L.

Plumb, L.

Lamont of Lerwick, L.

Plummer of St. Marylebone, L.

Lane of Horsell, L.

Rawlings, B.

Lawson of Blaby, L.

Reay, L.

Lester of Herne Hill, L.

Redesdale, L.

Liverpool, E.

Rees, L.

Livsey of Talgarth, L.

Rees-Mogg, L.

Lucas, L.

Rennard, L.

Lyell, L.

Renton, L.

McColl of Dulwich, L.

Renton of Mount Harry, L.

MacGregor of Pulham Market, L.

Roberts of Conwy, L.

Roper, L.

Mackie of Benshie, L.

Rotherwick, L.

MacLaurin of Knebworth, L.

Russell-Johnston, L.

McNally, L.

Saatchi, L.

Maddock, B.

St. John of Bletso, L.

Mancroft, L.

St. John of Fawsley, L.

Mar, C.

Saltoun of Abernethy, Ly.

Seccombe, B. [Teller]

Mar and Kellie, E.

Selsdon, L.

Mayhew of Twysden, L.

Sharp of Guildford, B.

Methuen, L.

Shutt of Greetland, L.

Michie of Gallanach, B.

Skelmersdale, L.

Miller of Hendon, B.

Smith of Clifton, L.

Monson, L.

Soulsby of Swaffham Prior, L.

Montrose, D.

Stewartby, L.

Morris of Bolton, B.

Stoddart of Swindon, L.

Murton of Lindisfarne, L.

Strange, B.

Neuberger, B.

Swinfen, L.

Newton of Braintree, L.

Thomas of Gresford, L.

Northbrook, L.

Thomas of Swynnerton, L.

Northesk, E.

Trumpington, B.

Northover, B.

Truro, Bp.

Norton of Louth, L.

Tugendhat, L.

Oakeshott of Seagrove Bay, L.

Wakeham, L.

O'Cathain, B.

Walker of Worcester, L.

O'Neill of Bengarve, B.

Wallace of Saltaire, L.

Onslow, E.

Walmsley, B.

Palmer, L.

Williams of Crosby, B.

Palumbo, L.

Williamson of Horton, L.

Park of Monmouth, B.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Davies of Oldham, L. [Teller]

Alli, L.

Dean of Thornton-le-Fylde, B.

Amos, B. (Lord President of the Council)

Desai, L.

Dixon, L.

Andrews, B.

Donaldson of Lymington, L.

Archer of Sandwell, L.

Drayson, L.

Ashton of Upholland, B.

Dubs, L.

Bach, L.

Elder, L.

Barnett, L.

Evans of Parkside, L.

Bassam of Brighton, L.

Evans of Temple Guiting, L.

Bernstein of Craigweil, L.

Farrington of Ribbleton, B.

Birt, L.

Faulkner of Worcester, L.

Bragg, L.

Filkin, L.

Brennan, L.

Fyfe of Fairfield, L.

Brooke of Alverthorpe, L.

Gale, B.

Brookman, L.

Gibson of Market Rasen, B.

Burlison, L.

Giddens, L.

Campbell-Savours, L.

Gilbert, L.

Carter, L.

Golding, B.

Chandos, V.

Goldsmith, L.

Christopher, L.

Gordon of Strathblane, L.

Clarke of Hampstead, L.

Goudie, B.

Clinton-Davis, L.

Gould of Brookwood, L.

Cohen of Pimlico, B.

Gould of Potternewton, B.

Corbett of Castle Vale, L.

Graham of Edmonton, L.

Crawley, B.

Grantchester, L.

Davies of Coity, L.

Grocott, L. [Teller]

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Harris of Haringey, L.

Parekh, L.

Harrison, L.

Patel of Blackburn, L.

Hart of Chilton, L.

Pendry, L.

Haskel, L.

Plant of Highfield, L.

Haskins, L.

Prosser, B.

Haworth, L.

Radice, L.

Hayman, B.

Randall of St. Budeaux, L.

Henig, B.

Rendell of Babergh, B.

Hogg of Cumbernauld, L.

Rooker, L.

Hollick, L.

Rosser, L.

Hollis of Heigham, B.

Rowlands, L.

Hoyle, L.

Royall of Blaisdon, B.

Hughes of Woodside, L.

Scotland of Asthal, B.

Hunt of Chesterton, L.

Sewel, L.

Hunt of Kings Heath, L.

Simon, V.

Irvine of Lairg, L.

Smith of Leigh, L.

Jones, L.

Snaps, L.

King of West Bromwich, L.

Symons of Vernham Dean, B.

Kirkhill, L.

Taylor of Blackburn, L.

Layard, L.

Temple-Morris, L.

Lea of Crondall, L.

Thornton, B.

Tomlinson, L.

Leitch, L.

Trieman, L.

Lockwood, B.

Truscott, L.

Lofthouse of Pontefract, L.

Tunnicliffe, L.

McDonagh, B.

Turnberg, L.

McIntosh of Haringey, L.

Turner of' Camden, B.

McIntosh of Hudnall, B.

Wall of New Barnet, B.

MacKenzie of Culkein, L.

Warner, L.

Mackenzie of Framwellgate, L.

Warwick of Undercliffe, B.

McKenzie of Luton, L.

Whitaker, B.

Mason of Barnsley, L.

Whitty, L.

Massey of Darwen, B.

Wilkins, B.

Maxton, L.

Williams of Elvel, L.

Morgan, L.

Woolmer of Leeds, L.

Morgan of Drefelin, B.

Young of Norwood Green, L.

Morris of Aberavon, L.

Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.
7.7 p.m.
Baroness Buscombe Baroness Buscombe moved Amendments Nos. 19 and 20:
Page 22, line 10, at end insert—
"(2A) The Privisions of Part 2 of this Act shall come into force in accordance with provision made be a Minister of the Crown by order.
(2B) An order under subsection (2A) shall cease to have effect on the expiry of the period of three years beginning on the day it is made unless both Houses of Parliament resolve that it shall further continue in force for a period not exceeding three years.
(2C) An order made under subsection (2A) and renewed in accordance with subsection (2B) may, on expiry, be renewed following resolution of both Houses of Parliament for further periods not exceeding three years".
Page 22, line 11, leave out "or (2) and insert ", (2) or (2A)"
On Question, amendments agreed to.
Lord Bassam of Brighton: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Lord Bassam of Brighton.)
On Question, Bill passed, and returned to the Commons with amendments.

Housing Bill
7.8 p.m.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, I beg to move that the Commons amendments and reasons be now considered.
Moved accordingly, and, on Question, Motion agreed to.

COMMONS AMENDMENTS TO CERTAIN LORDS AMENDMENTS, COMMONS AMENDMENTS IN LIEU OF A CERTAIN OTHER LORDS AMENDMENT, AND COMMONS REASONS FOR DISAGREEING TO CERTAIN OTHER LORDS AMENDMENTS TO THE BILL
[The page and line references are to HL Bill 71, as first printed for the Lords.]

LORDS AMENDMENT
55 Clause 96, page 66, line 26, at end insert—
"(9) In this Chapter "third party", in relation to a house, means any person who has an estate or interest in the house (other than an immediate landlord and any person who is a tenant under a lease or licence granted under section 102(3)(c) or 110(3)(c))."
The Commons agree to this amendment with the following amendment—
55A Line 4, leave out "or licence"
Lord Rooker: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 55A to Lords Amendment No. 55.
This amendment, like another amendment in the group, is an incredibly minor, technical change made in the other place to amendments made to the Bill in this House. It simply clarifies the provision from a legal perspective by deleting the words "or licence" in the context of the Lords amendments which defined third parties. If it were left in the Bill, it would be completely misleading.
Moved, That the House do agree with the Commons in their Amendment No. 55A to Lords Amendment No. 55.—(Lord Rooker.)
On Question, Motion agreed to.

LORDS AMENDMENTS
101 After Clause 122, insert the following new Clause—

CHAPTER 2
EMPTY DWELLING MANAGEMENT ORDERS
Empty dwelling management orders: introductory
(1) This Chapter deals with the making by a local housing authority of—

(a) an interim empty dwelling management order (an "interim EDMO"), or

(b) a final empty dwelling management order (a "final EDMO"),

in respect of a dwelling.
(2) An interim EDMO is an order made to enable a local housing authority, with the consent of the relevant proprietor, to take steps for the purpose of securing that a dwelling becomes and continues to be occupied.
(3) A final EDMO is an order made, in succession to an interim EDMO or a previous final EDMO, for the purpose of securing that a dwelling is occupied.
(4) In this Chapter—

(a) "dwelling" means—

(i) a building intended to be occupied as a separate dwelling, or

(ii) a part of a building intended to be occupied as a separate dwelling which may be entered otherwise than through any non-residential accommodation in the building;

(b) any reference to "the dwelling", in relation to an interim EDMO or a final EDMO, is a reference to the dwelling to which the order relates;

(c) "relevant proprietor", in relation to a dwelling, means—

(i) if the dwelling is let under one or more leases with an unexpired term of 7 years or more, the lessee under whichever of those leases has the shortest unexpired term; or

(ii) in any other case, the person who has the freehold estate in the dwelling;

(d) "third party", in relation to a dwelling, means any person who has an estate or interest in the dwelling (other than the relevant proprietor and any person who is a tenant under a lease or licence granted under paragraph 2(3)(c) or 10(3)(c) of Schedule (Further provisions regarding empty dwelling management orders)); and

(e) any reference (however expressed) to rent or other payments in respect of occupation of a dwelling includes any payments that the authority receive from persons in respect of unlawful occupation of the dwelling.

(5) In subsection (4)(c), the reference to an unexpired term of 7 years or more of a lease of a dwelling is—

(a) in relation to a dwelling in respect of which the local housing authority is considering making an interim EDMO, a reference to the unexpired term of the lease at the time the authority begin taking steps under section (Making of interim EDMOs)(3),

(b) in relation to a dwelling in respect of which an interim EDMO has been made, a reference to the unexpired term of the lease at the time the application for authorisation to make the interim EDMO was made under subsection (1) of that section, or

(c) in relation to a dwelling in respect of which a local housing authority is considering making or has made a final EDMO, a reference to the unexpired term of the lease at the time the application for authorisation to make the preceding interim EDMO was made under subsection (1) of that section.

"Preceding interim EDMO", in relation to a final EDMO, means the interim EDMO that immediately preceded the final EDMO or, where there has been a succession of final EDMOs, the interim EDMO that immediately preceded the first of them.
(6) Schedule (Further provisions regarding empty dwelling management orders) (which makes further provision regarding EDMOs) has effect."
The Commons agree to this amendment with the following amendment—
101A Line 40, leave out "or licence"
102 Insert the following new Clause—
"Making of interim EDMOs
(1) A local housing authority may make an interim EDMO in respect of a dwelling if—

(a) it is a dwelling to which this section applies, and

(b) on an application by the authority to a residential property tribunal, the tribunal by order authorises them under section (Authorisation to make interim EDMOs) to make such an order, either in the terms of a draft order submitted by them or in those terms as varied by the tribunal.

(2) This section applies to a dwelling if—

(a) the dwelling is wholly unoccupied, and

(b) the relevant proprietor is not a public sector body.

"Wholly unoccupied" means that no part is occupied, whether lawfully or unlawfully.
(3) Before determining whether to make an application to a residential property tribunal for an authorisation under section (Authorisation to make interim EDMOs), the authority must make reasonable efforts—

(a) to notify the relevant proprietor that they are considering making an interim EDMO in respect of the dwelling under this section, and

(b) to ascertain what steps (if any) he is taking, or is intending to take, to secure that the dwelling is occupied.

(4) In determining whether to make an application to a residential property tribunal for an authorisation under section (Authorisation to make interim EDMOs), the authority must take into account the rights of the relevant proprietor of the dwelling and the interests of the wider community.
(5) The authority may make an interim EDMO in respect of the dwelling despite any pending appeal against the order of the tribunal (but this is without prejudice to any order that may be made on the disposal of any such appeal).
(6) An application to a residential property tribunal under this section for authorisation to make an interim EDMO in respect of a dwelling may include an application for an order under paragraph 22 of Schedule (Further provisions regarding empty dwelling management orders) determining a lease or licence of the dwelling.
(7) In this section "public sector body" means a body mentioned in any of paragraphs (a) to (f) of paragraph 2(1) of Schedule 11.
(8) Part I of Schedule 6 applies in relation to the making of an interim EDMO in respect of a dwelling as it applies in relation to the making of an interim management order in respect of a house, subject to the following modifications—

(a) paragraph 7(2) does not apply;

(b) paragraph 7(4)(c) is to be read as referring instead to the date on which the order is to cease to have effect in accordance with paragraph 1(3) and (4) or 9(3) to (5) of Schedule (Further provisions regarding empty dwelling management orders);

(c) in paragraph 7(6)—

(i) paragraph (a) is to be read as referring instead to Part 4 of Schedule (Further provisions regarding empty dwelling management orders); and

(ii) paragraph (b) does not apply;

(d) paragraph 8(4) is to be read as defining "relevant person" as any person who, to the knowledge of the local housing authority, is a person having an estate or interest in the dwelling (other than a person who is a tenant under a lease or licence granted under paragraph 2(3)(c) of Schedule (Further provisions regarding empty dwelling management orders))."

The Commons agree to this amendment with the following amendment—
102A Line 55, leave out "or licence"
105 Insert the following new Clause—
"Making of final EDMOs
(1) A local housing authority may make a final EDMO to replace an interim EDMO made under section (Making of interim EDMOs.) if

(a) they consider that, unless a final EDMO is made in respect of the dwelling, the dwelling is likely to become or remain unoccupied;

(b) where the dwelling is unoccupied, they have taken all such steps as it was appropriate for them to take under the interim EDMO with a view to securing the occupation of the dwelling.

(2) A local housing authority may make a new final EDMO so as to replace a final EDMO made under this section if—
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(a) they consider that, unless a new final EDMO is made in respect of the dwelling, the dwelling is likely to become or remain unoccupied; and

(b) where the dwelling is unoccupied, they have taken all such steps as it was appropriate for them to take under the existing final EDMO with a view to securing the occupation of the dwelling.

(3) In deciding whether to make a final EDMO in respect of a dwelling, the authority must take into account—

(a) the interests of the community, and

(b) the effect that the order will have on the rights of the relevant proprietor and may have on the rights of third parties.

(4) Before making a final EDMO under this section, the authority must consider whether compensation should be paid by them to any third party in respect of any interference in consequence of the order with the rights of the third party.
(5) Part 1 of Schedule 6 applies in relation to the making of a final EDMO in respect of a dwelling as it applies in relation to the making of a final management order in respect of a house, subject to the following modifications—

(a) paragraph 7(2) does not apply;

(b) paragraph 7(4)(c) is to be read as referring instead to the date on which the order is to cease to have effect in accordance with paragraph 1(3) and (4) or 9(3) to (5) of Schedule (Further provisions regarding empty dwelling management orders);

(c) in paragraph 7(6)—

(i) paragraph (a) is to be read as referring instead to Part 4 of Schedule (Further provisions regarding empty dwelling management orders), and

(ii) paragraph (b) is to be read as referring instead to paragraph 27(2) of Schedule (Further provisions regarding empty dwelling management orders);

(d) paragraph 7(6) in addition is to be read as requiring the notice under paragraph 7(5) also to contain—

(i) the decision of the authority as to whether to pay compensation to any third party,

(ii) the amount of any such compensation to be paid, and

(iii) information about the right of appeal against the decision under paragraph 34 of Schedule (Further provisions regarding empty dwelling management orders);

(e) paragraph 8(4) is to be read as defining "relevant person" as any person who, to the knowledge of the local housing authority, is a person having an estate or interest in the dwelling (other than a person who is a tenant under a lease or licence granted under paragraph 2(3)(e) or 10(3)(c) of Schedule (Further provisions regarding empty dwelling management orders))."

The Commons agree to this amendment with the following amendment—
105A Line 54, leave out "or licence"
Lord Rooker: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 101A, 102A and 105A to Lords Amendments Nos. 101, 102 and 105. I have spoken to this Motion with Amendment No. 55A.
Moved, That the House do agree with the Commons in their Amendments Nos. 101A, 102A and 105A to Lords Amendments Nos. 101, 102 and 105.—(Lord Rooker.)
On Question, Motion agreed to.

LORDS AMENDMENT
128 Clause 137, page 94, line 40, at end insert—
"( ) That duty does not apply if, and for so long as, the seller determines that the property is to be sold without a home information pack, and in the event the estate agent for the seller is the responsible person, the seller has so informed him."
The Commons disagree to this amendment for the following reason—
128A Because a voluntary scheme for home information packs will be ineffective
Lord Rooker Lord Rooker rose to move that the House do not insist on its Amendment No. 128 to which the Commons have disagreed for their reason numbered 128A, but do propose Amendment No. 128C in lieu thereof—
128C After Clause 143, insert the following new Clause—

Suspension of duties under sections 137 to 141
(1) The Secretary of State may make an order suspending (or later reviving) the operation of any duty imposed by sections 137 to 141.
(2) An order under this section may provide for the suspension of a duty to take effect only for a period specified in the order.
(3) A duty which is (or is to any extent) revived after being suspended under this section is liable to be suspended again."
The noble Lord said: My Lords, I have said all that I intend to say about home condition packs. There is no sense in going over the history and explaining the reasons. Therefore, I will be extremely brief.
We have listened to the House and those outside it on home condition packs. I am disappointed that the "Lie Society", which masquerades as the Law Society, is still quoted as saying that anyone could walk into an estate agent's office and find out information about burglar alarms, defective doors and so on, when we have repeatedly made clear that that very thing could not happen. I do not know why the Law Society persists in telling untruths about what is in the Bill. Nevertheless, we have listened to concerns in this place and the other place, and have modified the Bill accordingly.
I shall deal briefly with the practicalities. We have a clear timetable of work and intend to publish final details of the contents of the pack and their application as early as spring next year, with the regulations to follow shortly afterwards. There is a huge amount of work to go on along with the industry and our stakeholders. One of the stakeholder working groups will be looking into the possibility of excluding from the requirement to have a home condition report those homes fully covered by a satisfactory warranty scheme. That issue has been raised several times by the noble Lord, Lord Fowler, and it received a good degree of sympathy around the House, from a practical point of view.
We will also look carefully at the scope for special treatment for sellers who are leaving owner occupation, particularly elderly people who may be moving into residential care, and for those marketing homes of low value. Those are issues that we need to consider.
We announced to your Lordships at an earlier stage our intention to have a dry run at the pack on a voluntary basis in the six-month period before the launch of the compulsory scheme in 2007. During that period, we will test out all the components of the statutory schemes.
One of the issues raised by the noble Lord, Lord Phillips of Sudbury, and others was the need for a more structured pilot scheme, rather than a dry run. We are setting up a stakeholder working party to help us work up the detailed arrangements for the dry run. I can give an assurance that, unless there are unforeseen practical problems that we subsequently identify with the industry, we will undertake a full exercise in a designated area to run alongside the voluntary dry run in the rest of England and Wales. Key stakeholders will be invited to assist with the monitoring and evaluation of the exercise. That goes much further than we have gone before to satisfy noble Lords. I wanted a regional, legal pilot, but I was told that that was not practical. So, we arrived at another way. There is a good degree of flexibility in the Bill.
Lord Phillips of Sudbury: My Lords, I want to make clear what the Minister just said. He talked about a "legal pilot". I construe that as meaning a compulsory pilot in a region.
Lord Rooker: My Lords, that is what we will discuss with the stakeholder group. The scheme would run alongside the voluntary dry run that was already taking place in a designated region. The region must be big enough to allow us to know that the thing will work.
We are confident that a good degree of flexibility has been built into the Bill, to allow us to respond quickly and in a variety of ways to any problems that arise before or during the dry run period or any compulsory element through regulations.
Lord Donaldson of Lymington: My Lords, would the Minister consider withdrawing the remark that the Law Society should be called the "Lie Society"? I cannot believe that that is in accordance with the traditions of the House. If I have to declare an interest, I should say that I am an honorary member, but that is beside the point.
Lord Rooker: My Lords, I intended nothing personal by it, and I am happy to withdraw it. However, the society should stop telling lies about the Bill. That is the issue.
I have read all this on more than one occasion. It is not fair for a responsible professional body to use the excuse that it always hangs on: that the home condition packs will give out details of burglar alarms and so on. The society has had it from the Dispatch Box here and in the other place and in writing that that cannot and will not happen. Why does it keep saying it?
7.15 p.m.
Lord Phillips of Sudbury: My Lords, I cannot give the Minister a specific answer, but, as a member of the Law Society of long standing and knowing a lot about the way in which it operates, I assure the Minister that there would have been no malice aforethought in saying what it did. If the society is, as the Minister rightly says, mistaken, I apologise on its behalf, but I assure him that there would have been no wilful attempt to mislead the public.
Lord Rooker: My Lords, I fully accept that. In that case, it is just professional incompetence—it must be. It must be an inability to read documents and understand something that has been set out clearly. It is not an unimportant matter; that view is used to undermine the concept of the home condition report. That is the point. If it were some tinpot organisation that did not matter, the issue would not matter; but the Law Society is an important body, and that is why we highlight the point.
On the other hand, we have, with the amendments, given a commitment to undertake research and create flexibility in the Bill. Nevertheless, a good many doubts have been expressed about the practicalities, the timetable and other matters, and therefore we have tabled Amendment No. 128C. It would add a new clause giving the Secretary of State the power to suspend the home information pack duties. We do not expect that we will face problems that we cannot solve quickly through the regulations, so we do not expect to need to exercise that power. However, as a long stop in case things go wrong, even with all the preparations, it would be useful to have a power in the Bill to suspend the duties while the problem that has been identified is put right.
Moved, That the House do not insist on its Amendment No. 128 to which the Commons have disagreed for their reason numbered 128A and do propose Amendment No. 128C in lieu thereof.—(Lord Rooker.)
Baroness Hanham Baroness Hanham rose to move Amendment No. 128D, as an amendment to Amendment No. 128C:
128D* Line 3, at beginning insert—
"(A1 ) The Secretary of State shall report to Parliament on the outcome of the pilot scheme.
(B1) The Secretary of State shall, following the report to Parliament referred to in subsection (Al), make an order for the continuation of the scheme.
(C1) Any order made under subsection (B1) shall be made by statutory instrument subject to the approval of both Houses of Parliament."
The noble Baroness said: My Lords, the rejection by Members of the other place of the amendments moved by my noble friend Lord Hunt, establishing a voluntary scheme for home information packs came as no particular surprise. The fact that the Government
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remain intransigent on the matter is still of concern far beyond the walls of this House. However, it is not one that we can usefully pursue further, so we must concentrate on the pilot scheme—or "dry run", as the Minister is pleased to call it—to see whether the home packs are likely to be successful or useful.
The Minister gave us a deal of information this evening about the way in which the pilot would run and how there would be a voluntary scheme running beside it. I am bound to observe, at this stage of the Bill, that not one regulation or code of guidance to govern the dry run has been seen by the House. It is very late in the day. I made stringent inquiries with the Library today to see whether the Government had laid anything about it, and I gathered that there had been nothing.
We do not know when the pilot scheme will commence. We do not know who will undertake it. We do not know who will report on it or when they will report on it. The only thing we know is that it will start in 2007. What is going to start? We have not the faintest idea. That has been the situation all the way through the progress of the Bill. It is extraordinary that we still have no clear idea how something as important as a pilot for this part of the Bill will be operated.
Apart from that, as things stand, Parliament will not know the outcome of the pilot. It will not have an opportunity to consider the results before they are implemented throughout the country.
This is a pilot scheme which has been discussed at length. Throughout the passage of the Bill it has been held up as the Government's answer to how the home information packs will be tested. Yet, unless the Minister changes his mind today, Parliament is not to have any look at the scheme. It is to have no further role in it whatever.
We believe that Parliament should be the final arbiter as to whether the compulsory home information packs are to be implemented generally. It should be deciding that on the basis of an impartial report. That is why we move the amendment today.
I want to make it clear that we accept the amendment moved by the Government today to enable them to suspend the requirement to have a HIP when marketing a property if something goes wrong during the course of the pilot and it becomes clear that it should not continue. It makes eminently good sense not to have to come back to Parliament for that. However, we believe that our amendment is an important adjunct as it retains the right for Parliament to scrutinise the dry run, if it completes its full trial period.
I believe this to be an important matter. We have had to table this amendment at this late stage and I beg to move.
Moved, That Amendment No. 128D, as an amendment to Amendment No. 128C, be agreed to.—(Baroness Hanham.)
Baroness Hamwee: My Lords, on behalf of my noble friends, I welcome the Government's Amendment No. 128C. The Minister understandably played down

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its significance, but we see it as a considerable shift. If that offends the Minister, we see it at least as allowing a subsequent administration to treat it as a shift. It is a concession. The idea contained in Part 5 is adventurous—or, to put it another way, risky. We wish it well and, throughout, our attitude has been to save trouble and not make it. The opportunity that the provision gives to the Secretary of State to suspend any duty is notable and we therefore support the Government's amendment.
With regard to Amendment No. 128D, tabled by the noble Baroness, Lady Hanham, we of course believe that government should be reporting to Parliament and to that extent we support what she said. However, it does not seem to me that Amendment No. 128D works quite as the noble Baroness described it. New subsection (A1) refers to "the pilot", but there is no provision requiring a pilot—although we heard what the Minister had to say about it. That undermines the rest of the amendment. To talk about "the continuation of the scheme" when there is no provision stating that the scheme shall discontinue does not seem to be right. I would not normally be so picky, but at this stage of the Bill one must deal with such points. The noble Baroness shakes her head, so perhaps when she winds up she can explain where I have gone wrong.
Amendment No. 128F stands in my name, but I do not intend to press it. I have given the Minister notice that I have tabled it in order to be able to ask a couple of questions, in particular about the EU energy directive. I understand that the provisions in Part 5 will be the only legislative basis for the implementation of the directive—obviously, it is open to the Government to bring in other primary legislation—and we see the importance of the directive being implemented. Perhaps the Minister could confirm whether I am right.
I am a little concerned that as the Bill stands—I was not able to persuade the Public Bill Office of a way of addressing the issue directly—the permitted period within which the HIP is to be provided is 14 days from marketing. The EU directive, which in itself may be contentious, provides for an energy efficiency report to be provided at the point of sale. That may be rather late and perhaps a period in between would be sensible. Can the Minister confirm that the Bill taken as a whole would allow the period to be varied? We discussed regulations with the Bill team this morning and it would be helpful to hear from the Minister at the Dispatch Box.
In a similar vein, but extending beyond the energy efficiency report, can the Minister tell the House whether the new clause, taken together with the regulation-making power, will mean that not everything has to be provided within the HIP at the same time?
Lord Hunt of Wirral: My Lords, I thank the noble Lord, Lord Rooker, for having carefully thought of a way to meet some of the concerns. However, I agree with my noble friend Lady Hanham that there must be something more than merely the power to suspend.
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The Minister has spoken a great deal about the dry run. We need to know and to have assurances that there will be a report to Parliament. It is all well and good for stakeholder groups to be managing the transition, but in this House and in the other place Members should have the opportunity to consider the results of the pilot scheme and to decide whether there could be further improvement and amendment.
I do not want the Minister to take that too badly. As he has already set fire to the Law Society. I do not want him to set fire to me. I genuinely say to him. "Thank you very much". However, I regret his words about the Law Society because I am also a member. Many of its members have been seriously concerned about home information packs and about the need to overcome chains. If I remember correctly, the Minister's last speech was largely on the basis that home buyers are born free but everywhere they are in chains.
I am not too sure that he has thought through the consequences of what he has been saying. As the Law Society has explained to me at great length, chains occur for a variety of reasons. It is usually because the poor individual who is trying to buy a house either has to sell a property and cannot do so or has been unable to raise the finance. The answer is not to make it more costly and expensive. In our previous debates on the Bill, the noble Baroness, Lady Hamwee, was right in saying that we need a workable, cost-effective scheme.
We are concerned about the cost, but the chain has bedevilled the debate and confused it. Let us he clear that there will be a dry run and that there is now an undertaking that it will be compulsory if that can happen. All we now need is for the Minister to accept this amendment so that we can have a good debate in the House about the results of the pilot scheme and then make a decision about moving forward. I therefore strongly support my noble friend.
7.30 p.m.
The Earl of Caithness: My Lords, I welcomed the Minister's comments about the dry run. However, that was tempered by a conversation I had today with the Council of Mortgage Lenders. It said that if there is to be a compulsory dry run in one area of the country while there is a voluntary one in the rest of it, it will not use the home condition reports at all in the compulsory area. I therefore wish the Minister good luck in trying to sort out the incredibly good mess that he has got the Council of Mortgage Lenders and agents into.
I do not take the same rosy opinion of Amendment No. 128C as the noble Baroness, Lady Hamwee. It is the softer sop: the Government knew that they would have to give something at the end and that is the easiest because it is rather meaningless as it stands.
We have not discussed Amendment No. 140C at all. This amendment got off to a bad start on Report and was not moved at Third Reading. I should like to ask the Minister three questions about it. Can he tell the House who will have access to the register? What about firms, such as builders or damp-proofing companies, that decide to employ home inspectors? They will have an unfair advantage because they will

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know the condition of houses and will be able to benefit from that. What will happen when inspectors put in different reports about houses? If those reports are to be filed, will there be action taken against an inspector who got it wrong?
On 2 November, 16 highly experienced surveyors were taught how to fill in the home condition report. It was a department training exercise. Those 16 people have an enormous number of years of experience, including one person with 45 years' experience of surveys. The exercise degenerated into a complete farce. The group were asked what they should do about the roof of a property on which the felt tiles were coming off. Half of the group said that the whole roof needed to be repaired. The other half said that the roof needed to be renewed. The consequence was a vast difference in cost between the two different groups of surveyors. Just like lawyers, surveyors will give different opinions.
If surveyor A says that the roof of a property needs to he repaired, and it is in the home condition report, that will cost one figure. If surveyor B says that the roof needs to be renewed, that figure would be multiplied by about 10, which would be totally different. If one of your Lordships tries to buy a house and is faced with a home condition report that is inaccurate in that way, goodness knows in what other ways it will be inaccurate. I now understand that the home condition report will not allow surveyors any room for free text. It has been dumbed down to the lowest common denominator: one size fits all.
In tabling Amendments Nos. 128H and 128J, I support government Amendment No. 128C, but would like to amend the Bill so that we can have first-day marketing. I really want to help the Government on that. This was an amendment that the noble Baroness, Lady Maddock, moved on Report. I supported her then because I had a somewhat similar amendment.
But if we are to have speedier marketing of houses, which everyone wants, we must be allowed to market at day one. All that Amendment No. 128H says is, "If we are going to have a compulsory pack, let us market on day one and let us have the pack within 14 days of marketing".
What the Minister said at an earlier stage about how agents work was totally wrong. The way in which the Minister portrayed the profession as working is not the profession that I work in and know. I plead with him that this would be an enormous help for the housing market.
The Minister will take a harsher line with Amendment No. 128J, which would remove the home condition report. I wish to remove the home condition report partly for the reasons to which I have already alluded in respect of Amendment No. 140C. But there is the economic cost. The Government say that the cost of not having surveys at the moment is something like £350 million. The cost of rectifying that with the home condition report is £600 million, which is a much worse figure. That is a minimum based on a home condition
1376
report costing £300. That is the new Prescott penalty, which will apply for everyone who wishes to sell a house. It is a new additional charge that people will have to pay. It will be £1,000 in most cases in London. That information has been clearly given to the Minister's officials.
I oppose having the home condition report from the lender's point of view because there would not be a valuation. Having spoken to the Council of Mortgage Lenders it is clear that it will have to do valuations in order to continue with its lending programme. The automated valuation models will not be the answer that people think. They are used about 60 per cent of the time in America, which is 10 years ahead of us. The Council of Mortgage Lenders thinks that it will not even be 50 per cent over here.
There is also the shelf life of the home condition report. A mortgage valuation offer now is valid for three to six months; a home condition report has to be done in the three months prior to the date of coming on the market so that it can be included in the pack. As most houses take at least six months to sell, the home condition report will be way out of date.
We still have the problem of adequate indemnity insurance. On economic, lending, consumer and insurance grounds, the home condition report is the real Achilles heel in the home information pack and should be removed.
Baroness Maddock: My Lords, perhaps I may ask the Minister to turn to day-one marketing in his response, particularly looking ahead to the dry run and where things may go wrong. He will be aware that many estate agents are very concerned about what that will do to the market. I realise that we have not been able to persuade him substantially to change his position on that, but it would be very helpful if in the future on looking at this the Minister could give us some reassurances. It is something that we would look at quite carefully.
Lord Selsdon: My Lords, I support the efforts and the initiative of the noble Lord, Lord Rooker. It is a pity that he is a member of the Government, but that is a side comment. Since last week, I have consulted widely. I believe that it would be possible for Members in this House to produce all the necessary regulations probably in an afternoon.
But my worry is that the market changes. The noble Lord, Lord Rooker, last week kept banging—on without thumping the Dispatch Box—about the consumer and the buyer. In this past week, there has been a change towards the buyer and away from the seller, because the market has shifted quite dramatically. Therefore, a buyer now tends to ask sellers to produce far more information than he would have done a few weeks ago.
If we move on to what has also changed—I have taken the trouble of checking with some of my colleagues in that field—there is a worry that the costs are wrong. My noble friend Lord Caithness raised that. He touched briefly on professional indemnity. The professional

1377
indemnity fees or charges for surveyors for that sort of work will rise dramatically. It may even be impossible to get professional indemnity insurance.
The noble Lord, Lord Phillips, may remember this example. There was a surveyor who used to do some work in London. Suddenly, one day, he was employed to evaluate a house near Gatwick Airport. But he forgot to put in the report that aeroplanes would fly over the house. If I remember correctly, he was sued for something like £500,000. That is the worry: people may not be able to get the insurance that is necessary. There may be a number of cowboys taking up the work without anyone trusting them.
I still believe that the idea of having standardised information, which may be used by solicitors, agents and everyone is correct and proper. But the current drafting leaves things a little bit too open. I do not want to say that the office of the Minister has got it wrong, but even those of us who have a nautical background think that there is something that does not go well with being a pilot and a dry run. I just hope that the Minister does not run aground.
Lord Rooker: My Lords, I shall do my best to answer. Some of those points, with respect, have been answered before. There is no secret about the proposed or planned timetable. I do not say that it will be fixed to the last month or even to the quarter of the year. As I have said today and previously, our intention is to get the regulations settled by the middle of next year. The plan is that the pilot mark one, which is the voluntary dry run, would run for the six months of the second part of 2006, prior to becoming compulsory some time in 2007. We have never said it would be January or April because it is too far away.
There is no secret about the broad block of dates, but in the mean time we need the Bill to be given Royal Assent so that we can genuinely arrange for the stakeholder groups to be set up and working. Given the history of this process—this is not the first Bill to introduce the idea—one can understand those outside saying, "Get the Bill through, make it an Act and then we will talk turkey and practicalities—given what happened before 2001". That is our broad timetable.
The idea that this House will not be discussing the matter again before the scheme becomes compulsory is a nonsense. It certainly will discuss it. Although I cannot say whether that would be by means of secondary legislation, I am sure that it would be tabled even for a Wednesday debate. Equally, the other place will discuss it. With 40,000 dwellings a week being marketed, Members of Parliament looking after their constituents will want to keep a close track of what is going on.
I am also not getting into a big debate about the costs. The figure given is about £1,000, but we have repeated many times that some £635 of that is already being spent now. That is not new money. The noble
1378
Earl can shake his head all he likes, but that is all I am saying. It has been said before and it is a matter of public record.
The Earl of Caithness: My Lords, the £1,000 was purely for the home condition report, and those were figures given to the noble Lord's officials.
Lord Rooker: My Lords, I have just said that I will say no more beyond that £635 is already being spent now.
I turn to the issue raised by the noble Earl of the inspectors not being able to use free text. I do not know who has told him that, but it is not true. Inspectors will be allowed to use free text, but given the scale of the industry it is expected that they will develop electronic reporting processes and packages to aid efficiency. None the less, free text will be allowed. However, home inspectors would be required to follow the reporting standards prescribed in the certification scheme. That is important because there must be a degree of consistency here.
On the question of first-day marketing, I know that this is seductive and has been the subject of many debates. In some ways, I rest my case on what I said during our last debate. If one goes for first-day marketing, one would not be following the rules and guidance of the National Association of Estate Agents. That guidance sets out clearly what agents are advised to do. I shall not go into the detail, but it is not possible to do first-day marketing properly for someone who just walks into the office and to conform with the existing guidelines. So it is misleading to talk about first-day marketing. I do not say that it does not happen now, in the sense that people do walk into agencies and the rules are not followed.
The guidance is set out on page 39 in module 1, section 1.10, covering approval and availability. Following the association's own rules and guidance, it is not possible to operate first-day marketing because you cannot do in one day all that should be done according to the guidance. It just is not a runner.
The noble Earl asked who has access to the register. I fully accept that there was a hiatus when my noble friend and I did not move our amendment as a result of the noble Baroness spotting what may have been a flaw. But that covered access to and policing of the register rather than the register itself.
In terms of access to the register, the amendment would allow the Secretary of State to make regulations specifying who may access it. Final decisions have yet to he taken. I do not apologise for that; it is the same for stakeholder working groups. These issues have to be turned into practical propositions for the industry. At this stage we intend that sellers, along with bona fide potential buyers and their professional advisers, should have access to the home condition report on an individual property. For example, home inspectors would be able to access previous reports on a home if there was a need to check condition-related aspects of its history.

1379
We also intend that mortgage lenders should be able to access the register of home condition reports to inform their lending decisions. Lenders are also keen to have access to all home condition reports to improve their database of comparable evidence to use when valuing other properties. It will serve to make valuations more accurate and more likely to be acceptable to the wider spread of lenders, and in particular to credit rating agencies.
We want to minimise the number of cases where the lender requires a separate valuation inspection of the property. In many cases, although I do not say exclusively, that would be a waste of resources. However, the home inspection certification scheme should have access to the whole register in order to monitor the work of home inspectors and to be able to respond to any reports of wrongdoing or professional incompetence.
In addition to restrictions on who can access the register, there will also be restrictions on the purpose for which it may be accessed and the uses to which the information may be put. We do not want any hares running on this issue because it is a new part of the process.
Baroness Hanham: My Lords, I thank the Minister for that reply. I am bound to say, however, that we now know less about how home improvement packs are to be dealt with than we did when we began. The Minister has been unusually obfuscatory on this, but all the way through our discussions we have not managed to unpick how this pilot is going to take place.
I take slight issue with the noble Baroness, Lady Hamwee, on the question of our amendment. I do not like to draw attention to the fact that we were given legal help by the House with it, nor do I like to point out to the House that the pilot is not actually in the Bill. The pilot, or dry run, has appeared during the course of our discussions and has become an entity. Since it is not in the Bill, it must be dealt with in some way. We shall do so by way of our amendment, which draws attention to the fact that there is going to be a pilot scheme. That scheme ought to be reported to the House.
The Minister has said that of course this matter would be discussed by Members in another place and noble Lords in this House, but in order for it to be discussed, everyone must keep an eye on what is going on. We need to know when the scheme starts and we have to try to keep in touch with its progress. However, that is not what I would call a formal way for this House to deal with the matter. This House ought to have a formal role in discussing the report of the pilot and the dry run before it is rolled out and established on a more general basis. However, the Minister did not say that it would be brought formally before the House.
Lord Rooker: My Lords, although I did not say that, I mentioned that there are several processes. While I shall not be specific about the dates because I do not have that kind of detail, the plan is to have the regulations by next summer. At that point, one would expect Ministers—myself or whoever is responsible—
1380
to be able to provide more information about how the regulations will operate in practice and about the progress on arranging both the dry run, which is a voluntary process over the whole country, and on the more targeted effort in a designated area of the country. However, obviously we need to have talks with the industry about that. At that point, more information will be given.
But that is still some 18 months before any proposal that this will become compulsory. We are talking about the middle of 2005 plus a year before the dry run would start. It is not that there is not plenty of time, along with triggers for more information to be brought forward. The noble Baroness is quite right that more information needs to be given. However, I make no apology for not having that information now; it is simply that discussions have yet to take place with the industry if the Bill is given Royal Assent.
Baroness Hanham: My Lords, the point is not that the information should be available now. We have done what we can to get whatever information there is. However, the report on what happens as a result of the voluntary dry run—one that presumably will be drawn up by someone, or how will anyone know how the pilot has fared?—should be made available by being brought to the House with recommendations from the Government on what they are going to do.
I think that this provision ought to be on the face of the Bill. It should form part of the amendment moved by the Minister and with which we agree. However, since we do not seem to have a unanimity of view, I wish to test the opinion of the House.
7.50 p.m.
On Question, Whether the said amendment, Amendment No. 128D, as an amendment to Amendment No. 128C, shall be agreed to?
Their Lordships divided: Contents, 90; Not-Contents, 120.

Division No. 4

CONTENTS

Anelay of St Johns, B.

Dean of Harptree, L.

Arran, E.

Dixon-Smith, L.

Astor of Hever, L.

Donaldson of Lymington, L.

Attlee, E.

Dundee, E.

Blackwell, L.

Eden of Winton, L.

Blatch, B.

Elles, B.

Bridgeman, V.

Elliott of Morpeth, L.

Brooke of Sutton Mandeville, L.

Elton, L.

Brougham and Vaux, L.

Erroll, E.

Burnham, L.

Feldman, L.

Buscombe, B.

Ferrers, E.

Byford, B.

Flather, B.

Caithness, E.

Fookes, B.

Carlisle of Bucklow, L.

Goschen, V.

Carnegy of Lour, B.

Hanham, B.

Chester, Bp.

Hayhoe, L.

Cobbold, L.

Henley, L.

Colville of Culross, V.

Hodgson of Astley Abbotts, L.

Cope of Berkeley, L. [Teller]

Hogg, B.

Crickhowell, L.

Home, E.

Cumberlege, B.

Howe, E.

1381

Howe of Aberavon, L.

Northesk, E.

Howe of Idlicote, B.

Norton of Louth, L.

Hunt of Wirral, L.

Onslow, E.

Jenkin of Roding, L.

Palmer, L.

Kimball, L.

Pearson of Rannoch, L.

King of Bridgwater, L.

Peel, E.

Kingsland, L.

Phillips of Sudbury, L.

Laird, L

Plumb, L.

Liverpool, E.

Rawlings, B.

Lucas, L.

Reay, L.

Lyell, L.

Rees, L.

Renton, L.

McColl of Dulwich, L.

Roberts of Conwy, L.

MacGregor of Pulham Market, L.

Rotherwick, L.

St John of Fawsley, L.

Mancroft, L.

Saltoun of Abernethy, Ly.

Mayhew of Twysden, L.

Secoombe, B. [Teller]

Miller of Hendon, B.

Selsdon, L.

Monro of Langholm, L.

Sharples, B.

Monson, L.

Soulsby of Swaffham Prior, L.

Montrose, D.

Sterling of Plaistow, L.

Morris of Bolton, B.

Stewartby, L.

Murton of Lindisfarne, L.

Strange, B.

Newton of Braintree, L.

Tebbit, L.

Northbrook, L.

Walker of Worcester, L.

NOT-CONTENTS

Acton, L.

Grantchester, L.

Amos, B. (Lord President of the Council)

Greengross, B.

Grocott, L. [Teller]

Andrews, B.

Harris of Haringey, L.

Archer of Sandwell, L.

Harrison, L.

Ashton of Upholland, B.

Hart of Chilton, L.

Bach, L.

Haskel, L.

Barnett, L.

Haskins, L.

Bassam of Brighton, L.

Haworth, L.

Bernstein of Craigweil, L.

Hayman, B.

Bragg, L.

Henig, B.

Brennan, L.

Hogg of Cumbernauld, L.

Brooke of Alverthorpe, L.

Hollick, L.

Burlison, L.

Hollis of Heigham, B.

Campbell-Savours, L.

Hoyle, L.

Carter, L.

Hughes of Woodside, L.

Carter of Coles, L.

Hunt of Chesterton, L.

Chandos, V.

Hunt of Kings Heath, L.

Clark of Windermere, L.

Irvine of Lairg, L.

Clarke of Hampstead, L.

Jones, L.

Clinton-Davis, L.

King of West Bromwich, L.

Cohen of Pimlico, B.

Kirkhill, L.

Corbett of Castle Vale, L.

Layard, L.

Crawley, B.

Lea of Crondall, L.

Davies of Coity, L.

Leitch, L.

Davies of Oldham, L. [Teller]

Lockwood, B.

Dean of Thornton-le-Fylde, B.

Lofthouse of Pontefract, L.

Desai, L.

McDonagh, B.

Dixon, L.

McIntosh of Haringey, L.

Drayson, L.

McIntosh of Hudnall, B.

Dubs, L.

MacKenzie of Culkein, L.

Elder, L.

Mackenzie of Framwellgate, L.

Evans of Temple Guiting, L.

McKenzie of Luton, L.

Farrington of Ribbleton, B.

Massey of Darwen, B.

Faulkner of Worcester, L.

Maxton, L.

Filkin, L.

Morgan, L.

Fyfe of Fairfield, L.

Morgan of Drefelin, B.

Gale, B.

Morris of Aberavon, L.

Gibson of Market Rasen, B.

Pendry, L.

Giddens, L.

Prosser, B.

Gilbert, L.

Radice, L.

Golding, B.

Randall of St. Budeaux, L.

Goldsmith, L.

Rea, L.

Gordon of Strathblane, L.

Rendell of Babergh, B.

Goudie, B.

Rooker, L.

Gould of Brookwood, L.

Rosser, L.

Gould of Potternewton, B.

Rowlands, L.

Graham of Edmonton, L.

Royall of Blaisdon, B.

1382

Scotland of Asthal, B.

Tunnicliffe, L.

Sewel, L.

Turnberg, L.

Simon, V.

Turner of Camden, B.

Smith of Leigh, L.

Uddin, B.

Snape, L.

Wall of New Barnet, B.

Symons of Vernham Dean, B.

Warner, L.

Warwick of Undercliffe, B.

Taylor of Blackburn, L.

Whitaker, B.

Thornton, B.

Whitty, L.

Tomlinson, L.

Wilkins, B.

Triesman, L.

Woolmer of Leeds, L.

Truro, Bp.

Young of Norwood Green, L.

Truscott, L.

Young of Old Scone, B.

Resolved in the negative, and Amendment No. 128D, as an amendment to Amendment No. 128C, disagreed to accordingly.
8 p.m.
Lord Phillips of Sudbury Lord Phillips of Sudbury rose to move Amendment No. 128E, as an amendment to Amendment No. 128C:
128E Line 3, at beginning insert "Following the operation of a pilot scheme"
The noble Lord said: My Lords, this amendment went to the Public Bill Office a rather splendid thing and emerged in this somewhat attenuated and pathetic form. It seeks to amend the Government's Amendment No. 128C. As others have said, it appears, on this side of the House, that Amendment No. 128C represents a significant amendment to the Bill; it represents an earnest of good faith and underpins the importance of the pilot—or the dry run, as it is sometimes called.
I am grateful to the noble Lord, Lord Rooker, for his open-mindedness in listening to the arguments vis-à-vis the pilot. It goes some considerable way to assuaging the anxieties we would otherwise have on these Benches. It is common ground that this is a major change in an area of national life that is highly sensitive. It involves people in the most important transaction they will ever engage in and it is built upon a series of suppositions, because there has never been anything like this before. I do not ask the Minister to acknowledge this, but I think it is also accepted that the amount of research on the basis of which the scheme has been brought forward has necessarily been limited.
The pilot will give the opportunity for the truth to out—so long, that is, as the scheme is objectively and conscientiously undertaken. It will enable all the disputes on the impact of the scheme on the marketing and price of properties, the expenses incurred, and many other issues to be resolved without doubt or peradventure, by experience. Particularly important is the fact, as the Minister has specifically stated, that although this will be a voluntary scheme nationally, there will be one area within which it will be compulsory. I am most grateful to him for making that clear.
Will the Minister give a little more reassurance on the nature of the pilot scheme and what he calls the stakeholder working group? In my Amendment No. 36 at Third Reading, I set out a number of conditions which would apply were the national pilot

1383
to be included in the Bill. That amendment was withdrawn when the House decided to make the whole scheme voluntary.
The Minister has referred to the importance of the stakeholder working groups in helping the Government set up the pilot and then evaluate it. My first question is this: in my Amendment No. 36, I said that the advisory group shall include representatives of the Law Society, the Royal Institution of Chartered Surveyors, the Council of Mortgage Lenders, the National Association of Estate Agents and the Consumers' Association, and of such other interests as the Secretary of State shall think fit. Is the Minister prepared to say whether those named bodies will he part of the stakeholder working group that will be responsible for the pilot?
The second crucial issue is the extent to which the stakeholder working group's advice will be received and the importance that will be attached to it. I do not wish in any way to raise the issue of bad faith, but it is important to know just what importance the Government will attach to the stakeholder working group's advice. As will be obvious, the objectivity of evaluating the pilot is paramount. If credence is to be attached to the pilot and the outcome and if this House—let alone the Government—is to be in a position to learn the lessons of the pilot, it is very important that the working group be given a very high significance and that it will be able to ensure objectivity in the pilot scheme.
If the Minister is prepared to give a reasonably satisfactory response to those questions, I am not inclined to press the amendment, not least because it is in rather an inadequate state, if I can put it that way. I beg to move.
Moved, as an amendment to Amendment No. I 28C, Amendment No. 128E.—(Lord Phillips of Sudbury).
Lord Hunt of Wirral: My Lords, if the pilot scheme and the assessment of it is to be serious, it would be helpful to know from the Minister a little more about the criteria against which the success or failure of the pilot is to be judged. I hope that the Minister might give us some idea.
The Government previously spoke about a benchmark—I believe I am correct in using that word—prior to the pilot, against which the success or otherwise of the new scheme can be effectively monitored. We need to know a little more about the criteria that the Government will use. The key is whether the packs will make home buying and selling easier, less stressful, more transparent, more certain and faster for consumers. There may well be broader criteria as well. I believe that in answer to this amendment, it would be very helpful to hear a little more about the dry run, or pilot scheme, that is planned.
Lord Rooker: I am sure that it would he, my Lords—if I had it. That is not a criticism. With all due respect to the noble Lord, Lord Hunt, who has been incredibly positive and constructive in these debates, I am relying
1384
on what I said earlier. It is too early, in some ways. The criteria were set out on Second Reading and in Committee—that is part of it.
0The membership is the key to what will happen now. I do not know how many stakeholder groups there are—more than one, anyway, given the different aspects. Certainly, all the bodies the noble Lord, Lord Phillips, mentioned will be included and involved. I can say that without any qualification. I would expect the stakeholder groups to work by consensus. It will be no good putting together a stakeholder group if there is no consensus or the Government ignore the stakeholder group's advice on something because they do not like it and ram it through.
That will not work because we cannot make this work from Whitehall: this system cannot be run by the Office of the Deputy Prime Minister. But it will be run by the industry—the buyers, sellers, professionals, lawyers, estate agents and surveyors. It is important that the practitioners who deal with the practicalities have a role in writing the parameters. My answer to the question is that decisions will have to be taken by consensus.
Effectively, we are talking about professional people—not about someone stupid having a veto just because they do not want to participate. That would be ridiculous. I fully accept that the term "dry run" is not used in the Bill, but it refers to the six months or thereabouts before the measure is compulsory. One cannot be absolutely certain of the date, but we have specified a good period of time—half a year. Within that we have what we could call the designated pilot within the dry—run it may even be a region as a designated area. We would not so much test the measure to destruction, but if it does destruct, there is a problem and we would not introduce it. That is the whole point of this exercise.
I fall back on what I said earlier. Again, this is not a criticism, but the matter is being treated seriously by the Government. This is a high risk operation. That is how it is classed by the management structure within the ODPM. Therefore, one takes the necessary management steps to ensure that that high risk works and does not fall apart. On the issue of how the measure will be dealt with in terms of listening to industry, it is less risky if industry is on board and is content and happy with how the systems will work. The risk is then reduced. Obviously, if the measure is high risk on the day that it is launched, there is a problem and it would not go ahead. The whole point of the stakeholder approach is trying to get a consensus—over a fairly long period of time, do not forget, because this will not be done in three or six months. Hopefully, by the middle of next year we will have regulations and then there will still be discussion for 12 months before a dry run would be started. There will obviously be national publicity and so forth. Then there will be discussion with industry about how we get a designated pilot within the dry run to go forward on a different basis.

1385
A lot of work must be done. I freely admit that, although two years seems a long time, we all know that two years in planning an operation and introducing legislation goes really quickly. This is a big operation for the Government. It will not be starved of resources. There must be changes in our department in the way that we can drive this measure forward and manage it. I cannot be more specific, but I appreciate what has been said. We have tried to meet genuine concerns.
We have had, as one might imagine, internal debates about this issue within the department. Five housing Ministers have dealt with it in the past seven years but with the same team of officials. Therefore, Ministers have come to the problem afresh, examined it and asked questions about it. It may look as if everything has happened at the last minute but, nevertheless, the effect of our amendments and the commitment to try to get a designated, non-voluntary pilot within the dry run is an important element.
As I said, we need to get industry on board. We cannot say, "This is how it's going to happen", because it will not work unless industry comes with us. Without wishing to repeat the paragraph from earlier because it is on the record, if something is insurmountable with the industry, we would not go ahead. Therefore, there must be willingness on our part and that of the industry.
It is in everybody's interests to make sure that this measure works once Parliament has made a decision, but using the criteria of success or failure, more happiness and less stress would be good when buying or selling a home. That is difficult to measure, but one does not need to take a mechanistic approach by tying things down and saying, "Can you knock three days or weeks off the buying and selling process?" With respect, this is somewhat more important than that. We must look at the criteria because we will have to justify our actions.
Lord Phillips of Sudbury: My Lords, I am greatly reassured by those further words from the Minister. They reflect what was said to me by the Minister in the other place, Keith Hill, when I had a meeting with him on this subject. I am personally persuaded that the Government are genuinely open minded about this pilot and genuinely intent both on setting it up and construing it objectively. To be fair to the Government, in my view Amendment No. 128C is proof of the pudding. It says that, if we find that the pilot gives us results that we did not expect but which nonetheless appear clear, we will pull the measure. One cannot ask for more than that, and on that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 128F not moved.]
The Earl of Caithness The Earl of Caithness rose to move, as an amendment to Motion 128B, leave out "Amendment 128C" and insert "Amendments 128C, 128H and 128J"
128H page 95, line 7, at end insert—
"( ) It is the duty of a responsible person to have in his possession or under his control a home information pack for the property within a period of fourteen days from the date determined by section 131(2)."
128J Leave out Clause 145
The noble Earl said: My Lords, I beg to move.
Moved, as an amendment to Motion 128B, leave out "Amendment 128C" and insert "Amendments 128C, 128H and 128J".—(The Earl of Caithness.)
8.15 p.m.
On Question, Whether the said amendment (No. 128G) shall be agreed to?
Their Lordships divided: Contents, 71; Not-Contents, 110.

Division No. 5

CONTENTS

Anelay of St Johns, B.

Jenkin of Roding, L.

Arran, E.

Kimball, L.

Astor of Hever, L.

Laird, L.

Attlee, E.

Liverpool, E.

Blatch, B.

Lucas, L.

Bridgeman, V.

Lyell, L.

Burnham, L.

McColl of Dulwich, L.

Buscombe, B.

Mancroft, L.

Byford, B.

Mayhew of Twysden, L.

Caithness, E. [Teller]

Miller of Hendon, B.

Carlisle of Bucklow, L.

Monro of Langholm, L.

Carnegy of Lour, B.

Monson, L.

Cope of Berkeley, L. [Teller]

Montrose, D.

Crickhowell, L.

Morris of Bolton, B.

Cumberlege, B.

Murton of Lindisfarne, L.

Dean of Harptree, L.

Newton of Braintree, L.

Dixon-Smith, L.

Northbrook, L.

Dundee, E.

Norton of Louth, L.

Elles, B.

Onslow, E.

Elliott of Morpeth, L.

Park of Monmouth, B.

Elton, L.

Peel, E.

Feldman, L.

Plumb, L.

Ferrers, E.

Rawlings, B.

Flather, B.

Reay, L.

Fookes, B.

Rees, L.

Goschen, V.

Renton, L.

Greenway, L.

Roberts of Conwy, L.

Hanham, B.

Rotherwick, L.

Henley, L.

St John of Fawsley, L.

Saltoun of Abernethy, Ly.

Hodgson of Astley Abbotts, L.

Seccombe, B.

Hogg, B.

Selsdon, L.

Home, E.

Skelmersdale, L.

Howe, E.

Tebbit, L.

Howe of Aberavon, L.

Thomas of Swynnerton, L.

Hunt of Wirral, L.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Clark of Windermere, L.

Amos, B. (Lord President of the Council)

Clarke of Hampstead, L.

Clinton-Davis, L.

Andrews, B.

Cohen of Pimlico, B.

Archer of Sandwell, L.

Colville of Culross, V.

Ashton of Upholland, B.

Corbett of Castle Vale, L.

Bach, L.

Crawley, B.

Bassam of Brighton, L.

Dahrendorf, L.

Bernstein of Craigweil, L.

Davies of Coity, L.

Bragg, L.

Davies of Oldham, L. [Teller]

Brennan, L.

Desai, L.

Brett, L.

Dixon, L.

Brooke of Alverthorpe, L.

Drayson, L.

Burlison, L.

Dubs, L.

Campbell-Savours, L.

Elder, L.

Carter, L.

Farrington of Ribbleton, B.

Carter of Coles, L.

Faulkner of Worcester, L.

Chandos, V.

Filkin, L.

1387

Fyfe of Fairfield, L.

Mackenzie of Framwellgate, L.

Gale, B.

McKenzie of Luton, L.

Gibson of Market Rasen, B.

Massey of Darwen, B.

Giddens, L.

Maxton, L.

Gilbert, L.

Morgan, L.

Golding, B.

Morgan of Drefelin, B.

Goldsmith, L.

Patel, L.

Gordon of Strathblane, L.

Pendry, L.

Goudie, B.

Prosser, B.

Gould of Brookwood, L.

Radice, L.

Gould of Potternewton, B.

Randall of St. Budeaux, L.

Greengross, B.

Rendell of Babergh, B.

Grocott, L. [Teller]

Rooker, L.

Harris of Haringey, L.

Rosser, L.

Hart of Chilton, L.

Rowlands, L.

Haskel, L.

Royall of Blaisdon, B.

Haskins, L.

Scotland of Asthal, B.

Haworth, L.

Sewel, L.

Hayman, B.

Simon, V.

Henig, B.

Smith of Leigh, L.

Hogg of Cumbernauld, L.

Snape, L.

Symons of Vernham Dean, B.

Hollick, L.

Taylor of Blackburn, L.

Hughes of Woodside, L.

Thornton, B.

Hunt of Chesterton, L.

Tomlinson, L.

Hunt of Kings Heath, L.

Triesman, L.

Jones, L.

Truscott, L.

King of West Bromwich, L.

Tunnicliffe, L.

Kirkhill, L.

Turnberg, L.

Layard, L.

Turner of Camden, B.

Lea of Crondall, L.

Wall of New Barnet, B.

Leitch, L.

Warner, L.

Lockwood, B.

Warwick of Undercliffe, B.

Lofthouse of Pontefract, L.

Whitaker, B.

McDonagh, B.

Whitty, L.

McIntosh of Haringey, L.

Wilkins, B.

McIntosh of Hudnall, B.

Woolmer of Leeds, L.

MacKenzie of Culkein, L.

Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.
On Question, Motion agreed to.
8.25 p.m.

LORDS AMENDMENT
130 Clause 138, page 95, line 12, at end insert—
"( ) That duty does not apply if, and for so long as, the seller determines that the property is to be sold without a home information pack, and in the event the estate agent for the seller is the responsible person, the seller has so informed him."
The Commons disagree to this amendment for the following reason—
130A Because a voluntary scheme for home information packs will be ineffective

LORDS AMENDMENT
135 Clause 140, page 96, line 45, at end insert—
"( ) That duty does not apply if, and for so long as, the seller determines that the property is to be sold without a home information pack, and in the event the estate agent for the seller is the responsible person, the seller has so informed him."
The Commons disagree to this amendment for the following reason—
135A Because a voluntary scheme for home information packs will be ineffective

LORDS AMENDMENT
137 Clause 141, page 97, line 22, at end insert—
"( ) That duty does not apply if, and for so long as, the seller determines that the property is to be sold without a home information pack, and in the event the estate agent for the seller is the responsible person, the seller has so informed him."
The Commons disagree to this amendment for the fallowing reason—
137A Because a voluntary scheme for home information packs will be ineffective
Lord Rooker: My Lords, I beg to move that the House do not insist on its Amendments Nos. 130, 135 and 137 to which the Commons have disagreed for their reasons numbered 130A, 135A, and 137A. I have spoken to this issue and the amendments in the debate on Amendment No. 128.
Moved, That the House do not insist on its Amendments Nos. 130, 135 and 137 to which the Commons have disagreed for their reasons numbered 130A, 135A, and 137A.—(Lord Rooker.)
On Question, Motion agreed to.

LORDS AMENDMENT
140 Clause 145, page 100, line 8, after "for" insert "requiring"
The Commons disagree with the Lords in their amendment but propose the following amendments in lieu—
140A Page 100, line 8, leave out paragraph (d) and insert—
"(d) for requiring home condition reports made by members of the scheme to be entered on the register mentioned in section (Register of home condition reports)."
140B Page 100, line 10, at end insert—
"( ) Subsection (5)(d) only applies where provision for a register of home condition reports is made under section (Register of home condition reports)."
140C Page 100, line 16, insert the following new Clause—
"Register of home condition reports
(1) Where the provision mentioned in section 145(3) is made in relation to an approved certification scheme, regulations under section 144 may make provision for and in connection with a register of the home condition reports made by members of the scheme.
(2) The regulations may provide for the register to be kept—

(a) by (or on behalf of) the Secretary of State; or

(b) by such other person as the regulations may specify.

(3) The regulations may require a person wishing to enter a home condition report onto the register to pay such fee as may be prescribed.
(4) No person may disclose—

(a) the register or any document (or part of a document) contained in it; or

(b) any information contained in, or derived from, the register,

except in accordance with any provision of the regulations which authorises or requires such a disclosure to be made.
(5) The provision which may be made under subsection (1) includes (without prejudice to the generality of that subsection) provision as to circumstances in which or purposes for which a person or a person of a prescribed description—

(a) may (on payment of such fee, if any, as may be prescribed)—

(i) inspect the register or any document (or part of a document) contained in it;

(ii) take or be given copies of the register or any document (or part of a document) contained in it; or

(iii) be given information contained in, or derived from, the register; or

(b) may disclose anything obtained by virtue of provision made under paragraph (a).

(6) The purposes which may be so prescribed may be public purposes or purposes of private undertakings or other persons.
(7) A person who contravenes subsection (3) is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(8) Nothing in this section limits the power to make regulations under section 144."
140D Page 103, line 10, at end insert "; or
(c) the development of a register for the purposes of any provision made or expected to be made in regulations under section 144 by virtue of section (Register of home condition reports)."
Lord Rooker Lord Rooker to move, That the House do not insist on its Amendment No. 140, to which the Commons have disagreed, do agree with the Commons in their Amendments Nos. 140A to 140D in lieu thereof; and do propose Amendment No. 140E as an amendment to Commons Amendment No. 140C:
140E* Line 33, leave out "(3)" and insert "(4)"
The noble Lord said: My Lords, I have spoken broadly to these amendments with Amendment No. 128. I beg to move.
Moved, That the House do not insist on its Amendment No. 140, to which the Commons have disagreed, do agree with the Commons in their Amendments Nos. 140A to 140D in lieu thereof; and do propose Amendment No. 140E as an amendment to Commons Amendment No. 140C.—(Lord Rooker.)
On Question, Motion agreed to.

LORDS AMENDMENT
143 lause 147, page 100, line 35, leave out "subsection (5)" and insert "subsections (4A) and (5)"
The Commons disagree to this amendment for the following reason—
143A Because a voluntary scheme for home information packs will be ineffective

LORDS AMENDMENT
144 Page 100, line 37, at end insert—
"(4A) A person is not required to comply with such a requirement if—

(a) he is the seller and has determined that the property is to be sold without a home information pack; or

(b) he is the estate agent for the seller and the seller has informed him that the property is to be sold without a home information pack."

The Commons disagree to this amendment for the following reason—
144A Because a voluntary scheme for home information packs will be ineffective
Lord Rooker: My Lords, I beg to move that the House do not insist on its Amendments Nos. 143 and 144 to which the Commons have disagreed for their reasons numbered 143A and 144A. I have spoken to these amendments previously.
Moved, That the House do not insist on its Amendments Nos. 143 and 144 to which the Commons have disagreed for their reasons numbered 143A and 144A.—(Lord Rooker.)
On Question, Motion agreed to.

LORDS AMENDMENT
190 After Clause 186, insert the following new Clause—
"Decent homes standard for social housing
(1) The Secretary of State shall ensure that by 2016 all social housing shall as far as is reasonably practicable achieve a SAP rating of no lower than 65.
(2) In this section "social housing" means housing let by a registered social landlord or a local housing authority."
The Commons disagree to this amendment for the following reason—
190A Because it involves a charge on public funds, and the Commons do not offer any further reason, trusting that this reason may be deemed sufficient
Lord Bassam of Brighton: My Lords, I beg to move that the House do not insist on its Amendment No. 190 to which the Commons have disagreed for their reason numbered 190A.
The new clause proposed by the amendment would require the Secretary of State to ensure that, by 2016, all existing social housing stock shall, as far as is reasonably practicable, achieve a standard assessment procedure rating of no lower than 65. The amendment and an earlier variation on it have been extensively discussed. I have little to add, save for one point. When the House last discussed the amendment, the Government had estimated that it could cost the public purse an additional £3 billion to £5 billion in extra work. The House will already be aware that, in the light of further analysis, that estimate has increased considerably. As my right honourable friend the Minister for Housing and Planning said in the other place on 8 November, we estimate that additional works to existing housing will cost some £8.5 billion. On top of that, we estimate that the cost of demolition and rebuild, where that is the only way of achieving a SAP rating of 65, would be some £20 billion. The figures rather speak for themselves. In the light of that further explanation, I invite the House, in accordance with the reason which appears on the Marshalled List as Amendment No. 190A, not to insist on Amendment No. 190.
Moved, That the House do not insist on its Amendment No. 190, to which the Commons have disagreed for their reason numbered 190A.—(Lord Bassam of Brighton.)
Baroness Hanham Baroness Hanham rose to move, as an amendment to the Motion that the House do not insist on its

1391
Amendment No. 190, to which the Commons have disagreed for their reason numbered 190A, at end insert "but do propose Amendment No. 190B in lieu thereof":
190B Insert the following new—clause—

Decent homes standard for social housing
(1) The Secretary of State shall ensure that by 2016 all social housing in which there are households in fuel poverty shall as far as is reasonably practicable achieve a SAP rating of no lower than 65.
(2) In this section "social housing" means housing let by a registered social landlord or a local housing authority."
The noble Baroness said: My Lords, in addressing this matter a moment ago, the noble Lord, Lord Bassam, referred to the amendment that we moved on the previous occasion and he referred in similar terms to this amendment. I want to draw attention to the rather subtle change that has taken place within this amendment. It now seeks to place a duty on the Secretary of State to bring up to standard properties which are in fuel poverty. That is considerably different from the matter that we discussed previously.
Perhaps I may briefly remind noble Lords that a target SAP of 65 is not an arbitrary figure. In response to a parliamentary Question from Sue Doughty on 19 April 2004, the Minister, Elliot Morley, informed Miss Doughty that an SAP rating of 65 would create the situation where there was a minimal risk of fuel poverty. Therefore, the benchmark has already been set by this Government.
The Minister, Keith Hill, quoted some staggering arguments against the amendment. He said that Amendment No. 190 sought to tackle the problem of having around 120,000 homes in fuel poverty in the social sector by increasing by 1.7 million the number of homes that would need work.
The new amendment deals with all the arguments very directly. The rewording does not now require all social housing to be brought up to SAP 65 but only that in fuel poverty—that is, about 120,000 houses. That is the number that the Minister says will be left in fuel poverty by the current Decent Homes programme.
The English House Condition Survey of 2001 provides costings for work to ensure compliance with the Decent Homes standard. The survey indicates that 40 per cent of homes can be made decent with expenditure of less than £1,000 per property. That is not surprising because, while the average SAP rating across all housing in England is 51, the highest rated sector is that of registered social landlords, where the average SAP is 60—only a little way below the standard.
We must remember that to comply with the law, those 120,000 houses will, according to Defra, already require SAP 65 to be achieved in order to be removed from fuel poverty. Therefore, by passing this amendment, we would ensure that all that happened in one go, rather than bringing those homes up to a lesser
1392
standard and then going back to upgrade them in order to get them out of fuel poverty—we used that argument on a previous occasion.
The Government were brave and accepted the other amendment that we moved relating to energy efficiency. I beg them to be brave and accept this one.
I beg to move.
Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 190, to which the Commons have disagreed for their reason numbered 190A, at end insert "but do propose Amendment No. 190B in lieu thereof".—(Baroness Hanham.)
Baroness Maddock: My Lords, I spoke in support of this issue at previous stages of the Bill. I find it extraordinary that the Government find it so difficult to accept this, given what they are trying to do through the Warm Homes and Energy Conservation Act and the fact that they agreed to the amendment that we discussed on the previous occasion concerning more general energy efficiency in the domestic sector, to which we shall come next. It seems to me that if they are accepting those issues, they should be able to accept this one. I think that they over-egged the cost involved in the original amendment, which included the wording "as far as practically possible". I do not believe that anyone thought that "practically possible" meant always demolishing properties, as the Minister said.
If the Government are serious about this matter, they should have no problem with the amendment. I wonder how they do their accounting on this issue because the capital and revenue costs of much of this work will be paid back over time in savings on health and repair to properties. I wonder how the Government arrive at their figures. It seems to me that they do not think about that.
The other issue is that anything to do with energy efficiency in homes is a job creator. It helps the economy. I do not believe that any of that has been taken into account, which is very disappointing. I see no logic when the Government have agreed to the Warm Homes and Energy Conservation Act. They have tabled an amendment today about energy efficiency in domestic properties, and yet, although this amendment is less than we were asking for before, they just do not seem able to pull the stops out and accept it.
Lord Bassam of Brighton: My Lords, I congratulate the noble Baroness, Lady Hanham, on her determination on this issue. It would be churlish of me to do otherwise. I accept that the amendment is different, but the same problems persist.
The amendment would require the Secretary of State to ensure that, by 2016, social sector homes of households which are fuel poor shall, as far as is reasonably practicable, achieve a SAP rating of no lower than 65. The amendment is narrower than Amendment No. 190 but, for the reasons I shall give, the Government cannot accept it either.

1393
Fuel poverty affects about 350,000 households in the social sector. Of those, around 230,000 currently live in non-decent homes. We expect that the work done to these homes under the Decent Homes programme will lift most of those households out of fuel poverty, which now appears to be a shared concern. That leaves about 120,000 households who currently live in homes above the decent homes threshold but who remain in fuel poverty. I presume the noble Baroness is hoping that this amendment will address the personal circumstances of those households through work on the fabric of their homes.
I recognise the noble Baroness's commitment to the cause of fuel poverty. I certainly recognise the commitment of the noble Baroness, Lady Maddock, on this. Her form, for which she is to be congratulated, goes back a long way—we share a common cause. I must again question the use of SAP 65 as a method for tackling the problem for these 120,000 households. Most of them are single, non-pensioner households on extremely low incomes living in three-bedroom properties. Working on the physical fabric of the home will not necessarily tackle the problem of fuel poverty for those households.
In any case, implementation of the amendment would be an administrative nightmare. I ask both noble Baronesses to think of that. First, we would need to identify the fuel-poor households whose homes would not already be brought up to SAP 65 through the Decent Homes programme. We would then have to pinpoint the 120,000 households whose homes, although decent, would need extra work. That extra work would need to be carried out in specially identified homes. That would mean that authorities would find themselves procuring small amounts of materials for extra SAP measures and contracting out small pieces of work, rather than tackling larger numbers of properties at the same time. I ask the question: does that deliver value for money to the public purse? That is the important consideration here.
However, those steps alone would not fulfil the duty that the amendment would create. The landlord would have to set up a scheme to monitor all households in the social sector. For the existing fuel poor, we would need to monitor whether any moved home, and where to. If they did, then any new home would have to be SAP assessed and work carried out as a consequence. The landlord would also need to monitor the household's income and benefits entitlement, and any changes to the size of the household, as those factors affect whether the household would remain in fuel poverty. All other households would need to be monitored in case their circumstances changed to make them fuel poor. That would mean monitoring every household income in relation to the SAP rating of the relevant property.
The amendment remains a blunt instrument. It is very likely that homes requiring work under the amendment would change from year to year. This
1394
would make it extremely difficult for social landlords to plan work to their stock or to organise their capital expenditure effectively. The administrative cost of monitoring the households against the housing stock would also be very high. We do not think that social landlords can reasonably be expected to carry out that task. I ask this additional question: have the parties opposite thought about asking social landlords whether they could actually carry out the work in the way that their amendment implies?
The cost of the new amendment would of course be less than the original amendment, Amendment No. 190, which proposed to take all social housing stock to SAP 65 level. However, works costed remain at over £1 billion, which I think we can all agree is a very significant amount. We would still be left with 100,000 homes under SAP 65, where the only way of fulfilling the duty would be to demolish and rebuild them. We estimate that the additional cost would be some £5 billion in terms of the noble Baroness's amendment.
The provision reiterates the principles of the decent homes standard. It is a standard which applies to all social housing stock and is aimed at tackling a whole range of problems affecting social housing from leaking roofs to mould and damp in kitchens. We take our duties towards the alleviation of fuel poverty very seriously. That is why we have put in place welfare measures to tackle the very worst poverty and to provide the decency threshold.
However, the decent homes programme is not aimed purely at that goal. Our work is to have a massive impact on the lives of the most vulnerable members of society and is designed to help those people through their difficulties and to rejuvenate some of our most deprived communities. We do not think that we could support this amendment because we believe that, in the way in which it would be obliged to operate, it could seriouly undermine that work, run up additional costs which are not merited and put the basic work implied by the decent homes programme at risk.
For those reasons I invite the noble Baroness to withdraw the amendment on the grounds of both cost and practicality. I really think that the noble Baroness has to go back and measure and think a bit more about the way in which her proposed scheme—more modest than the original one—would operate.
Baroness Hanham: My Lords, at this stage of the Bill I am not going back anywhere. We are very far down the line now, so I cannot go back, however much the Minister might like me to do so. He does not get rid of me that way.
The Minister has made great play and heavy weather of all the practicalities that would need to be involved and all the terrible problems associated with all of this. Of course, these provisions are no worse than any of the things that local authorities do at present to ensure that here are decent home standards.

1395
The previous amendment, which sought to bring all social housing up to SAP energy rating 65, would have made a great deal more work than is now anticipated in relation to fuel poverty. The canard we were going to suggest—that houses should be demolished because they were not up to standard—is completely covered by the fact that the amendment talks about where it is "reasonably practicable" to do so. I think that even the Minister might decide that "reasonably practicable" does not involve demolishing a house. I thought that we had all reached a consensus that that was probably at least 10 steps too far.
The Minister made great play both today and previously about the difficulties of achieving this standard. I have tried to point out today that the standard is not far off being achieved already and that it will not take much more to achieve it. The costs that the Minister quoted would have included demolition. I suggest that that is not sensible. So the costs of £1,000 per property would seem not to be a step too far.
I hear what the Minister says. I am not going any further. I shall test the opinion of the House.
8.44 p.m.
On Question, Whether the said amendment (No. 190B) shall be agreed to?
Their Lordships divided: Contents, 84; Not-Contents, 101.

Division No. 6

CONTENTS

Alderdice, L.

Howe of Idlicote, B.

Anelay of St Johns, B.

Jenkin of Roding, L.

Astor of Hever, L.

Kimball, L.

Attlee, E.

Laird, L.

Avebury, L.

Liverpool, E.

Barker, B.

Livsey of Talgarth, L.

Blatch, B.

Lucas, L.

Bridgeman, V.

Lyell, L.

Burnham, L.

McColl of Dulwich, L.

Buscombe, B.

Mackie of Benshie, L.

Byford, B.

McNally, L.

Carlisle of Bucklow, L.

Maddock, B.

Carnegy of Lour, B.

Mancroft, L.

Cope of Berkeley, L. [TeIler]

Mar and Kellie, E.

Crickhowell, L.

Mayhew of Twysden, L.

Cunberlege, B.

Methuen, L.

Dixon-Smith, L.

Michie of Gallanach, B.

Dundee, E.

Miller of Chilthorne Domer, B.

Dykes, L.

Miller of Hendon, B.

Elliott of Morpeth, L.

Monro of Langholm, L.

Ferrers, E.

Montrose, D.

Flather, B.

Morris of Bolton, B.

Fookes, B.

Newton of Braintree, L.

Goodhart, L.

Northbrook, L.

Goschen, V.

Norton of Louth, L.

Greaves, L.

Park of Monmouth, B.

Greenway, L.

Phillips of Sudbury, L.

Hamwee, B.

Plumb, L.

Hanham, B.

Rawlings, B.

Harris of Richmond, B.

Reay, L.

Henley, L.

Renton, L.

Hodgson of Astley Abbotts, L.

Roberts of Conwy, L.

Hogg, B.

Roper, L.

Hooson, L.

Rotherwick, L.

Howe, E.

Russell-Johnston, L.

Howe of Aberavon, L.

Saltoun of Abernethy, Ly.

1396

Seccombe, B. [Teller]

Smith of Clifton, L.

Selsdon, L.

Tebbit, L.

Sharp of Guildford, B.

Thomas of Gresford, L.

Sharples, B.

Wallace of Saltaire, L.

Shutt of Greetland, L.

Walmsley, B.

Skelmersdale, L.

Watson of Richmond, L.

NOT-CONTENTS

Acton, L.

Hughes of Woodside, L.

Amos, B. (Lord President of the Council)

Hunt of Kings Heath, L.

Jones, L.

Andrews, B.

King of West Bromwich, L.

Archer of Sandwell, L.

Layard, L.

Ashton of Upholland, B.

Lea of Crondall, L.

Bach, L.

Lockwood, B.

Bassam of Brighton, L.

Lofthouse of Pontefract, L.

Brennan, L.

McDonagh, B.

Brett, L.

McIntosh of Haringey, L.

Brooke of Alverthorpe, L.

McIntosh of Hudnall, B.

Burlison, L.

MacKenzie of Culkein, L.

Carter, L.

Mackenzie of Framwellgate, L.

Carter of Coles, L.

McKenzie of Luton, L.

Chandos, V.

Massey of Darwen, B.

Clark of Windermere, L.

Maxton, L.

Clarke of Hampstead, L.

Monson, L.

Clinton-Davis, L.

Morgan, L.

Cohen of Pimlico, B.

Morgan of Drefelin, B.

Colville of Culross, V.

Parekh, L.

Corbett of Castle Vale, L.

Patel, L.

Crawley, B.

Pendry, L.

Davies of Coity, L.

Prosser, B.

Davies of Oldham, L. [Teller]

Radice, L.

Desai, L.

Randall of St. Budeaux, L.

Dixon, L.

Rendell of Babergh, B.

Drayson, L.

Rooker, L.

Dubs, L.

Rosser, L.

Elder, L.

Royall of Blaisdon, B.

Farrington of Ribbleton, B.

Scotland of Asthal, B.

Faulkner of Worcester, L.

Sewel, L.

Filkin, L.

Simon, V.

Fyfe of Fairfield, L.

Smith of Leigh, L.

Gale, B.

Snape, L.

Gibson of Market Rasen, B.

Symons of Vernham Dean, B.

Giddens, L.

Taylor of Blackburn, L.

Golding, B.

Thornton, B.

Goldsmith, L.

Tomlinson, L.

Gordon of Strathblane, L.

Triesman, L.

Goudie, B.

Truscott, L.

Gould of Brookwood, L.

Tunnicliffe, L.

Gould of Potternewton, B.

Turnberg, L.

Grocott, L. [Teller]

Turner of Camden, B.

Harris of Haringey, L.

Wall of New Barnet, B.

Hart of Chilton, L.

Warner, L.

Haskel, L.

Warwick of Undercliffe, B.

Haskins, L.

Whitaker, B.

Haworth, L.

Whitty, L.

Henig, B.

Wilkins, B.

Hogg of Cumbernauld, L.

Woolmer of Leeds, L.

Hollis of Heigham, B.

Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.
8.54 p.m.
On Question, Motion agreed to.

LORDS AMENDMENT
191 Insert the following new Clause—
"Improvements in energy efficiency
(1) For the purposes of—

(a) improving the energy efficiency of residential accommodation;

1397

(b) increasing the comfort level of occupants of residential accommodation; and

(c) alleviating fuel poverty,

the Secretary of State shall take reasonable steps to ensure an increase in residential energy efficiency of at least 20% by 2010 based upon 2000 levels.
(2) In this section—
"fuel poverty" has the same meaning as in the Warm Homes and Energy Conservation Act 2000 (c. 31); and
"residential energy efficiency" means the energy efficiency of residential accommodation."
The Commons disagree to this Amendment for the following Reason—
191A Because it involves a charge on public funds, and the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient
Lord Bassam of Brighton Lord Bassam of Brighton rose to move, That this House do not insist on its Amendment No. 191 to which the Commons have disagreed for their Reason No. 191A, but do propose the following amendments in lieu thereof—
191B After Clause 187, insert the following new Clause—
"Energy efficiency of residential accommodation: England
(1) The Secretary of State must take reasonable steps to ensure that by 2010 the general level of energy efficiency of residential accommodation in England has increased by at least 20 per cent compared with the general level of such energy efficiency in 2000.
(2) Nothing in this section affects the duties of the Secretary of State under section 2 of the Sustainable Energy Act 2003 (c. 30) (energy efficiency aim in respect of residential accommodation in England).
(3) In this section "residential accommodation" has the meaning given by section 1 of the Home Energy Conservation Act 1995 (c. 10)."
191C Clause 231, page 171, line 15, after "186," insert "(Energy efficiency of residential accommodation: England),"
The noble Lord said: My Lords, the House will recall that, on Commons consideration of Lords amendments, the other place disagreed with Amendment No. 191, which placed a duty on the Secretary of State to take reasonable steps to ensure an increase in residential energy efficiency of at least 20 per cent by 2010 based on year 2000 levels.
The Government have given further consideration to Amendment No. 191. We continue to take the view that its effect will be broadly in line with that of existing policies on residential energy efficiency and that there has been no retreat on the Government's part. However, we recognise the strength of feeling on the issue. We still believe that duties based on specific numerical figures are inflexible and are better avoided in primary legislation. But we have decided to accede to the principle of the amendment as providing some comfort that the Government stand by the energy efficiency aim they have declared. I hope that the House will see this as a significant concession and as evidence that the Government listen.
Amendment No. 191 is not technically suitable as it stands for insertion into the Bill. For that reason, the Government have tabled Amendment No. 191B in its stead. The definition of "residential accommodation" in Amendment No. 191 B mirrors that of the Sustainable
1398
Energy Act 2003 to bring it into line with the designated aims and subsection (2) clarifies that this duty does not affect the duty to designate an aim under that Act.
Amendment No. 191C, which amends Clause 231—the commencement clause—provides that the new clause introduce by Amendment No. 19IB will come into force two months from the date of Royal Assent. I therefore invite your Lordships to agree to Amendments Nos. 191B and 191C.
Moved, That the House do not insist on its Amendment No. 191, to which the Commons have disagreed for their reason numbered 191A, but do propose Amendments Nos. 191B and 191C in lieu thereof.—(Lord Bassam of Brighton.)
Lord Monson: My Lords, I do not want to detain the House for more than a minute at this hour, but feel I must return to a question I raised at the previous stage which was not answered.
I accept that the objectives of this amendment, which is now in modified form a government amendment, are attainable in respect of new housing because regulations can be made. However, they cannot possibly be attained in respect of the existing housing stock, which is much larger, without either coercion or bribery—by that, I mean either tax breaks or subsidies of some kind—because no one will spend a lot of money on insulation they do not want without one or the other. The question is: which is it to be?
Baroness Hanham: My Lords, I was waiting for the Minister to reply to that question. He was asked it previously but he is not going to answer.
Baroness Maddock: My Lords, in that case, I will speak to the amendment. We thank the Government for tabling a better amendment than we tabled on the previous occasion. It is important because the Minister will remember that at our first meeting on the Housing Bill I pointed out a weak area. Although there are many good proposals in the Bill, the Government had failed to take the opportunity to emphasise the importance of energy efficiency in our domestic properties. As the months and weeks have passed while we have been sitting on the Bill, discussions about climate change here and elsewhere in the world have raged on. It is therefore important that the provision is included here and I appreciate that the Government are committed to it in other Bills.
On a personal note, my noble friend Lady Hamwee and I like the new subsection (3) in particular. I sponsored the Home Energy Conservation Act in the other place and my noble friend dealt with it in this House. I also dealt with the Sustainable Energy Act when it reached this House. However, it is disappointing that, given the Government's commitment now, they were not able to concede to the earlier amendment. It is completely in line with what we are trying to do.
9 p.m.
In terms of other comments that have been made about the proposal, and coercion and bribery, it is worth pointing out that those who provide energy in our homes are also concerned with conserving energy. They wonder where in future years they will find enough sources of fuel to keep us all warm. That is why they have gone along with much of what the Government have done in attempting to help people to insulate their homes.
This is important, particularly for my children, grandchildren and future generations. If we do not do something about energy efficiency and the way in which we use energy, we will destroy the planet for those future generations. That is why this is important. I thank the Government for including it in the Housing Bill. It improves and completes a very satisfactory response from the Government not only to this measure but also to the many other measures that we have asked them to include.
Lord Bassam of Brighton: My Lords, in response to the noble Lord, Lord Monson, the increase is to the general level here. It is not specific to new build or otherwise. It is a broader benefit that does not just apply to new houses that come on stream. It is not about bribery; it is not about coercion. As the noble Baroness, Lady Maddock, said, it is about providing for the future and ensuring that we use energy efficiency savings wisely; that we invest in energy wisely; and that we conserve energy wisely, so that future generations will have access to sources of energy. That is something to which we will increasingly have to turn.
Lord Monson: My Lords, those are wholly admirable objectives. I do not dissent for one second. But how will the Government get existing householders who do not want to spend money on improving the insulation of their houses to do so? I suspect that it is in fact bribery, which perhaps I may say is an entirely acceptable and respectable thing to do in view of what we are trying to achieve. The Commons originally disagreed to the amendment on the grounds that it would involve a charge on public funds. So I suspect that a charge on public funds is probably what the Government have in mind.
Lord Bassam of Brighton: My Lords, it is about encouragement. I recently received from my local authority a form asking me if I wanted to insulate my loft. That information comes through one's door. It makes perfectly good sense. Therefore, one follows a logical course of action. No doubt we will turn to improvements to loft insulation in due course because those things are to the general good. As government, we have a responsibility to encourage people to act responsibly in those circumstances. Picturing it as bribery or corruption is obviously rather silly. I am sure that the noble Lord does not mean that at all. But it is something which we can all hope that future generations will share the benefit of.
On Question, Motion agreed to.

LORDS AMENDMENT
259 Before Schedule 7, insert the following new Schedule—
"FURTHER PROVISIONS REGARDING EMPTY DWELLING MANAGEMENT ORDERS

PART 1

  INTERIM EDMOs
  Operation of interim EDMOs
  1 (1) This paragraph deals with the time when an interim EDMO comes into force or ceases to have effect.
  (2) The order comes into force when it is made.
  (3) The order ceases to have effect at the end of the period of 12 months beginning with the date on which it is made, unless it ceases to have effect at some other time as mentioned below.
  (4) If the order provides that it is to cease to have effect on a date falling before the end of that period, it accordingly ceases to have effect on that date.
  (5) Sub-paragraphs (6) and (7) apply where—

  (a) a final EDMO ("the final EDMO") has been made under section (Making of final EDMOs) so as to replace the order ("the interim EDMO"), but

  (b) the final EDMO has not come into force because of an appeal to a residential property tribunal under paragraph 26 against the making of the final EDMO.

  (6) If the date on which the final EDMO comes into force in relation to the dwelling following the disposal of the appeal is later than the date on which the interim EDMO would cease to have effect apart from this sub—paragraph, the interim EDMO continues in force until that later date.
  (7) If, on the application of the authority, the tribunal makes an order providing for the interim EDMO to continue in force, pending the disposal of the appeal, until a date later than that on which the interim EDMO would cease to have effect apart from this sub-paragraph, the interim EDMO accordingly continues in force until that later date.
  (8) This paragraph has effect subject to paragraphs 6 and 7 (variation or revocation of orders by authority) and to the power of revocation exercisable by a residential property tribunal on an appeal made under paragraph 30.
  General effect of interim EDMOs
  2 (1) This paragraph applies while an interim EDMO is in force in relation to a dwelling.
  (2) The rights and powers conferred by sub-paragraph (3) are exercisable by the authority in performing their duties under section (Local housing authority's duties once interim EDMO in force)(l) to (3) in respect of the dwelling.
  (3) The authority—

  (a) have the right to possession of the dwelling (subject to the rights of existing occupiers preserved by paragraph 18(3));

  (b) have the right to do (and authorise a manager or other person to do) in relation to the dwelling anything which the relevant proprietor of the dwelling would (but for the order) be entitled to do;

  (c) may create one or more of the following—(i) an interest in the dwelling which, as far as possible, has all the incidents of a leasehold, or (ii) a right in the nature of a licence to occupy part of the dwelling;

  (d) may apply to a residential property tribunal for an order under paragraph 22 determining a lease or licence of the dwelling.

  (4) But the authority may not under sub-paragraph (3)(c) create any interest or right in the nature of a lease or licence unless—

  (a) consent in writing has been given by the relevant proprietor of the dwelling, and

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  (b) where the relevant proprietor is a lessee under a lease of the dwelling, the interest or right is created for a term that is less than the term of that lease.

  (5) The authority—

  (a) do not under this paragraph acquire any estate or interest in the dwelling, and

  (b) accordingly are not entitled by virtue of this paragraph to sell, lease, charge or make any other disposition of any such estate or interest.

  (6) But, where the relevant proprietor of the dwelling is a lessee under a lease of the dwelling, the authority are to be treated (subject to sub-paragraph (5)(a)) as if they were the lessee instead.
  (7) Any enactment or rule of law relating to landlords and tenants or leases applies in relation to—

  (a) a lease in relation to which the authority are to be treated as the lessee under sub-paragraph (6), or

  (b) a lease to which the authority become a party under paragraph 4(2),

  as if the authority were the legal owner of the premises (but this is subject to paragraph 4(4) to (6)).
  (8) None of the following, namely—

  (a) the authority, or

  (b) any person authorised under sub-paragraph (3)(b),

  is liable to any person having an estate or interest in the dwelling for anything done or omitted to be done in the performance (or intended performance) of the authority's duties under section (Local housing authority's duties once interim EDMO in force)(1) to (3) unless the act or omission is due to negligence of the authority or any such person.
  (9) An interim EDMO which has come into force is a local land charge.
  (10) The authority may apply to the Chief Land Registrar for the entry of an appropriate restriction in the register of title in respect of such an order.
  (11) In this paragraph "enactment" includes an enactment comprised in subordinate legislation (within the meaning of the Interpretation Act 1978 (c. 30)).
  General effect of interim EDMOs: leases and licences granted by authority
  3 (1) This paragraph applies in relation to any interest or right created by the authority under paragraph 2(3)(c).
  (2) For the purposes of any enactment or rule of law—

  (a) any interest created by the authority under paragraph 2(3)(c)(i) is to be treated as if it were a legal lease, and

  (b) any right created by the authority under paragraph 2(3)(c)(ii) is to be treated as if it were a licence to occupy granted by the legal owner of the dwelling,

  despite the fact that the authority have no legal estate in the dwelling (see paragraph 2(5)(a)).
  (3) Any enactment or rule of law relating to landlords and tenants or leases accordingly applies in relation to any interest created by the authority under paragraph 2(3)(c)(i) as if the authority were the legal owner of the dwelling.
  (4) References to leases and licences—

  (a) in this Chapter, and

  (b) in any other enactment,

  accordingly include (where the context permits) interests and rights created by the authority under paragraph 2(3)(c).
  (5) The preceding provisions of this paragraph have effect subject to—

  (a) paragraph 4(4) to (6), and

  (b) any provision to the contrary contained in an order made by the appropriate national authority.

  (6) In paragraph 2(5)(b) the reference to leasing does not include the creation of interests under paragraph 2(3)(c)(i).
  (7) In this paragraph—
  "enactment" has the meaning given by paragraph 2(11);
  "legal lease" means a term of years absolute (within section 1(1)(b) of the Law of Property Act 1925 (c. 20)).
  General effect of interim EDMOs: relevant proprietor, mortgagees etc.
  4 (1) This paragraph applies in relation to—

  (a) the relevant proprietor, and

  (b) other persons with an estate or interest in the dwelling,

  while an interim EDMO is in force in relation to a dwelling.
  (2) Where the relevant proprietor is a lessor or licensor under a lease or licence of the dwelling, the lease or licence has effect while the order is in force as if the local housing authority were substituted in it for the lessor or licensor.
  (3) Such a lease continues to have effect, as far as possible, as a lease despite the fact that the rights of the local housing authority, as substituted for the lessor, do not amount to an estate in law in the dwelling.
  (4) The provisions mentioned in sub-paragraph (5) do not apply to a lease or licence within sub-paragraph (2).
  (5) The provisions are—

  (a) the provisions which exclude local authority lettings from the Rent Acts, namely—

  (i) sections 14 to 16 of the Rent Act 1977 (c. 42), and

  (ii) those sections as applied by Schedule 2 to the Rent (Agriculture) Act 1976 (c. 80) and section 5(2) to (4) of that Act; and

  (b) section 1(2) of, and paragraph 12 of Part 1 of Schedule 1 to, the Housing Act 1988 (c. 50) (which exclude local authority lettings from Part 1 of that Act).

  (6) Nothing in this Chapter has the result that the authority are to be treated as the legal owner of any premises for the purposes of—

  (a) section 80 of the Housing Act 1985 (c. 68) (the landlord condition for secure tenancies); or

  (b) section 124 of the Housing Act 1996 (c. 52) (introductory tenancies).

  (7) The relevant proprietor of the dwelling—

  (a) is not entitled to receive any rents or other payments made in respect of occupation of the dwelling;

  (b) may not exercise any rights or powers with respect to the management of the dwelling; and

  (c) may not create any of the following—

  (i) any leasehold interest in the dwelling or a part of it (other than a lease of a reversion), or

  (ii) any licence or other right to occupy it.

  (8) However (subject to sub-paragraph (7)(c)) nothing in paragraph 2 or this paragraph affects the ability of a person having an estate or interest in the dwelling to make any disposition of that estate or interest.
  (9) Nothing in paragraph 2 or this paragraph affects—

  (a) the validity of any mortgage relating to the dwelling or any rights or remedies available to the mortgagee under such a mortgage, or

  (b) the validity of any lease of the dwelling under which the relevant proprietor is a lessee, or any superior lease, or (subject to paragraph 2(6)) any rights or remedies available to the lessor under such a lease,

  except to the extent that any of those rights or remedies would prevent the local housing authority from exercising their power under paragraph 2(3)(c).
  (10) In proceedings for the enforcement of any such rights or remedies the court may make such order as it thinks fit as regards the operation of the interim EDMO (including an order quashing it).
  Financial arrangements while order is in force
  5 (1) This paragraph applies to relevant expenditure of a local housing authority who have made an interim EDMO.
  (2) "Relevant expenditure" means—

  (a) expenditure incurred by the authority with the consent of the relevant proprietor, or

  (b) any other expenditure reasonably incurred by the authority,

  in connection with performing their duties under section (Local housing authority's duties once interim EDMO in force)(1) to (3) in respect of the dwelling (including any premiums paid for insurance of the premises).
  (3) Rent or other payments which the authority have collected or recovered, by virtue of this Chapter, from persons occupying or having the right to occupy the dwelling may be used by the authority to meet—

  (a) relevant expenditure, and

  (b) any amounts of compensation payable to a third party by virtue of an order under section (Authorisation to make interim EDMOs)(4) or (Compensation payable to third parties)(2) or to a dispossessed landlord or tenant by virtue of an order under paragraph 22(5).

  (4) The authority must pay to the relevant proprietor—

  (a) any amount of rent or other payments collected or recovered as mentioned in sub-paragraph (3) that remains after deductions to meet relevant expenditure and any amounts of compensation payable as mentioned in that sub-paragraph, and

  (b) (where appropriate) interest on that amount at a reasonable rate fixed by the authority,

  and such payments are to be made at such intervals as the authority consider appropriate.
  (5) The interim EDMO may provide for—

  (a) the rate of interest which is to apply for the purposes of paragraph (b) of sub-paragraph (4); and

  (b) the intervals at which payments are to be made under that sub-paragraph.

  Paragraph 26(1)(c) enables an appeal to be brought where the order does not provide for both of those matters.
  (6) The authority must—

  (a) keep full accounts or their income and expenditure in respect of the dwelling; and

  (b) afford to the relevant proprietor, and to any other person who has an estate or interest in the dwelling, all reasonable facilities for inspecting, taking copies of and verifying those accounts.

  (7) The relevant proprietor may apply to a residential property tribunal for an order—

  (a) declaring that an amount shown in the accounts as expenditure of the authority does not constitute relevant expenditure (see sub-paragraph (2));

  (b) requiring the authority to make such financial adjustments (in the accounts and otherwise) as are necessary to reflect the tribunal's declaration.

  (8) In this paragraph—
  "dispossessed landlord or tenant" means a person who was a lessor, lessee, licensor or licensee under a lease or licence determined by an order under paragraph 22;
  "expenditure" includes administrative costs.
  Variation or revocation of interim EDMOs
  6 (1) The local housing authority may vary an interim EDMO if they consider it appropriate to do so.
  (2) A variation does not come into force until such time, if any, as is the operative time for the purposes of this sub-paragraph under paragraph 33 (time when period for appealing expires without an appeal being made or when decision to vary is confirmed on appeal).
  (3) The power to vary an order under this paragraph is exercisable by the authority either—

  (a) on an application made by a relevant person, or

  (b) on the authority's own initiative.

  (4) In this paragraph "relevant person" means any person who has an estate or interest in the dwelling (other than a person who is a tenant under a lease or licence granted under paragraph 2(3)(c)).
  7 (1) The local housing authority may revoke an interim EDMO in the following cases—

  (a) where the authority conclude that there are no steps which they could appropriately take for the purpose of securing that the dwelling is occupied (see section (Local housing authority's duties once interim EDMO in force)(4));

  (b) where the authority are satisfied that—

  (i) the dwelling will either become or continue to be occupied, despite the order being revoked, or

  (ii) that the dwelling is to be sold;

  (c) where a final EDMO has been made by the authority in respect of the dwelling so as to replace the order;

  (d) where the authority conclude that it would be appropriate to revoke the order in order to prevent or stop interference with the rights of a third party in consequence of the order; and

  (e) where in any other circumstances the authority consider it appropriate to revoke the order.

  (2) But, in a case where the dwelling is occupied, the local housing authority may not revoke an interim EDMO under sub-paragraph (1)(b), (d) or (e) unless the relevant proprietor consents.
  (3) A revocation does not come into force until such time, if any, as is the operative time for the purposes of this sub-paragraph under paragraph 33 (time when period for appealing expires without an appeal being made or when decision to revoke is confirmed on appeal).
  (4) The power to revoke an order under this paragraph is exercisable by the authority either—

  (a) on an application made by a relevant person, or

  (b) on the authority's own initiative.

  (5) Where a relevant person applies to the authority for the revocation of an order under this paragraph, the authority may refuse to revoke the order unless the relevant proprietor (or some other person) agrees to pay to the authority any deficit such as is mentioned in paragraph 23(4).
  (6) In this paragraph "relevant person" means any person who has an estate or interest in the dwelling (other than a person who is a tenant under a lease or licence granted under paragraph 2(3)(c)).
  8 (1) Part 2 of Schedule 6 applies in relation to the variation or revocation of an interim EDMO as it applies in relation to the variation or revocation of an interim management order.
  (2) But Part 2 of that Schedule so applies as if—

  (a) references to the right of appeal under Part 3 of the Schedule and to paragraph 29(2) were to the right of appeal under Part 4 of this Schedule and to paragraph 31(2) of this Schedule, and

  (b) paragraph 23(4) defined "relevant person" as any person who, to the knowledge of the local housing authority, is a person having an estate or interest in the dwelling (other than a person who is a tenant under a lease or licence granted under paragraph 2(3)(c) of this Schedule).

PART 2

  FINAL EDMOs
  Operation of final EDMOs
  9 (1) This paragraph deals with the time when a final EDMO comes into force or ceases to have effect.
  (2) The order does not come into force until such time (if any) as is the operative time for the purposes of this sub-paragraph under paragraph 29 (time when period for appealing expires without an appeal being made or when order is confirmed on appeal).
  (3) The order ceases to have effect at the end of the period of 7 years beginning with the date on which it comes into force, unless it ceases to have effect at some other time as mentioned below.
  (4) If the order provides that it is to cease to have effect on a date falling before the end of that period, it accordingly ceases to have effect on that date.
  (5) If—

  (a) the order provides that it is to cease to have effect on a date falling after the end of that period, and

  (b) the relevant proprietor of the dwelling has consented to that provision,

  the order accordingly ceases to have effect on that date.
  (6) Sub-paragraphs (7) and (8) apply where—

  (a) a new final EDMO ("the new order") has been made so as to replace the order ("the existing order"), but

  (b) the new order has not come into force because of an appeal to a residential property tribunal under paragraph 26 against the making of that order.

  (7) If the date on which the new order comes into force in relation to the dwelling following the disposal of the appeal is later than the date on which the existing order would cease to have effect apart from this sub-paragraph, the existing order continues in force until that later date.
  (8) If, on the application of the authority, the tribunal makes an order providing for the existing order to continue in force, pending the disposal of the appeal, until a date later than that on which it would cease to have effect apart from this sub-paragraph, the existing order accordingly continues in force until that later date.
  (9) This paragraph has effect subject to paragraphs 15 and 16 (variation or revocation of orders) and to the power of revocation exercisable by a residential property tribunal on an appeal made under paragraph 26 or 30.
  General effect of final EDMOs
  10 (1) This paragraph applies while a final EDMO is in force in relation to a dwelling.
  (2) The rights and powers conferred by sub-paragraph (3) are exercisable by the authority in performing their duties under section (Local housing authority's duties once final EDMO in force)(1) to (3) in respect of the dwelling.
  (3) The authority—

  (a) have the right to possession of the dwelling (subject to the rights of existing and other occupiers preserved by paragraph 18(3) and (4));

  (b) have the right to do (and authorise a manager or other person to do) in relation to the dwelling anything which the relevant proprietor of the dwelling would (but for the order) be entitled to do;

  (c) may create one or more of the following—

  (i) an interest in the dwelling which, as far as possible, has all the incidents of a leasehold, or

  (ii) a right in the nature of a licence to occupy part of the dwelling;

  (d) may apply to a residential property tribunal for an order under paragraph 22 determining a lease or licence of the dwelling.

  (4) The powers of the authority under sub-paragraph (3)(c) are restricted as follows—

  (a) they may not create any interest or right in the nature of a lease or licence—

  (i) which is for a fixed term expiring after the date on which the order is due to expire, or

  (ii) (subject to paragraph (b)) which is terminable by notice to quit, or an equivalent notice, of more than 4 weeks,

  unless consent in writing has been given by the relevant proprietor;

  1406

  (b) they may create an interest in the nature of an assured shorthold tenancy without any such consent so long as it is created before the beginning of the period of 6 months that ends with the date on which the order is due to expire.

  (5) The authority—

  (a) do not under this paragraph acquire any estate or interest in the dwelling, and

  (b) accordingly are not entitled by virtue of this paragraph to sell, lease, charge or make any other disposition of any such estate or interest.

  (6) But, where the relevant proprietor of the dwelling is a lessee under a lease of the dwelling, the authority are to he treated (subject to sub-paragraph (5)(a)) as if they were the lessee instead.
  (7) Any enactment or rule of law relating to landlords and tenants or leases applies in relation to—

  (a) a lease in relation to which the authority are to be treated as the lessee under sub-paragraph (6), or

  (b) a lease to which the authority become a party under paragraph 12(2),

  as if the authority were the legal owner of the premises (but this is subject to paragraph 12(4) to (6)).
  (8) None of the following, namely—

  (a) the authority, or

  (b) any person authorised under sub-paragraph (3)(b),

  is liable to any person having an estate or interest in the dwelling for anything done or omitted to be done in the performance (or intended performance) of the authority's duties under section (Local housing authority's duties once final EDMO in force)(1) to (3) unless the act or omission is due to negligence of the authority or any such person.
  (9) A final EDMO which has come into force is a local land charge.
  (10) The authority may apply to the Chief Land Registrar for the entry of an appropriate restriction in the register in respect of such an order.
  (11) In this paragraph "enactment" includes an enactment comprised in subordinate legislation (within the meaning of the Interpretation Act 1978 (c. 30)).
  General effect of final EDMOs: leases and licences granted by authority
  11 (1) This paragraph applies in relation to any interest or right created by the authority under paragraph 10(3)(c).
  (2) For the purposes of any enactment or rule of law—

  (a) any interest created by the authority under paragraph 10(3)(c)(i) is to be treated as if it were a legal lease, and

  (b) any right created by the authority under paragraph 10(3)(c)(ii) is to be treated as if it were a licence to occupy granted by the legal owner of the dwelling,

  despite the fact that the authority have no legal estate in the dwelling (see paragraph 10(5)(a)).
  (3) Any enactment or rule of law relating to landlords and tenants or leases accordingly applies in relation to any interest created by the authority under paragraph 10(3)(c)(i) as if the authority were the legal owner of the dwelling.
  (4) References to leases and licences—

  (a) in this Chapter, and

  (b) in any other enactment,

  accordingly include (where the context permits) interests and rights created by the authority under paragraph 10(3)(c).
  (5) The preceding provisions of this paragraph have effect subject to—

  (a) paragraph 12(4) to (6), and

  (b) any provision to the contrary contained in an order made by the appropriate national authority.

  (6) In paragraph 10(5)(b) the reference to leasing does not include the creation of interests under paragraph 10(3)(c)(i).
  (7) In this paragraph—
  "enactment" has the meaning given by paragraph 10(11);
  "legal lease" means a term of years absolute (within section 1(1)(b) of the Law of Property Act 1925 (c. 20)).
  General effect of final EDMOs: relevant proprietor, mortgagees etc.
  12 (1) This paragraph applies in relation to—

  (a) the relevant proprietor, and

  (b) other persons with an estate or interest in the dwelling,

  while a final EDMO is in force in relation to a dwelling.
  (2) Where the relevant proprietor is a lessor or licensor under a lease or licence of the dwelling, the lease or licence has effect while the order is in force as if the local housing authority were substituted in it for the lessor or licensor.
  (3) Such a lease continues to have effect, as far as possible, as a lease despite the fact that the rights of the local housing authority, as substituted for the lessor, do not amount to an estate in law in the dwelling.
  (4) The provisions mentioned in sub-paragraph (5) do not apply to a lease or licence within sub-paragraph (2).
  (5) The provisions are—

  (a) the provisions which exclude local authority lettings from the Rent Acts, namely—

  (i) sections 14 to 16 of the Rent Act 1977 (c. 42), and

  (ii) those sections as applied by Schedule 2 to the Rent (Agriculture) Act 1976 (c. 80) and section 5(2) to (4) of that Act; and

  (b) section 1(2) of, and paragraph 12 of Part 1 of Schedule 1 to, the Housing Act 1988 (c. 50) (which exclude local authority lettings from Part 1 of that Act).

  (6) Nothing in this Chapter has the result that the authority are to be treated as the legal owner of any premises for the purposes of—

  (a) section 80 of the Housing Act 1985 (c. 68) (the landlord condition for secure tenancies); or

  (b) section 124 of the Housing Act 1996 (c. 52) (introductory tenancies).

  (7) The relevant proprietor of the dwelling—

  (a) is not entitled to receive any rents or other payments made in respect of occupation of the dwelling;

  (b) may not exercise any rights or powers with respect to the management of the dwelling; and

  (c) may not create any of the following—

  (i) any leasehold interest in the dwelling or a part of it (other than a lease of a reversion), or

  (ii) any licence or other right to occupy it.

  (8) However (subject to sub-paragraph (7)(c)) nothing in paragraph 10 or this paragraph affects the ability of a person having an estate or interest in the dwelling to make any disposition of that estate or interest.
  (9) Nothing in paragraph 10 or this paragraph affects—

  (a) the validity of any mortgage relating to the dwelling or any rights or remedies available to the mortgagee under such a mortgage, or

  (b) the validity of any lease of the dwelling under which the relevant proprietor is a lessee, or any superior lease, or (subject to paragraph 10(6)) any rights or remedies available to the lessor under such a lease,

  except to the extent that any of those rights or remedies would prevent the local housing authority from exercising their power under paragraph 10(3)(c).
  (10) In proceedings for the enforcement of any such rights or remedies the court may make such order as it thinks fit as regards the operation of the final EDMO (including an order quashing it).
  Management scheme and accounts
  13 (1) A final EDMO must contain a management scheme.
  (2) A "management scheme" is a scheme setting out how the local housing authority are to carry out their duties under section (Local housing authority's duties once final EDMO in force)(1) to (3) as respects the dwelling.
  (3) The scheme is to contain a plan giving details of the way in which the authority propose to manage the dwelling, which must (in particular) include—

  (a) details of any works that the authority intend to carry out in connection with the dwelling;

  (b) an estimate of the capital and other expenditure to be incurred by the authority in respect of the dwelling while the order is in force;

  (c) the amount of rent which, in the opinion of the authority, the dwelling might reasonably be expected to fetch on the open market at the time the management scheme is made;

  (d) the amount of rent or other payments that the authority will seek to obtain;

  (e) the amount of any compensation that is payable to a third party by virtue of a decision of the authority under section (Making of final EDMOs)(4) or (Compensation payable to third parties)(3) in respect of any interference in consequence of the final EDMO with the rights of that person;

  (f) provision as to the payment of any such compensation and of any compensation payable to a dispossessed landlord or tenant by virtue of an order under paragraph 22(5);

  (g) where the amount of rent payable to the authority in respect of the dwelling for a period is less than the amount of rent mentioned in paragraph (c) in respect of a period of the same length, provision as to the following—

  (i) the deduction from the difference of relevant expenditure and any amounts of compensation payable to a third party or dispossessed landlord or tenant;

  (ii) the payment of any remaining amount to the relevant proprietor;

  (iii) the deduction from time to time of any remaining amount from any amount that the authority are entitled to recover from the proprietor under paragraph 23(5) or (6);

  (h) provision as to the payment by the authority to the relevant proprietor from time to time of amounts of rent or other payments that remain after the deduction of—

  (i) relevant expenditure, and

  (ii) any amount of compensation payable to a third party or dispossessed landlord or tenant;

  (i) provision as to the manner in which the authority are to pay to the relevant proprietor, on the termination of the final EDMO, the balance of any amounts of rent or other payments that remain after the deduction of relevant expenditure and any amounts of compensation payable to a third party or dispossessed landlord or tenant;

  (j) provision as to the manner in which the authority are to pay, on the termination of the final EDMO, any outstanding amount of compensation payable to a third party or dispossessed landlord or tenant.

  (4) The scheme may also state—

  (a) the authority's intentions as regards the use of rent or other payments to meet relevant expenditure;

  (b) the authority's intentions as regards the payment to the relevant proprietor (where appropriate) of interest on amounts within sub-paragraph (3)(h) and (i);

  (c) that paragraph 23(2) or, where the relevant proprietor consents, paragraph 23(3)(c) is not to apply in relation to an interim EDMO or (as the case may be) final EDMO that immediately preceded the final EDMO, and that instead the authority intend to use any balance such as is mentioned in that sub-paragraph to meet—

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  (i) relevant expenditure incurred during the currency of that final EDMO, and

  (ii) any compensation that may become payable to a third party or a dispossessed landlord or tenant;

  (d) that paragraph 23(4) to (6) are not to apply in relation to an interim EDMO or, where the relevant proprietor consents, a final EDMO that immediately preceded the final EDMO, and that instead the authority intend to use rent or other payments collected during the currency of that final EDMO to reimburse the authority in respect of any deficit such as is mentioned in paragraph 23(4);

  (e) the authority's intentions as regards the recovery from the relevant proprietor, with or without interest, of any amount of relevant expenditure incurred under a previous interim EDMO or final EDMO that the authority are entitled to recover from the proprietor under paragraph 23(5) or (6).

  (5) The authority must—

  (a) keep full accounts of their income and expenditure in respect of the dwelling; and

  (b) afford to the relevant proprietor, and to any other person who has an estate or interest in the dwelling, all reasonable facilities for inspecting, taking copies of and verifying those accounts.

  (6) In this paragraph—
  "dispossessed landlord or tenant" means a person who was a lessor, lessee, licensor or licensee under a lease or licence determined by an order under paragraph 22;
  "relevant expenditure" means—

  (a) expenditure incurred by the authority with the consent of the relevant proprietor, or

  (b) any other expenditure reasonably incurred by the authority,

  in connection with performing their duties under section (Local housing authority's duties once interim EDMO in force)(1) to (3) or (Local housing authority's duties once final EDMO in force)(1) to (3) in respect of the dwelling (including any reasonable administrative costs and any premiums paid for insurance of the premises);
  "rent or other payments" means rent or other payments collected or recovered, by virtue of this Chapter, from persons occupying or having the right to occupy the dwelling.
  (7) In any provision of this Chapter relating to varying, revoking or appealing against decisions relating to a final EDMO, any reference to such an order includes (where the context permits) a reference to the management scheme contained in it.
  Application to residential property tribunal in respect of breach of management scheme
  14 (1) An affected person may apply to a residential property tribunal for an order requiring the local housing authority to manage a dwelling in accordance with the management scheme contained in a final EDMO made in respect of the dwelling.
  (2) On such an application the tribunal may, if it considers it appropriate to do so, make an order—

  (a) requiring the authority to manage the dwelling in accordance with the management scheme, or

  (b) revoking the final EDMO as from a date specified in the tribunal's order.

  (3) An order under sub-paragraph (2) may—

  (a) set out the steps which the authority are to take to manage the dwelling in accordance with the management scheme,

  (b) include provision varying the final EDMO, and

  (c) require the payment of money to an affected person by way of damages.

  (4) In this paragraph "affected person" means—

  (a) the relevant proprietor, and

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  (b) any third party to whom compensation is payable by virtue of an order under section (Authorisation to make interim EDMOs)(4) or (Compensation payable to third parties)(2) or a decision of the authority under section (Making of final EDMOs)(4) or (Compensation payable to third parties)(3) or who was a lessor, lessee, licensor or licensee under a lease or licence determined by an order of the residential property tribunal under paragraph 22 and to whom compensation is payable by virtue of an order under sub-paragraph (5) of that paragraph.

  Variation or revocation offinal EDMOs
  15 (1) The local housing authority may vary a final EDMO if they consider it appropriate to do so.
  (2) A variation does not come into force until such time, if any, as is the operative time for the purposes of this sub-paragraph under paragraph 33 (time when period for appealing expires without an appeal being made or when decision to vary isconfirmed on appeal).
  (3) The power to vary an order under this paragraph is exercisable by the authority either

  (a) on an application made by a relevant person, or

  (b) on the authority's own initiative.

  (4) In this paragraph "relevant person" means any person who has an estate or interest in the dwelling (other than a person who is a tenant under a lease or licence granted under paragraph 2(3)(c) or 10(3)(c)).
  16 (1) The local housing authority may revoke a final EDMO in the following cases—

  (a) where the authority conclude that there are no steps which they could appropriately take as mentioned in section (Local housing authority's duties once final EDMO in force)(4)(b) or that keeping the order in force is not necessary as mentioned in section (Local housing authority 's duties once final EDMO in force)(4)(c);

  (b) where the authority are satisfied that—(i) the dwelling will either become or continue to be occupied, despite the order being revoked, or (ii) that the dwelling is to be sold;

  (c) where a further final EDMO has been made by the authority in respect of the dwelling so as to replace the order;

  (d) where the authority conclude that it would be appropriate to revoke the order in order to prevent or stop interference with the rights of a third party in consequence of the order; and

  (e) where in any other circumstances the authority consider it appropriate to revoke the order.

  (2) But, in a case where the dwelling is occupied, the local housing authority may not revoke a final EDMO under sub-paragraph (1)(b), (d) or (e) unless the relevant proprietor consents.
  (3) A revocation does not come into force until such time, if any, as is the operative time for the purposes of this sub-paragraph under paragraph 33 (time when period for appealing expires without an appeal being made or when decision to revoke is confirmed on appeal).
  (4) The power to revoke an order under this paragraph is exercisable by the authority either—

  (a) on an application made by a relevant person, or

  (b) on the authority's own initiative.

  (5) Where a relevant person applies to the authority for the revocation of an order under this paragraph, the authority may refuse to revoke the order unless the relevant proprietor (or some other person) agrees to pay to the authority any deficit such as is mentioned in paragraph 23(4).
  (6) In this paragraph "relevant person" means any person who has an estate or interest in the dwelling (other than a person who is a tenant under a lease or licence granted under paragraph 2(3)(c) or 10(3)(c)).
  17 (1) Part 2 of Schedule 6 applies in relation to the variation or revocation of a final EDMO as it applies in relation to the variation or revocation of a final management order.
  (2) But Part 2 of that Schedule so applies as if—

  (a) references to the right of appeal under Part 3 of the Schedule and to paragraph 29(2) were to the right of appeal under Part 4 of this Schedule and to paragraph 31(2) of this Schedule, and

  (b) paragraph 23(4) defined "relevant person" as any person who, to the knowledge of the local housing authority, is a person having an estate or interest in the dwelling (other than a person who is a tenant under a lease or licence granted under paragraph 2(3)(c) or 10(3)(c) of this Schedule).

PART 3

  INTERIM AND FINAL EDMOs: GENERAL PROVISIONS (OTHER THAN PROVISIONS RELATING TO APPEALS)
  Effect of EDMOs: persons occupying or having a right to occupy the dwelling
  18 (1) This paragraph applies to existing and new occupiers of a dwelling in relation to which an interim EDMO or final EDMO is in force.
  (2) In this paragraph—
  "existing occupier" means a person other than the relevant proprietor who, at the time when the order comes into force—

  (a) has the right to occupy the dwelling, but

  (b) is not a new occupier within sub-paragraph (4);

  "new occupier" means a person who, at a time when the order is in force, is occupying the dwelling under a lease or licence granted under paragraph 2(3)(c) or 10(3)(c).
  (3) Paragraphs 2 and 10 do not affect the rights or liabilities of an existing occupier under a lease or licence (whether in writing or not) under which he has the right to occupy the dwelling at the commencement date.
  (4) Paragraph 10 does not affect the rights and liabilities of a new occupier who, in the case of a final EDMO, is occupying the dwelling at the time when the order comes into force.
  (5) The provisions mentioned in sub-paragraph (6) do not apply to a lease or agreement under which a new occupier has the right to occupy or is occupying the dwelling.
  (6) The provisions are—

  (a) the provisions which exclude local authority lettings from the Rent Acts, namely—

  (i) sections 14 to 16 of the Rent Act 1977 (c. 42), and

  (ii) those sections as applied by Schedule 2 to the Rent (Agriculture) Act 1976 (c. 80) and section 5(2) to (4) of that Act; and

  (b) section 1(2) of, and paragraph 12 of Part 1 of Schedule 1 to, the Housing Act 1988 (c. 50) (which exclude local authority lettings from Part 1 of that Act).

  (7) If, immediately before the coming into force of an interim EDMO or final EDMO, an existing occupier had the right to occupy the dwelling under—

  (a) a protected or statutory tenancy within the meaning of the Rent Act 1977,

  (b) a protected or statutory tenancy within the meaning of the Rent (Agriculture) Act 1976, or

  (c) an assured tenancy or assured agricultural occupancy within the meaning of Part 1 of the Housing Act 1988 (c. 50),

  nothing in this Chapter (except an order under paragraph 22 determining a lease or licence) prevents the continuance of that tenancy or occupancy or affects the continued operation of any of those Acts in relation to the tenancy or occupancy after the coming into force of the order.
  (8) In this paragraph "the commencement date" means the date on which the order came into force (or, if that order was preceded by one or more orders under this Chapter, the date when the first order came into force).
  Effect of EDMOs: agreements and legal proceedings
  19 (1) An agreement or instrument within sub-paragraph (2) has effect, while an interim EDMO or final EDMO is in force, as if any rights or liabilities of the relevant proprietor under the agreement or instrument were instead rights or liabilities of the local housing authority.
  (2) An agreement or instrument is within this sub-paragraph if—

  (a) it is effective on the commencement date,

  (b) one of the parties to it is the relevant proprietor of the dwelling,

  (c) it relates to the dwelling, whether in connection with any management activities with respect to it, or otherwise,

  (d) it is specified for the purposes of this sub-paragraph in the order or falls within a description of agreements or instruments so specified, and

  (e) the authority serve a notice in writing on all the parties to it stating that sub-paragraph (1) is to apply to it.

  (3) An agreement or instrument is not within sub-paragraph (2) if—

  (a) it is a lease or licence within paragraph 2(6) or 10(6), or

  (b) it relates to any disposition by the relevant proprietor which is not precluded by paragraph 4(7) or 12(7).

  (4) Proceedings in respect of any cause of action within sub-paragraph (5) may, while an interim EDMO or final EDMO is in force, be instituted or continued by or against the local housing authority instead of by or against the relevant proprietor.
  (5) A cause of action is within this sub-paragraph if—

  (a) it is a cause of action (of any nature) which accrued to or against the relevant proprietor of the dwelling before the commencement date,

  (b) it relates to the dwelling as mentioned in sub-paragraph (2)(c),

  (c) it is specified for the purposes of this sub-paragraph in the order or falls within a description of causes of action so specified, and

  (d) the authority serve a notice in writing on all interested parties stating that sub-paragraph (4) is to apply to it.

  (6) If, by virtue of this paragraph, the authority become subject to any liability to pay damages in respect of anything done (or omitted to be done) before the commencement date by or on behalf of the relevant proprietor of the dwelling, the relevant proprietor is liable to reimburse to the authority an amount equal to the amount of damages paid by them.
  (7) In this paragraph—
  "agreement" includes arrangement;
  "the commencement date" means the date on which the order comes into force (or, if that order was preceded by one or more orders under this Chapter, the date when the first order came into force);
  "management activities" includes repair, maintenance, improvement and insurance.
  Effect of EDMOs: furniture
  20 (1) Sub-paragraph (2) applies where, on the date on which an interim EDMO or final EDMO comes into force, there is furniture owned by the relevant proprietor in the dwelling.
  (2) Subject to sub-paragraphs (3) and (4), the right to possession of the furniture against all persons vests in the local housing authority on that date and remains vested in the authority while the order is in force.
  (3) The right of the local housing authority under sub-paragraph (2) to possession of the furniture is subject to the rights of any person who, on the date on which the interim EDMO or final EDMO comes into force, has the right to possession of the dwelling.
  (4) Where—

  (a) the local housing authority have the right to possession of the furniture under sub-paragraph (2), and

  (b) they have not granted a right to possession of the furniture to any other person,

  they must, on a request by the relevant proprietor, give up possession of the furniture to him.
  (5) The local housing authority may renounce the right to possession of the furniture conferred by sub-paragraph (2) by serving notice on the relevant proprietor not less than two weeks before the renunciation is to have effect.
  (6) Where the local housing authority renounce the right to possession of the furniture under sub-paragraph (5), they must make appropriate arrangements for storage of the furniture at their own cost.
  (7) In this paragraph "furniture" includes fittings and other articles.
  EDMOs: power to supply furniture
  21 (1) The local housing authority may supply the dwelling to which an interim EDMO or final EDMO relates with such furniture as they consider to be required.
  (2) For the purposes of paragraph 5 or paragraph 13, any expenditure incurred by the authority under this paragraph constitutes expenditure incurred by the authority in connection with performing their duties under section (Local housing authority's duties once interim EDMO in force)(1) to (3) or (Local housing authority's duties once final EDMO in force)(1) to (3).
  (3) In this paragraph "furniture" includes fittings and other articles.
  Power of a residential property tribunal to determine certain leases and licences
  22 (1) A residential property tribunal may make an order determining a lease or licence to which this paragraph applies if—

  (a) the case falls within sub-paragraph (3) or (4), and

  (b) the tribunal is satisfied that the dwelling is not being occupied and that the local housing authority need to have the right to possession of the dwelling in order to secure that the dwelling becomes occupied.

  (2) This paragraph applies to the following leases and licences of a dwelling—

  (a) a lease of the dwelling in respect of which the relevant proprietor is the lessor,

  (b) a sub-lease of any such lease, and

  (c) a licence of the dwelling.

  (3) A case falls within this sub-paragraph if—

  (a) an interim or final EDMO is in force in respect of the dwelling, and

  (b) the local housing authority have applied under paragraph 2(3)(d) or 10(3)(d) for an order determining the lease or licence.

  (4) A case falls within this sub-paragraph if—

  (a) the local housing authority have applied to the residential property tribunal under section (Making of interim EDMOs) for an order authorising them to make an interim EDMO in respect of the dwelling and an order determining the lease or licence, and

  (b) the residential property tribunal has decided to authorise the authority to make an interim EDMO in respect of the dwelling.

  (5) An order under this paragraph may include provision requiring the local housing authority to pay such amount or amounts to one or more of the lessor, lessee, licensor or licensee by way of compensation in respect of the determination of the lease or licence as the tribunal determines.
  (6) Where—

  (a) a final EDMO is in force in respect of a dwelling, and

  (b) the tribunal makes an order requiring the local housing authority to pay an amount of compensation to a lessor, lessee, licensor or licensee in respect of the determination of a lease or licence of the dwelling,

  the tribunal must make an order varying the management scheme contained in the final EDMO so as to make provision as to the payment of that compensation.
  Termination of EDMOs: financial arrangements
  23 (1) This paragraph applies where an interim EDMO or final EDMO ceases to have effect for any reason.
  (2) If, on the termination date for an interim EDMO, the total amount of rent or other payments collected or recovered as mentioned in paragraph 5(3) exceeds the total amount of—

  (a) the authority's relevant expenditure, and

  (b) any amounts of compensation payable to third parties by virtue of orders under section (Authorisation to make interim EDMOs)(4) or (Compensation payable to third parties)(2) or decisions of the authority under section (Making of final EDMOs)(4) or (Compensation payable to third parties)(3),

  the authority must, as soon as possible after the termination date, pay the balance to the relevant proprietor.
  (3) If, on the termination date for a final EDMO, any balance is payable to—

  (a) a third party,

  (b) a dispossessed landlord or tenant, or

  (c) the relevant proprietor,

  in accordance with the management scheme under paragraph 13, that amount must be paid to that person by the local housing authority in the manner provided by the scheme.
  (4) Sub-paragraphs (5) and (6) apply where, on the termination date for an interim EDMO or final EDMO, the total amount of rent or other payments collected or recovered as mentioned in paragraph 5(3) is less than the total amount of the authority's relevant expenditure together with any such amounts of compensation as are mentioned in sub-paragraph (2)(b) above.
  (5) The authority may recover from the relevant proprietor—

  (a) the amount of any relevant expenditure (not exceeding the deficit mentioned in sub-paragraph (4)) which he has agreed in writing to pay either as a condition of revocation of the order or otherwise, and

  (b) where the relevant proprietor is a tenant under a lease in respect of the dwelling, the amount of any outstanding service charges payable under the lease.

  (6) In the case of an interim EDMO ceasing to have effect, the authority may recover the deficit mentioned in sub-paragraph (4) from the relevant proprietor if, in their opinion, he unreasonably refused to consent to the creation of an interest or right as mentioned in paragraph 2(3)(c) while the order was in force.
  (7) The provisions of any of sub-paragraphs (2) to (6) do not, however, apply in relation to the order if—

  (a) the order is followed by a final EDMO, and

  (b) the management scheme contained in that final EDMO provides for those sub-paragraphs not to apply in relation to the order (see paragraph 13(4)(c) and (d)).

  (8) Any sum recoverable by the authority under sub-paragraph (5) or (6) is, until recovered, a charge on the dwelling.
  (9) The charge takes effect on the termination date for the order as a legal charge which is a local land charge.
  (10) For the purpose of enforcing the charge the authority have the same powers and remedies under the Law of Property Act 1925 (c. 20) and otherwise as if they were mortgagees by deed having powers of sale and lease, of accepting surrenders of leases and of appointing a receiver.
  (11) The power of appointing a receiver is exercisable at any time after the end of the period of one month beginning with the date on which the charge takes effect.
  (12) In this paragraph—

  "dispossessed landlord or tenant" means a person who was a lessor, lessee, licensor or licensee under a lease or licence determined by an order under paragraph 22;

  "relevant expenditure" has the same meaning as in paragraph 5 (in relation to an interim EDMO) or paragraph 13 (in relation to a final EDMO);

  "service charge" has the meaning given by section 18 of the Landlord and Tenant Act 1985 (c. 70);

  "the termination date" means the date on which the order ceases to have effect.

  Termination of EDMOs: leases, agreements and proceedings
  24 (1) This paragraph applies where—

  (a) an interim EDMO or final EDMO ceases to have effect for any reason, and

  (b) the order is not immediately followed by a further order under this Chapter.

  (2) As from the termination date, an agreement which (in accordance with paragraph 3 or 11) has effect as a lease or licence granted by the authority under paragraph 2 or 10 has effect with the substitution of the relevant proprietor for the authority.
  (3) If the relevant proprietor is a lessee, nothing in a superior lease imposes liability on him or any superior lessee in respect of anything done before the termination date in pursuance of the terms of an agreement to which sub-paragraph (2) applies.
  (4) If the condition in sub-paragraph (5) is met, any other agreement entered into by the authority in the performance of their duties under section (Local housing authority's duties once interim EDMO in force)(1) to (3) or (Local housing authority's duties once final EDMO in force)(1) to (3) in respect of the dwelling has effect, as from the termination date, with the substitution of the relevant proprietor for the authority.
  (5) The condition is that the authority serve a notice on the other party or parties to the agreement stating that sub-paragraph (4) applies to the agreement.
  (6) If the condition in sub-paragraph (7) is met—

  (a) any rights or liabilities that were rights or liabilities of the authority immediately before the termination date by virtue of any provision of this Chapter, or under any agreement to which sub-paragraph (4) applies, are rights or liabilities of the relevant proprietor instead, and

  (b) any proceedings instituted or continued by or against the authority by virtue of any such provision or agreement may be continued by or against the relevant proprietor instead,

  as from the termination date.
  (7) The condition is that the authority serve a notice on all interested parties stating that sub-paragraph (6) applies to the rights or liabilities or (as the case may be) the proceedings.
  (8) If by virtue of this paragraph a relevant proprietor becomes subject to any liability to pay damages in respect of anything done (or omitted to be done) before the termination date by or on behalf of the authority, the authority are liable to reimburse to the relevant proprietor an amount equal to the amount of the damages paid by him.
  (9) This paragraph applies to instruments as it applies to agreements.
  (10) In this paragraph—
  "agreement" includes arrangement;
  "the termination date" means the date on which the order ceases to have effect.
  EDMOs: power of entry to carry out work
  25 (1) The right mentioned in sub-paragraph (2) is exercisable by the local housing authority, or any person authorised in writing by them, at any time when an interim EDMO or final EDMO is in force.
  (2) That right is the right at all reasonable times to enter any part of the dwelling for the purpose of carrying out works, and is exercisable as against any person having an estate or interest in the dwelling.
  (3) If, after receiving reasonable notice of the intended action, any occupier of the dwelling prevents any officer, employee, agent or contractor of the local housing authority from carrying out work in the dwelling, a magistrates' court may order him to permit to be done on the premises anything which the authority consider to be necessary.
  (4) A person who fails to comply with an order of the court under sub-paragraph (3) commits an offence.
  (5) A person who commits an offence under sub-paragraph (4) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

PART 4

  APPEALS
  Appeals: decisions relating to EDMOs
  26 (1) A relevant person may appeal to a residential property tribunal against—

  (a) a decision of the local housing authority to make a final EDMO,

  (b) the terms of a final EDMO (including the terms of the management scheme contained in it), or

  (c) the terms of an interim EDMO on the grounds that they do not provide for one or both of the matters mentioned in paragraph 5(5)(a) and (b) (which relate to payments of surplus rent etc.).

  (2) Where an appeal is made under sub-paragraph (1)(c)—

  (a) the appeal may be brought at any time while the order is in force (with the result that nothing in sub-paragraph (3) or paragraph 27 applies in relation to the appeal); and

  (b) the powers of the residential property tribunal under paragraph 28 are limited to determining whether the order should be varied by the tribunal so as to include a term providing for the matter or matters in question, and (if so) what provision should be made by the term.

  (3) If no appeal is brought under this paragraph in respect of a final EDMO within the time allowed by paragraph 27 for making such an appeal, the order is final and conclusive as to the matters which could have been raised on appeal.
  Appeals: time limits for appeals under paragraph 26
  27 (1) This paragraph applies in relation to an appeal under paragraph 26 in respect of a final EDMO.
  (2) Any such appeal must be made within the period of 28 days beginning with the date specified in the notice under paragraph 7(5) of Schedule 6 (as applied by section (Making of final EDMOs)(5)) as the date on which the order was made.
  (3) A residential property tribunal may allow an appeal to be made to it after the end of the period mentioned in sub-paragraph (2) if it is satisfied that there is a good reason for the failure to appeal before the end of that period (and for any delay since then in applying for permission to appeal out of time).
  Appeals: powers of residential property tribunal on appeal under paragraph 26
  28 (1) This paragraph applies to an appeal to a residential property tribunal under paragraph 26 in respect of an interim EDMO or a final EDMO.
  (2) The appeal—

  (a) is to be by way of a re-hearing, but

  (b) may be determined having regard to matters of which the authority were unaware.

  (3) The tribunal may—

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  (a) in the case of an interim EDMO, vary the order as mentioned in paragraph 26(2)(b), or

  (b) in the case of a final EDMO, confirm or vary the order or revoke it as from the date of the tribunal's order.

  "The operative time" for the purposes of paragraph 9(2)
  29 (1) This paragraph defines "the operative time" for the purposes of paragraph 9(2).
  (2) If no appeal is made under paragraph 26 before the end of the period of 28 days mentioned in paragraph 27(2), "the operative time" is the end of that period.
  (3) If an appeal is made under paragraph 26 before the end of that period, and a decision is given on the appeal which confirms the order, "the operative time" is as follows—

  (a) if the period within which an appeal to the Lands Tribunal may be brought expires without such an appeal having been brought, "the operative time" is the end of that period;

  (b) if an appeal to the Lands Tribunal is brought, "the operative time" is the time when a decision is given on the appeal which confirms the order.

  (4) For the purposes of sub-paragraph (3)—

  (a) the withdrawal of an appeal has the same effect as a decision which confirms the order, and

  (b) references to a decision which confirms the order are to a decision which confirms it with or without variation.

  Right to appeal against decision or refusal to vary or revoke EDMO
  30 A relevant person may appeal to a residential property tribunal against—

  (a) a decision of a local housing authority to vary or revoke an interim EDMO or a final EDMO, or

  (b) a refusal of a local housing authority to vary or revoke an interim EDMO or a final EDMO.

  Time limits for appeals under paragraph 30
  31 (1) This paragraph applies in relation to an appeal under paragraph 30 against a decision to vary or revoke, or (as the case may be) to refuse to vary or revoke, an interim EDMO or a final EDMO.
  (2) Any such appeal must be made before the end of the period of 28 days beginning with the date specified in the notice under paragraph 11, 16, 19 or 22 of Schedule 6 (as applied by paragraph 8 or 17 of this Schedule (as the case may be)) as the date on which the decision concerned was made.
  (3) A residential property tribunal may allow an appeal to be made to it after the end of the period mentioned in sub-paragraph (2) if it is satisfied that there is a good reason for the failure to appeal before the end of that period (and for any delay since then in applying for permission to appeal out of time).
  Powers of residential property tribunal on appeal under paragraph 30
  32 (1) This paragraph applies to an appeal to a residential property tribunal under paragraph 30 against a decision to vary or revoke, or (as the case may be) to refuse to vary or revoke, an interim EDMO or final EDMO.
  (2) The appeal—

  (a) is to be by way of a re-hearing, but

  (b) may be determined having regard to matters of which the authority were unaware.

  (3) The tribunal may confirm, reverse or vary the decision of the local housing authority.
  (4) If the appeal is against a decision of the authority to refuse to revoke the order, the tribunal may make an order revoking the order as from a date specified in its order.
  "The operative time"for the purposes of paragraphs 6, 7, 15 and 16
  33 (1) This paragraph defines "the operative time" for the purposes of—

  (a) paragraph 6(2) or 7(3) (variation or revocation of interim EDMO), or

  (b) paragraph 15(2) or 16(3) (variation or revocation of final EDMO).

  (2) If no appeal is made under paragraph 30 before the end of the period of 28 days mentioned in paragraph 31(2), "the operative time" is the end of that period.
  (3) If an appeal is made under paragraph 30 before the end of that period, and a decision is given on the appeal which confirms the variation or revocation, "the operative time" is as follows—

  (a) if the period within which an appeal to the Lands Tribunal may be brought expires without such an appeal having been brought, "the operative time" is the end of that period;

  (b) if an appeal to the Lands Tribunal is brought, "the operative time" is the time when a decision is given on the appeal which confirms the variation or revocation.

  (4) For the purposes of sub-paragraph (3)—

  (a) the withdrawal of an appeal has the same effect as a decision which confirms the variation or revocation appealed against; and

  (b) references to a decision which confirms a variation are to a decision which confirms it with or without variation

  Right to appeal against decision in respect of compensation payable to third parties
  34 (1) This paragraph applies where a local housing authority have made a decision under section (Making of final EDMOs)(4) or (Compensation payable to third parties)(3) as to whether compensation should be paid to a third party in respect of any interference with his rights in consequence of a final EDMO.
  (2) The third party may appeal to a residential property tribunal against—

  (a) a decision by the authority not to pay compensation to him, or

  (b) a decision of the authority so far as relating to the amount of compensation that should be paid.

  Time limits for appeals under paragraph 34
  35 (1) This paragraph applies in relation to an appeal under paragraph 34 against a decision of a local housing authority not to pay compensation to a third party or as to the amount of compensation to be paid.
  (2) Any such appeal must be made—

  (a) where the decision is made before the final EDMO is made, within the period of 28 days beginning with the date specified in the notice under paragraph 7(5) of Schedule 6 (as applied by section (Making of final EDMOs)(5)) as the date on which the order was made, or

  (b) in any other case, within the period of 28 days beginning with the date the authority notifies the third party under section (Compensation payable to third parties)(4).

  (3) A residential property tribunal may allow an appeal to be made to it after the end of the period mentioned in sub-paragraph (2) if it is satisfied that there is good reason for the failure to appeal before the end of that period (and for any delay since then in applying for permission to appeal out of time).
  Powers of residential property tribunal on appeal under paragraph 34
  36 (1) This paragraph applies in relation to an appeal under paragraph 34 against a decision of a local housing authority not to pay compensation to a third party or as to the amount of compensation to be paid.
  (2) The appeal—

  (a) is to be by way of re-hearing, but

  (b) may be determined having regard to matters of which the authority were unaware.

  (3) The tribunal may confirm, reverse or vary the decision of the local housing authority.
  (4) Where the tribunal reverses or varies the decision of the authority, it must make an order varying the management scheme contained in the final EDMO accordingly.
  Meaning of "relevant person" for the purposes of this Part
  37 In this Part of this Schedule "relevant person" means any person who has an estate or interest in the dwelling (other than a person who is a tenant under a lease or licence granted under paragraph 213)(c) or 10(3)(c))."
  The Commons agree to this amendment with the fallowing amendments—
  259A Line 247, leave out "or licence"
  259B Line 282, leave out "or licence"
  259C Line 293, leave out "or licence"
  259D Line 638, leave out "or licence"
  259E Line 674, leave out "or licence"
  259F Line 685, leave out "or licence"
  259G Line 1,158, leave out "or licence"
  Lord Rooker: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 259A to 259G to Lords Amendment No. 259. I have spoken to those amendments previously with Amendment No. 55.
  Moved, That the House do agree with the Commons in their Amendments Nos. 259A to 259G to Lords Amendment No. 259.—(Lord Rooker.)
  On Question, Motion agreed to.

  Local Authorities (Indemnities for Members and Officers) Order 2004
  9.5 p.m.
  Lord Rooker Lord Rooker rose to move, That the draft order laid before the House on 21 July be approved [28th Report from the Joint Committee].
  The noble Lord said: My Lords, this order enables a relevant authority in England or a police authority in Wales to provide an indemnity to any of their members or officers out of public funds for personal liability arising from actions or decisions taken by them in the course of their official duties.
  The background to the order is that this was an issue raised during the passage of the Local Government Act 2000. There was insufficient time to complete the necessary work during the passage of the Bill and this order-making power was conferred in order to permit the Secretary of State to specify when indemnities may be granted.
  In the past there was uncertainty about the extent of the powers of authorities to indemnify their members and officers out of public funds for any personal liability arising from actions or decisions taken by them in the course of their official duties, in particular where individuals incur personal liability for their actions on external bodies. Given the importance that the
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  Government attach to local authorities working in partnership with other bodies, and using their powers in innovative ways in order to ensure delivery of high-quality and cost-effective services, it is important that this matter should be clarified, which is the purpose of the order.
  The order was subject to consultation and we received 576 responses. We have made several minor changes both to the proposals and to the order. There were also two more substantial changes relating to the code of conduct investigations and repayment of "upfront" indemnities.
  The order applies to members and officers of relevant authorities. This definition is intentionally wide-ranging. We have made provision through regulations to make it absolutely clear that elected mayors are covered by the order. It states that no indemnity may be provided in relation to any action by, or failure to act by, any member or officer which constitutes a criminal offence, or is the result of fraud or other deliberate wrongdoing or recklessness on the part of that member or officer. Negligent actions, provided they meet the tests of not being criminal, fraudulent and so forth, are therefore capable of being covered.
  An important feature of the new order is that it is intended to facilitate joint working between authorities and their partners. In relation to the code of conduct investigations, indemnities will be permitted only in circumstances where there is no finding of failure to comply with the code. This position is a change from the proposals consulted on which suggested that authorities would have discretion to provide indemnities where there was a breach of the code, but no action was taken. This provides a very clear dividing line which removes the possibility of accusations of bias, for example, depending on the party allegiances of the member involved.
  The order makes clear that the terms on which any indemnity or guarantee is granted must require the repayment of any sums expended in the defence of a case where the defendant is later found guilty of a criminal offence or found to be in breach of the code of conduct. As a result of the responses to the consultation we have made provision in the order for sums expended, but which must be repaid to be recoverable as a civil debt.
  I want to make a final point. The order is discretionary; it permits but does not oblige relevant authorities to provide indemnities for a member or officer. I commend the order to the House.
  Moved, That the draft order laid before the House on 21 July be approved [28th Report from the Joint Committee].—(Lord Rooker.)
  Baroness Hanham: My Lords, I rise briefly to welcome the order. This matter has been outstanding for some time and is something which has worried not only members of local authorities, but also the members of associated bodies. It is excellent that the Government have now brought forward the regulations. They will be well received.
  Baroness Hamwee: My Lords, we also welcome the order and I thank the Minister for explaining it. I should like to ask one or two questions.
  The first concerns the issue of retrospection. That was dealt with in the debate on the order held in the Commons, but not as extensively as I would have found helpful. Paragraph 1(2) provides for the order to,
  "come into force on the day after that on which it is made".
  While I accept what the Minister said about discretion, can it apply to an action which is the subject of an indemnity where the action precedes the order? In other words, while the indemnity cannot be given until next week—for the sake of argument—can it relate back? If that is not the case, can the indemnity apply to costs incurred after the date of the order—and, obviously, after the date of the council resolution—even though the event occurred earlier?
  As regards those who may be the subject of the indemnity, experience tells us that individuals can become caught up in standards board proceedings or criminal proceedings without being the accused, the subject matter of the proceedings or the complaint, but need to incur costs, such as appropriate legal costs, in order to protect themselves. Will such people subject to council resolutions be covered by an indemnity given pursuant to the order?
  I would not make myself popular if I refer to a typo, so I will not do so. That cannot stay in Hansard.
  In general terms, we welcome the order. I am sorry that I did not give the Minister notice of my questions. I hope that they are such obvious ones that he will be able to deal with them without problem today.
  Lord Rooker: My Lords, I am not sure about the specific answers. Local authorities probably already have general indemnity policies. This is not new ground; it is not a clean sheet of paper. As to the noble Baroness's first question, I suspect that if there are insurance-based policies—there may not be but, generally speaking, I suspect that there will be—the indemnity will depend on the policy.
  Local authorities have policies for indemnity in operation now. The order is designed to clarify matters and to be more modern. To that extent, it is not retrospective. In some ways it should not need to be because, although there is some uncertainty about the current process, it is not so unsatisfactory that it requires to be made retrospective. Parliament, of course, does not like retrospective legislation anyway.
  Indemnities given by a local authority under previous legislation may still be valid. The order does not knock those out. Once an authority agrees to give an indemnity to officers or members, they are entitled to rely on that indemnity, whether it is for the issues, the standards board or whatever. There are several scenarios.
  Essentially, the key thrust is that local authorities are persuaded and encouraged to work across the piece these days far more than they ever did in the past in relation to the police, the health service and other public
  1422
  bodies. I do not know of any cases where someone will be caught out in the sense that they were waiting for the order to come through Parliament. I asked for practical cases but I got only inventions, if you like, possible scenarios of what could or might happen. I am not aware of any case dependent on the order for the renewal of an indemnity. It is not retrospective and so it would not have been worth waiting for.
  Baroness Hamwee: My Lords, is the Minister able to answer my second question about third parties? I appreciate that it may be difficult.
  Lord Rooker: My Lords, I am sorry. Perhaps the noble Baroness will repeat the question.
  Baroness Hamwee: My Lords, it is a question of whether the indemnity can extend to individuals who are not the subject of either criminal proceedings or a standards board complaint but get caught up in the case, feel the need to protect themselves and incur legal expenses in so doing.
  Lord Rooker: My Lords, I shall take advice, but I think the answer is no. I do not see why it should. The order is specific to members and officers of authorities, and you are either a member or you are not. You are elected. It covers parish councils, officers and employees of authorities. By definition, one assumes that a third party is employed by someone else. He cannot be employed by an authority otherwise he would be an officer. He should look to his employer or insurance cover for indemnity.
  Baroness Hamwee: My Lords, I have in mind also the possibility that the third party may be a member or an officer who is not the subject of a complaint. Given what the Minister has said, that may be a helpful answer.
  Lord Rooker: My Lords, I have not got an answer to that. The noble Baroness said that she was assuming something and I left it at that.
  There is also the question of former employees being subject to indemnities. One has to look at such issues on a policy and case basis. However, I want to be specific that the order covers members and officers of relevant authorities.
  On Question, Motion agreed to.

  Landfill Allowances and Trading Scheme (England) Regulations 2004
  9.15 p.m.
  Lord Whitty Lord Whitty rose to move, That the draft regulations laid before the House on 13 October be approved [31st Report front the Joint Committee] [21st Report from Merits Committee].
  The noble Lord said: My Lords, I shall also speak to the Landfill (Maximum Landfill Amount) (Northern Ireland) Regulations 2004. Both sets of regulations

  1423
  follow on from the Landfill (Scheme Year and Maximum Landfill Amount) Regulations we debated in July.
  These instruments are made under the Waste and Emissions Trading Act 2003. The Act aims specifically to reduce or prevent, as far as possible, the negative effects of landfilling biodegradable municipal waste on the environment and on human health.
  The principle of a trading scheme as a means of meeting the reduction targets in the landfill directive has already been accepted by your Lordships. The Landfill Allowances and Trading Scheme (England) Regulations 2004 fill in the scheme details.
  Your Lordships may find this a complex and daunting area, particularly as this is a novel approach. But this scheme provides authorities with much more flexibility in choosing how to meet their targets than obligatory annual reductions.
  In recognising some of the concerns expressed by local authorities and taking a cautious approach, the Government have made tremendous efforts to help authorities understand what is involved. This effort will continue up to the start of the scheme and beyond.
  Some aspects that have a bearing on how the scheme will operate include the flexibilities of the scheme—the banking, borrowing and transfer of allowances; the responsibilities placed on waste disposal authorities and landfill operators for the retention and submission of certain information; a system of penalties, designed to encourage authorities to reach their targets; and provisions relating to the monitoring of the scheme.
  The trading scheme is not intended to inflict major costs on local authorities either by imposing unnecessary penalties or forcing them to engage in trading against their will. In fact, it will allow local authorities to share the burden of meeting their reduction targets.
  If a local authority exceeds its allowances, it will be given the opportunity in the reconciliation period to trade or borrow allowances to balance the figures, therefore avoiding the imposition of a penalty. The Secretary of State also has the power to waive the penalty if the reason an authority has breached its allowances is largely beyond its control.
  A full operational review of the scheme is planned for 2007 that will consider how the scheme has gone in the first two years and whether any changes are necessary.
  With the indulgence of the House, I shall refer briefly to the next set of regulations relating to Northern Ireland. This instrument specifies the amount of biodegradable municipal waste that may be sent to landfills from Northern Ireland in the scheme years which will begin on 1 April 2010 and 1 April 2011.
  These instruments are a positive step in enabling the U K to meet its landfill directive targets, and I commend them to the House. I beg to move.
  Moved, That the draft regulations laid before the House on 13 October be approved [31st Report from the Joint Committee] [21st Report from Merits Committee].—(Lord Whitty.)
  Lord Dixon-Smith: My Lords, at this hour of the night, after a latish night last night, the Minister will not thank me for going on for too long. I have run my slide rule over these orders and the arithmetic appears to be impeccable. Since the scheme was outlined in the legislation—albeit efforts have been made to help in the way in which it is applied—it is not news to anybody, least of all to those of us discussing it tonight.
  That said, the proof of the regulations will be in the eating, as always. That is not so simple and straightforward as we would all like to presume. I noted particularly the efforts the Government say that they have made to help authorities, which are very welcome. But I wondered quite what was going on when the Minister also said that it was not intended to inflict major costs on authorities. However, the fact is that every form of waste disposal that seems to exist is more expensive than landfill. If you raise the costs of waste disposal, someone inevitably has to pay those costs. It will either be the local taxpayer or the national taxpayer, or possibly a combination of the two. The question is how the scheme will actually work.
  Of course, there is the possibility of penalties. In addition to that, some authorities will not meet their targets and there will be trading in waste disposal licences—that is the phrase that I will use—which is supposed to help, because authorities that meet their targets can trade off their surplus and sell it to authorities that are lagging. There is an assumption there—some will beat their targets and some will lag. Of course, if that is not the situation, we may well have a hiatus.
  Then we return to the miserable business of how local government is financed and how any costs of the scheme will be fitted into the overall pattern of local government expenditure, of which these regulations form only a small part. When one reaches the margins of local government expenditure, small variations can have very large effects. There is a question about whether the overall expenditure limits of local government will be sufficiently flexible and large to cater for any failure in that particular area. If they are not, will we see local authorities being capped, as we have seen in the past, as a result of those schemes? do not know the answer to that; perhaps the Minister can enlighten us.
  I note—and this is very welcome—that:
  "The environment and cultural services block grant has been increased by somewhere in the region of £1.2 billion, in recognition of the fact that the additional cost will fall on local authorities".—[Official Report, Commons Fifth Standing Committee on Delegated Legislation, 11/11/04; col. 5.]
  So much for this measure not been intended to inflict major costs. The additional funds will be made available through private finance initiative credits. Something like £200 million is available from the waste minimisation fund. Those are large sums, but the last time that I checked, my own local authority will have

  1425
  capital expenditure in this one area of waste disposal in excess of £200 million. I recognise that Essex is a large county, but if that is grossed up throughout the rest of the country, the sums provided so far do not match the potential liabilities. I would welcome a little more information about that when the Minister replies.
  All of that said, in essence those are worries for the future. As the Government are suggesting, the regulations are in line with the legislation that lies behind them and one cannot complain about them on that count. However, the concern will be all the way down the line on the implementation. The Government have the opportunity to make that successful or to break local authorities in the process if they so choose. I am sure that they do not intend the latter, but I look forward to hearing from the Minister exactly how the Government do intend to handle future liabilities.
  Baroness Miller of Chilthorne Domer: My Lords, from these Benches, I certainly share the concern of the noble Lord, Lord Dixon-Smith, about the costs that fall on local authorities as a result of these regulations and, in doing so, I must declare an interest as a Somerset county councillor. However, my remarks are general and not confined to Somerset at all.
  The LGA made a statement in April of this year that many councils are likely to face substantial additional and unavoidable costs as a result of the scheme. Have the Government received an update from the Local Government Association that authorities are feeling any more reassured about the Government's approach than they were in April? Part of the difficult equation that everyone faces when dealing with waste—local authorities, the Government and the private sector—is deciding where the profits and costs should fall.
  The waste industry is very innovative, far-sighted and professional. The Government could help local authorities better manage their waste by providing them with more guidance on how to specify contracts with the waste industry. Contracts are necessarily very long. They involve enormous capital sums well outside the range that is likely to arise during the elected lifetime of a councillor who may serve for four, eight or even 12 years. These contracts often last 25 years. It would be helpful if the experience of local authorities in procuring waste management services were gathered together—perhaps the Minister will tell me that it is—so that they could gain access to a centre of expertise on procuring waste management contracts. As a councillor I am aware that that is one of the most difficult things to get your mind round given the large number of variables. These regulations add one more variable.
  I was a little puzzled by the schedule on page 14 of the regulations. That may be due to the fact that we had a long sitting yesterday or it may be due to the time of night. The table on page 14 sets out type of waste and the amount of biodegradable municipal waste (expressed
  1426
  as a percentage by weight). The table indicates that paper waste accounts for 100 per cent of biodegradable municipal waste (expressed as a percentage by weight). I can understand that. The relevant figure for glass is 0 per cent. That is common sense; it is self-evident. However, furniture might consist entirely of wood, or it might comprise a mixture of wood and wool, for example, or it might be comprised entirely of plastic. Therefore, I did not understand the 50 per cent figure with regard to furniture and materials that might be entirely biodegradable or not biodegradable at all.
  Garden waste is not included in the table. However, I presume that is included in the item labelled "putrescible waste". Soil is included in the table. I believe that the Government have an admirable target as regards 60 per cent of construction taking place on brownfield sites. However, it is enormously expensive to treat contaminated soil. That process is particularly uneconomic on smaller sites where one does not have the advantage of economies of scale. It makes absolutely no sense for contaminated soil to be sent to landfill. I have not given the Minister notice of my next question so I shall be happy for him to write to me. Is he happy with the progress that is being made regarding the soil clean-up centres—I know that is not the technical term—that is, the centres that treat contaminated soil so that it does not have to be sent to landfill?
  Lord Whitty: My Lords. I am grateful for the remarks of noble Lords on the Opposition Benches. The noble Lord, Lord Dixon-Smith, and the noble Baroness. Lady Miller of Chilthorne Domer, raised the issue of costs to local authorities. When I said that there was not a major cost to local authorities I was referring to the costs of introducing the trading scheme. It is of course the case that local authority waste management costs are rising because of the amount of waste involved and because of the need to fund the infrastructure necessary to divert more waste from landfill in order to meet the very targets that we are discussing. Those additional costs were factored in to the spending review figures that we announced earlier this year, which will inject an additional £1.2 billion into core local authority funding for waste management by 2007–08, plus £275 million additional PFI credits.
  The funding of what is recognised as an additional overall cost is there. In addition—this addresses the point raised by the noble Baroness—Defra is committed to assisting local authorities to look at new efficiencies in the area. We hope to deliver nearly £300 million of savings over the spending review period. That involves joint working, new approaches to contracting, generalisation of best practice, standardisation of procurement operations and much of what she talked about in terms of centres of excellence and the spreading of the way in which local authorities approach their procurement policy.
  The regulations provide a mechanism whereby the local authorities can more easily meet the targets. The net cost of that would be neutral, broadly speaking, because those authorities that could not quite meet the target would, in effect, be able to borrow or trade allowances with those that could. That would smooth

  1427
  out the progress and allow for lump payments in terms of capital investment required. Therefore, it is a mechanism that shares out the cost, starting from a target that relates to the local authority's existing performance in the area.
  The noble Baroness referred to the Local Government Association, which has been very much involved in discussion on the scheme. It accepts that the scheme will start from April next year, and is keen to ensure that it is effective. We have consulted on all the mechanisms and the level of allocation, and are dealing with the results of that consultation. We will deal totally and bilaterally with individual authorities in the area.
  The only other cost about which there may be some apprehension is that of penalties. Under a trading scheme, it is evident that the penalty will be incurred only if the local authority declines to trade. The penalty will need to be at a higher level than the cost of meeting requirements by other measures. However, if the trading scheme works effectively, there is no reason why local authorities should incur a sanction. Indeed, the reconciliation period built into the regulations provides additional flexibility, which ensures that, even if they have strictly missed the targets, there is a period in which they can trade and buy in allowances to avoid the sanction and smooth out their progress towards the stipulated targets.
  The only other matter to which I wish to refer—I am not sure that I can do so adequately—is the schedule on page 14, which relates to the calculation of the amount and proportion of biodegradable municipal waste that will go into the mix. A number of factors arise. The reference to furniture is, for example, on an average basis rather than to the particular amount. The assumptions are built into the way in which we assess the biodegradable content of the total amount of waste. Clearly, those assumptions need to be kept under
  1428
  review. However, broadly speaking, they show the biodegradable material involved in each item as we find it at present. I think that I am right to say that putrescible waste includes all garden waste.
  If soil is hazardously contaminated, it would not go to normal landfill but to accepted designated hazardous waste sites. On the progress towards decontamination of such soil, I shall have to write to the noble Baroness. However, the overall policy aim would be to minimise the amount of contaminated soil put into general landfill sites, and to eliminate entirely hazardous soil from landfill sites.
  On Question, Motion agreed to.

  Landfill (Maximum Landfill Amount) (Northern Ireland) Regulations
  Lord Whitty Lord Whitty rose to move, That the draft regulations laid before the House on 13 October be approved [31st Report from the Joint Committee].
  Moved, That the draft regulations laid before the House on 13 October be approved [31st Report from the Joint Committee].—(Lord Whitty.)
  On Question, Motion agreed to.

  Pensions Bill
  Bill returned from the Commons with an amendment disagreed to with a reason for such disagreement; with certain amendments disagreed to but with amendments proposed in lieu thereof; with an amendment agreed to with an amendment; and with the remaining amendments agreed to; the Commons amendments and reason were ordered to be printed.
  House adjourned at twenty-five minutes before ten o'clock.