Sitting of 3 November 2004

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

The Lord Chancellor: Leave of Absence
The Lord Chancellor (Lord Falconer of Thoroton): My Lords, before business begins, may I take the opportunity to inform the House that I will be undertaking a ministerial visit to Madrid on Friday, 5 November? Accordingly, I trust that the House will grant me leave of absence.

United States: Immigration
2.36 p.m.
Lord Ahmed Lord Ahmed asked Her Majesty's Government:
Whether they have made any further representations to the United States authorities regarding the decision to bar Mr Yusuf Islam from entering the United States.
Baroness Crawley: My Lords, we have made extensive representations to the US authorities at a number of levels, including Secretary of State. The US authorities have recently responded to the Foreign Secretary. We are in contact with Mr Islam and keeping him up to date with developments.
Lord Ahmed: My Lords, I thank my noble friend for her reply. Is she aware that Yusuf Islam enjoys a hard-earned reputation as a man of peace? He is respected in the Muslim community in the United Kingdom and around the world and this incident may harm interfaith relations. In the light of the Foreign Secretary's welcome comments in the immediate aftermath of Yusuf Islam's expulsion, could Her Majesty's Government use our good relations with the United States Government to get a full explanation of their decision?
Baroness Crawley: My Lords, the Government are indeed concerned about the exclusion of Yusuf Islam from the United States and we remain in contact with him. We have asked the United States authorities for an explanation of their action. We have very recently received a response and we are now in the process of requesting further clarification. Noble Lords will understand that I cannot go into the details of our communications with the United States on this matter.
We take the issue of interfaith relations and dialogue very seriously. We have introduced a number of interfaith dialogue initiatives, including the hard work that we carry out in regard to the hajj. My noble friend will know that earlier this year the Foreign Office held an
300
important seminar on faith and foreign policy, which implemented a plan made with the interfaith communities.
Lord Marsh: My Lords, can the Minister indicate why the Government are so concerned with this matter? As I understand it, the gentleman concerned is a well known pop singer and the United States—probably; I do not know what has happened in the past few hours or so—is a sovereign state.
Baroness Crawley: Absolutely, my Lords; the United States is a sovereign state. However, we are concerned about the situation when Mr Yusuf Islam was detained by the United States authorities. We raise with the United States all complaints that we receive from British nationals about their treatment at the hands of the US immigration authorities. The Secretary of State happened to be in the United States at the time Yusuf Islam was detained and took the opportunity to raise his case with Colin Powell.
Baroness Rawlings: My Lords, with the increased number of complaints from UK citizens about their treatment by the United States immigration authorities, will the Government be investigating also the appeals process that is presently in place?
Baroness Crawley: My Lords, we raise with the United States all complaints about the treatment received by British nationals at the hands of US immigration officials. My noble friend Lady Symons called in the US chargé d'affaires in June of this year to raise specific complaints about the heavy-handed treatment of British nationals in the past 12 months. As a result of our continually raising this issue with our US colleagues—I hope that I am not being immodest in saying this—we have helped to bring about some improvements in the system. One such improvement is the establishment of a working group to address the issue of courtesy and the institution of a training programme for all employees on maintaining professional and courteous standards while enforcing the law.
Lord Wallace of Saltaire: My Lords, is the Minister aware that there is considerable concern in Europe at the non-reciprocal demands that the Department of Homeland Security is making on its partners for information and for the treatment of its nationals as opposed to theirs? Does the noble Baroness have accurate figures on the number of Britons who have been excluded from entering the United States during the past year and how this compares with the number of American citizens excluded from entering the United Kingdom?
Baroness Crawley: My Lords, I have the figures on the number of complaints that we have received from British nationals concerning their treatment at the hands of the US immigration authorities: 30 people have made specific complaints. I shall try to get the other figures for the noble Lord.
Lord Tomlinson: My Lords, does my noble friend agree with my current perception that an increasingly

301
heavy-handed attitude is being taken by the United States immigration authorities? If that is happening to us at a time when we are supposed to be their favourite country in the world, perhaps she may care to speculate on what is happening to others.
Baroness Crawley: My Lords, of course the United States Government have every right to apply their immigration laws as they see fit. However, when we consider that the application of those laws brings about disproportionate behaviour by the immigration authorities of the United States, we raise that very clearly with them.

Fisheries: Net Mesh Sizes
2.42 p.m.
Baroness Byford Baroness Byford asked Her Majesty's Government:
Whether the use of 80 millimetre nets is damaging fish stocks; and, if so, what action they propose to take regarding their use.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, the appropriateness of mesh sizes varies between fisheries. Eighty millimetre mesh would be appropriate for some fisheries. However, if mesh net sizes are too small for the fishery, juvenile and under-sized fish may be caught and then have to be discarded. EU mesh sizes are due to be reviewed next year.
Baroness Byford: My Lords, I hope that the Minister is as appalled as I am that this practice is continuing. As I understand it, fishermen using the 80 millimetre nets are allowed to fish for 22 days a month, whereas those using the more environmentally friendly 110 millimetre mesh nets are allowed to fish for only 17 days. In addition, 90 per cent of the catch caught by fishermen using the smaller mesh size is made up of juveniles, which have to be discarded. Is it not time that the Government did something about this, because discarding 90 per cent of a catch is totally unacceptable?
Lord Whitty: My Lords, the mesh size is dependent on the fish which are being sought. In mixed fisheries, it is somewhat difficult to set an entirely appropriate mesh size. For example, in the case that probably gave rise to this Question, sole and plaice are often caught together, and although 80 millimetre mesh nets are appropriate for sole, they are not appropriate for plaice, which is a larger fish. Therefore, some fishermen go for the higher mesh size and do not have the problem of catching smaller or juvenile fish which they have to discard. The number of days' fishing is, of course, a measure to conserve stocks.
Lady Saltoun of Abernethy: My Lords, when are we going to withdraw from the common fisheries policy, which is designed to allow the greed of our European partners to destroy our fishing industry? How can the
302
discarding of immature fish, which have not had a chance to breed and which get caught in the 80 millimetre nets, be consistent with conserving fish stocks?
Lord Whitty: My Lords, we are not withdrawing from the common fisheries policy. I know that certain noble Lords and certain political parties think that that is an option but, frankly, they are in cloud cuckoo land. We are dealing with a situation in which we know that the common fisheries policy has not been the most appropriate, but a common fisheries policy of some sort is necessary. We are just at the point where, in view of recent agreements, the common fisheries policy is taking conservation seriously—some would say for the first time—and this would be absolutely the worst time to withdraw from it.
On discards, if the appropriate mesh size is used, there will be only limited discard. The problem is that in mixed fisheries there is sometimes a move to go for the lowest common denominator. Where that also relates to limitation on fishing days, the fishermen can be hit twice over. As I said, the question of the size of the mesh is being reviewed next year.
Lord Livsey of Talgarth: My Lords, does the Minister agree that this is quite a subjective subject, because we are discussing unknown quantities of by-catch? Will he indicate whether trawler skippers in the UK and other countries in the EU keep records of the quantity of by-catch? Do these exist within the UK? Will he consider going to his EU colleagues to discuss whether this needs to be tightened up, which I believe it does, within the whole of the European Union?
Lord Whitty: My Lords, it is certainly a complex matter, particularly in mixed fisheries. The records of by-catch are systematically kept only if they are landed. While individual trawler skippers may well keep records of roughly the amount they discard, these will not be systematic. It may be that tighter records are necessary but frankly you cannot be absolutely precise in terms of fishing practices. That is why it is more appropriate to specify and enforce mesh sizes appropriate to the predominant species of fish that is being caught and to have measures to restrict fishing in order to preserve stocks.
Lord Eden of Winton: My Lords, will the noble Lord go a little further regarding the answer he has just given? Since it is clear that a number of fish species are in danger of extinction, can he say to what extent there is co-operation from the fishing industry? Secondly, what action, if any, is being taken by countries such as Russia and Spain to restrain the hoovering up of the seabed and indiscriminate slaughter of all marine life through the practices that they adopt?
Lord Whitty: My Lords, certain fish stocks—including cod, most dramatically—are undoubtedly in danger.

303
That is why the EU fisheries policy has brought in quite severe restrictions on the number of fishing days on which we can fish for cod and other species in that category. For some other species, however, the stocks are relatively flourishing. The rules on landed fish and the type of net will apply to anybody fishing within EU waters. It is of course true that the enforcement of these rules is not 100 per cent. The Government are keen on ensuring that the rules reflect conservation needs and that they are enforced in all EU countries.
Lord Mackie of Benshie: My Lords, can the Minister tell us how many people are employed in checking the nets the fishermen are using?
Lord Whitty: No, my Lords, I cannot tell the noble Lord, but there are two issues here—the enforcement onshore and the degree to which there is surveillance at sea. The latter is bound to be fairly random, but onshore there are relatively tight controls on the nets that go to sea.
Baroness Wilcox: My Lords, I declare an interest as patron of the National Lobster Hatchery in Padstow in Cornwall. As the Minister well knows, my family have been in the fishing industry for about 400 years so I hope that he will not assume that my next question is all about cloud cuckoo land. What we are doing down in Cornwall is ranching and seeding for future generations. We hope that the Government will encourage that. I am concerned about the continued use of these cod-end nets. What are Her Majesty's Government doing to protect the inshore fishery—that is the inshore fishery not the British fishery—and the future of my National Lobster Hatchery among many others which are trying to use modern methods around our coastal waters? We are finding ourselves increasingly invaded by discarded fish or by other partners in the Community who do not seem to worry about the rules quite as much as we do.
Lord Whitty: My Lords, the Government greatly encourage the development of fish stocks and fish breeding in the inshore as well as deep-sea fisheries. It is important that the rules adopted by the EU on the conservation of deep-sea fish do not lead to side effects hitting inshore fisheries. Again, that is an issue of enforcement both by the UK and other member states.
Lord Rotherwick: My Lords, does the Minister agree with this EU policy when 90 per cent of some catches is discarded? If not, what are the Government doing to protect our marine environment?
Lord Whitty: My Lords, the Government are taking many measures to protect the marine environment. The level of discard to which the noble Lord refers occurs in the relatively limited but nevertheless deplorable circumstances when the net size is not appropriate to the fish caught. Therefore, I do not agree with the outcome, but it is not part of the policy. The policy is to set the mesh size appropriate to the fishery and to limit the degree of fishing so that stocks are not endangered.

Missile Defence
2.52 p.m.
Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer asked Her Majesty's Government:
What discussions they have held with the United States Administration this year with regard to the siting of a United States-controlled missile defence system in the United Kingdom.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): None, my Lords. There have been no such discussions.
Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for his reply, which confirms my deepest fears. As a Written Statement placed in the Libraries of both Houses informed Parliament, the Government last month signed an agreement with the US Administration that involves the UK in further substantial commitments. Does the Minister think that a few Written Statements and references to missile defence during debates on Iraq constitute full parliamentary debate? What implications does this missile defence system have for our foreign policy and for European and global security? In replying, will he consider the implications for arms control and reduction treaties of another four years of the Bush Administration's isolationist policies?
Lord Bach: My Lords, the document that has been placed in the Libraries of both Houses does not, with the greatest respect, do what the noble Baroness suggests. No request has been made to us by the United States authorities to extend missile defence for them in this country. We have not changed our stance on this at all. The document is there for people to see and I very much regret the press campaign—which I think led the noble Baroness to ask this Question—which is completely false.
Lord Wallace of Saltaire: My Lords, is the Minister cautious about being caught on what is very much a right-wing agenda in the United States in relation to the deployment of missile defence? After all, it was one of the priorities of the Reagan administration and has been one of the priorities of Donald Rumsfeld. Will he assure us about the network of agreements that we now have with the United States? This is the 2003 agreement, which refers to the 1958 and 1960 agreements, and there was also a 1944 agreement and a range of others. It would be helpful, as we start the second Bush Administration, if the Government published a Green Paper explaining the network of agreements between the United States and Great Britain with regard to the military and intelligence activities of the United States on British soil.
Lord Bach: My Lords, what concerns me and what I believe should concern the House is the UK Government's policy in this field. The Government

305
have not yet decided whether we need our own missile defence. The US has offered to extend coverage and make missile defence capabilities available to the UK and other allies, should we require them. However, that is a decision for the future when the US system has further evolved and we have better information on potential costs and architecture, and will depend on how threats and technologies evolve.
We cannot be sure when a ballistic missile threat to the UK might emerge. We do not believe that there is one at present. However, if a country close enough to Europe manages to acquire a complete long-range ballistic missile system, a capability to target us could emerge within the next few years.
The Countess of Mar: My Lords, will the Minister answer the question asked by the noble Lord, Lord Wallace of Saltaire, instead of making a Statement to the House?
Lord Bach: My Lords, I thought that I had.
Lord Tanlaw: My Lords, will the Minister assure us that the existing or any future missile defence system will not impinge on the radio spectrum currently used by radio astronomers?
Lord Bach: My Lords, I do not know the answer to that question. I imagine that it certainly would not, but I will look into the matter and write to the noble Lord.
Lord Garden: My Lords, even the most ardent advocates of missile defence in the United States admit that the deployment of the Alaskan system has been done without full testing and development and has a very notional capability. Does the Minister have total transparency of the results of tests so that he can make informed decisions in future?
Lord Bach: My Lords, I am sure that we will.
Baroness Miller of Chilthorne Domer: My Lords, I must ask the Minister to take back his rather cheap remark that my Question came about because of the press campaign. It was brought about by the document placed in the Library in conjunction with the House of Commons Defence Committee's remark on missile defence that:
"Despite the Secretary of State's unequivocal statement that he wanted the decision [to upgrade] to be informed by public and parliamentary discussion, he has acted in a way that has effectively curtailed such discussions".
That statement brought about my Question.
Lord Bach: My Lords, I am sorry if my remark seemed cheap. It just seemed remarkable that there were press reports on 17 and 24 October and this Question was asked on 3 November.

Postal Services
2.57 p.m.
Baroness Gardner of Parkes Baroness Gardner of Parkes asked Her Majesty's Government:
In view of the proposed closure of major post offices, whether Postcomm is fulfilling its prime remit to exercise its functions in a manner best calculated to ensure the provision of a universal postal service.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, the universal postal service requires that in the UK there is at least one delivery to homes and one collection from access points every working day; and that there is an affordable, uniform tariff. There are no plans for the wholesale closure or sale of the directly managed network. Post Office Limited tells me that on current thinking, it estimates that around 20 directly managed Crown offices might close. That would in no way affect the provision of the universal postal service.
Baroness Gardner of Parkes: My Lords, I thank the Minister for that reply. However, is he aware of the debate that we had in January on this subject? In particular, I brought to the Government's attention the Postcomm publication A Review of Royal Mail's Special Privileges which made clear that Postcomm considered exemptions—such as the exemption from VAT and the right for Post Office vans to pull up and empty mail at post boxes—special privileges that it favoured removing. Will the Minister assure us that there is no question of putting VAT on Royal Mail services or postage stamps?
Lord Sainsbury of Turville: My Lords, the Question I was answering was whether, in view of proposed closure of major post offices, we are satisfied that,
"Postcomm is fulfilling its prime remit to exercise its functions in a manner best calculated to ensure the provision of a universal postal service".
I took that to be a reference to the fact that there have been rumours that 200 Crown offices might be closed. As I pointed out in my Answer, that is not going to happen, so there is no impact on the provision of the universal postal service. On the question whether there is any intention to change that situation, I believe that there is not—but I shall write to the noble Baroness with the answer to her other question, which I believe is a different question.
Lord Razzall: My Lords, in many cities, including London, the closure of sub-post offices has been justified on the basis that Crown post offices would still be available. In the context of that consultation process, even 20 is still a large number of post offices to be closed. Would the Minister support the view that the proceeds of sale of any of those major outlets must be invested in the Post Office network?

307
Those of us who are concerned about my last question have not been motivated by newspaper campaigns or articles—but would the Minister agree with last night's London Evening Standard that the Post Office network is an essential utility which the Government cannot allow simply to wither on the vine?
Lord Sainsbury of Turville: My Lords, I was asked, first, about whether the consideration given, in many cases, by the urban reinvention programme as regards where people might go when looking for alternative post offices would be affected by the possible closure of 20 Crown post offices. Given that there are 15,000 sub-post offices and post offices, the answer is clearly "no". Twenty post offices closing over a number of years will not affect that situation.
Secondly, as for the use of the proceeds, as I have explained, there will not be many closures so there will not be many proceeds. There are going to be conversions, but that is a different question. The article in the Evening Standard, which the noble Lord obviously did not read, was based on the assumption that there would be 200 closures—which, as I pointed out, is wrong.
Lord Barnett: My Lords, would my noble friend clarify something for us? When a chief executive officer of the Post Office or the Royal Mail is appointed, is he given instructions that the remit for a universal postal service should take priority, even if it results in huge losses, and that he must therefore refrain from closing any post offices, even if he believes it to be wrong in terms of running a service?
Lord Sainsbury of Turville: My Lords, we go a lot further than that. As the noble Lord will remember, we put it into legislation, and the licence under which the Post Office operates clearly sets out the conditions for the universal postal service. The chief executive has to work within those parameters.
Lord Dearing: My Lords. I declare an interest as a Post Office pensioner. The Minister will be aware that postal prices for ordinary stamped letters in this country are far below those of most other countries in western Europe, and there is heavy cross-subsidisation of the service. Would the Minister consider that there is a possibility that, in such a situation of cross-subsidisation, the free entry of competitors on the basis of fair prices in the market place, which the Government want to encourage, is inhibited? With that in mind, would he agree that it may not be possible to sustain the universal postal service in a competitive market?
Lord Sainsbury of Turville: My Lords, it is correct that stamp prices in the UK are the lowest in Europe. Indeed, the Royal Mail's regulatory accounts for 2003–04 show a loss of £247 million on its regulated business. However, it is also true that, as reported in the Royal Mail's main report and annual accounts for 2003–04, it made an overall profit on its letter operations of some £253 million.
308
It is for the regulator, Postcomm, to consider whether the level of stamp prices acts as a barrier to the introduction of competition in the postal sector. Postcomm is consulting on the next price control and the early opening of the postal services market. I am sure that the views of the noble Lord, Lord Dearing, and others, will be taken into account, as regards the barriers that may inhibit a competitive market.
Baroness Byford: My Lords, will the Minister accept that the Government have discriminated against the Post Office, through trying to save money on the pensions and welfare payments system? How can they ask the Post Office to be commercially viable and at the same time expect it to be a public service? Does he further accept that they have compounded the decision by insisting that post offices are a commercial business?
The Minister referred earlier to the legislation. I took part in debates on the Postal Services Bill in 2000. The Minister will recall that the one thing that we said again and again was that if he withdrew welfare benefits payments systems from post offices—whether Crown or sub-post offices—the loss that he has just referred to would be exactly what would happen. That has sadly proved to be the case.
Lord Sainsbury of Turville: My Lords, the framework in which the Post Office operates involves economic and social targets. Within that, it is required to act commercially. That seems exactly the right framework within which such a service should operate. It would be absurd if it had no economic or social objectives; it would equally be absurd if it were allowed to pursue those objectives without any commercial considerations. So the framework is entirely right.
As for the whole question of benefit recipients, it is interesting that the universal banking service, which went live on 1 April 2003, has been a great success story rather than the disaster than many people predicted. It is also interesting that more than 63 per cent of benefit recipients now access benefit payments via a bank account, which compares with 43 per cent in April 2003 at the launch of direct payment and 26 per cent in 1996. That shows that our decision to invest heavily in systems for the Post Office was entirely right.
Lord Clarke of Hampstead: My Lords—
Baroness Greengross: My Lords—
Lord Imbert: My Lords—
Lord Clarke of Hampstead: My Lords, I believe that it was our turn.
Lord Grocott: My Lords, there will be time for everyone to speak, so let us take it easy.
Lord Clarke of Hampstead: My Lords, I also declare an interest, as a former Post Office worker—unlike the noble Lord, Lord Dearing, who was on one side of the table while I was on the other.

309
I do not get my comments from papers. Does the Minister recall the exchanges that we had during the passage of the Postal Services Act 2000, when he made very clear the role of Postcomm? He said that it had a duty to protect the public service. We talk about there being 15,000 sub-post offices left, but there were 22,000 to start with. Having seen that decimation in the number of sub-post offices, does he agree that Postcomm has failed in its duty to protect the public service? It has decimated the number of deliveries and kept prices artificially low. I have heard so many times that the day-to-day running is not the business of the Government, and I do not expect to see the Minister standing behind a counter or delivering mail—
Noble Lords: Question!
Lord Clarke of Hampstead: My Lords, what I would like to ask is this: as we are the owners of the Post Office, is it not about time that we sacked those people and got some people in who knew what they were doing?
Lord Sainsbury of Turville: My Lords, I do not agree that Postcomm has failed. Its main role is with the universal postal service. Even after the urban closure programme, 95 per cent of the population will still live within a mile of a post office.
Lord Imbert: My Lords—
Baroness Greengross: My Lords—
Noble Lords: Order!
Lord Imbert: My Lords, does Postcomm see it as part of its remit to persuade the postal authorities to employ postal workers who can actually read? That might give customers an increased chance of receiving their own mail instead of finding it distributed in the vicinity.
Lord Sainsbury of Turville: My Lords, obviously it is part of Postcomm's remit to consider the service as well as the cost of the service. Within that, we shall keep an eye on whether the quality of service is at the levels it should be.

North-East Regional Assembly: Referendum
3.9 p.m.
Lord Hanningfield Lord Hanningfield asked Her Majesty's Government:
How many voting packs for the North-East Regional Assembly referendum contained the wrong envelope.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): Eighty.
Lord Hanningfield: My Lords, I thank the noble Lord for that Answer. We are aware of at least one individual
310
who has received four ballot papers. In view of the Minister's statement in the House on 7 September, I think, that the region was the most risk-free in the country for all-postal ballots, I hope that he will assure us that he does not envisage any more problems in the next 24 hours. Does not the fact that the House has consistently opposed all-postal ballots suggest that we might have been right all along?
We are concerned that the envelopes that were sent out apparently for a charity might have been returned with money inside. If so, can he assure us that that will not be used for the retirement present for the Deputy Prime Minister?
Lord Rooker: My Lords, 1,899,742 ballot packs were sent out between 18 and 20 October. It has transpired that approximately 80 packs delivered in the Darlington area contained a prepaid window-return envelope overprinted with the logo of a cancer charity. It was a window envelope. Therefore, when a ballot paper was put into the envelope, it was sent back to the correct returning officer. I cannot see an issue regarding money being put in the envelopes. We have had no other complaints. So far, as of last night, 41.5 per cent of electors who were sent a ballot pack had returned a ballot paper.
Baroness Hanham: My Lords, does the Minister agree that this is probably the only charitable part of the all-postal voting scheme? Will he also, please, comment on the fact that a number of ballot papers have been sent to 17 year-olds; that is, people who are not entitled to vote? How many of those ballot papers have there been? Have those votes been counted? Have they been found in the course of the scrutiny?
Lord Rooker: My Lords, with all due respect to the noble Baroness, I have no idea. It is just not relevant to the Question, which dealt with the wrong envelopes.
Baroness Hanham: It is, my Lords.
Lord Rooker: No, my Lords; the Question was about the wrong envelope, not the wrong ballot paper. All the ballot papers are bar-coded, in case others have to be issued, and the returning officers have been checking in areas to ensure that there has been feedback. In the Darlington area, in fact, one or two ballots were discovered although people claimed that they had not been sent a ballot pack. They have had replacements, but the bar-coding has ensured that there has not been duplication or double counting.
Obviously, the ballot packs are sent to those on the electoral register. People put themselves on the electoral register or their parents do it for them. If there are errors, it is for the election officers to find out about them.
Lord Shutt of Greetland: My Lords, does the noble Lord agree that, at some stage tomorrow, it would be

311
a wonderful idea to have a count, and then ultimately a declaration, and that that is a rather better idea than a polling organisation calling Northumbria?
Lord Rooker: My Lords, I think that that is an excellent idea. At 10 o'clock tomorrow night, the count will start, and by midnight the results will be out.
Baroness Hanham: My Lords, can the Minister tell me why that question was any more relevant than my question about 17 year-olds who have been put on the register and may or may not have voted? That question seems to be squarely within the Minister's remit to respond on the election process of all-postal voting. It is a great deal more relevant than noble Lord's following question.
Lord Rooker: My Lords, it is easy: I knew the answer to the noble Lord's question but not the answer to the noble Baroness's question. So I hid behind the fact that the Question was about the wrong envelopes rather than the ballot papers.
Lord Brooke of Sutton Mandeville: My Lords, to encourage public confidence in the system on which we are now embarked, could the Electoral Commission consider setting up a prize award for the first election that actually goes right?
Lord Rooker: My Lords, the Electoral Commission and the local authorities are running the election. No one is complaining about that. As I said, nearly 2 million ballot packs have been issued. As of last night—or half-past eleven this morning—41.5 per cent had been returned. The lowest turnout by district and local authority was 37.3 per cent, and the highest was 49.4 per cent. So I do not think that there is any complaint about how the referendum is being run in that respect.

Housing Bill
3.14 p.m.
Read a third time.
Clause 5 [Category 1 hazards: general duty to take enforcement action]:
Baroness Hanham Baroness Hanham moved Amendment No. 1:
Page 5, line 25, at end insert—
"(h) serving a deferred action notice under section 86 of the Housing Grants, Construction and Regeneration Act 1996 (c. 53) (power to improve enforcement procedures) as specified in the Housing (Fitness Enforcement Procedures) Order 1996 (S.I. 1996/2885)."
The noble Baroness said: My Lords, the previous Conservative government introduced the "minded to" procedure as part of their deregulation programme. It was intended as a deregulatory measure to save costs and avoid formal regulatory action in cases where it could be avoided. It is somewhat ironic that the present Government are seeking to repeal the proposal also as a measure of deregulation. So, one deregulation cancels out another deregulation.
Presumably, the Office of the Deputy Prime Minister sees this as an opportunity to go a little way to meeting the targets for the number of deregulation measures that it is expected to introduce. Unfortunately, we take the view that it has the opposite effect. The previous government introduced the measure because of considerable pressure from landlords and their representatives, who complained that local authorities were heavy-handed when it came to serving notices.
Under the "minded to" procedure, before serving a formal notice the local authority must serve a notice of its intention to do so as well as give the landlord an opportunity to make representations. Most importantly, that includes the right for the landlord to appeal in front of an officer appointed by the local authority to make representations before any formal action is taken. It is therefore not simply a preliminary notice. Rather, it is a means by which representations can be made. The procedure can also be overridden in urgent cases.
It is of concern to us that it is now proposed that this procedure should be repealed despite the fact that it has worked well in practice. It has removed a long-running source of friction between local authorities and landlords. It enables structured negotiations to take place. It has often resulted in more time being given to do the work where necessary or for satisfactory substitute works to be agreed on.
A further important issue is fees. Where formal notices are given currently, they attract a levy of up to £300. Fees of that magnitude have inevitably led to hostility between landlords and environmental health officers. The fees can be avoided where matters are resolved under the "minded to" procedure. The abolition of the procedure will undoubtedly lead to more appeals being made to the residential property tribunals, if only on a protective basis so that negotiations can then take place.
Virtually no extra work is generated by the procedure, and in any case, in urgent cases, there is a right to override it. We are concerned that the removal of this preliminary procedure sends out the wrong messages to landlords. I beg to move.
Lord Bassam of Brighton: My Lords, I hope that the noble Baroness does not think ill of what I have to say on the amendment, but we have had it twice before. I congratulate her on her persistence; her persistent behaviour at the Dispatch Box is a joy to behold. However, I am a little surprised that she has returned with the amendment. We have given a fairly full response on the issue.
On reading Hansard, I thought that she—and perhaps the noble Lord, Lord Hanningfield, who sits beside her—would by now have been satisfied with what was said. On 20 July, the noble Lord said:
"I totally agree with most of what the Minister has said because there has to be the ultimate sanction of enforcement. One wants to try to do remedial work … with the minimum of fuss. It is best to let them happen rather than go through lots of bureaucratic procedures".—[Official Report, 20/7/04; col. 163.]

313
Having read that, I concluded that the noble Baroness was likely to be satisfied with the situation as we left it after Committee and also after Report. So she will not be surprised that I am puzzled at the current situation.
Perhaps I can remind the House of where we are on the issue. Clause 5 imposes a general duty on a local authority to take the appropriate enforcement action in relation to a category 1 hazard existing on residential premises. Authorities must select the appropriate enforcement action from the options provided in subsection (2).
As I explained in Committee, the amendment is defective if its intention is to retain the "minded to" procedures in the 1996 Act. That seems to be what the noble Baroness is after. At the risk of repeating myself, I put on record again that the amendment seeks to add deferred action notices under Section 86 of the Housing Grants, Construction and Regeneration Act 1996 to the range of enforcement options available to an authority to deal with a category 1 hazard. For what it is worth, deferred action notices are provided for under Section 81 of that Act.
Nevertheless, we all know that Section 86 deals with what are known as "minded to" notices, and it is clear from this and our earlier discussions that those are in fact the target of the amendment. "Minded to" notices are part of a pre-notice procedure under which the authority must give the reasons for its proposed action before it moves to take the action formally. It may be a pedantic point, but they do not amount to enforcement action in themselves. Quite apart from the case for retaining the procedure, I cannot agree that they belong in Clause 5.
I ought to say categorically that the Government are in no way trying to come down heavily on private landlords, or any landlords or property owners, through the repeal of the "minded to" notices. We are genuinely seeking to deregulate, and we are confident that the procedures under the enforcement concordat are sound. We first consulted on the measure in 1998, so the issue has had a fairly thorough airing.
I have explained our reasons for opposing the amendment in principle. Even if the House does not share my views on the principle, it is hard to see how we can get beyond the technical difficulties. Other than the points that I have already made, for the principle of the amendment to work we would need not an addition to Clause 5—or Clause 7—but an equivalent provision to Section 86, one that referred to all the new formal notices in the Bill. There is no such provision. We have no time to provide one and no intention of doing so.
We have reached the stage at which it must be said that the amendment would not work; nor would it add anything. We need to proceed with what is, in effect, a deregulatory move on behalf of the Government, providing for greater simplicity and transparency in
314
the process. The "minded to" process does not add anything, except delay. It would not be of particular benefit in the enforcement process.
Baroness Hanham: My Lords, I thank the Minister for his extensive reply, which will be added to the extensive replies that we have had on the matter. There is clearly some mileage between us on the value of the "minded to" procedure. I do not think that the Minister will move, and I am not minded to take the matter any further, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Category 2 hazards: powers to take enforcement action]:
[Amendment No. 2 not moved.]
Clause 10 [Consultation with fire authorities in certain cases]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 3:
Page 8, line 23, after "fire" insert "and rescue"
The noble Lord said: My Lords, I have to be a bit careful here. On Report, I made the mistake of saying that I would move formally what I thought were rather technical amendments. The noble Baroness rightly drew me up sharp and reminded me that at least one of them did not fall into that category. That said, this large group of amendments relates to various clauses in Parts 1 to 4 and Part 7, as well as to Schedules 6, 7 and 13 to 15. All the amendments are either a response to matters raised on Report or—I can say with greater confidence—technical amendments to improve the working of the Bill.
My noble friend has written to all those who have participated in debates on the Bill, and advised them of the impact of the amendments. To save time, so that we can concentrate on more pressing issues, it is not my intention to go through each amendment. However, if a particular amendment has caught the eagle eye of the noble Baroness, the noble Lord or any other Member of the House, I shall be happy to try to take questions on it. I beg to move.
Baroness Maddock: My Lords, I am pleased to see Amendments Nos. 55 to 57, as they deal with an issue that we raised at earlier stages. We were particularly concerned that houses in multiple occupation lived in by asylum seekers came within the definition of a house in multiple occupation, due to the different process of housing them. The Government have seen that that is so, so I particularly welcome those three amendments.
On Question, amendment agreed to.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 4 and 5:
Page 8, line 25, after "fire" insert "and rescue"
Page 8, leave out lines 30 to 36 and insert—
""fire and rescue authority" means a fire and rescue authority under the Fire and Rescue Services Act 2004 (c. 21);"
On Question, amendments agreed to.
Clause 51 [Repeal of power to improve existing enforcement procedures]:
[Amendment No. 6 not moved.]
Clause 55 [Licensing of HMOs to which this Part applies]:
Baroness Maddock Baroness Maddock moved Amendment No. 7:
Page 37, line 17, at end insert—
"( ) In exercising the power conferred by subsection (3), the appropriate national authority must ensure that the following fall within the prescribed description of HMOs for the purposes of subsection (2)(a)—

(a) upon such an order coming into force, HMOs of 3 or more storeys and occupied by 5 or more persons;

(b) within one year of such an order coming into force, HMOs of 3 or more storeys and occupied by 4 or more persons, and

(c) within 2 years of such an order coming into force, HMOs of 3 or more storeys and occupied by 3 or more persons."

The noble Baroness said: My Lords, this is a last attempt to try to persuade the Government to move rather wider on the classes of house in multiple occupation that can be included in the mandatory licensing scheme. I certainly hope to be able to persuade Ministers that we need to ensure that all houses in multiple occupation of three storeys or more come within the mandatory licensing scheme at some stage in the near future.
The amendment proposes to phase that in, suggesting that all houses in multiple occupation of three or more storeys and five or more occupants should be subject to licensing when the Secretary of State says so and when the first regulations come into force. It also proposes three or more storeys and four occupants 12 months after that, and three storeys with two or three occupants another 12 months later. I do not intend to go into the matter in great detail, as we have had a detailed debate on it. Two or three points are probably worth reiterating.
Evidence on fire risk does not really support the threshold that the Government have put forward. The 1996 Entec report on fire risk identified that all three-storey houses in multiple occupation were high-risk, regardless of the occupancy levels. The Government have said that they are conscious of the burden that may be placed on local authorities when the new regime comes in, which is partly why they have drawn the boundaries where they have. However, Shelter carried out a survey of local authorities fairly recently, which demonstrated that there was significant support among them—particularly among environmental health officers—for a more inclusive mandatory licensing scheme. Again, I have received briefing from the Local Government Association for Third Reading. It believes that greater protection for residents would be achieved by extending the licensing to all properties, rather than only those with three storeys and five occupants.
The Government have also made the point that local authorities will have the ability to increase licensing, and that there are other provisions in the Bill. However, I am concerned that the process of applying for additional HMO licensing would be rather
316
onerous. Extended discretionary licensing schemes are subject to the approval of the Secretary of State and limited to five years. It is not really a satisfactory answer to the problem. Yet another place where the issue was discussed was in the Select Committee on the Office of the Deputy Prime Minister, which looked at the Bill. It reviewed the evidence and concluded that,
"mandatory licensing should not be limited to properties of three or more storeys with five or more occupants".
I hope that I have given some help to the noble Lord, Lord Bassam, so that he can try to address this important issue. On Report, he said:
"The Government are aware that the risk of injury or death from fire in a three-storey HMO is higher than that in smaller HMOs".
However, he argued that,
"the number of occupants in the house is also a factor in determining the risk of fire occurring. Conversely, the risk is diminished where a building is occupied by only two, three or four people".—[Official Report, 13/10/04; col. 300.]
We are all agreed that occupancy increases the chances of fire breaking out in the first place. However, there is no evidence that, once the fire has broken out, a tenant on the third storey of a house in multiple occupation with only three or four occupants is less likely to be injured than a tenant on the third floor of an HMO with five or six occupants. I do not know whether the Minister has any further evidence on that, and there was certainly no evidence regarding that in the Entec report.
I hope that I can persuade the Minister to assure us that he takes this matter seriously and envisages a way forward. I beg to move.
3.30 p.m.
Lord Bassam of Brighton: My Lords, I shall start where the noble Baroness finished, because the Government see this as a serious issue. From my experience as a local councillor, I would be drawn to the conclusion that there is an issue regarding concentrations of HMOs of three storeys or more. We accept that. However, the amendment essentially relates to how one could practicably best implement the legislation and examine the matter over a longer term. I understand that that might not satisfy the noble Baroness, who should be congratulated on her persistence on this important issue.
This debate has taken place three or four times during the passage of the Bill. The Liberal Democrats in particular have sought to persuade us that the threshold for licensing should be extended to include all houses in multiple occupation with three storeys or more. I accept that this amendment is different, in that it seeks phased implementation of licensing. It is not too different from the position of the Bill itself. We cannot accept the amendment for that reason.
When we debated extending the scope of mandatory licensing at Report stage, I made it clear that we would carry out a review of licensing within three years of it coming into force. The amendment would pre-empt

317
that review. That would be unfortunate. The noble Baroness has said that there are reports and views strongly expressed by the "housing lobby" that we have not quite got this right. I said in earlier debates that we were not closed to the idea of extending the scope of mandatory licensing if that proved necessary, but we need to establish whether or not it is necessary. The noble Baroness seeks to persuade me that there is evidence that has not been adduced before. That may well be the case and I see no reason why any new evidence, reports or fresh information could not be brought forward during the review.
There is already a power to include within the scope of the mandatory licensing scheme all HMO categories listed in the amendment. If evidence is forthcoming that mandatory licensing of three-storey, five-person HMOs works, and should be extended to properties that are occupied by fewer persons or that have fewer storeys, we will do it. However, I cannot accept that the Government should be required to extend mandatory licensing to different categories, particularly if the evidence shows that there is no need to do so.
We have heard doubts in this House about whether local authorities will be able to licence all three-storey, five-person HMOs and ensure that they are all free of category 1 hazards within five years of the introduction of licensing. In those circumstances, it would be slightly odd, if not barmy, simply to extend the mandatory licensing regime with no regard to the existing system and how it is being implemented.
For that reason, it is not advisable to impose on landlords regulations that are not necessary. That could have a devastating effect on this important and, we would all agree, fragile part of the private rented sector. The noble Baroness may be unhappy at the speed with which we are trying to introduce the regime. I know that she is pleased that we have gone as far as we have. I Invite the noble Baroness to withdraw the amendment; to see the review period as being helpful; to continue to campaign for this change throughout that period, as I am sure she will; and to accept what is patently the case—that we can, if we feel the need, amend the current provision to extend the licensing regime.
The case needs to be proven that licensing should apply to all HMOs. We have powers to act, if necessary. We believe that we have the necessary flexibility and accept that at some point there may be a case to extend it—but it should be on the basis of proof and evidence, rather than a suggestion that it might be more appropriate. We have that backstop measure. I hope that the noble Baroness will withdraw the amendment.
Baroness Maddock: My Lords, I thank the Minister for his reply although I wish that he felt keener about this matter. He made various points—including the last point that there was not enough evidence. There has been much work carried out on this matter and much evidence was given to the Select Committee for the Office of the Deputy Prime Minister. If one talks to anyone involved with such issues on the ground and, particularly, students
318
who live in such accommodation, one learns that they feel strongly about it. One of the Minister's other arguments was that he was trying to protect local authorities. Local authorities are one of the groups lobbying me on this issue. They want to be able to expand the licensing provisions. Therefore, the Minister's argument is not valid.
As is all too common these days, we are left relying on regulations that will come afterwards and on the well-meaning words of Ministers. Today the Minister did not sound that keen on the proposal. Too much would be left to chance. It is a principle for us on these Benches and for which I have been fighting since 1996 and in relation to the previous Housing Bill. I wish to test the opinion of the House.
3.37 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 111; Not-Contents, 130.

Division No. 1

CONTENTS

Addington, L.

Howe, E.

Alton of Liverpool, L.

Hunt of Wirral, L.

Ampthill, L.

Hurd of Westwell, L.

Anelay of St Johns, B.

Inglewood, L.

Astor of Hever, L.

Jopling, L.

Baker of Dorking, L.

Knight of Collingtree, B.

Barker, B.

Lang of Monkton, L.

Best, L.

Lester of Herne Hill, L.

Biffen, L.

Linklater of Butterstone, B.

Bonham-Carter of Yarnbury, B.

Livsey of Talgarth, L.

Bradshaw, L.

Luke, L.

Brooke of Sutton Mandeville, L.

Lyell, L.

Brookeborough, V.

McAlpine of West Green, L.

Buscombe, B.

McColl of Dulwich, L.

Caithness, E.

MacGregor of Pulham Market, L.

Carlisle of Bucklow, L.

Carnegy of Lour, B.

Mackie of Benshie, L.

Clement-Jones, L.

Maclennan of Rogart, L.

Cox, B.

McNally, L.

Dholakia, L.

Maddock, B. [Teller]

Dixon-Smith, L.

Mar, C.

D'Souza, B.

Masham of Ilton, B.

Dundee, E.

Mayhew of Twysden, L.

Elles, B.

Methuen, L.

Elton, L.

Michie of Gallanach, B.

Ezra, L.

Miller of Chilthorne Domer, B.

Falkner of Margravine, B.

Molyneaux of Killead, L.

Fearn, L.

Monro of Langholm, L.

Finlay of Llandaff, B.

Mowbray and Stourton, L.

Fookes, B.

Murton of Lindisfarne, L.

Fowler, L.

Neuberger, B.

Fraser of Carmyllie, L.

Northover, B.

Garden, L.

Palmer, L.

Goodhart, L.

Perry of Southwark, B.

Hamwee, B.

Peyton of Yeovil, L.

Hanham, B.

Phillips of Sudbury, L.

Hanningfield, L.

Platt of Writtle, B.

Hayhoe, L.

Redesdale, L.

Henley, L.

Rees-Mogg, L.

Higgins, L.

Renton, L.

Hodgson of Astley Abbotts, L.

Roberts of Conwy, L.

Holme of Cheltenham, L.

Roberts of Llandudno, L.

Hooper, B.

Roper, L.

Hooson, L.

Sandberg, L.

319

Scott of Needham Market, B.

Taverne, L.

Selsdon, L.

Thomas of Walliswood, B.

Sharp of Guildford, B.

Thomson of Monifieth, L.

Shaw of Northstead, L.

Trenchard, V.

Shutt of Greetland, L. [Teller]

Vallance of Tummel, L.

Smith of Clifton, L.

Vinson, L.

Steinberg, L.

Waddington, L.

Stern, B.

Wakeham, L.

Stevens of Ludgate, L.

Wallace of Saltaire, L.

Stewartby, L.

Walmsley, B.

Stoddart of Swindon, L.

Watson of Richmond, L.

Swinfen, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Haskel, L.

Ahmed, L.

Haworth, L.

Allen of Abbeydale, L.

Hollis of Heigham, B.

Alli, L.

Howie of Troon, L.

Amos, B. (Lord President of the Council)

Hoyle, L.

Hughes of Woodside, L.

Archer of Sandwell, L.

Hunt of Kings Heath, L.

Ashley of Stoke, L.

Irvine of Lairg, L.

Ashton of Upholland, B.

Jay of Paddington, B.

Bach, L.

Jones, L.

Barnett, L.

Jordan, L.

Bassam of Brighton, L.

King of West Bromwich, L.

Bernstein of Craigweil, L.

Kirkhill, L.

Bhattacharyya, L.

Laming, L.

Billingham, B.

Lea of Crondall, L.

Blackstone, B.

Leitch, L.

Borrie, L.

Lipsey, L.

Bragg, L.

Lockwood, B.

Brooke of Alverthorpe, L.

McDonagh, B.

Brookman, L.

McIntosh of Haringey, L.

Brooks of Tremorfa, L.

McIntosh of Hudnall, B.

Burlison, L.

McKenzie of Luton, L.

Campbell-Savours, L.

Marsh, L.

Carter, L.

Mitchell, L.

Chorley, L.

Morris of Aberavon, L.

Christopher, L.

Morris of Manchester, L.

Clark of Windermere, L.

Murphy, B.

Clarke of Hampstead, L.

O'Neill of Bengarve, B.

Clinton-Davis, L.

Parekh, L.

Craigavon,V.

Patel of Blackburn, L.

Crawley, B.

Paul, L.

Davies of Oldham, L. [Teller]

Pendry, L.

Dixon, L.

Pitkeathley, B.

Drayson, L.

Plant of Highfield, L.

Dubs, L.

Randall of St. Budeaux, L.

Elder, L.

Rendell of Babergh, B.

Evans of Parkside, L.

Richard, L.

Evans of Temple Guiting, L.

Rogan, L.

Falconer of Thoroton, L. (Lord Chancellor)

Rooker, L.

Rowlands, L.

Falkender, B.

Royall of Blaisdon, B.

Farrington of Ribbleton, B.

Sainsbury of Turville, L.

Faulkner of Worcester, L.

St. John of Bletso, L.

Fitt, L.

Sawyer, L.

Fyfe of Fairfield, L.

Scotland of Asthal, B.

Gale, B.

Sewel, L.

Gavron, L.

Simon, V.

Gibson of Market Rasen, B.

Slim, V.

Giddens, L.

Strabolgi, L.

Goldsmith, L.

Strange, B.

Gordon of Strathblane, L.

Taylor of Blackburn, L.

Goudie, B.

Temple-Morris, L.

Gould of Potternewton, B.

Tenby, V.

Graham of Edmonton, L.

Thornton, B.

Greengross, B.

Tomlinson, L.

Gregson, L.

Triesman, L.

Griffiths of Burry Port, L.

Truscott, L.

Grocott, L. [Teller]

Tunnicliffe, L.

Harris of Haringey, L.

Turnberg, L.

Harrison, L.

Turner of Camden, B.

Hart of Chilton, L.

Wall of New Barnet, B.

320

Warner, L.

Wilkins, B.

Weatherill, L.

Williams of Elvel, L.

Wedderburn of Charlton, L.

Williamson of Horton, L.

Whitaker, B.

Woolmer of Leeds, L.

Whitty, L.

Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.
3.47 p.m.
Clause 64 [Grant or refusal of licence]:
Lord Rooker Lord Rooker moved Amendment No. 8:
Page 42, line 40, leave out "may" and insert "must"
On Question, amendment agreed to.
Clause 68 [Licences: general requirements and duration]:
Lord Hanningfield Lord Hanningfield moved Amendment 9:
Page 46, line 11, leave out "5 years" and insert "the designated period"
The noble Lord said: My Lords, the Bill provides that the maximum duration for an HMO licence is up to five years. During the course of the Bill, we have consistently argued for a longer period. We have brought forward this amendment to introduce an element of flexibility.
We previously suggested a maximum duration of 10 years or seven years. Indeed, at one stage, there were some encouraging noises from the Minister that he might be prepared to reconsider this provision on the basis of either a six or seven-year maximum period. This has not happened, so we are asking the Minister to reconsider.
We have refined the amendment to allow the national authority to prescribe the period and to allow different periods to be designated for different classes of HMO. There is a strong argument that the larger HMOs will need to be reviewed more regularly. Smaller HMOs, such as a three-storey house with five occupants, will need less involvement from the local authority.
It has been suggested that up to 300,000 properties will require an HMO licence. I appreciate that the Government have put forward a different figure; they have suggested the much lower figure of 120,000. Even though using the Government's estimate and allowing for available resources, a huge effort will be needed to implement the mandatory licensing of HMOs.
Landlords are concerned about the amount of fees which will have to be paid. These will, in due course, be passed on to tenants by way of increased rents. Landlords are also concerned about the amount of bureaucracy involved in the licensing scheme. Allowing for a longer duration for licences, particularly in the case of smaller licensable HMOs, will go a little way towards meeting those concerns. That can be done without in any way imperilling the system. After all, as and when properties change hands, there will be an opportunity for the situation to be reviewed.
In any case, if there are concerns, local authorities have the power to review licences and their conditions. We simply do not feel that it is necessary to revisit each and every property every five years, and we urge more

321
flexibility to allow a longer interval, particularly in cases where it is perceived that the property is likely to be less problematic. The Bill contains sufficient safeguards to provide for any deterioration in the standard of management or accommodation in the interim, and there would therefore be no harm in allowing a longer period between full reassessments where licences are up for review.
Allowing for longer periods would reduce the amount of pressure on local authorities and give them more time to deal with problem properties. Too frequent renewals will mean that local authorities will require extra staff and resources to process what, in many cases, are routine applications for renewal. Instead, the effort could be concentrated on situations where enforcement action was appropriate. Further, landlords will have to pay fees more frequently. Therefore, I ask the Minister to reconsider and to accept that the amendment would introduce a helpful degree of flexibility on those issues. I beg to move.
Lord Bassam of Brighton: My Lords, I hope that it will help your Lordships if I refer to Amendment No. 10. I think that it should be grouped with Amendment No. 9 as they deal with the same point. In my groupings list, they appear separately.
Lord Hanningfield: My Lords, I am happy for them to be debated together as they have recently been regrouped.
Lord Bassam of Brighton: My Lords, in that case, I am happy to proceed in that way. The two amendments work together. They would remove from the Bill the maximum duration for an HMO licence of five years and replace it with provisions allowing the appropriate authority to set "the designated period" for the length of licences for different types of HMO.
The noble Lord told us that he was rather concerned that a huge effort—I think those were his words—would be involved in implementing the licensing scheme as it is. I find that a puzzling observation, given that the noble Lord and his colleagues on the Benches behind him have just trooped through the Lobby to vote for an amendment that would have increased that burden more than somewhat. Therefore, I am rather puzzled by the noble Lord's position on the issue.
My view, and that of the Government, is that the noble Lord's proposal is not a good idea because it would not take the position forward in any beneficial respect. In the past, the noble Lord has been a party to arguments for longer licences, and so I am a little surprised, if gratified, to see that these amendments would allow licences of less than five years. Therefore, there is some contradiction there.
Lord Hanningfield: My Lords, we are trying to bring some flexibility into the situation. I hope that the noble Lord will accept that we are not trying to be dogmatic about the length of time; we are trying to bring in some flexibility which we feel might help the Bill.
Lord Bassam of Brighton: My Lords, I am grateful for that explanation. In the past when I have argued
322
for flexibility, the Opposition have often tabled amendments which would place something of a straitjacket around this issue. However, with the noble Lord's amendments, the discretion to use short licences would no longer be in the hands of local authorities.
The noble Lord is a great champion of local authorities, and I admire him on that count. I, and probably the generality of local government, think that it is right for measures to be in place that are fit for purpose. But the amendment would mean that the regime would have to be prescribed by the appropriate national authority. As we have argued repeatedly throughout the progress of the Bill, requiring central government to prescribe such implementational details—that is what it is—removes the valuable tool of flexibility on which the noble Lord is so keen from the hands of local authorities.
We continue to be unpersuaded of the benefits of the proposition to allow for licences longer than five years, which I suppose is another element to the thrust of the amendment. It would be appropriate to remind the noble Lord that the duration of five years is in itself an echo of other registration schemes with control provisions which have been put in place, agreed, and no doubt moved in the past by previous Conservative administrations and in a timeframe which no one has argued needs to be extended.
Clearly the physical condition and management of houses in multiple occupation are not static. Obviously there must be a review every so often in order to ensure that those properties are up to scratch, and an assessment will need to be made of whether a new licence should be awarded.
We think that we have pitched this matter in the right zone at five years as the maximum duration of a licence. However, it is perhaps worth reminding your Lordships that we are committed to reviewing the licensing regime within three years of its implementation. If there is a problem with the five-year period proposed in the Bill, we shall need to take account of that. No doubt, the noble Lord will persistently remind us of that if it is an emerging problem, and no doubt local government, through the LGA and other bodies, will also give the matter close inspection.
Once we have benefited from the value of the evidence on how the scheme is working on the ground, we shall be in a position to make any necessary changes to the operation of the licensing regime. It is entirely possible that at that point we shall decide that longer licences are required, but it would be wise to wait for the review.
Therefore, it would be wrong to impose a national straitjacket. That would be inflexible. I think that the noble Lord has acknowledged the kernel of the problem—that is, as he said, a huge effort is involved in implementing any scheme of HMO licensing and regulation.
The position adopted by the noble Lord on the matter is somewhat contradictory, given his earlier support for an amendment which was designed massively to expand HMO regulation in one fell swoop. We need careful implementation and a measured approach to ensure that

323
the licensing regime works, bites and hits hard on properties where the most vulnerable households are located, where the conditions are at their worst and where properties are in urgent need of improvement. For all those reasons, I have to resist the amendment.
Lord Hanningfield: My Lords, I am disappointed by the Minister's response, given that, in another discussion that we had at a different stage of the Bill, there was some suggestion of the potential for flexibility. I should have loved to suggest giving the flexibility to local government, but I did not think that that was in any way likely to be accepted by the Minister. That is why we suggested that the flexibility should be given to the national body, as at least it would have built some flexibility into the Bill.
I accept that the noble Lord said that the duration could be changed, but there is a problem with the time that it takes to change these things. If the flexibility and the organisation are there at the beginning, people can make adjustments according to experience. If regulations or even further secondary legislation is required in order to change things, that also takes time, as we have all experienced.
I am disappointed because this is a fairly minor point. We feel that the amendment would have made life easier at the implementation of the provision and during the first few years of the scheme, given that there is disagreement about the number of properties that will be involved. If 300,000 properties are involved, it will be a mammoth task for everyone to get it going. However, I hear what has been said, and I do not think that this matter is worth pursuing now. I am disappointed that the Minister cannot accept some flexibility, but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 72 [Offences in relation to licensing of HMOs]:
4 p.m.
[Amendment No. 10 not moved.]
Lord Hanningfield Lord Hanningfield moved Amendment No. 11:
Page 49, line 16, at end insert ", and
(d) in this subsection "occupy" means occupation as an only or main residence (or treatment as such in accordance with section 222) and any reference to "occupation" shall be interpreted accordingly."
The noble Lord said: My Lords, we return to this issue because we are not convinced that the explanation given by the Minister at Report stage meets the concerns which have been raised. The purpose of the amendment is to clarify the meaning of the expression "occupation". There is a definition of occupation in Clause 254(6) of the Bill. Our amendment is intended to make it clear that the offence in relation to overcrowding can be committed only where occupation is on the basis of only or main residence.
Under Clause 246(2)(c), when applying the test to decide whether a property is an HMO, the test is one of only or main residence. This is extended to include residence when someone is undertaking full-time
324
education. The purpose of our amendment is to ensure that there is consistent treatment between the requirement for licensing and the offence which is committed where overcrowding is permitted.
On Report the Minister indicated that staying over at weekends would not suffice. Our advice is that this may not be a correct view, particularly in situations where there are regular visits. We have in mind a fairly typical situation in which a lady, who works in London throughout the week, returns to Manchester to stay with her boyfriend every weekend. She has some clothing, a toothbrush and all the usual personal possessions which stay in the flat in Manchester. Suppose the house in Manchester is a house that is licensed as an HMO with six full-time residents, including the lady's boyfriend, and all are provided with double beds. The lady stays there every weekend, but owns her own flat in London. While this may not be her only or main residence it could certainly be argued that it is a residence, as she is there on such a regular basis.
We had that kind of situation in mind when we proposed this amendment. We want to make it clear that an offence is committed only where a property is someone's only or main residence. As I say, we have not been convinced by the explanation given by the Minister. Accordingly, we propose this amendment to make the situation clearer. At the same time, an approach in this case is the same as with the test of whether a house is an HMO in the first place. I beg to move.
Lord Bassam of Brighton: My Lords, we debated this amendment at Report. At that stage, I thought we had satisfied the concerns of the noble Baroness, Lady Hanham. Evidently, we have not satisfied noble Lords opposite. This is a fairly simple matter. I want to put on record again that "occupancy" is not concerned with temporary arrangements—the boyfriend's or girlfriend's weekend scenario to which the noble Lord referred. For the offence to be committed under Clause 72 the person must knowingly permit the HMO to be occupied by more persons than the number for which it is licensed.
Clause 254 gives the meaning of the word "occupier" and related expressions as "occupies as a residence"—in other words, as a main or principal place of residence. Occasional temporary occupation by friends staying overnight does not constitute occupation for the purpose of the offence in Clause 72.
The example given by the noble Lord of someone owning and living in a flat during the week and staying with a boyfriend or girlfriend at weekends is caught in the meaning of the definition. The example given by him of visiting a property on a regular basis does not necessarily mean that the property is being occupied as a residence. In fact, the case is not a lot different from someone whose elderly parents may come to stay on a regular basis. It would not be suggested that regular visits to a property would mean that it somehow became the elderly parents' residence. Staying with

325
someone on a temporary basis, no matter how frequently, does not constitute a residential status, unless the person has no home of his own to return to.
I should have thought that enforcement officers would have something better to do with their time than to chase people and to try to trap them into an offence of this nature in the circumstances mentioned by the noble Lord. I cannot believe that there would be much benefit to the enforcement authority in pursuing an action in those terms. I appreciate that the noble Lord is trying to clarify the point and I hope that what I have said this afternoon, and at earlier stages of the Bill, has done precisely that.
Lord Hanningfield: My Lords, we returned to this matter to try to clarify it. The Minister has set out the position for the record fairly well. I am sure that there will be several test cases. I too hope that an enforcement officer will have better things to do than to chase around in such situations. I am sure that there will be test cases so we wanted the position clarified. Although there is nothing new on the face of the Bill, what the Minister has said in reply will be on the record. We want to be quite clear that no one will try to catch those who visit people regularly on such a basis. That could include elderly parents, other relatives or all kinds of people who need support at a particular time or who just want to see their family regularly. They should not be caught up in this situation.
I hope that what has been said is enough. It is a pity that the Government will not accept the amendment, but the situation has been clearly stated and it will be on record. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hanham Baroness Hanham moved Amendment No. 12:
Page 49, line 36, leave out "£20,000" and insert "level five on the standard scale"
The noble Baroness said: My Lords, we briefly return to a matter that we raised at previous stages. We are concerned about the extent of the reliance on criminal sanctions for non-compliance. The maximum fine for a landlord who has no licence is £20,000. In other words, that is the severest penalty that can be imposed by a magistrates' court. We have said before, and we say again, that we believe that the maximum fine for a landlord being in breach of a licence due to overcrowding should be set at level 5, rather than at £20,000, which we believe is too high a figure for an offence of this nature.
The Government have argued that as a house in multiple occupation is licensed for a specific number, it could be said that, in effect, there is no licence at all if that number were to be exceeded. Thus, it is said that the offence ought to carry the same fine as if there were no licence. That is because the house-in-multiple-occupation licensing system is not just about numbers. It looks at many other issues such as the fitness of the manager and the management arrangements.
326
Presumably, a breach of one aspect of the licence must be less serious than in the case of a landlord who has no licence in the first place.
It is important to note that a breach of the condition of a licence attracts a level 5 fine as a maximum. It has always been our view that exceeding the permitted number should be treated in the same way. I beg to move.
Lord Bassam of Brighton: My Lords, this is the third or fourth time that I have had to rise to say this. We have had this debate several times. From the Government Benches we have made our point fairly clear. It is as simple as this: we believe that the kinds of breaches to which this penalty is to apply are very serious. These are very serious issues for the reasons that the noble Baroness has made clear. HMOs can be high-risk properties and there can be circumstances in which people are endangered by occupying them. There are fire hazards; hazards caused by deterioration of a property; poor fitness; ill-repair; and overcrowding. All those matters can lead to very dangerous premises indeed.
We take very seriously the offence of managing an unlicensed HMO, where people could be seriously injured or, as has happened in the past to the knowledge of us all, where people have died in fires and so on. It is for that reason that we have pitched the penalty at the level that we have. We have debated this matter on many occasions and we are unyielding in our belief that we need firm, effective enforcement and a hard-nosed system of penalties to ensure that people are well aware of the seriousness of breaching their obligations under this scheme.
For those reasons I am not minded to accept the amendment. To reduce the level of the fine, as suggested in the amendment, would undermine the effect of the regime. I hope that the noble Baroness will withdraw the amendment as it could have a very harmful effect.
Baroness Hanham: My Lords, I hear what the Minister has to say. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 73 [Further sanctions relating to unlicensed HMOs]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 13:
Leave out Clause 73 and insert the following new Clause—

OTHER CONSEQUENCES OF OPERATING UNLICENSED HMOS: RENT REPAYMENT ORDERS
(1) For the purposes of this section an HMO is an "unlicensed HMO" if—

(a) it is required to be licensed under this Part but is not so licensed, and

(b) neither of the conditions in subsection (2) is satisfied.

(2) The conditions are—

(a) that a notification has been duly given in respect of the HMO under section 62(1) and that notification is still effective (as defined by section 72(8));

327

(b) that an application for a licence has been duly made in respect of the HMO under section 63 and that application is still effective (as so defined).

(3) No rule of law relating to the validity or enforceability of contracts in circumstances involving illegality is to affect the validity or enforceability of—

(a) any provision requiring the payment of rent or the making of any other periodical payment in connection with any tenancy or licence of a part of an unlicensed HMO, or

(b) any other provision of such a tenancy or licence.

(4) But amounts paid in respect of rent or other periodical payments payable in connection with such a tenancy or licence may be recovered in accordance with subsection (5) and section (Further provisions about rent repayment orders).
(5) If—

(a) an application in respect of an HMO is made to a residential property tribunal by the local housing authority or an occupier of a part of the HMO, and

(b) the tribunal is satisfied as to the matters mentioned in subsection (6) or (8),

the tribunal may make an order (a "rent repayment order") requiring the appropriate person to pay to the applicant such amount in respect of the housing benefit paid as mentioned in subsection (6)(b), or (as the case may be) the periodical payments paid as mentioned in subsection (8)(b), as is specified in the order (see section (Further provisions about rent repayment orders)(2) to (8)).
(6) If the application is made by the local housing authority, the tribunal must be satisfied as to the following matters—

(a) that, at any time within the period of 12 months ending with the date of the notice of intended proceedings required by subsection (7), the appropriate person has committed an offence under section 72(1) in relation to the HMO (whether or not he has been charged or convicted),

(b) that housing benefit has been paid (to any person) in respect of periodical payments payable in connection with the occupation of a part or parts of the HMO during any period during which it appears to the tribunal that such an offence was being committed, and

(c) that the requirements of subsection (7) have been complied with in relation to the application.

(7) Those requirements are as follows—

(a) the authority must have served on the appropriate person a notice (a "notice of intended proceedings")—

(i) informing him that the authority are proposing to make an application under subsection (5),

(ii) setting out the reasons why they propose to do so,

(iii) stating the amount that they will seek to recover under that subsection and how that amount is calculated, and

(iv) inviting him to make representations to them within a period specified in the notice of not less than 28 days;

(b) that period must have expired; and

(c) the authority must have considered any representations made to them within that period by the appropriate person.

(8) If the application is made by an occupier of a part of the HMO, the tribunal must be satisfied as to the following matters—
328

(a) that the appropriate person has been convicted of an offence under section 72(1) in relation to the HMO, or has been required by a rent repayment order to make a payment in respect of housing benefit paid in connection with occupation of a part or parts of the HMO,

(b) that the occupier paid, to a person having control of or managing the HMO, periodical payments in respect of occupation of part of the HMO during any period during which it appears to the tribunal that such an offence was being committed in relation to the HMO, and

(c) that the application is made within the period of 12 months beginning with—

(i) the date of the conviction or order, or

(ii) if such a conviction was followed by such an order (or vice versa), the date of the later of them.

(9) Where a local housing authority serve a notice of intended proceedings on any person under this section, they must ensure—

(a) that a copy of the notice is received by the department of the authority responsible for administering the housing benefit to which the proceedings would relate; and

(b) that that department is subsequently kept informed of any matters relating to the proceedings that are likely to be of interest to it in connection with the administration of housing benefit.

(10) In this section—

"the appropriate person", in relation to any payment of housing benefit or periodical payment payable in connection with occupation of a part of an HMO, means the person who at the time of the payment was entitled to receive on his own account periodical payments payable in connection with such occupation;

"housing benefit" means housing benefit provided by virtue of a scheme under section 123 of the Social Security Contributions and Benefits Act 1992 (c. 4);

"occupier", in relation to any periodical payment, means a person who was an occupier at the time of the payment, whether under a tenancy or licence or otherwise (and "occupation" has a corresponding meaning);

"periodical payments" means periodical payments in respect of which housing benefit may be paid by virtue of regulation 10 of the Housing Benefit (General) Regulations 1987 (S.I. 1987/1971) or any corresponding provision replacing that regulation.

(11) For the purposes of this section an amount which—

(a) is not actually paid by an occupier but is used by him to discharge the whole or part of his liability in respect of a periodical payment (for example, by offsetting the amount against any such liability), and

(b) is not an amount of housing benefit,

is to be regarded as an amount paid by the occupier in respect of that periodical payment."
The noble Lord said: My Lords, it will no doubt be recalled that on Report we moved a group of amendments in response to amendments tabled by noble Lords to replace the no rent payment provisions in the Bill. In effect, our amendments were a synthesis of amendments tabled by the noble Baronesses, Lady Hamwee and Lady Maddock, and those tabled by the noble Baroness, Lady Hanham, and the noble Lord, Lord Hanningfield. However, in fairness, they were 11th hour in their nature and, in the circumstances, we agreed not to proceed with them in

329
favour of working together on a final set of amendments to be tabled in good time for Third Reading.
I can confirm that government Amendments Nos. 13 to 15 and 17 to 19 are the result and a great example of that partnership working. It has been a tidying-up job, with the secret of success being down to close collaboration with other relevant parties. I take this opportunity to thank the noble Baronesses and the noble Lord, Lord Hanningfield, and express my gratitude for their close co-operation in bringing forward the amendments.
The amendments recognise the widespread concern expressed about the practical application of the provisions, in particular, the absence of clear decision-making procedures and responsibilities, as well as the potential retaliatory action by landlords for occupants withholding rent. We all agreed on Report that those potential problems could be solved by amending existing provisions to produce the effect that rent is payable but that a landlord who receives rent while operating an unlicensed HMO or other rented property could be liable to a penalty equivalent to any rent received during the period of the offence.
The residential property tribunal will be given the power to make a rent repayment order, imposing that penalty where it determines that an offence has been committed under Clauses 72(1) or 93(1). Also, the right to automatic possession in Section 21 of the Housing Act 1988 in relation to assured shorthold tenancies for unlicensed landlords is removed. A local housing authority will be entitled to make an application for such an order where it discovers that a landlord or managing agent is committing an offence and where housing benefit has been paid to that landlord during any period when such an offence was being committed. Such applications would not be restricted to cases where prosecution had been brought under Clause 72 or 93, but could also take place where the RPT was satisfied that an offence had been committed.
Tenants would also be permitted to make an application to the RPT for a rent repayment order where an order had already been granted to the local housing authority in respect of the same property, or where the landlord had been convicted of the offence. Such rent will be recoverable as an ordinary civil debt. The sanction proposed will help prevent a landlord from profiting from renting properties illegally, including cases where that would be at the expense of the public purse through housing benefit. It will also provide a civil sanction through the residential property tribunal for cases where potentially slow and resource-intensive action through the courts is impractical or not considered appropriate.
Amendments Nos. 15 and 19 remove the right to automatic possession in Section 21 of the 1988 Act in relation to assured shorthold tenancies for unlicensed landlords, unless they have a valid application or a temporary exemption notification pending with the local housing authority. That will have the effect of
330
bringing licensing in line with similar provisions introduced in Part 6 in respect of the tenancy deposit scheme.
I have outlined the purpose of the amendments; I hope that it is clear. I return to my starting point, which was to say a big thank you to all those involved, who have enabled us to introduce a substantial body of amendments at this late stage. I hope that your Lordships' House will find the amendments beneficial. I beg to move.
Baroness Hanham: My Lords, there is nothing much to say, except that I am glad that we have managed substantially to improve this part of the Bill as a result of us all having some qualms about it. I am also grateful for the Government's co-operation and I know that people who were involved in letting arrangements are also pleased with the amendments.
Baroness Maddock: My Lords, my name is attached to some of these amendments; it was meant to have been attached to all of them, but, as we have discovered during the Bill's passage, trying to get your name on things does not always work.
I am grateful to the Minister for explaining the matter once again and especially for the time that has been taken to deal with it very constructively. We think that rent repayment orders are a much better approach and the suspension of Section 21 powers for a licence landlords is especially helpful, given the danger of retaliatory eviction.
The Minister will know that there is still concern that Section 21 powers will be reinstated as soon as the landlord makes an application for a licence. Unscrupulous landlords might seek to get round the provisions by submitting an application and moving to evict the tenant before the application is rejected.
I know that the Government are assuming that landlords are fit and proper until proved otherwise but, nevertheless, it would be helpful to have an assurance from the Minister that guidance will be issued making it clear that a local authority should decide that landlords who seek to exploit the situation that I described are not fit and proper and therefore refused their licence application. I should be grateful if the Minister could deal with that but, otherwise, I am very satisfied that we have managed to work together to produce something that I hope will be very helpful not only for tenants but for landlords.
Lord Bassam of Brighton: My Lords, I am sure that that is a matter that guidance will have to cover and I will ensure that that is the case.
On Question, amendment agreed to.
4.15 p.m.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 14 and 15:
After Clause 73, insert the following new clause—
"FURTHER PROVISIONS ABOUT RENT REPAYMENT ORDERS
(1) This section applies in relation to rent repayment orders made by residential property tribunals under section (Other consequences of operating unlicensed HMOs: rent repayment orders)(5).
(2) Where, on an application by the local housing authority, the tribunal is satisfied—

(a) that a person has been convicted of an offence under section 72(1) in relation to the HMO, and

(b) that housing benefit was paid (whether or not to the appropriate person) in respect of periodical payments payable in connection with occupation of a part or parts of the HMO during any period during which it appears to the tribunal that such an offence was being committed in relation to the HMO,

the tribunal must make a rent repayment order requiring the appropriate person to pay to the authority an amount equal to the total amount of housing benefit paid as mentioned in paragraph (b).
This is subject to subsections (3), (4) and (8).
(3) If the total of the amounts received by the appropriate person in respect of periodical payments payable as mentioned in paragraph (b) of subsection (2) ("the rent total") is less than the total amount of housing benefit paid as mentioned in that paragraph, the amount required to be paid by virtue of a rent repayment order made in accordance with that subsection is limited to the rent total.
(4) A rent repayment order made in accordance with subsection (2) may not require the payment of any amount which the tribunal is satisfied that, by reason of any exceptional circumstances, it would be unreasonable for that person to be required to pay.
(5) In a case where subsection (2) does not apply, the amount required to be paid by virtue of a rent repayment order under section (Other consequences of operating unlicensed HMOs: rent repayment orders)(5) is to be such amount as the tribunal considers reasonable in the circumstances.
This is subject to subsections (6) to (8).
(6) In such a case the tribunal must, in particular, take into account the following matters—

(a) the total amount of relevant payments paid in connection with occupation of the HMO during any period during which it appears to the tribunal that an offence was being committed by the appropriate person in relation to the HMO under section 72(1);

(b) the extent to which that total amount—

(i) consisted of, or derived from, payments of housing benefit, and

(ii) was actually received by the appropriate person;

(c) whether the appropriate person has at any time been convicted of an offence under section 72(1) in relation to the HMO;

(d) the conduct and financial circumstances of the appropriate person; and

(e) where the application is made by an occupier, the conduct of the occupier.

(7) In subsection (6) "relevant payments" means—

(a) in relation to an application by a local housing authority, payments of housing benefit or periodical payments payable by occupiers;

(b) in relation to an application by an occupier, periodical payments payable by the occupier, less any amount of housing benefit payable in respect of occupation of the part of the HMO occupied by him during the period in question.

(8) A rent repayment order may not require the payment of any amount which—

(a) (where the application is made by a local housing authority) is in respect of any time falling outside the period of 12 months mentioned in section (Other consequences of operating unlicensed HMOs: rent repayment orders)(6)(a); or

(b) (where the application is made by an occupier) is in respect of any time falling outside the period of 12 months ending with the date of the occupier's application under section (Other consequences of operating unlicensed HMO: rent repayment orders)(5);

and the period to be taken into account under subsection (6)(a) above is restricted accordingly.
(9) Any amount payable to a local housing authority under a rent repayment order—

(a) does not, when recovered by the authority, constitute an amount of housing benefit recovered by them, and

(b) until recovered by them, is a legal charge on the HMO which is a local land charge.

(10) For the purpose of enforcing that 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, and 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) If the authority subsequently grant a licence under this Part or Part 3 in respect of the HMO to the appropriate person or any person acting on his behalf, the conditions contained in the licence may include a condition requiring the licence holder—

(a) to pay to the authority any amount payable to them under the rent repayment order and not so far recovered by them; and

(b) to do so in such instalments as are specified in the licence.

(13) If the authority subsequently make a management order under Chapter 1 of Part 4 in respect of the HMO, the order may contain such provisions as the authority consider appropriate for the recovery of any amount payable to them under the rent repayment order and not so far recovered by them.
(14) Any amount payable to an occupier by virtue of a rent repayment order is recoverable by the occupier as a debt due to him from the appropriate person.
(15) The appropriate national authority may by regulations make such provision as it considers appropriate for supplementing the provisions of this section and section (Other consequences of operating unlicensed HMOs: rent repayment orders), and in particular—

(a) for securing that persons are not unfairly prejudiced by rent repayment orders (whether in cases where there have been over-payments of housing benefit or otherwise);

(b) for requiring or authorising amounts received by local housing authorities by virtue of rent repayment orders to be dealt with in such manner as is specified in the regulations.

(16) Section (Other consequences of operating unlicensed HMOs: rent repayment orders)(10) and (11) apply for the purposes of this section as they apply for the purposes of section (Other consequences of operating unlicensed HMOs: rent repayment orders)."
After Clause 73, insert the following new clause—

OTHER CONSEQUENCES OF OPERATING UNLICENSED HMOS: RESTRICTION ON TERMINATING TENANCIES
(1) No section 21 notice may be given in relation to a shorthold tenancy of a part of an unlicensed HMO so long as it remains such an HMO.
(2) In this section—

a "section 21 notice" means a notice under section 21(1)(b) or (4)(a) of the Housing Act 1988 (c. 50) (recovery of possession on termination of shorthold tenancy);

a "shorthold tenancy" means an assured shorthold tenancy within the meaning of Chapter 2 of Part 1 of that Act;

"unlicensed HMO" has the same meaning as in section (Other consequences of operating unlicensed HMOs: rent repayment orders) of this Act."

On Question, amendments agreed to.
Clause 86 [Grant or refusal of licence]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 16:
Page 58, line 39, leave out "may" and insert "must"
On Question, amendment agreed to.
Clause 94 [Further sanctions relating to unlicensed Part 3 houses]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 17 to 19:
Leave out Clause 94 and insert the following new Clause—

OTHER CONSEQUENCES OF OPERATING UNLICENSED HOUSES: RENT REPAYMENT ORDERS
(1) For the purposes of this section a house is an "unlicensed house" if—

(a) it is required to be licensed under this Part but is not so licensed, and

(b) neither of the conditions in subsection (2) is satisfied.

(2) The conditions are—

(a) that a notification has been duly given in respect of the house under section 62(1) or 84(1) and that notification is still effective (as defined by section 93(7));

(b) that an application for a licence has been duly made in respect of the house under section 85 and that application is still effective (as so defined).

(3) No rule of law relating to the validity or enforceability of contracts in circumstances involving illegality is to affect the validity or enforceability of—

(a) any provision requiring the payment of rent or the making of any other periodical payment in connection with any tenancy or licence of the whole or a part of an unlicensed house, or

(b) any other provision of such a tenancy or licence.

(4) But amounts paid in respect of rent or other periodical payments payable in connection with such a tenancy or licence may be recovered in accordance with subsection (5) and section (Further provisions about rent repayment orders).
(5) If—

(a) an application in respect of a house is made to a residential property tribunal by the local housing authority or an occupier of the whole or part of the house, and

(b) the tribunal is satisfied as to the matters mentioned in subsection (6) or (8),

the tribunal may make an order (a "rent repayment order") requiring the appropriate person to pay to the applicant such amount in respect of the housing benefit paid as mentioned in subsection (6)(b), or (as the case may be) the periodical payments
334
paid as mentioned in subsection (8)(b), as is specified in the order (see section (Further provisions about rent repayment orders)(2) to (8)).
(6) If the application is made by the local housing authority, the tribunal must be satisfied as to the following matters—

(a) that, at any time within the period of 12 months ending with the date of the notice of intended proceedings required by subsection (6), the appropriate person has committed an offence under section 93(1) in relation to the house (whether or not he has been charged or convicted),

(b) that housing benefit has been paid (to any person) in respect of periodical payments payable in connection with the occupation of the whole or any part or parts of the house during any period during which it appears to the tribunal that such an offence was being committed, and

(c) that the requirements of subsection (7) have been complied with in relation to the application.

(7) Those requirements are as follows—

(a) the authority must have served on the appropriate person a notice (a "notice of intended proceedings")—

(i) informing him that the authority are proposing to make an application under subsection (5),

(ii) setting out the reasons why they propose to do so,

(iii) stating the amount that they will seek to recover under that subsection and how that amount is calculated, and

(iv) inviting him to make representations to them within a period specified in the notice of not less than 28 days;

(b) that period must have expired; and

(c) the authority must have considered any representations made to them within that period by the appropriate person.

(8) If the application is made by an occupier of the whole or part of the house, the tribunal must be satisfied as to the following matters—

(a) that the appropriate person has been convicted of an offence under section 93(1) in relation to the house, or has been required by a rent repayment order to make a payment in respect of housing benefit paid in connection with occupation of the whole or any part or parts of the house,

(b) that the occupier paid, to a person having control of or managing the house, periodical payments in respect of occupation of the whole or part of the house during any period during which it appears to the tribunal that such an offence was being committed in relation to the house, and

(c) that the application is made within the period of 12 months beginning with—

(i) the date of the conviction or order, or

(ii) if such a conviction was followed by such an order (or vice versa), the date of the later of them.

(9) Where a local housing authority serve a notice of intended proceedings on any person under this section, they must ensure—

(a) that a copy of the notice is received by the department of the authority responsible for administering the housing benefit to which the proceedings would relate; and

335

(b) that that department is subsequently kept informed of any matters relating to the proceedings that are likely to be of interest to it in connection with the administration of housing benefit.

(10) In this section—

"the appropriate person", in relation to any payment of housing benefit or periodical payment payable in connection with occupation of the whole or a part of a house, means the person who at the time of the payment was entitled to receive on his own account periodical payments payable in connection with such occupation;

"housing benefit" means housing benefit provided by virtue of a scheme under section 123 of the Social Security Contributions and Benefits Act 1992 (c. 4);

"occupier", in relation to any periodical payment, means a person who was an occupier at the time of the payment, whether under a tenancy or licence (and "occupation" has a corresponding meaning);

"periodical payments" means periodical payments in respect of which housing benefit may be paid by virtue of regulation 10 of the Housing Benefit (General) Regulations 1987 (S.I. 1987/1971) or any corresponding provision replacing that regulation.

(11) For the purposes of this section an amount which—

(a) is not actually paid by an occupier but is used by him to discharge the whole or part of his liability in respect of a periodical payment (for example, by offsetting the amount against any such liability), and

(b) is not an amount of housing benefit,

is to be regarded as an amount paid by the occupier in respect of that periodical payment."
After Clause 94, insert the following new clause—

FURTHER PROVISIONS ABOUT RENT REPAYMENT ORDERS
(1) This section applies in relation to orders made by residential property tribunals under section (Other consequences of operating unlicensed houses: rent repayment orders)(5).
(2) Where, on an application by the local housing authority, the tribunal is satisfied—

(a) that a person has been convicted of an offence under section 93(1) in relation to the house, and

(b) that housing benefit was paid (whether or not to the appropriate person) in respect of periodical payments payable in connection with occupation of the whole or any part or parts of the house during any period during which it appears to the tribunal that such an offence was being committed in relation to the house,

the tribunal must make a rent repayment order requiring the appropriate person to pay to the authority an amount equal to the total amount of housing benefit paid as mentioned in paragraph (b).
This is subject to subsections (3), (4) and (8).
(3) If the total of the amounts received by the appropriate person in respect of periodical payments payable as mentioned in paragraph (b) of subsection (2) ("the rent total") is less than the total amount of housing benefit paid as mentioned in that paragraph, the amount required to be paid by virtue of a rent repayment order made in accordance with that subsection is limited to the rent total.
(4) A rent repayment order made in accordance with subsection (2) may not require the payment of any amount which the tribunal is satisfied that, by reason of any exceptional circumstances, it would be unreasonable for that person to be required to pay.
(5) In a case where subsection (2) does not apply, the amount required to be paid by virtue of a rent repayment order under section (Other consequences of operating unlicensed houses: rent repayment orders)(5) is to be such amount as the tribunal considers reasonable in the circumstances.
This is subject to subsections (6) to (8).
(6) In such a case the tribunal must, in particular, take into account the following matters—

(a) the total amount of relevant payments paid in connection with occupation of the house during any period during which it appears to the tribunal that an offence was being committed by the appropriate person in relation to the house under section 93(1);

(b) the extent to which that total amount—

(i) consisted of, or derived from, payments of housing benefit, and

(ii) was actually received by the appropriate person;

(c) whether the appropriate person has at any time been convicted of an offence under section 93(1) in relation to the house;

(d) the conduct and financial circumstances of the appropriate person; and

(e) where the application is made by an occupier, the conduct of the occupier.

(7) In subsection (6) "relevant payments" means—

(a) in relation to an application by a local housing authority, payments of housing benefit or periodical payments payable by occupiers;

(b) in relation to an application by an occupier, periodical payments payable by the occupier, less any amount of housing benefit payable in respect of occupation of the house, or (as the case may be) the part of it occupied by him, during the period in question.

(8) A rent repayment order may not require the payment of an amount which—

(a) (where the application is made by a local housing authority) is in respect of any time falling outside the period of 12 months mentioned in section (Other consequences of operating unlicensed houses: rent payment orders)(5)(a); or

(b) (where the application is made by an occupier) is in respect of any time falling outside the period of 12 months ending with the date of the occupier's application under section (Other consequences of operating unlicensed houses: rent payment orders)(5);

and the period to be taken into account under subsection (6)(a) above is restricted accordingly.
(9) Any amount payable to a local housing authority under a rent repayment order—

(a) does not, when recovered by the authority, constitute an amount of housing benefit recovered by them, and

(b) is, until recovered by them, a legal charge on the house which is a local land charge.

(10) For the purpose of enforcing that 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, and 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) If the authority subsequently grant a licence under Part 2 or this Part in respect of the house to the appropriate person or any person acting on his behalf, the conditions contained in the licence may include a condition requiring the licence holder—

(a) to pay to the authority any amount payable to them under the rent repayment order and not so far recovered by them; and

(b) to do so in such instalments as are specified in the licence.

(13) If the authority subsequently make a management order under Chapter 1 of Part 4 in respect of the house, the order may contain such provisions as the authority consider appropriate for the recovery of any amount payable to them under the rent repayment order and not so far recovered by them.
(14) Any amount payable to an occupier by virtue of a rent repayment order is recoverable by the occupier as a debt due to him from the appropriate person.
(15) The appropriate national authority may by regulations make such provision as it considers appropriate for supplementing the provisions of this section and section (Other consequences of operating unlicensed houses: rent repayment orders), and in particular—

(a) for securing that persons are not unfairly prejudiced by rent repayment orders (whether in cases where there have been over-payments of housing benefit or otherwise);

(b) for requiring or authorising amounts received by local housing authorities by virtue of rent repayment orders to be dealt with in such manner as is specified in the regulations.

(16) Section (Other consequences of operating unlicensed houses: rent repayment orders)(10) and (11) apply for the purposes of this section as they apply for the purposes of section (Other consequences of operating unlicensed houses: rent repayment orders)."
After Clause 94, insert the following new clause—

OTHER CONSEQUENCES OF OPERATING UNLICENSED HOUSES: RESTRICTION ON TERMINATING TENANCIES
(1) No section 21 notice may be given in relation to a shorthold tenancy of the whole or part of an unlicensed house so long as it remains such a house.
(2) In this section—

a "section 21 notice" means a notice under section 21(1)(b) or (4)(a) of the Housing Act 1988 (c. 50) (recovery of possession on termination of shorthold tenancy);

a "shorthold tenancy" means an assured shorthold tenancy within the meaning of Chapter 2 of Part 1 of that Act;

"unlicensed house" has the same meaning as in section (Other consequences of operating unlicensed houses: rent repayment orders) of this Act."

On Question, amendments agreed to.
Clause 115 [Management scheme and accounts]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 20:
Page 83, line 1, at beginning insert "provision".
On Question, amendment agreed to.
Clause 124 [Compensation]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 21:
Page 89, line 17, after "party" insert "in consequence of a final management order"
On Question, amendment agreed to.
Clause 129 [Making of interim EDMOs]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 22 and 23:
Page 94, line 37, leave out sub-paragraph (i).
Page 94, line 39, at end insert "and
( ) paragraph (d) does not apply;"
On Question, amendments agreed to.
Clause 130 [Authorisation to make interim EDMOs]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 24:
Page 95, line 11, leave out paragraph (b) and insert—
"(b) that there is no reasonable prospect that the dwelling will become occupied in the near future,"
On Question, amendment agreed to.
Baroness Hanham Baroness Hanham had given notice of her intention to move Amendment No. 25:
Page 95, line 21, at end insert ", and
(c) why the dwelling has been unoccupied"
The noble Baroness said: My Lords, I rise to say only that I am not going to move the amendment. I now appreciate that within that great chunk grouped with Amendment No. 3 was government Amendment No. 24 which, although it does not entirely address the questions that we raised, it does so well enough. We do not need to pursue the whole point about empty properties, the stage at which intervention comes and when the property tribunal can have a role any further.
[Amendment No. 25 not moved.]
Clause 132 [Making of final EDMOs]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 26:
Page 97, line 14, leave out paragraph (c) and insert—
"(c) in paragraph 7(6)—

(i) paragraph (c) is to be read as referring instead to Part 4 of Schedule 7, and

(ii) paragraph (d) is to be read as referring instead to paragraph 27(2) of Schedule 7;

(ca) 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 7;"

On Question, amendment agreed to.
Clause 144 [Meaning of "residential property" and "home information pack"]:
[Amendment No. 27 not moved.]
Clause 147 [Responsibility for marketing: general]:
[Amendment No. 28 not moved.]
Clause 151 [Duty to have a home information pack]:
Lord Hunt of Wirral Lord Hunt of Wirral moved Amendment No. 29:
Page 106, line 15, 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 noble Lord said: My Lords, with this amendment, I shall speak also to the consequential Amendments Nos. 33 to 35, 44 and 45. This series of amendments springs from a combination of substantial practical reservations about the Bill and profound and deeply held

339
considerations of principle. To put it more simply, many of us in this House believe that mandatory home information packs are wrong in practice and in principle.
The practical objections have been rehearsed previously. The simple fact is that many people are not convinced that a statutory regime of this kind is workable. Furthermore, even if it is workable in the most crudely functional sense, there are still good reasons for believing that it will inhibit, or perhaps even badly undermine, the workings of the housing market. That would ill serve the interests of the buyer and seller.
Secondly, there are important, unresolved issues of principle at stake. I do not wish to appear in any way partisan, but this debate seems symptomatic of a clear ideological gap between the Front Bench opposite and the rest of the Chamber. I shall call it a gap rather than a chasm or a gulf, at least until I hear the Minister's response to this group of amendments. Whether or not homes should be sold with home information packs is not self-evidently an issue of substantial constitutional or ideological significance. I fear, however, that this part of the Housing Bill is all too typical of a tendency to prefer regulation to deregulation—to fix that which is not broken and to intervene where it would be better to leave well alone.
I shall deal first with the practical points. Mandatory home information packs would certainly introduce a new level of rigidity into the housing market. As there is no such thing as a free lunch, there certainly will be no such thing as a free home information pack. The cost is estimated at anything up to £800 per dwelling, and the latest figures that I have seen estimate that around 2 million dwellings are put on the housing market every year. Of those, only around 1.5 million are sold. In other words, as many as a quarter of the dwellings put on to the market are not bought or sold by anyone.
In the present situation, one could say that no harm has been done, or that hardly any unrefundable costs have been incurred. With mandatory home information packs, that position will change significantly. Regardless of whether a property is sold, someone will have to cover the cost of the home information packs. The cost of the packs will also be highly regressive. A terraced house in a less fashionable part of the United Kingdom may cost only a fraction as much as a home in London, but the cost of a home information pack will inevitably be very similar for the two properties.
I hestitate, particularly given the presence of the noble Lord, Lord Rooker, on the Front Bench, to use the following term, but what he is proposing could become a form of poll tax for the housing market: regressive, retrograde and resented. The UK housing market is competitive, flexible and efficient, and very innovative as well. As Ministers have previously conceded, the market has been generating some highly effective private initiatives with regard to the information provided to would-be buyers. That is a very good thing. So why this idea of compulsion? Where is the market failure? No concrete evidence for it has been adduced at any stage. It
340
genuinely pains me to say so, but the answer. I fear, lies in the deeper, atavistic instincts of this Labour Government.
That brings us to the deeper issues of principle and philosophy. I have never been one to genuflect before the free market. However, as Winston Churchill might have put it, for all its shortcomings, the market seems generally preferable to all the other models that have been tried from time to time. When it works, the market mechanism works very well indeed. As Ministers have occupied us day after day here and in another place with their attempts to control our lives, so they bring before us today yet another measure that seeks to extend the tendrils of government into a hitherto unexplored aspect of our lives. Where we in this House prefer freedom, all too often a Minister will put forward policies of control. Where we seek to promote diversity—the "thousand points of light", if you will—often, they offer only drab, state-inspired uniformity. As next year's general election approaches, no doubt the Prime Minister will try again to convince us that those old instincts have been consigned to the dustbin of history. Maybe, in his case, they have. But perhaps he should spend more time scrutinising the details of the legislation that his Ministers are promoting.
Earlier this month, we lost one of the most admired Members of this House, Earl Russell. How I wish he were here with us today. Earl Russell believed in freedom and regarded the state and all its apparatus with the most profound suspicion. He was a true liberal, with a small "1" as well as a large one. In one of the very last speeches that he made in this House, on a different element of this Bill, Earl Russell perfectly adumbrated the argument that we are having here today. He said:
"There is necessarily a place for compulsion, but it is an unpleasant, expensive and labour-intensive process that will not become easier while the Chancellor is engaged in reducing the number of civil servants. So where something can be done voluntarily and compulsion rendered unnecessary, it is a good thing".—[Official Report, 21/7/04; col. 270.]
It is not always the case that my noble friends and I see eye to eye with Earl Russell's party, hut I am delighted that today we do. I am also delighted that we have the support of so many others in this House, notably that of the noble and learned Lord, Lord Donaldson.
The body of our laws in this country—our unwritten constitution—is built upon the principle that we may assume that we have freedom of action unless and until we are told otherwise. Our presumption should always be for freedom, for less state control. This matter of the home information packs may seem to represent to Ministers a skirmish in the foothills rather than a battle for the commanding heights, but it is important and emblematic none the less. Defending our freedoms is not the exclusive preserve of any one party, nor of any of the existing parties in any shape or form. I hope, therefore, that the Government will listen carefully to what is said in this debate, see sense and change tack on this aspect of the Bill. I await the Minister's speech. I beg to move.
Baroness Hamwee: My Lords, I thank the Minister for his further letters to my colleagues and me; they

341
have been extremely helpful. I am very grateful to him and his office for the way in which they have assisted us through the Bill. I thank also the noble Lord, Lord Hunt, for his reference to our late noble friend. I wish that I could do justice to Conrad Russell's memory; I shall try.
I said of a smaller amendment on Report that we were trying not to cause trouble but to save trouble; that is also the case with this group of amendments, to which my name is attached on behalf of my noble friends. We acknowledge that there are interests to be protected—those of the consumer—but we do not regard them as equivalent to the situation where there is a single producer and many small consumers. In this case, there is something that is rather more balanced—a seller and a purchaser.
4.30 p.m.
Our concern is that if it is possible to achieve a workable cost-effective scheme, that is what we would like to see. But the Government are not only a long way from achieving that, they are also a long way from knowing that it is achievable. They argue that this is why they will do the dry run, which is of course a voluntary arrangement.
A compulsory scheme may or may not be implemented. The noble Lord has referred to aspects of a nanny state, as have I previously. Perhaps I may add to that; the Government will have invested an enormous amount in the scheme for home information packs. I am not questioning the Government's good intentions at all, but it is human nature that they will not want to let HIPs go if they do not succeed in their further work on them. They will not want to let all that work go. They will try to find reasons to go ahead; not, unless they are superhuman, look for reasons not to proceed. There have been examples of primary legislation not being proceeded with, but that is very rare.
We acknowledge that the Government have already done a lot of work with—I hate the word, but I suppose it is appropriate—stakeholders, and they intend to do more. But even now, at almost the last knockings of the Bill in the second Chamber, their response to points is, "We will consult". A very proper response is in the most recent letter from the noble Lord, Lord Rooker. But does it give us the confidence that Parliament should at this stage be making legislation that compulsorily requires all sellers to comply with it?
Today, the House is being asked to agree to primary legislation when so much depends on regulations. For example, at the previous stage, I queried the term "of interest" to a purchaser. I thank the Minister for the latest letter which deals with that. It says:
"Interest, as defined in the Oxford English Dictionary, means concern or curiosity".
It would clearly be in the interest of consumers if the Secretary of State could prescribe that packs contain matters of concern to them and not just those that are essential to the transaction. Yes, but in how much
342
detail? How wide a provision is this? I dealt with that particular point at some length at a previous stage. So I simply say, quite!
I asked the Law Society whether it was happy with the term "the property" in Clause 158(5) and whether it excluded anything. Does the term "the property" exclude things, such as boilers and alarm systems, where it would not be reasonable to require guarantees and warranties to be produced before exchange? The answer from the Law Society is that it will have to look at the regulations.
The noble Lord, Lord Hunt, has referred to this point, but I cannot leave it out of my speech. We are concerned about the cost of home information packs, particularly home condition reports. We are concerned about it where the property is of low value—if that is not an absurd term to use in today's housing market—or, at any rate, of comparatively low value. We are concerned about the cost where the purchaser is at the limit of what he or she can afford and may not, as things stand now, choose to have a survey. A lot of people borrow a very large proportion of the price in order to purchase; for example, young people who are desperate to get on the housing ladder and families who need a bigger property because the family is growing. We are concerned about the cost where there is a family breakdown and there is no cash to be thrown around. We are concerned about elderly people who are on an average pension. All those people would struggle with the cost even if it is deferred.
Which? recognises that. I have seen in its briefings that it proposes that the cost should be rolled up in the mortgage. That would meet some of our concerns. But we are talking about struggling to find a solution to something that should not be a problem. The Government say that it will all be okay because if there is no sale, there will be no cost.
Agents may bear the cost in the first instance, but they are not charitable organisations. Why should they be? They will claim ownership of home information packs and the intellectual property rights in those packs. They will not hand them over to a seller who wants to change agents—quite possibly for very good reasons. Indeed, a home information pack created by one agent may not be usable if its logo is on every page. Agents will have an interest in getting a quick sale in order to recoup their own outlays.
There are matters of very considerable public interest in how all this will operate. Will large organisations want to lock people into all their other services? Unless there are regulations controlling it, they may use their own inspectors and their own panels of conveyancers.
Another anti-competitive element is the effect on people who might want to do their own conveyancing. At a previous stage, the Minister said that there are not many of them, so it will not be much of a problem. I do not think that amateurs would find it easy to prepare the summary proposed under Clause 158. It would create something which—I say this as a solicitor—we should not encourage.
I am aware that the Government say that home information packs will save costs because there will be fewer failed transactions. The noble Lord, Lord Hunt, referred to the cost of the substantial proportion of transactions that do not proceed. The Minister will say no doubt that the very existence of home information packs will reduce the number of failed transactions. On the information that the Minister gave us at the previous stage, only 8.5 per cent of all failures follow the buyer's own survey. That is quite a lot, but it is by no means the majority of failures. The much larger proportion of failures follows the lender's valuation survey.
In his most recent letter, the Minister stated that HBOS—probably the largest lender, and the Halifax as most of us know it—will use the home condition report as part of the valuation process. Many noble Lords will have received from the Council of Mortgage Lenders a briefing for this stage. Although I am aware that I am taking some time, it is proper that some of this is read into the record. It states:
"There are diverse views among lenders regarding the concept and practicality of a home information pack. As such, the Council of Mortgage Lenders does not support or oppose home information packs."
It acknowledges that the Government are determined to introduce them and will be constructive if they proceed. One would expect no less.
It continues:
"It is not possible at this stage for lenders to give a definitive view of the extent to which they will use home condition reports".
I do not want to be tripped up by the Minister on this: I readily acknowledge that the Council of Mortgage Lenders goes on to say:
"With a voluntary scheme, it is difficult to imagine a dual process where there is or is not a home condition report available".
But this is not a situation that permits us one perfect answer. If it did, we would not still be debating it. If lenders want to be constructive, that is how we are asking them to contribute. After all, under the government scheme, we are not talking about moving to an automated system that does not require the brain to be engaged.
Which? has been cited in support of home information packs. Indeed, it is. But, in its latest briefing, even Which? states that it is continuing to seek clarity on six issues and that there is still a lot of work to be done, so it is worth making home information packs work. That is precisely our point of view. A voluntary scheme is the best way of going forward; not going headlong into what could be disaster.
Lord Donaldson of Lymington: My Lords, I have added my name in support of the amendments in this group. However, while supporting them I should make it clear that I approach the matter from a slightly different standpoint from that of the noble Lord, Lord Hunt of Wirral. Perhaps some of his remarks might be regarded by the Government Front Bench as inflammatory. I do not wish to be involved in that one way or the other. It is part of the political hurly-burly of life from which retired judges who are Cross Benchers ought to keep clear in all circumstances.
344
I understand that the provisions of Part 5, dealing with the home information pack, are intended to speed up the process of buying and selling residential property. That, at least, is something which I should have thought everyone would support. In so far as the pack would do so, then I think that it will be welcomed by both sellers and buyers in their own self-interest. However, in some cases the pack might not have that effect, and in certain cases it would not have that effect.
Attention was drawn to the first example at the previous stage by the noble Earl, Lord Caithness. He said—this must be right—that the process of putting a property on the market usually starts with someone having a notion that they might or might not want to sell, and going to see an estate agent to take professional advice on the saleability of the property, the kind of price it might fetch and so forth. If, as is usually the case, the potential vendor is satisfied and accepts the advice, the noble Earl made it clear that the agent would expect to be able to put the property on the market straight away, particularly as he probably has a list of potential buyers known to him. But if he has first to put together a home information pack, there will be a considerable delay. That may well not suit a potential purchaser who might be keen to know whether he can get hold of the property or whether he must look elsewhere, and it certainly would not suit the seller, who in the Government's view would be prevented from jumping the gun.
In other cases the pack might appear to highlight problems where none exists. I went through some of the requirements of the home information pack on the last occasion, and I made it clear that I agreed with some of them. Although I have not checked what I said, I think I said that I agreed that the home information pack should contain information about title. However, in the light of personal experience—I do not want to personalise this, but individual cases throw up potential problems—I realise that I was wrong.
It so happens that a flat is presently on the market—it does not matter where it is—which has been sold subject to contract, the sellers being my children. If they had been asked what title they held, they would have had to answer by saying that they had none. That would seem to be an inhibitory factor to the progress of a transaction which otherwise would be perfectly straightforward since there are no problems about it. The person holding the title is almost certainly myself, as executor of my wife's estate. I will ensure that my children have the title when the time comes to honour the contract, but I do not feel constrained and I do not see why I should have to explain to a purchaser exactly how I am going to achieve that transfer. In fact, it is quite a complicated matter and one personal to myself and my family. If asked, I would give a guarantee that my children will be in a position to pass title in clue course, but why do I have to raise the question? How will it help the purchasers, my children or anyone else? All it will do is raise entirely false fears.
I turn to another case which I have mentioned before, although I had not realised quite how right I was. I refer to the home condition report. Along with many others, the flat I have just mentioned is part of a large block. The structural condition of the flat is of no

345
concern either to the sellers or to a buyer because, as is customary in these cases, the owner of the freehold or a superior lease-holding landlord bears the cost of all repairs. While it is perfectly true that that cost filters down to the individual owners of the flats, it does not do so individually. So nothing would be gained by commissioning a survey of the particular flat. There may be 20 other flats all in the same group to whose upkeep any individual flat owner would have to contribute. It would be ridiculous for the sellers of an individual flat to seek to get a survey of the whole block, and it would be equally stupid for the buyer to try to do so. The plain answer is that the only concern of the purchaser is what he will have to pay, and that he can find out by inquiring into the record of the service charge and whether there are sinking funds to deal with it. That is the information he needs; he does not need a condition survey of any kind.
4.45 p.m.
I am sure that the Minister will respond by saying that all of the above could be addressed in regulations. Perhaps that is the case, but the other problem is that we have not the slightest idea of what the regulations will contain. As I mentioned on the last occasion, when I was lobbied by the Consumers' Association, I in turn probed it on all sorts of matters. However, the answer was always, "We are still negotiating"; but ultimately the response was, "It is all an act of faith". There were at least four Bishops in the Chamber last time, so perhaps that was more appealing. However, none is in his place today. I do not believe—and I doubt whether many noble Lords would believe—in legislating on the basis of hope and faith that the Government will get it right. While I do not cast aspersions—I am sure that the Government will try to get it right—I remain far from convinced that they will do so, or even in the eyes of some that they will do so. To get it right in the eyes of all is too much of a task.
What is the alternative? The alternative is to recommend home information packs tailored to the particular transaction. There is no doubt that they would be valuable. So long as there is no delay in bringing the property to market, it could well pay a seller to put together a home information pack. By the way, I do not believe that it would be the property of the estate agent; it would belong to the seller. But when, where and how to put it together are matters very much better left to the market. There is nothing philosophical about that, it is just a plain fact and a matter of common sense.
I hope very much that noble Lords will support this group of amendments because they will enable sellers and buyers to look at the particular transaction before them—the only one they are concerned about—before deciding what to do. A buyer may refuse to do anything until he has a home information pack, while a seller may decide that it would pay to get out a home information pack before he even has a buyer who has accepted the sale. My own example is a good one in that the buyer has agreed the sale subject to contract without having a home information pack. We do not
346
really need one. All the information will be given by my children's solicitors to the other party's solicitors as and when it is needed. They will be in a position to explain why they are not giving out information on, for example, the condition of the property and on exactly how my children will get title. They will be able to do so and it will be achieved in one way or another.
For all those reasons, I wholeheartedly support this group of amendments.
Baroness Hanham: My Lords, I support the amendment moved by my noble friend Lord Hunt of Wirral. As the Front Bench team, my noble friend Lord Hanningfield and I are happy to sign up to it. My noble friend moved the amendment with a great deal of expertise and laid out—both now and on Report—very clearly the problems that we and those who support the amendment envisage in making the home information packs available on a compulsory basis.
The Minister has proffered only one reason of any resonance for having the home information packs—and that is for cases where people may be searching for more than one property. In such situations, they may have to carry out surveys on more than one property and incur extra expenditure if the sale falls through. But we are here considering expenditure on home information packs, which will have to be provided on the first day of the sale process. The cost will initially be borne by the seller but, by definition, they will become wrapped up in the cost of the purchase.
As we have said on umpteen occasions, it is extremely unlikely that the purchaser will be able to rely on these packs—particularly on the home condition report which, at the moment, is not acceptable even to mortgage lenders. Not many purchasers rely on a mortgage lender's survey—surveys are carried out for different reasons—and, if they do not do so now, they are not going to rely on a home condition report. As a result, they will end up paying for the home condition report and for an additional survey.
We have not managed entirely to tease out information on for how long these home information packs will be valid. We do not know whether they will be sufficiently robust to survive for longer than, say, three months. Properties may come on to the market and sell very quickly. If they are going to sell quickly, they will do so whether or not there is a compulsory information pack. Many matters may occur over a short course of time which may involve a new pack having to be prepared for a property at very short notice.
A great deal of bureaucracy will lie behind these information packs. The bureaucracies will have to be set up with trading standards to ensure that they are established in accordance with government legislation and government standards. We have never understood why the Government wanted to get muddled up in the property market. They have already raised enormously the cost of property by vast increases in stamp duty over the past few years. This, again, will be an additional burden.
The Minister begged in aid the support of a number of organisations within the industry, but at the Report stage most of that was shot down and we were left with

347
HBOS and the Consumers' Association backed-in behind them. But the Consumers' Association has made no attempt to work out the costs of the packs. As my noble friend Lord Hunt said, they could cost anything up to £1,000, but no one seems to know how much they will actually cost or what they will ultimately achieve.
We have opposed the compulsory nature of these packs from the outset. We can see no purpose at all in the Government intervening in this part of the market. If a seller wishes to put together all the information and have it available, that is fine—it is happening at the moment—but why try to intervene further? The Government appear to believe that this will improve the functioning of the housing market. However, the only thing that is having an effect on it at the moment is the increase in interest rates, which is beginning to depress the housing market as we speak. I do not believe that any compulsory home information pack will make the movement of houses for sale any better than it is at the moment.
I am pleased to support my noble friend's amendment. As we have said before, we believe that the Government are profoundly wrong in trying to make these packs compulsory. I support the amendment moved by my noble friend.
The Earl of Caithness: My Lords, like the noble Baroness, Lady Hamwee, I thank the Minister for the correspondence between the Report stage and now. Unlike at earlier stages, ibis correspondence reached me and I am grateful for that. It has certainly helped.
What the Government are proposing is unique in the world: no other country is seeking to do, or does, what the Government are trying to foist on to England and Wales. Scotland is not doing it; Denmark is not doing it; and New South Wales—a state, not a country, which the Government have prayed in aid—has a lesser scheme than the one they are proposing for us. None of the other states in Australia are following what it is doing.
For years the Government have been telling us that the home information pack is a marvellous device which will solve all the ills of the property buying process. If there was any truth in that statement, then all agents would be already using the packs, but very few are, and all consumers would be demanding them, which they are not. Quite clearly the Bristol trial, which was flawed in a number of respects, showed that many consumers did not use the packs when they were given them. The packs were not the success that they were supposed to be.
The consequences of having compulsory home information packs will be twofold. First, they will unquestionably reduce the number of properties on the market. At the moment, there are no costs up front for someone who wishes to put his property on the market. That will not continue, particularly when you have to bring in surveyors to carry out a home condition report. At some stage there will be a very nasty bill for the seller, whether or not the property is sold. A person who does not sell his property, for
348
whatever reason, will be faced with a great deal of abortive costs, much more than those faced by a current buyer who fails having conducted a survey.
Secondly, home information packs will reduce the flexibility for marketing. If one receives instructions to market a property, it is very important that you are able to do so immediately. The conditions that the Government are imposing will prevent that. It will mean a further delay in the housing market.
The Minister will say that research carried out by the Government is one of the reasons for the introduction of home information packs. That information was contained in a document Key Research on Easier Home Buying and Selling. Some of the wording used is questionable in its definition, but it shows that only 13 per cent of properties that did not go through to completion failed because of an unfavourable survey. That is a small percentage.
But it is even smaller than that in reality. If one accepts the national fall-through rate as being 28 per cent of all transactions—but I do not believe that it is; these are the Government's figures and I think it is more like 15 per cent from research carried out by the National Association of Estate Agents—then 13 per cent of the failures due to an unfavourable survey means that only 3.64 per cent, less than 5 per cent, of all failed transactions was due to a bad survey.
5 p.m.
As has been pointed out by my noble friend Lady Hanham, the Minister said that the big agencies were pro the pack. Of course they are pro the pack when the legislation is introduced. The reason is simple: in the pack is the home condition report. We shall discuss that in more detail on Amendment No. 40. It is purely a commercial exercise as far as the agents are concerned.
The cost of a home information pack will be a minimum of £300. That means that every year—not just the first year—there will be a £600 million bonanza for estate agents and surveyors. That is an unacceptable price to pay for a report of little value. It is only as good as the surveyor can make it. I shall come on to that in more detail on Amendment No. 40. The Minister may say that the cost of the failed transactions from the buyers' point of view is £350 million, but remedying that with a £600 million cost seems totally ludicrous.
The noble Baroness, Lady Hamwee, spoke about agents, and I confirm what she said. As an agent myself, I think it would be wrong for me to vote for something that will potentially give my firm this extra money for no benefit to the consumer.
Another concern about the home information packs is that there is no restriction on where the information will go. The noble Lord, Lord Rooker, said:
"We recognise that there are circumstances in which the seller would not want information contained in the home information pack to be disclosed to anyone outside the immediate home buying and selling process".—[Official Report, 20/10/04; col. 786.]
There can be no control at all on what happens to the contents of a home information pack.
What happens with regard to companies doing damp-proofing? What about companies providing electricity or gas to one's house, or even builders? If they set up their own team of people to do home condition reports, they will have a huge commercial market advantage. If a builder sets up a team of people to do home condition reports, his work will increase substantially. It is a wonderful ploy for people to make a lot of money but with no benefit to the consumer.
A voluntary scheme will stand or fall on its merits. If the pack can really do what the Government say it will, there should be little difficulty in agents convincing sellers to sign up for it. The Government, after all, spend large amounts of money telling us of the dangers of obesity and smoking. Perhaps they could extend their campaign to tell us of the dangers of buying a property without a home information pack. If the Consumers' Association or Which? are correct, and the majority of buyers find a pack useful, there will be pressure on sellers to produce one or risk not selling.
The Minister is keen to see the market implement his proposals. He is demonstrably less keen to allow consumers to decide whether they want them or not.
Lord Fowler: My Lords, I support the amendment of my noble friend Lord Hunt, which would make the provision of the home information pack voluntary, and I do so for this reason. What the Government are doing is totally inflexible—placing a duty on sellers to provide a home information pack in all circumstances. The Government are basically imposing a blanket duty. With that duty, as my noble friend so rightly says, comes an extra cost, which could be £800 or £1,000. It is a substantial cost.
On Report, I mentioned that between 1992 and 1998 I was the chairman of the National House-Building Council. The council, as well as other warranty organisations, provides 10-year warranties, guarantees for the buyers of new homes. I did not see why the duty in the Bill should be placed on sellers of houses covered by warranty organisations. They were already providing consumer protection of a much more profound kind than is envisaged here. I was not alone in that, as the noble Baroness also put down an amendment on that point. Indeed, I extolled the virtues of organisations such as NHBC, their high standards of inspection and the importance of their service to the public.
If I may digress for 30 seconds, little did I know that, literally as I was speaking, extolling and urging the importance of service to the public, my local authority was, without any notice, digging a foot-deep trench outside the front of my house in London, cutting off the parking area from the road. At least my car was on the outside, which is more than can be said for my neighbour, whose car was on the inside. So there is some importance in service to the public—I hope that my local authority is listening to this.
At the risk of the same thing happening again, let me say seriously that warranty organisations such as the National House-Building Council provide consumer protection in a number of ways. They provide a
350
10-year warranty; they provide a warranty based on close, stage-by-stage inspection of the house being built; and they provide a warranty that can be passed on from one owner to another. It is an important part of consumer protection, and it gives strong protection.
The question I ask is the question I asked previously: what, in addition to that protection, will be provided by the Government's proposals? The warranty is more valuable; there is no point in adding cost to the vendor of another pack; and there is no point in the additional bureaucracy which inevitably goes with that.
Frankly, in the absence of the sensible exemption that I and others urged on the Minister on Report, I have no other course but to support the amendment. However, having listened to my noble friend Lord Hunt and to the rest of the debate, I think there is a range of additional reasons why the amendment should be supported. It would be much wiser for the Government to go down the path suggested by my noble friend than the way they are going at the moment.
Lord Selsdon: My Lords, I get the feeling that I am one of a group of naughty children complaining that Nanny has said we should not do this and that we might be smacked. No one on the other side seems prepared to go into bat with the noble Nanny—I mean, the noble Lord, Lord Rooker.
I support the principle of this. The Minister was kind enough to invite us to a meeting in Committee Room 3 or 4; there he was, with the Minister from the other place and a range of officials, willing to try to co-operate. Only three Members of your Lordships' House were there. I felt that that was wrong. Then I thought, "Maybe they are not in the real world". I have already explained my role in the building field.
Since the last stage of the Bill, I asked myself what I would regard as relevant information if I were Secretary of State. I asked people who are good at selling houses. Included in the sort of things that are considered relevant information these days are health and safety. For instance, does anything near the property let off more than one decibel of noise, including aeroplanes that may go over, or rat runs in the morning? These are the sort of things that people want to know. Is there a bus route nearby that is safe for children to get back on? If you want to sell a house, you produce all the favourable information you can and then produce what the estate agent or lawyers require of you. Last time I spoke I emphasised that it was the lawyers who hold everything up. In general, when we do our own conveyancing, we do it within 24 hours. What happens with the legal brigade is that they write to each other; they cannot communicate and then say that they have been in touch—got a fax but not got one back. They delay everything. People who do not understand the legal profession think that something has gone wrong. They get extraordinarily nervous and wonder, "Is it going to go through or not? Can we proceed with buying our house?" That is part of what I would call private sector bureaucracy.
I then wondered what I would do if I were drafting this Bill. I would do very much what the noble Lord, Lord Rooker, has done, but I would not make it

351
legislation. I would go along and talk to Sir Derek Higgs or anyone who writes the combined codes such as Cadbury, and others, and see whether they could introduce a combined code for estate agents, lawyers, surveyors and everyone else involved. Within that combined code should be all the things that should or should not be done.
I am feeling sensitive because as a senior non-executive director of a medium-sized company in the construction industry, I spent the last week doing nothing but trying to interpret the combined code. I came to the conclusion that I rather like the Albanian language which has 32 letters in it. When I first went to Albania I said, "You're in a bit of a hopeless situation". They said, "No, you do not understand. Hopeless does not mean no hope: it means less hope than anything else that you can think of". Useless does not mean no use and worthless does not mean no worth. This part of the Bill is worthless and useless, but it should be turned not into a voluntary organisation but a combined code that the agents would accept.
Depending on the part of the world that one is in, if one wants to sell a house the agent will usually take time to come round and see it and then he will send a questionnaire. That questionnaire will have all sorts of questions in it. He will require that, at his own expense, a little man—who one might think was a burglar—comes round with an electronic machine and does a quick floor plan. But they do not worry about the cubic feet. I have always worked in cubic feet all my life. Everyone else works one dimensionally—flat. Cubic feet are very important when one wants to heat a building.
Then one gets a solicitor and he produces another box-ticking exercise, which he then sends to another solicitor and they all tick the boxes about whether the fittings are included or whether it would be a good idea to get below the threshold for stamp duty by saying that one is buying a washing machine for rather a large amount of money—to get below the figure and save a little. Apart from that, the exercise could just involve box ticking.
However, then it comes to the question of having a full survey, and I would hate to go back and point out the number of occasions when I had to assist people in litigation with a surveyor who says, "It's nothing to do with me old chap. I passed it to my insurers and they will deal with it". Three or four years later when the bill has risen, one is told that one may be able to help one's friend or client get some money but it will cost £30,000 to get back £120,000 because of the dry rot that was not there. The whole area is a bit of a mess because the information provided is not necessarily reliable.
If we follow health and safety regulations further down the line, in many buildings there may be a lead pipe hidden in a wall somewhere which may cause lead poisoning. One of the objectives of the information pack is health and safety. Then there is the question of whether one has re-jigged the house and installed an open-plan kitchen. If it is between the sitting area and the front door, there has to be a fire door under building regulations. Is it a conversion? Have the
352
necessary approvals been obtained and such things? I believe that 90 per cent of the housing stock in the United Kingdom would be condemned if every one of the regulations that exist at the present were followed.
Will the Minister consider for a moment whether there is something between a voluntary information pack and some form of code which the industry would be willing to accept? Then, the responsibility would rest on the shoulders of the person acting for the vendor or the buyer. It is not difficult, because most of the facts are there. Should the Minister want to know what sort of questions to ask and answer, I could provide him with several thousand that have been asked over time.
My final tip to your Lordships is, if you really want to sell your house, as you know, you put some warm bread at the back of the house as they do in supermarkets and put on some fresh coffee—which should be Arrabiata. That smell makes a friendly environment and covers up the smell of the dog and everything else. We should be enjoying this debate and not worrying. The Minister's heart is in the right place; unfortunately his soul has been misguided.
5.15 p.m.
Lord Rooker: My Lords, the noble Lord, Lord Bassam, told me that it is my function to enthuse your Lordships about the home information packs. I will try to do that without the warm bread and coffee recommended by the noble Lord, Lord Selsdon. When the noble Lord extolled some of the issues that people might think important when buying a property, there was one that he did not mention, although that is not a criticism of his speech. I have done a fair bit of looking in estate agents' windows during the passage of this Bill to see what is there. So many times I saw, in large bold capital letters, "No chain". Why is "no chain" so important? It does not say anything about the size of the property, how many rooms it has, its colour, how big the garden is, whether it is south-facing or has a garage. "No chain" is not relevant to the bricks and mortar at all, so why is it relevant?
We all know why it is relevant. It means that we will not get gummed up. Contrary to what the noble and learned Lord, Lord Donaldson, said, we are not only concerned about the property that we are buying. We need also to know how many other people are waiting to buy and sell their homes before our person can get out of his property. The chain issue is important, which is why we have repeatedly said that this measure, if it operates, has to be compulsory and not voluntary. The chain is the essential issue about compulsion.
I wish to make another point in kicking off this debate. I regret to tell your Lordships and warn you in advance that this is not a five-minute defence.
Lord Donaldson of Lymingiton: My Lords, before the Minister leaves the question of the chain, of course it is important. However, it is very simple to ask the question. The seller will want to know whether there is

353
a chain because, if there is, he will want to be able to consider alternatives. That does happen. In my own transaction, my children were asked whether there was a chain and they also inquired whether there was a chain at the other end. In the case of the first purchaser there was a chain, and shortly afterwards it broke and they could not go ahead. In the case of the second and current purchaser, he said, "No; not only is there no chain but there is no mortgage". That is very important information, but one can always ask. There is no need to put it in the information pack.
Lord Rooker: My Lords, that may be so in the odd examples given by the noble and learned Lord. However, the vast majority of properties are sold in a chain. The average chain is five or six properties long. There is no control over the rest of the chain and a fortune can be spent on reports on houses or dwellings that one does not end up buying.
Another issue must be put at the front of the debate, which relates to everyone save the noble Lord, Lord Fowler. I fully accept that he came to this debate from a different direction with regard to the national housebuilders' certification and warranty scheme. Basically, everyone who has spoken has been anti-consumer. I regret that.
Noble Lords: Oh!
Lord Rooker: My Lords, hang on a minute. That is because we are all looking at different consumers. The Government's key consumer is the buyer, not the seller. That has to be the case. I know that many buyers are also sellers, but there are massive numbers of first-time buyers. I was looking at today's press cuttings telling me that the Government are going to be defeated tonight. I have before me an article saying, "House information packs facing defeat. Lords set to reject seller's packs". I have another one from page 12 of the Guardian saying, "Bridget Jones gains in the housing market". It states:
"Figures released yesterday reveal the proportion of new mortgages taken out by single women—or singletons in Bridget-speak—buying their first home alone has more than doubled over the last 20 years".
The big gainers in this measure are first-time buyers. It is anti-consumer simply to concentrate exclusively, as virtually every speech has done, on the sellers to the exclusion of those buying. I regret that. I shall do my best to answer the points individually, but there are some key issues that we need to discuss, as this is Third Reading and it is do or die.
Contrary to the remarks made by the noble Lord, Lord Hunt, the process is broke. We reject the case that the process is not broke and that we do not need to fix it—it is broke. The starting point for this amendment should be a clear acknowledgement of the deficiencies of the present scheme. One would never think that there were any deficiencies of the present scheme, to listen to noble Lords who have spoken today, but there are major deficiencies in the home buying and selling process. In some ways, the noble Lord, Lord Hunt, ought to know
354
better, but I do not want to be too critical of him. Those deficiencies cause misery and wasted costs of hundreds and hundreds of pounds for people, as deals fall through. The emotional anxiety goes beyond the pale for some people. Those are deficiencies that this group of amendments would perpetuate.
The lead with this group of amendments is being taken, I regret to say, by the Opposition—simply by vested interests, who do not want a change and are unwilling to contemplate modernising the process.
Noble Lords: Oh!
Lord Rooker: My Lords, I am not going to sugarcoat this case. I have learnt diplomatic skills in your Lordships' House. Your Lordships may not think that I am using them at the moment, but I am. I am simply not prepared to sugar-coat the case, which must be put in as bold and stark a way as possible.
Lord Hanningfield: My Lords, I resent the Minister's remarks. I am leading on the amendments but I have no vested interests at all. As a Front-Bench speaker, I have always felt that the reports should either not be in the Bill at all or they should be voluntary. I resent the Minister's suggestion that we have vested interests.
Lord Rooker: My Lords, I am not accusing any noble Lords of having vested interests, but of putting the case for vested interests outside—for the estate agents and particularly the legal profession. Oh, here we go!
Lord Phillips of Sudbury: My Lords, we have listened to the endless depredations of the noble Lord, Lord Selsdon, about the professions, and mine in particular. Does not the Minister accept that the estate agency and legal professions will do very nicely out of the proposed amendments in Part 5—very nicely indeed?
Lord Rooker: My Lords, they do very nicely out of the fact that so many deals fall through at present, causing people extra costs, which is what we want to avoid.
We have done a lot to create sustainability in a range of policies, and this provision is an attempt to do that in the home buying and selling process. We want to create a better and fairer housing market, because we believe that the system is actually broken. There have been a lot of changes in the past 30 years—I fully accept that—and changes since I first came to Westminster. More people now own their own homes, and still more want to do so; that is never ending, and it is a free choice. But one thing that has remained constant, decade after decade, no matter which government have been in power, is that the system of buying and selling homes drives people to distraction.
The answer to many of the problems, although I do not say that it is the final answer—no one is saying that—is a better informed market. That happens in many other walks of life, and it is not rocket science. We know that markets work best when buyers and

355
sellers are in possession of relevant information, and the housing market is no exception. That has been the conclusion of every review of the problems of home buying and selling in England and Wales.
There have been quite a few reports, but I want to mention just a couple of them, because they transcend the generations. The Law Commission report on "subject to contract" agreements, for example, was laid before Parliament as long ago as January 1975. Then in 1984 there was the first report of the Conveyancing Committee, better known as the "Farrand report"—I believe that that was Julian Farrand. More recently, the previous Conservative government responded to concerns about inefficiencies in the market. The Lord Chancellor's Department report, Surrey of options for simplifying the house purchase process, published in 1993, concluded that sellers should provide property details at the outset and conveyancers could reduce the uncertainties of chains by encouraging the greater disclosure of information. So it is not as though the proposals have come fresh to this Government. They have been around for decades and have been considered by previous governments of both political persuasions.
Kate Barker is a member of the Bank of England's Monetary Policy Committee. She produced the Barker report, on which the Government will pronounce towards the end of next year. In her report, she said:
"An efficient housing market depends on buyers and sellers having available to them accurate and comprehensive information about individual properties as early as possible. This is often not the case at present, and as a result many transactions fail or take longer than necessary. Home Information Packs seek to address this market failure and, providing that they are properly researched with the industry and consumers"—
which is what the Government are intending to do—
"should reduce the risk of transaction failure and speed up the buying and selling process. I welcome the greater transparency that they are expected to bring, and would not anticipate that there will be an impact on house prices as a result of their introduction".
Unlike the opposition parties, we have taken some courage on this issue. I realise that ours is a high-risk strategy, as we have said in debating other parts of the Bill. The fact that 40,000 dwellings are marketed every week means that if we get our provisions wrong, the Government are in deep trouble. Once we start the process, we are on a conveyor belt, and there will be 40,000 annoyed people each week if it goes wrong. Therefore, it will not he introduced until we are absolutely rock solid and sure that it will work, along with the regulations and our partners and stakeholders in the industry—the buyers, lenders and everybody else. The provisions will not be introduced overnight; it will be at least early 2007 before they are introduced, and they will not be introduced then if there are any doubts that it might not work, because we will have done a complete dry run.
We want to see people taking proper responsibility for their stewardship of the housing stock, including its upkeep and energy efficiency. No link is being made in this debate between the demands for more and better use of the existing stock in creating sustainable communities and for higher energy and other standards, and the role
356
that home information packs will play in achieving those ends. That is remarkably missing from Liberal Democratic contributions today, but it is something that they have amendments on—which I shall come to in a moment. They say, "Get rid of everything, but keep the energy efficiency reports", which is a preposterous and impractical proposition, which I shall elucidate in a moment.
Noble Lords: Oh!
Lord Rooker: My Lords, I shall come back to that point, because it is part of the Liberal Democrat agenda.
All the evidence suggests that buyers and sellers are unhappy with the way in which properties are bought and sold. We know that—many people have complained about the process. Buyers are losing hundreds and hundreds of pounds on abortive surveys. Survey after survey is done on the same property, which no one ends up buying. What an absolute waste for the buyer! Noble Lords have not mentioned that at all in this debate. That is why I say that the whole thrust of the debate has been anti-consumer, if one considers it from the buyer's point of view. Many of those buyers, particularly the first-time buyers—the Bridget Joneses of this world, as it were—are the least able to afford those costs, and often bear the brunt of them.
Those costs can be crippling for hard-working families, as well as single people, and they are a cost for the economy as a whole, because they do not produce any assets. No one gains from those abortive surveys, except for the people who have carried them out and the other professionals involved. That is certainly a cost to the economy as a whole.
Baroness Hanham: My Lords, may I interrupt the Minister while he waxes so lyrical? Would he address the point that I have raised repeatedly, from Committee stage onwards, about the fact that people are not going to be able to rely on the home condition reports and will undertake surveys anyway? if they are going to do that, the Minister's whole argument falls flat on its face.
5.30 pm
Lord Rooker: Yes, my Lords, it would do—and I shall come to that. I shall come to all the issues, because I am determined that no one will be able to say that the Government did not employ the full range of arguments, whatever the result of the vote later tonight. That is what I am paid to do—and I quite enjoy it.
We have to make the point about those central issues. It is a seductive argument that we should leave it to the market and make the proposals voluntary, not compulsory. I accept that that is a seductive argument, which needs responding to. It is true that there are one or two areas of the country where the process operates voluntarily. Estate agents offering home information packs or condition surveys up front report that buyers and sellers welcome them, and many are positively enthusiastic. But penetration has been absolutely minimal in the market. We accept that, and I shall not go over the figures.

357
There are probably a couple of reasons for that. First, it is simply easier to smarket a property without one; there is no doubt about that—it is easier. Neither the sellers nor the agents acting on their behalf need to do more than provide the barest of details about the property. If that means that certain defects are not revealed initially, they might think that it is worth taking the risk. "It is for the buyer to find out about it", they would argue.
The second reason is that sellers and their agents fear that their extra efforts will not be rewarded and that others marketing without up-front information will gain at their expense. That is the issue of competition in the high street. So, it applies to sellers looking for another property who may well find that as a buyer they have to pay for surveys and searches on one or more other houses where the seller has decided not to provide the pack. That is the position across the market currently. Voluntarism will not break the mould. That is the key problem.
I turn to the issue of the number of sales that fall through. We have argued about the figures and the relevant research, and that argument should be put clearly on the record. As I said, in speaking about vested interests I cast no aspersions on any noble Lord. As I say, however, the thrust of the issue in trying to take out the compulsion element of home condition reports is whether it will support the seller's interests at the expense of the buyer's.
In no other sphere of buying and selling products in this country are the odds so stacked in favour of the seller. They have no responsibility to market the property fairly, and that situation is backed by an industry that is geared to reinforce the unequal position. The industry never takes the part of the buyer; always of the seller. That is how the market currently operates. It would suit many of the vested interests if it stayed that way.
For example, it is clearly in the estate agent's interest to achieve the best price in the shortest possible time. No one can deny that. They gain the maximum income and profit for the least amount of work. So a system that hustles buyers—and it can hustle buyers—into taking quick decisions on the basis of little or no information suits estate agents very well. It is no matter that buyers who act in haste will sometimes repent much later when they receive their reports on the property and that causes them to drop out of a purchase after they paid money for reports.
Worse still, they could go through with the purchase and find that they have bought a pig in a poke when the true story comes to light after the purchase is completed. Others will say, "They should have taken professional advice. It is their fault. Buyer beware". That is not good enough in this day and age.
Sellers are not always the gainers in a rushed sale either, particularly if their property has not been properly exposed to the full market. People talk about a quick phone call on a Monday morning to the effect, "Get the
358
property on the market. You'll get a quick sale because we have a list in the filing cabinet of people who might want this property". The buyer might say, "Hang on, I want to test the market on this". The estate agent will say, "No, we have a buyer here. We have someone very interested in this". So the buyer will also be damaged.
Lord Northbourne: My Lords, as a fellow of the Royal Institution of Chartered Surveyors, perhaps I may say to the Minister that I rather resent his comments about estate agents.
Lord Rooker: My Lords, if I am striking home, then good.
Lord Northbourne: My Lords, it is extraordinarily unfair, if I may say so, Minister. I am saying that you are not giving a correct picture of the way in which chartered estate agents and chartered surveyors behave.
Lord Rooker: My Lords, I am painting a picture of a market that does not work and disadvantages consumers. That is the point. As I have repeatedly said, I am not making personal allegations against any noble Lord, any particular company or anything like that. We know that the market does not work from the number of collapsed sales, the heartache, and the waste of assets, money and income. Left to its own, notwithstanding all the reports and inquiries that I mentioned, the profession has not done enough to deal with the situation.
I was addressing the issue of quick sales. If the estate agents were following their own guidance from the National Association of Estate Agents, they should not be able to make these quick sales over a Monday morning and afternoon. Their own guidance instructs and advises them to carry out certain procedures which could not be done in a day.
So the idea of first-day marketing—to which we may return later—is a nonsense. If the law and the National Association of Estate Agents guidance are followed, there will not be instant marketing. If there is, those so-called professional estate agents are not following the guidance of their own national association. We know that because of what they are required to do and produce from the guidance that has been issued. Later, if necessary, we can discuss that in greater detail in Amendments Nos. 31 and 32. These opposition amendments are underwriting the unfairness and inefficiency that dogs the housing market.
We understand that the seller needs reassurance—that is absolutely true—as part of the package. As I say, however, these amendments seem intent on ignoring the difficulties experienced by the buyer. I ask noble Lords to think about the buyer before they go into the Lobby to vote down the provision. The only message being sent so far to buyers is, "Grin and bear it; it is your own fault". I submit that that is not good enough.

359
I shall spend a few minutes on the issue of first-time buyers. First-time buyers have the encouragement of not having to produce a home information pack before entering the market. Nothing at all is on offer to those who already have a foot on the ladder but are faced with the lottery that passes for the current buying and selling process. We are asking people to accept a false prospectus, and that simply is not fair.
We are proposing a rounded approach which has a degree of compulsion—as I explained, because of the chains, it will not work without that—that will not be imposed overnight. There is still a huge amount of consultation to be done with buyers and lenders and all the professions that are working very positively on the department's working parties to get this right. We are proposing a rounded process and approach to help first-time buyers into sustainable home ownership and help all those who need to avoid the frustrations and costs that are their current lot. We ignore that at our peril.
The Opposition are backing a vision in which the acquisition and possession of a home is an end in itself and not one in which the home is an asset not only for the current owner but for following generations. It is short-sighted and, of course, it short-changes the buyers. Voluntarism is a virtue. I fully accept the point that the late Lord Conrad Russell made. In the vast majority of issues, people should try to find a way of resolving problems before asking Parliament and the Government to sort them out. People's automatic response to a problem should not be to say, "The Government should do something about it". If people do not do so, it will lead to loads of legislation, regulation and interference.
After due consideration of the issue—on which, as regards the criminal offence arguments in the Homes Bill before the previous general election, the Government were rightly rubbished—we have gone through processes and arrived at the considered conclusion that the voluntary approach will not work, simply because of the way in which the market operates in this country. Because of chains, a voluntary scheme will never work properly in this country. Ultimately, this is consumer protection legislation designed to turn a very stressful experience into a better one. I will not say that it can be a happy experience because I suspect that buying, selling and moving will never be a happy process. However, it could be a lot less stressful than it is now.
I turn to the industry, about which we have heard a few tales. We have had the advice of the Council of Mortgage Lenders, which of course is neutral, professional and fair. It does not exactly make the case one way or the other, but it makes a point: the voluntary system will not work. However one reads the brief that the Council of Mortgage Lenders sent to noble Lords, it still says:
"The CML finds it difficult to envisage a situation where lenders would adopt dual processes to cope with applications where there is or is not a HCR available".
It just would not work. The association makes that point.
360
In the following paragraph, the association makes a point—which, of course, no one read out—on valuations by home inspectors. In the final sentence, it states: "We hope this"—that is, the qualifications and skills of the home inspectors—
"will mean that, where they are still necessary, valuations can be provided quickly and cost effectively, using the HCR as a basis".
That may not go down too well on the Opposition Front Bench, but that is the view of the Council of Mortgage Lenders. It has been dismissed in the speeches which have been made that the biggest lender—perhaps it is HBOS—is in favour of it, but that does not matter. It is in favour of it only in the sense that it is geared up to operate the system. It has said that it will operate the system. It is not saying that it is going out to promote the Bill because it wants Royal Assent. It wants to know what Parliament's views are.
One cannot dismiss the fact that the biggest lender in the country is willing and able, and can see positive advantages in this if it is what Parliament decides. Our contacts with the main players in the industry show that their thinking is now not about if, but about when. They are looking at this issue. Many of them already have the necessary preparations and planning under way and, as it requires a degree of investment, that will accelerate quickly after the Bill gets Royal Assent and people are confident that it will happen. The home condition report is an important component of the pack. Many sales are delayed by condition-related problems, not just by the transaction. A voluntary home condition report is a bird that will never fly for everybody. There is no question about that.
I know that the noble Earl, Lord Caithness, has repeatedly claimed that reseach shows that the figure for the number of house sales that fall through is 13 per cent of transactions only and he has made the point that the figure is smaller than that. We claim that the figure is 43 per cent, based on our research. The 43 per cent failure rate is derived from the findings of the studies published on the 1998 research. In paragraph 615 of that research, the report indicated that in 13 per cent of cases the transaction failed following an unfavourable property survey commissioned by the buyer. But the research went on to say that a further 30 per cent of buyers withdrew as a consequence of their lender's valuation report. Opponents of reform tried to claim that that 30 per cent has nothing to do with the property's condition. Frankly, that is not on. I am not going to go to the wall about whether it is 43 or 41 per cent, but one thing is for sure, it is not 13 per cent.
Baroness Hamwee: My Lords, I was trying to make it clear that I accept the figure. I have no material to query it with. But if 30 per cent of transactions fall through following a lender's valuation survey and we do not have the confidence that lenders will use home condition reports as the basis for their valuations, where is this getting us?
Lord Rooker: My Lords, we are not talking about surveys of the same kind. I shall come to that in a

361
moment when I talk about the kind of survey that will take place for the home condition report, as opposed to the current lender survey. People will know more about it before they make their offer. That is the point. At the present time, it is afterwards. That is where people are being shortchanged.
The point about the costs and the energy issue is not unimportant because lots of costs are bandied around. There will still be a need for sellers to provide an energy survey if we are to comply with the European Union Energy Performance of Buildings Directive. We know that there is cross-party support for the provision of energy efficiency information to home buyers. The compulsory element of this does not seem to cause any anxiety. When it comes in, it will be an EU compulsory issue that anything bought or sold must have an energy efficiency report. We estimate that that report could cost sellers about £150 if it is done as a free-standing energy report.
Under the proposals that we are debating it would form part of the home condition report costing about £300. The home inspector will make the same input but it will produce a double benefit: the energy survey and the valuable report on condition that all the parties, including the buyer's mortgage lender, can rely on. It will help transactions to go through smoothly, that would otherwise have failed. Why does anybody have the idea that later on we could say that we have a better system and will not have reports to help buying and selling because of the European Union scheme that will cost £150? What would anybody get out of that? In this case, they get two for the price of one. Also, there would not be inspectors. But in this system we will be geared up for people who are qualified and trained to do the job.
The requirement for the energy report is an example of the state intervening for a greater good. We fully accept that. In this case, for the good of the individuals concerned, the husbandry of the nation's energy resources—we all understand the reason for that—and for the good of the planet that we all share. The same arguments apply in the case of the home condition report and, as I see it, one cannot be in favour of one without the other.
5.45 p.m.
The issue of technological change has been raised from time to time and the Opposition has said that we do not need to go down this paper-based route because we can have electronic searches and electronic conveyencing. There is nothing between us on the merits of using new technology. We want to see the maximum use possible. Unfortunately, our discussions with the industry suggest that progress is still very patchy. This is where the home information packs are important because they will provide an incentive. There is no incentive at present to get on with using electronic technology in buying and selling. The incentive is not there because of the dislocation of the market and the fact that it does not work. We think that the home information packs and technological change are complementary and need each other to work. That point has been well made.
362
On Report, reference was made to the Law Society's TransAction scheme as a good example of how a voluntary scheme can work. Noble Lords have made the point that everybody who has bought or sold has used these tick-box forms. That involves the use of standardised forms and conditions of sale that are now accepted and used by most solicitors. I regret to say that my notes do not say "all solicitors". It is clearly a good thing but TransAction has not eliminated the problems with delays and failures that the home information pack is designed to tackle. We think that our proposals will supplement and build on the TransAction scheme by adding to it the other information needed by buyers. It is curious that the Law Society is pushing for a voluntary scheme when its own experience with TransAction demonstrates its limitations. It is entirely voluntary, but I accept that if one fills the forms in one is legally liable for the answers.
I shall try to respond briefly to all the points made in the debate. I have a good deal of sympathy with the points made by the noble Lord, Lord Fowler, regarding new properties. The Government are in no way criticising the work of the National House-Building Council. It provides a first class scheme of warranties for buyers of new properties. But, as I said in the note that I sent to the noble Lord, there is a problem that, once a new home is sold, its owner could make changes that affect the structural integrity of the property, which could invalidate the warranty in such a situation so that if a second buyer were to purchase the home with the warranty, but without a home condition report, he could find himself in a situation where the property had defects and the warranty had been invalidated. There is a real problem in respect of people buying a property with a warranty because it will not cover the second and third owners of new property. I will not read into the record all of my note about the effect on the second purchaser. The Government have taken the points made by the noble Lord very seriously and they have been considered by Ministers.
The noble and learned Lord, Lord Donaldson, made a point about selling flats. I am very reluctant to comment on individual circumstances but he is right that we all bring our individual circumstances to the debate. The home condition report on a flat will not cover the structure of the block. It will cover the internal parts of the flat, the common parts that lead to it and the roof space above it, if it is accessible. But, having said that, no one in their right mind should buy a flat in a block of flats unless he finds out who is responsible for paying for, let us say, a new flat roof, whether there is a sinking fund and what is its degree, whether major works are planned in the next 12 months and whether every person in the block is due to get a bill for £4,000 or £5,000 as his contribution. One would be out of one's mind if one did not ask about that.
I am not arguing that a home condition report will do that because it does not meet the point made by the noble and learned Lord, Lord Donaldson. But the idea that people will say that it does not matter because they are not individually charged is wrong. Some of my constituents who have bought flats were individually charged to the tune of thousands of pounds. Some of

363
them were ex-council tenants who got a bill from the council for major refurbishments. It is not quite as straightforward as the current sale by the noble and learned Lord, Lord Donaldson. But I am very pleased his sale is straightforward, because I do not wish him any aggravation whatever.
As to the level of the home condition report not being acceptable to lenders, which was the point made in the intervention, I shall have to use jargon but the experts around me will know what it means. The home condition report is based on a mid-level inspection, sometimes known as "level 2". This is very similar to the level of inspection underpinning the current Royal Institution of Chartered Surveyors homebuyer's survey and valuation, which is acceptable to lenders. I explained earlier that I have gone through that process myself in the past 12 months, but in one part of the transaction only so it was not a buying and selling situation.
The home condition report inspection goes into much more detail than the simple valuation inspection—level 1—undertaken by many lenders currently. That is the answer to the noble Baroness, Lady Hamwee. There have been extensive discussions with lenders about the content of the home condition report, to ensure that it contains the information that they will need. It is crucial that the information is for their purposes.
The noble Earl, Lord Caithness, raised a point about damp-proofing companies and the builders who would gain. It is a fair example, but the government amendment on the home condition report register comes later. It is the one that my noble friend and I withdrew from debate on Report, as it was spotted by the noble Baroness, Lady Hanham. We were very unhappy; it was as much my fault as anyone else's, for not asking the right questions. Controls about what happens to the home condition report will be in the Bill, as we want to use the new clause that we will propose later. Our intention with that can be seen—it is to prohibit the use of information for direct marketing. In fact, it will be made a criminal offence. That is in the Marshalled List today in an amendment on the home condition report. It would be a criminal offence to violate the regulations.
The behaviour of home inspectors will be governed by a code of conduct. Failure to follow the code would lead to disciplinary action by the certification scheme. The code of conduct will set out the behaviour that is expected and would control the circumstances in which home inspectors could offer additional services. We envisage that the code would not permit a builder who was also a home inspector to undertake repairs identified in the home condition survey.
On behalf of all the home buyers in the country and in terms of their consumer interests, as opposed to those of sellers—they are sometimes the same people, but there are more buyers because of first-time buyers—I hope that the amendment will be rejected.
Lord Hunt of Wirral: My Lords, the debate has been wide-ranging and interesting, and I am very grateful to
364
all those who have participated. I am particularly grateful to my noble friend Lady Hanham, who asked a question of the Minister—would the purchaser not want his own survey?—that has not really been answered. Despite all that he has said, we still have not had a response to it, nor to the question posed in the very effective speech of the noble Baroness, Lady Hamwee. She pointed out that the Council of Mortgage Lenders had said that lenders may not use the home condition report, so there is the strong likelihood that the system will not work.
I am particularly grateful to the noble and learned Lord, Lord Donaldson, who pointed out that perhaps I should have omitted the party-political bluster. I apologise to him for that, because the issue is so important and I said that I wanted to be as impartial as possible. I shared with the Minister in advance some of the points that I would make, and I hope that he recognises that the issues are huge. I thank my noble friends Lord Fowler, Lord Selsdon and Lord Caithness very much for their contributions.
The key question that the Minister has not really answered is on compulsion. He sought to answer it in his first few lines when he mentioned the chain, but home information packs will not affect the chain one bit. There are a number of reasons why sales do not proceed. All that the home information pack will do is introduce an additional cost in every case, and there are 1.5 million houses for which the sales are not aborted.
It "ain't" broke, so why are we trying to fix it with the principle of compulsion? I hope that the Minister will recognise that he has not countered or addressed that principle. He finally said, "Trust us. If there are any doubts on whether the measure will work, we won't bring it in". That is quite a limp argument. Surely we should be reasonably confident that it will work. It will not work because compulsion has no place in consumer protection legislation, which always seeks to establish equality between parties. It has no place in compelling, between two private individuals, the production of the report, which will add to the cost. We should test the opinion of the House.
5.55 p.m.
On Question, Whether the said amendment (No. 29) shall be agreed to?
Their Lordships divided: Contents, 179; Not-Contents, 132.

Division No. 2

CONTENTS

Addington, L.

Bridgeman, V.

Alliance, L.

Brittan of Spennithorne, L.

Alton of Liverpool, L.

Brooke of Sutton Mandeville, L.

Ampthill, L.

Brookeborough, V.

Anelay of St Johns, B.

Brougham and Vaux, L.

Attlee, E.

Burnham, L.

Baker of Dorking, L.

Byford, B.

Beaumont of Whitley, L.

Caithness, E.

Blatch, B.

Cameron of Dillington, L

Bonham-Carter of Yarnbury, B.

Carlile of Berriew, L.

Bradshaw, L.

Carlisle of Bucklow, L.

365

Carnegy of Lour, B.

Miller of Chilthorne Domer, B.

Chadlington, L.

Miller of Hendon, B.

Chorley, L.

Monro of Langholm, L.

Clement-Jones, L.

Monson, L.

Colville of Culross, V.

Montagu of Beaulieu, L.

Colwyn, L.

Montrose, D.

Cope of Berkeley, L.[Teller]

Morris of Bolton, B.

Craig of Radley, L.

Mowbray and Stourton, L.

Craigavon, V.

Moynihan, L.

Crathorne, L.

Murton of Lindisfarne, L.

Crickhowell, L.

Neuberger, B.

Dean of Harptree, L.

Newby, L.

Dholakia, L.

Newton of Braintree, L.

Dixon-Smith, L.

Noakes, B.

Donaldson of Lymington, L.

Northover, B.

D'Souza, B.

Norton of Louth, L.

Dundee, E.

Oakeshott of Seagrove Bay, L.

Dykes, L.

O'Cathain, B.

Eden of Winton, L.

Onslow, E.

Elles, B.

Palmer, L.

Elliott of Morpeth, L.

Park of Monmouth, B.

Elton, L.

Peel, E.

Ezra, L.

Perry of Southwark, B.

Falkland, V.

Peyton of Yeovil, L.

Falkner of Margravine, B.

Phillips of Sudbury, L.

Fearn, L.

Platt of Writtle, B.

Fookes, B.

Plummer of St. Marylebone, L.

Fowler, L.

Rawlings, B.

Freeman, L.

Razzall, L.

Garden, L.

Reay, L.

Gardner of Parkes, B.

Redesdale, L.

Garel-Jones, L.

Rees, L.

Geddes, L.

Rennard, L.

Glentoran, L.

Renton, L.

Goodhart, L.

Roberts of Conwy, L.

Goschen, V.

Roberts of Llandudno, L.

Hamwee, B.

Rodgers of Quarry Bank, L.

Hanham, B.

Rogan, L.

Hanningfield, L.

Roper, L. [Teller]

Hayhoe, L.

Rotherwick, L.

Henley, L.

St John of Fawsley, L.

Hodgson of Astley Abbotts, L.

Saltoun of Abernethy, Ly.

Holme of Cheltenham, L.

Sandberg, L.

Hooper, B.

Sanderson of Bowden, L.

Hooson, L.

Scott of Needham Market, B.

Howard of Rising, L.

Seccombe, B.

Howe, E.

Selsdon, L.

Hunt of Wirral, L.

Sharman, L.

Jacobs, L.

Sharp of Guildford, B.

Jenkin of Roding, L.

Sharples, B.

Jopling, L.

Shaw of Northstead, L.

Kimball, L.

Shutt of Greetland, L.

King of Bridgwater, L.

Skelmersdale, L.

Knight of Collingtree, B.

Smith of Clifton, L.

Laing of Dunphail, L.

Steel of Aikwood, L.

Lane of Horsell, L.

Steinberg, L.

Lester of Herne Hill, L.

Stewartby, L.

Linklater of Butterstone, B.

Stoddart of Swindon, L.

Liverpool, E.

Strathclyde, L.

Livsey of Talgarth, L.

Swinfen, L.

Lucas, L.

Taverne, L.

Luke, L.

Tenby, V.

Lyell, L.

Thomas of Gresford, L.

McColl of Dulwich, L.

Thomas of Swynnerton, L.

MacGregor of Pulham Market, L.

Thomas of Walliswood, B.

Thomson of Monifieth, L.

Maclennan of Rogart, L.

Tope, L.

McNally, L.

Trenchard, V.

Maddock, B.

Trumpington, B.

Mar, C.

Vallance of Tummel, L.

Mar and Kellie, E.

Vinson, L.

Marlesford, L.

Waddington, L.

May of Oxford, L.

Wade of Chorlton, L.

Mayhew of Twysden, L.

Wakeham, L.

Methuen, L.

Wallace of Saltaire, L.

Michie of Gallanach, B.

Walmsley, B.

366

Watson of Richmond, L.

Williamson of Horton, L.

Wilcox, B.

Willoughby de Broke, L.

Williams of Crosby, B.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Irvine of Lairg, L.

Ahmed, L.

Jay of Paddington, B.

Alli, L.

Jones, L.

Amos, B. (Lord President of the Council)

King of West Bromwich, L.

Kirkhill, L.

Archer of Sandwell, L.

Lea of Crondall, L.

Ashley of Stoke, L.

Leitch, L.

Ashton of Upholland, B.

Levy, L.

Bach, L.

Lipsey, L.

Bassam of Brighton, L.

Lockwood, B.

Bernstein of Craigweil, L.

McDonagh, B.

Bhattacharyya, L.

McIntosh of Haringey, L.

Blackstone, B.

McIntosh of Hudnall, B.

Borrie, L.

MacKenzie of Culkein, L.

Bragg, L.

Mackenzie of Framwellgate, L.

Brooke of Alverthorpe, L.

McKenzie of Luton, L.

Brookman, L.

Mallalieu, B.

Burlison, L.

Massey of Darwen, B.

Campbell-Savours, L.

Maxton, L.

Carter, L.

Mitchell, L.

Chandos, V.

Morgan of Drefelin, B.

Christopher, L.

Morris of Aberavon, L.

Clark of Windermere, L.

Murphy, B.

Clarke of Hampstead, L.

O'Neill of Bengarve, B.

Clinton-Davis, L.

Parekh, L.

Cohen of Pimlico, B.

Patel, L.

Crawley, B.

Patel of Blackburn, L.

David, B.

Paul, L.

Davies of Coity, L.

Pendry, L.

Davies of Oldham, L.[Teller]

Pitkeathley, B.

Dixon, L.

Plant of Highfield, L.

Drayson, L.

Prosser, B.

Dubs, L.

Puttnam, L.

Elder, L.

Radice, L.

Evans of Parkside, L.

Rea, L.

Evans of Temple Guiting, L.

Rendell of Babergh, B.

Falkender, B.

Rooker, L.

Farrington of Ribbleton, B.

Rosser, L.

Faulkner of Worcester, L.

Rowlands, L.

Filkin, L.

Royall of Blaisdon, B.

Finlay of Llandaff, B.

Sainsbury of Turville, L.

Fyfe of Fairfield, L.

Sawyer, L.

Scotland of Asthal, B.

Gale, B.

Sewel, L.

Gavron, L.

Simon, V.

Gibson of Marker Rassen, B.

Snape, L.

Giddens, L.

Stone of Blackheath, L.

Goldsmith, L.

Taylor of Blackburn, L.

Gordon of Strathblane, L.

Temple-Morris, L.

Goudie, B.

Thornton, B.

Gould of Potternewton, B.

Tomlinson, L.

Graham of Edmonton, L.

Triesman, L

Grantchester, L.

Truscott, L.

Greengross, B.

Tunnicliffe, L.

Grocott, L. [Teller]

Turnberg, L.

Harris of Haringey, L.

Turner of Camden, B.

Harrison, L.

Wall of New Barnet, B.

Hart of Chilton, L.

Warner, L.

Haskel, L.

Warwick of Undercliffe, B.

Haworth, L.

Weatherill, L.

Hayman, B.

Whitaker, B.

Henig, B.

Whitty, L.

Hilton of Eggardon, B.

Wilkins, B.

Hollis of Heigham, B.

Williams of Elvel, L.

Hoyle, L.

Winston, L.

Hughes of Woodside, L.

Woolmer of Leeds, L.

Hunt of Kings Heath, L.

Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.
6.6 p.m.
[Amendments Nos. 30 to 32 not moved.]
Clause 152 [Duty to provide copy of home information pack on request]:
Lord Hunt of Wirral Lord Hunt of Wirral moved Amendment No. 33:
Page 106, line 28, 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."
On Question, amendment agreed to.
Clause 154 [Duty to ensure authenticity of documents in other situations]:
Lord Hunt of Wirral Lord Hunt of Wirral moved Amendment No. 34:
Page 108, line 15, 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."
On Question, amendment agreed to.
Clause 155 [Other duties of person acting as estate agent]:
Lord Hunt of Wirral Lord Hunt of Wirral moved Amendment No. 35:
Page 108, line 37, 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."
On Question, amendment agreed to.
[Amendment No. 36 not moved.]
Clause 158 [Contents of home information packs]:
[Amendments Nos. 37 to 39 not moved.]
Clause 159 [Home condition reports]:
[Amendments Nos. 40 to 42 not moved.]
[Amendment No. 43 not moved.]
Clause 161 [Power to require production of home information packs]:
Lord Hunt of Wirral Lord Hunt of Wirral moved Amendments Nos. 44 and 45:
Page 112, line 14, leave out "subsection (5)" and insert "subsections (4A) and (5)"
Page 112, line 16, 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."

On Question, amendments agreed to.
Clause 170 [Grants]:
[Amendment No. 46 not moved.]
Baroness Darcy de Knayth Baroness Darcy de Knayth moved Amendment No. 47:
After Clause 179, insert the following new clause—

PRIORITY FOR PEOPLE WHO NEED TO MOVE ON ACCESS GROUNDS
(1) The Housing Act 1996 (c. 52) is amended as follows.
(2) In section 167(2)(d) after "medical" insert ", access"."
The noble Baroness said: My Lords, I should say immediately that I have no intention of pressing the amendment and, in the same breath, warmly welcome government Amendments Nos. 54 and 64. I have left in the Marshalled List the amendment standing in my name and that of my noble friend Lady Wilkins, because we felt, with respect, that it was better because it mentioned access alongside medical and welfare grounds. That would ensure that allocation policies better reflected the social model of disability and more effectively met the housing needs of disabled people.
There have been other helpful government moves. We welcome very much the Government's commitment on Report to strengthen the statutory guidance on allocations to ensure that disabled people arc housed appropriately and to make better use of specially designed and adapted properties. We welcome the assurances given about the importance of local councils providing accessible information and effective support to disabled people in choice-based lettings. The Disability Rights Commission officials look forward to working with the Government on good practice guidance.
On Report, I was greatly cheered by the firm recognition by the noble Lord, Lord Rooker, of the need to give disabled people a right to make reasonable adaptations to rented leasehold properties, including the communal areas, and his assertion that a solution had to be found. I appreciate that it is a complex area, but disabled people urgently need a resolution, and we want to press for a timetable for consultation and a firm commitment to legislate in the area. I hope that the Minister will be able to reiterate his commitment to resolving the issue, particularly that of the communal area.
The mention of "access" in Amendment No. 47 would focus on the social model of disability. The person is disabled by the architecture and by attitudes rather than by, for example, their physical or visual impairment. The wheelchair user in a home with steps and no downstairs loo needs to move because his or her home is inaccessible, not because of a medical condition. I hope that if my noble friend Lady Wilkins reaches her place in time—we have moved on swiftly—she will expand on the medical condition. I know that she wants to refer to a case in which a person with a medical condition was allotted an accessible flat which had had £40,000-worth of adaptations but wanted to get them ripped out. Luckily, the council stopped that as housing stock would have been lost, but access is important.
I am extremely grateful to the noble Lords, Lord Rooker and Lord Bassam, and to Keith Hill, the Minister in the other place, for listening yet again and tabling Amendments Nos. 54 and 64. I understand that for some mysterious reason the word "access" caused

369
immense problems and that they could not include it. However, "disability" is mentioned in the Bill, as well as medical or welfare grounds, which should enable a clearer focus on the specific barriers facing disabled people and finding suitable housing. Furthermore, if guidance or regulations change and those issues are forgotten, there will be a specific mention of disability to which we can point in the Act.
I look forward to hearing the noble Lord, Lord Rooker, speak to his amendment and perhaps demolish ours. I beg to move.
Lord Hanningfield: My Lords, we support the amendment and hope that the Minister can give a sensible reply. As has been suggested, there are potential economies in the good use of the material that has been provided.
Baroness Maddock: My Lords, having supported the noble Baroness throughout the Bill, I am pleased that the Government have responded so well. I support the amendment.
6.15 p.m.
Lord Rooker: My Lords, by speaking now, I do not wish to exclude under our procedure the noble Baroness, Lady Wilkins, who has just arrived. We are grateful to the noble Baronesses, Lady Wilkins and Lady Darcy de Knayth, for the useful debate we had on Report. We took their points on board, and there have been useful discussions with Keith Hill from the other place as the day-to-day Minister. Government Amendments Nos. 54 and 64 are alternatives to Amendment No. 47. The reason they do not refer to "access" deserves a brief explanation. The term "access" is not defined in law, and we were concerned that it could be interpreted narrowly, compounding the problems which the noble Baronesses were trying to overcome.
In drafting the government amendments, we have sought as wide as possible a definition. We have tied "disability", a generally understood term, to both the medical and social models. Our discussions have centred around the use of the term "medical grounds" in Section 167(2)(d) of the Housing Act 1996. That section provides that people who need to move on medical or welfare grounds must be given a reasonable preference under a local authority's allocation scheme. The discussions concerned the way in which the term "medical grounds" was being interpreted by local housing authorities.
We have laid an amendment to Section 167 of the Housing Act 1996 to meet the concerns raised in the debate. Amendment No. 54 will ensure that the term "medical or welfare grounds" includes those who need to move on grounds relating to a disability.
I know that there are issues around accessible accommodation, as pointed out by the noble Lord, Lord Hanningfield, in his interjection. We want to make the best use of the properties we have. It beggars belief that sometimes properties are modified and are
370
not then used by people who could make good use of them. On Report, I gave a commitment that when our statutory code of guidance on allocations was updated next year, we would focus on disability housing registers. I will further commit that when the new clause is considered in the guidance, we will make sure to explain that people who need to move on "grounds relating to a disability" include those who have access needs as a result of their disability. This issue sometimes involves a pedantic jobsmith in the local housing department: he is doing what he thinks is his job, but sometimes it is not common sense.
Amendment No. 64 is a minor and technical amendment which allows the new clause to be commenced by order. I shall move the government amendments in due course, and I am grateful to the two noble Baronesses for raising and pursuing the matter. It makes life easier for Ministers when they are under pressure, if they can go back to the department and say, "You try standing at the Dispatch Box and saying 'No' to the Members who are raising the amendments. It is not easy, particularly when there ought to be an easier, commonsense answer". I hope that we have arrived at that.
Baroness Wilkins: My Lords, before the Minister sits down, I apologise for being absent when the amendment was moved. Business had moved so quickly. I, too, thank the Minister for understanding the importance of access issues, for listening to the arguments and for tabling a government amendment. We are grateful to him for championing the explicit reference to "access" during the passage of the Planning and Compulsory Purchase Bill. As he pointed out at the Report stage of this Bill at col. 847, he takes seriously the matter of access.
I welcome the Government's amendments, and I support Amendment No. 47, which explicitly includes "access" alongside medical or welfare grounds. I, too, stress the right of disabled people to make reasonable adaptations to rented and leasehold properties. We were greatly encouraged that the Minister recognised that there was a serious gap in the legislation and that a solution had to be found. I hope that he will press the department to consult on the matter, to timetable that consultation and to find time for legislation.
Lord Rooker: My Lords, I did not mention that because I was giving way. I will certainly continue to champion the issue, and we will do what we can to ensure that legislation is not unduly delayed.
Lord Vinson: My Lords, before the noble Lord sits down, perhaps I may make a brief intervention on the subject of access. My daughter recently purchased a house which had no doorstep. A doorstep was no longer allowed because it would interfere with the easy access of wheelchairs—something with which I can sympathise. However, the result is that every time it rains, water pours underneath the door.
So sometimes there are two sides to the question of access and of what is practical and realistic. I hope that, in drafting regulations, Ministers and those who

371
deal with building regulations will have in mind that the consequences that sometimes follow from trying to act in a kindly and generous way towards the disabled can create more problems for the householder than it solves.
Lord Rooker: My Lords, I absolutely agree with the noble Lord. It is not common sense to make a modification which assists one person but causes major problems either for others who use the property or in respect of the property itself. Clearly, there must be compromise. Common sense must be employed either in building regulations or in the modifications required.
The noble Lord raises a very practical issue. We have something like 25 million or 26 million dwellings in the country, most of which, as I think the noble Earl said earlier, are not fit. We do not replace our stock. Much of it is very old and was built before planning applications or building regulations were in place. It is only as we replace and refurbish those buildings that we can address these issues. It will not be possible to modify many old properties and make them accessible, but it is ridiculous to provide access and then to ruin a property by allowing the situation described by the noble Lord to occur.
Baroness Darcy de Knayth: My Lords, I thank all noble Lords who have spoken. I thank the noble Lord, Lord Hanningfield, for his very practical support, the noble Baroness, Lady Maddock, for her continued firm support, and the noble Lord, Lord Vinson, for his contribution. Perhaps I may say to the noble Lord, Lord Vinson, that the communal part of a property is a complex area. I understand that it could be hedged around with many provisos for landlords. In many cases, the disabled person would have to pay for the work and it could be stated in the lease that, if necessary, he would pay for the property to be put back as it was. It would be hedged around.
I make profuse apologies to my noble friend because I misinformed her. I thought that the noble Lord, Lord Rooker, could speak to his amendment, but I had forgotten that one cannot speak to an amendment on Report when it is grouped with another. I am afraid that bossiness completely overtook me and I apologise profusely.
Again, I thank all Ministers who have helped with this amendment. I thank the noble Lord for mentioning that he would encourage disabled housing registers. He absolutely understands access needs. He understands the importance of access and of keeping accessible housing in the stock. I also thank him for reiterating that he will pursue the question of leaseholds flats and communal areas in particular. The noble Lord may be grateful to know that I shall not speak when he finally moves his amendment. But I thank him and all noble Lords, and I have no hesitation in withdrawing my amendment.
Amendment, by leave, withdrawn.
Baroness Whitaker Baroness Whitaker moved Amendment No. 48:
After Clause 203, insert the following new clause—

DIRECTION TO PROVIDE ACCOMMODATION FOR GIPSIES
(1) The Secretary of State may, if at any time it appears to him to be necessary to do so, give directions to a local housing authority, requiring it to exercise its powers under section 24 of the Caravan Sites and Control of Development Act 1960 (c. 62) (power of local authorities to provide sites for caravans) to provide such sites for gipsies for the accommodation of such numbers of caravans, as may be specified in the directions.
(2) The Secretary of State shall not give any directions under subsection (1) unless either—

(a) there were gipsy caravans on unauthorised sites in the area of the local authority at the previous January count, or

(b) gipsy families had been evicted from unauthorised sites in the area of the local authority during the previous calendar year.

(3) This section comes into force at the end of the period of two years beginning with the day on which this Act is passed.
The noble Baroness said: My Lords, I regret that the otherwise immaculate Public Bill Office left my name off this amendment in the Marshalled List. It has always been there in spirit. I should also say that the noble Lord, Lord Avebury, who would have moved the amendment, is unfortunately delayed on his flight back from Brussels, so I hope that noble Lords can put up with a much less expert and knowledgeable submission.
I would like to say, however, that such expertise and knowledge as I can muster has been immeasurably enhanced by the hard work of the Commission for Racial Equality—in particular, Sasha Barton, without whom the following words would not be the same, the deputy chair, Sarah Spencer, and of course Trevor Phillips as chairman.
It is to complement the very constructive amendments already made to this Bill by the Government that I move this one. It is a failsafe. It is intended to cover a remaining gap in the Government's structure of more equal treatment of Gypsies and Travellers in housing. This is the gap which will cause harm on the—we hope—few occasions when local housing authorities have not provided sites.
It simply confers the power on the Secretary of State, if two years have elapsed and there are unauthorised encampments and/or evictions—that is, when a clear need for provision has been demonstrated—to direct the housing authority to provide it.
What otherwise can be done if the RSLs do not come forward with proper provision even after two years? I suggest that the Secretary of State has a residual responsibility to oblige provision in these circumstances. If he cannot do it, then no one else can.
We have read carefully the Government's response to my previous amendment on homelessness at Report stage. We accept their answer in part since we have not pushed the point with a further amendment. But it would be helpful if my noble friend would, in responding to Amendment No. 48, also confirm that the Secretary of State's powers under Section 210(2) of the Housing Act 1996 would be applied, if need be, to making an

373
order which specifies that conventional housing is not "suitable accommodation" for those Gypsies who have a cultural aversion to bricks and mortar, and that land or a site is so suitable. This is perfectly consistent with the legislation as it stands and, if it needed to be made, such an order would also protect human rights under Article 8 of the European Convention in the same way as the case of Price v Carmarthenshire County Council did. I beg to move.
Baroness Turner of Camden: My Lords, I rise to support the amendment in the name of the noble Lord, Lord Avebury, and moved by my noble friend Lady Whitaker. Both the noble Lord and the noble Baroness are well known for their support for the rights of Gypsy and Traveller communities, and I have supported their efforts in the past. I do so again tonight.
I acknowledge that some progress has been made. The Bill will require local housing authorities to take a strategic approach to assessing and meeting the accommodation needs of Gypsies and Travellers. They must take their needs into account when exercising their other functions, including planning, education and social care, as well as housing. All those things are very important.
But, as we have said on many occasions, the great need is for more sites. We think that the programme envisaged may not be effective unless steps are taken to provide more sites. A statutory duty to provide sites would complement and strengthen the Government's proposals. Such a duty would convey a strong message to councils that they need to deliver sites. It would also help councils to overcome local opposition.
The impression is often given that Travellers have some great advantage over local people in the planning system. That is mistaken. An estimated 90 per cent of planning applications from Travellers fell at the first attempt, as opposed to a 20 per cent failure rate from the settled community.
The Court of Appeal supported Travellers in Chichester, as did the Office of the Deputy Prime Minister, because for years the council in Chichester had ignored planning guidance and had not identified land for site development. It would make sense if a duty were created to oblige councils to provide or facilitate sites, thus avoiding from the start the main problem—the shortage of suitable sites.
The lack of temporary and permanent sites has had a devastating impact on the primary healthcare, mental health, education and general welfare of Gypsies and Traveller families in Britain. We believe that this amendment will assist the situation. I support the amendment.
6.30 p.m.
Baroness Hanham: My Lords, this is a very late stage of the Bill in which to move this amendment. We had some concerns at the previous stages about the clause, mostly related to the situation in London, which has not been helped much by a letter that I have received from the Mayor. On Monday, I asked about the
374
unauthorised use of land by Gypsies. My concern is that if this amendment goes forward, unauthorised use would become even more prevalent because it would generate the response that if there is unauthorised use and action is taken against Gypsies, then a site will be identified. I would not be able to support the amendment.
Lord Rooker: My Lords, I take on board what the noble Baroness, Lady Hanham, has said. We made changes to the Bill, through government amendments, at Report stage, and generally they were welcomed. The combination of the new planning system and the provisions that we have put in this Bill will ensure that there is a thorough understanding of local needs. It will enable local authorities to prioritise effectively and to act strategically to meet needs in their areas. We genuinely believe that that combination of systems would be undermined if the Secretary of State had the ability to issue directions which ignored the housing needs assessments that have been done, and which ignored strategies that may have been put in place.
It is true that issues were raised on Monday regarding planning permission for areas. As I said then, development requires planning permission. Just because someone owns land, does not mean to say that he can do what he wants on it.
I want to refer to local authorities. The current advice to local planning authorities on Gypsies is in Circular 1/94. If all authorities took account of advice in that circular—we have said that it is not quite working so it will be reviewed—and took a strategic view, they would have fewer problems than those that do not.
This amendment comes late and on top of what I have already said about government amendments at Report stage, giving power to direct local authorities. The amendment would completely cut across and undermine the systems that are being put in place, both in this Bill and in the planning guidance. With the best will in the world—I understand where this comes from—I say to my noble friend that it would cause a real problem.
On the specific issue, regarding the Secretary of State making an order under Section 210 of the Homelessness Act 2002, such that conventional housing is not suitable for Gypsies with a cultural aversion to bricks and mortar, the Government do not consider that such an order is necessary. Case law already requires local housing authorities to give special consideration to the needs and different lifestyles of Gypsies and Travellers in recognition of their vulnerable position as a minority group. That includes having to consider very carefully whether a homeless applicant, to whom a duty to secure accommodation is owed, has an aversion to conventional housing. It is a fair point, but there is no need for any changes in legislation or in the ability to make an order, as it is already covered as the law applies today.
Baroness Whitaker: My Lords, before my noble friend sits down, perhaps I may check something. In

375
the last paragraph of what I said, I was not asking for the Secretary of State to make such an order; just to confirm that the legislation would allow such an order. I am not quite sure whether my noble friend's answer made that clear.
Lord Rooker: My Lords, I said that the Government do not consider that an order is necessary, so we have no plans to make one. It is not necessary, because existing case law already makes provision to meet the needs of the people who, as the noble Baroness said, have an aversion to bricks and mortar. That is taken into account in existing case law, so there is no need for an order. Let us not legislate where we do not need to, as we would be legislating twice for the same thing. A long time ago, I was advised by parliamentary counsel never to put the same thing twice in a Bill as the lawyers will take two different views of it, if it is ever challenged.
Baroness Whitaker: My Lords, I thank those who have taken part in the debate—my noble friend Lady Turner and the noble Baroness, Lady Hanham. I quite understand the reservations of the Minister. I am still not absolutely sure that he understands why I asked whether Section 210 applied. In view of the time, and the fact that we are three-quarters of the way through this, I shall pursue that with him later. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 208 [Proceedings relating to tenancy deposits]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 49:
Page 162, line 32, leave out "section 207(3) or (6) has not" and insert "the initial requirements of an authorised scheme (see section 207(4)) have not, or section 207(6)(a) has not,"
The noble Lord said: My Lords, Amendments Nos. 49 and 50 are minor and technical amendments, which refine the clauses on tenancy deposit schemes. We introduced at Report stage measures to streamline the proceedings for tenancy deposits. Tenants can seek a court order where a landlord has not complied with the initial requirements of a scheme safeguarding a deposit or provided the tenant with the prescribed information within 14 days of receiving the deposit.
The court will order a landlord to pay the deposit amount into an authorised custodial scheme or repay it to the tenant. The court will also order the landlord to pay the tenant an amount equivalent to three times the deposit amount. However, it was never our intention to be harsh or unfair on landlords who had made an initial mistake but then complied with these provisions within a reasonable time. As drafted, the provisions do not allow a landlord who has missed the 14-day deadline an opportunity to rectify the situation before a court order is made.
These amendments ensure that the landlord will he obliged to repay the deposit or to pay the tenant compensation of three times the value of the deposit only if he has failed to comply with these provisions by the date of the court hearing. Our aim is to ensure that inexperienced landlords are not unduly punished or disadvantaged for missing the 14-day deadline by a few days. I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 50:
Page 162, line 39, leave out "section 207(3) or (6) has not" and insert "those requirements have not, or section 207(6)(a) has not,"
On Question, amendment agreed to.
Lord Hanningfield Lord Hanningfield moved Amendment No. 51:
After Clause 209, 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 noble Lord said: My Lords, as you will see, we have pared down this amendment to contain what is the nub of the issue, that all social housing should reach a standard assessment procedure (SAP) rating of 65. SAP is the Government's method of measuring the energy efficiency of homes. I hope that this is a completely non-controversial amendment and that it will be accepted. I believe that it should be, as I shall explain.
I shall start with a few facts. The Government have a legal duty to end fuel poverty under the Warm Homes and Energy Conservation Act 2000. The Government agree that a SAP rating of 65 is needed to ensure that. As Elliot Morley said in the House of Commons on 19 April:
"research has shown that bringing homes to a SAP rating of 65 is a level at which there is minimal risk of a household being in fuel poverty".—[Official Report, Commons, 19/4/04; col. 138W]
This amendment requires that to happen. Common sense tells us that we can all agree that—can we not? As we said from these Benches at Report, the Minister, the noble Lord, Lord Whitty, has expressed sympathy with the amendment. On 19 October, at a meeting of the All-Party Group on Warm Homes in Committee Room 17 in the House of Commons, this very point was put to the Defra Minister. He replied:
"I have sympathy with this … I am not defending ODPM".
I hope we can leave the matter there and agree the amendment. However, sadly the Government do not always act on the principle of common sense, so let us look at what will happen if the amendment is not accepted. First, the Government intend to ensure that all social homes are brought up to the current decent homes standard; secondly, that standard will not end fuel poverty; and thirdly, a large number of people will be left in fuel poverty.
Let us look at the Government's own figures. In 2001. DTLR consultation on the decent homes standard stated:
"25 per cent of social sector tenants living in homes with these stock measures are still fuel poor".
That is about 650,000 homes, or more than 1.4 million people. What about homes that do not comply even with the current standard? The latest figures show that

377
there are more than 1 million non-decent homes that would fail the current low standard on thermal insulation grounds. The current policy is to bring those homes up to decent home standard, a standard that will not, as we explained, guarantee their removal from fuel poverty.
Failing to make the amendment will lead to a vast waste of public money. Let me explain how. The Government will ensure that works are undertaken on all social homes to bring them up to decent home standard but, as I just said, that will leave a large number of people in fuel poverty. The law will require those homes to be brought out of fuel poverty, so another set of works will have to be undertaken at some stage. That double visit scenario will cost more and is wasteful. So I suggest: let us stop the waste; let us end fuel poverty and let us make the amendment. I beg to move.
Baroness Maddock: My Lords, my name is added to the amendment, and this is another cause for which I have been fighting for many years: to ensure that we use energy much more efficiently. The amendment is important because it affects more people who are in fuel poverty, which is also a cause to which the Government have signed up.
Those of us who have campaigned in this area for a long time spend our life being pleased by what the Government do and then being disappointed by their rowing back all the time. We find it irritating that the Government cannot run with these things; they have to be pushed and, many times, dragged kicking and screaming. As the noble Lord, Lord Hanningfield, said, the importance of the amendment is to bring the decent home standard up to the standard that is required for new homes. It is unfair not to try to reach that standard in social housing.
The noble Lord, Lord Hanningfield, mentioned the last meeting of the All-Party Warm Homes Group. I am a member of the group, although I could not attend the meeting because I was sitting on the Front Bench here considering the Housing Bill, but we received a rather good report of what went on there. The noble Lord, Lord Whitty, said that the standard that he thought that we should be moving to was the SAP rating of 65. Basically, he said that the reason that the Government would find that difficult is that it would be difficult to find the money, but we are talking about some of the most vulnerable people in society.
I have fought on the issue for many years now. In the late 1960s, I went to live in Scandinavia, where they had cracked the problem. Admittedly, it is much colder there, but we are talking about 30, getting on for 40 years later and we are still not dealing, with this problem. This is important, and given the Government's position on climate change and all the other reports that are coming out at the moment, it is imperative that we do this. It is in line with the Government's agreed policies on fuel poverty and on where they want to be in the environment
378
field. The Minister has told us how the environment is at the top of his agenda. If it is, the Government should jolly well accept the amendment tonight.
Lord Monson: My Lords, I acknowledge the good intentions behind the amendment, but I am surprised that it comes from the two Opposition Front Benches, as they have spent the past two and a half hours arguing against compulsion. It is difficult to see how Amendment No. 51 or, for that matter, Amendment No. 52, could possibly work without a considerable degree of compulsion.
There is another aspect. I suppose that most of us here would like to live in a snug, warm house in the winter months, but there are quite a few people of all age groups and backgrounds—I suppose that they are mainly older people—who do not want to live in a hermetically sealed fug and positively relish fresh air. They do not mind or perhaps positively like draughts, either because they think that they are good for their health, in the same way as people used to think that TB patients benefited from being exposed to the chill of winter, or because they feel, with good reason, that draughts are good for the fabric of their house or flat because they disperse condensation. For my part, I think that choice should operate here.
Lord Bassam of Brighton: My Lords, this is an interesting and valuable amendment, in that it enables your Lordships' House to give fair consideration to issues relating to fuel poverty. I must say that it was with something of a wry smile that I listened to the noble Lord, Lord Hanningfield, on the issue. The House will correct me if I am wrong, but I think that in 18 years of Conservative government we heard very little from the Conservatives in government about what they were doing to tackle fuel poverty.
6.45 p.m.
I know that it is a quarter to seven; I do not want to stimulate a long debate about the political history of the fuel poverty lobby, but I was, I suppose, in the end pleasantly surprised to see that the Conservatives had decided to latch on to the issue and hitch their wagon to the Lib Dem cause. That is exactly what they have done. Fair play to them, I suppose, if they want to score a point or two, but the issue is more important than that. I give credit to the noble Baroness, Lady Maddock, because I know that she has long been a campaigner on this issue, which I have followed myself for a number of years as a local authority member and someone concerned about standards of housing.
I shall go through the issue with some care, because I think that the Government's case is strong. The new clause proposed by the amendment would require the Secretary of State to ensure that, by 2016, all existing social housing stock should, as far as reasonably practicable, achieve the standard assessment procedure rating of no lower than 65. We discussed similar amendments on this on previous occasions, and the noble Baroness reminds us again that we have been accused of having to be dragged kicking and screaming

379
to take energy efficiency seriously. I resent that, because the Government have taken the issue very seriously for a long time.
The opposition parties cannot have it both ways. I remind the House that the decent homes programme has made more than 1 million homes decent since 1997—that is unarguable—by ensuring that homes are fit; are in good repair; have adequate heating and insulation; and have reasonably modern facilities and services. We are improving the quality of life of tenants living in those homes and at the same time making a big contribution to reducing health inequalities, fuel poverty and child poverty. I am sorry that the opposition parties continue to disregard the benefits of the decent homes programme, which will continue to be delivered.
They also overlook the fact that the decent homes programme is intended to deliver a rounded package of improvements. It would of course be possible to isolate one element of the package and to pursue a policy of perfection in one area to the detriment of the others. That is what the amendment would do, but at potentially huge cost. I draw your Lordships' attention to the fact that, if the amendment were accepted, the cost of bringing all social housing up to a standard of SAP 65 could add £3 billion to £5 billion to the cost of the decent homes programme. I suggest that the parties opposite owe it to your Lordships' House to explain exactly where that money would come from or, alternatively, what they would take out of current spending plans to enable its implementation.
I could understand the concern of some noble Lords, if the decent homes programme, as currently defined, were having a negligible effect on energy efficiency. But the simple fact is that, by 2010, it will have helped to take at least 108,000 people out of fuel poverty, as well as reducing carbon emissions by at least two megatonnes. In addition, the programme has already supported a positive upward trend in the SAP ratings of the social housing stock. The English House Condition Survey indicates that, in England, the mean SAP rating is 53.6 for local authority stock and 60.3 for registered social landlords' stock. That compares with 50.6 for all English housing.
I make no apology for reminding your Lordships' House of what has already been achieved through the decent homes programme. It is those successes that the amendment would put at risk. The SAP target of 65 that the amendment proposes is impractical and simplistic, for a number of reasons. Many homes can be decent at a lower SAP level. Some homes cannot be brought up to a standard of SAP 65 because of the way that they were initially built or because they would require significant extra work to reach the standard. Conversely, a SAP rating of 65 does not guarantee that a home has met the thermal comfort criteria. Of the homes that currently fail to reach the decent homes standard on the thermal comfort criteria, about 20 per cent have SAP ratings of 65 and above. We will sometimes have to deliver more than SAP 65 to make such homes decent.
Our objection to the amendment does not stem from a lack of ambition on our part; it is that we do not see a case for wasting resources on a symbolic SAP figure that will prevent us targeting resources intelligently. In any case, there is no sense in fixing a SAP figure in primary legislation, given the progress that I have described and the fact that the SAP methodology is under continual review.
We have a wide range of social housing stock in this country. An inflexible target would be a blunt instrument. We prefer to set ourselves targets which we can deliver, like the existing thermal comfort criteria. Some might argue that we should work towards an even higher energy-efficiency level in social housing. That would be at the expense of other basic improvements, which, we would all agree, are desperately needed to improve the living conditions of the most vulnerable members of society. Our efforts in this area should remain focused on helping the most vulnerable while maximising energy efficiency and promoting the alleviation of fuel poverty.
A target of SAP 65 for all social sector homes could cost the taxpayer an additional £3 billion to £5 billion. This Government are committed to dealing with fuel poverty and improving energy efficiency. However, we are not willing to be committed to an impractical and non-cost-effective approach such as this proposal and the amendment behind it.
Perhaps I may remind noble Lords of the progress made since 1997. We have spent £13 billion through local authorities, a 13 per cent increase in real terms. We have spent an additional £6 billion for arm's-length management organisations and PFI, including resources from SR2004. In 2001, 5 per cent of tenants living in decent homes were fuel poor, compared with 15 per cent of tenants living in non-decent homes. Those in fuel poverty after the installation of effective insulation and efficient heating will he in a better position than previously, as they will have to spend less to heat their home.
We are making real progress; we want to continue to do so in a timely and efficient way which targets resources where they are most needed. For those reasons, although I can understand some of the good spirit behind the amendment, it is ultimately one that we must reject.
Lord Hanningfield: My Lords, I thank the Minister for that reply. As a Conservative I support choice, but we are not talking about choice for the people affected. This is social housing, in which many people have no choice; they have sub-standard homes in which investment is needed. We suggest that the rating be achieved by 2016. Although the Minister quoted figures for a lot of extra expenditure, that could be phased in over time. I do not think that the Minister gave any adequate answers to the problem. In moving the amendment I suggested that we would save money by having, in addition to the general scheme, a scheme to ensure that dwellings achieved the right SAP rating, because homes would have to be visited only once.

381
I am afraid that, often, the Government like to talk about issues but do not put the money behind the infrastructure that the country needs. If they do not want to put the money behind such issues, they should not talk about them. The Government like to talk the talk, but they do not want to walk the walk. We shall therefore have to test the opinion of the House.
6.53 p.m.
On Question, Whether the said amendment (No. 51) shall be agreed to?
Their Lordships divided: Contents, 158; Not-Contents, 108.

Division No. 3

CONTENTS

Addington, L.

Hodgson of Astley Abbotts, L.

Anelay of St Johns, B.

Holme of Cheltenham, L.

Attlee, E.

Howard of Rising, L.

Beaumont of Whitley, L.

Howe, E.

Best, L.

Hunt of Wirral, L.

Blatch, B.

Jacobs, L.

Bonham-Carter of Yarnbury, B.

Jenkin of Roding, L.

Bradshaw, L.

Jopling, L.

Bridgeman, V.

Kimball, L.

Brittan of Spennithorne, L.

King of Bridgwater, L.

Brooke of Sutton Mandeville, L.

Knight of Collingtree, B.

Brougham and Vaux, L.

Laing of Dunphail, L.

Burnham, L.

Lane of Horsell, L.

Byford, B.

Lester of Herne Hill, L.

Caithness, E.

Linklater of Butterstone, B.

Cameron of Dillington, L.

Liverpool, Bp.

Carlile of Berriew, L.

Liverpool, E.

Carlisle of Bucklow, L.

Livsey of Talgarth, L.

Carnegy of Lour, B.

Luke, L.

Chadlington, L.

Lyell, L.

Clement-Jones, L.

McColl of Dulwich, L.

Colwyn, L.

Maclennan of Rogart, L.

Cope of Berkeley, L. [Teller]

McNally, L.

Crickhowell, L.

Maddock, B.

Darcy de Knayth, B.

Mar, C.

Dean of Harptree, L.

Mar and Kellie, E.

Dholakia, L.

Masham of Ilton, B.

Dixon-Smith, L.

Mayhew of Twysden, L.

Dundee, E.

Methuen, L.

Dykes, L.

Michie of Gallanach, B.

Eden of Winton, L.

Miller of Chilthorne Domer, B.

Elles, B.

Miller of Hendon, B.

Elliott of Morpeth, L.

Monro of Langholm, L.

Elton, L.

Montrose, D.

Falkland, V.

Morris of Bolton, B.

Falkner of Margravine, B.

Mowbray and Stourton, L.

Fearn, L.

Moynihan, L.

Finlay of Llandaff, B.

Murphy, B.

Fookes, B.

Murton of Lindisfarne, L.

Fowler, L.

Neuberger, B.

Freeman, L.

Newby, L.

Garden, L.

Newton of Braintree, L.

Gardner of Parkes, B.

Noakes, B.

Garel-Jones, L.

Northbourne, L.

Geddes, L.

Northover, B.

Glentoran, L.

Norton of Louth, L.

Goodhart, L.

Oakeshott of Seagrove Bay, L.

Greengross, B.

O'Cathain, B.

Hamwee, B.

Onslow, E.

Hanham, B.

Palmer, L.

Hanningfield, L.

Park of Monmouth, B.

Hayhoe, L.

Patel, L.

Henley, L.

Peel, E.

382

Phillips of Sudbury, L.

Shaw of Northstead, L.

Platt of Writtle, B.

Shutt of Greetland, L.

Powell of Bayswater, L.

Skelmersdale, L.

Prashar, B.

Smith of Clifton, L.

Rawlings, B.

Steel of Aikwood, L.

Razzall, L.

Steinberg, L.

Reay, L.

Stewartby, L.

Redesdale, L.

Strathclyde, L.

Rees, L.

Swinfen, L.

Rennard, L.

Taverne, L.

Renton, L.

Thomas of Gresford, L.

Roberts of Conwy, L.

Thomas of Swynnerton, L.

Roberts of Llandudno, L.

Thomas of Walliswood, B.

Rodgers of Quarry Bank, L.

Tope, L.

Rogan, L.

Trumpington, B.

Roper, L. [Teller]

Vallance of Tummel, L.

Rotherwick, L.

Vinson, L.

St. John of Bletso, L.

Waddington, L.

St John of Fawsley, L.

Wakeham, L.

Sandberg, L.

Wallace of Saltaire, L.

Sanderson of Bowden, L.

Walmsley, B.

Seccombe, B.

Watson of Richmond, L.

Selsdon, L.

Weatherill, L.

Sharman, L.

Wilcox, B.

Sharp of Guildford, B.

Williams of Crosby, B.

Sharples, B.

Williamson of Horton, L.

NOT-CONTENTS

Acton, L.

Hart of Chilton, L.

Alli, L.

Haskel, L.

Amos, B. (Lord President of the Council)

Haworth, L.

Henig, B.

Archer of Sandwell, L.

Hollis of Heigham, B.

Ashton of Upholland, B.

Hoyle, L.

Bach, L.

Hughes of Woodside, L.

Bassam of Brighton, L.

Hunt of Kings Heath, L.

Bhattacharyya, L.

Irvine of Lairg, L.

Borrie, L.

Jay of Paddington, B.

Brooke of Alverthorpe, L.

Jones, L.

Burlison, L.

King of West Bromwich, L.

Campbell-Savours, L.

Kirkhill, L.

Carter, L.

Layard, L.

Chandos, V.

Lea of Crondall, L.

Christopher, L.

Leitch, L.

Clark of Windermere, L.

Levy, L.

Clarke of Hampstead, L.

Lipsey, L.

Clinton-Davis, L.

Lockwood, B.

Cohen of Pimlico, B.

McDonagh, B.

Craigavon, V.

McIntosh of Hudnall, B.

Crawley, B.

MacKenzie of Culkein, L.

David, B.

Mackenzie of Framwellgate, L.

Davies of Oldham, L. [Teller]

McKenzie of Luton, L.

Drayson, L.

Maxton, L.

D'Souza, B.

Mitchell, L.

Dubs, L.

Monson, L.

Elder, L.

Morgan of Drefelin, B.

Evans of Parkside, L.

Morris of Aberavon, L.

Evans of Temple Guiting, L.

O'Neill of Bengarve, B.

Falconer of Thoroton, L. (Lord Chancellor)

Patel of Blackburn, L.

Pendry, L.

Farrington of Ribbleton, B.

Plant of Highfield, L.

Faulkner of Worcester, L.

Prosser, B.

Filkin, L.

Radice, L.

Fyfe of Fairfield, L.

Rooker, L.

Gale, B.

Rosser, L.

Gavron, L.

Rowlands, L.

Gibson of Market Rasen, B.

Royall of Blaisdon, B.

Goldsmith, L.

Sainsbury of Turville, L.

Gordon of Strathblane, L.

Sawyer, L.

Gould of Potternewton, B.

Scotland of Asthal, B.

Graham of Edmonton, L.

Sewel, L.

Grantchester, L.

Simon, V.

Grocott, L.[Teller]

Snape, L.

Harris of Haringey, L.

Stone of Blackheath, L.

Harrison, L.

Taylor of Blackburn, L.

383

Temple-Morris, L.

Wall of New Barnet, B.

Thornton, B.

Warner, L.

Tomlinson, L.

Warwick of Undercliffe, B.

Triesman, L.

Whitaker, B.

Truscott, L.

Whitty, L.

Tunnicliffe, L.

Winston, L.

Turnberg, L.

Woolmer of Leeds, L.

Turner of Camden, B.

Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.
7.5 p.m.
Baroness Hanham Baroness Hanham moved Amendment No. 52:
After Clause 209, insert the following new clause—

IMPROVEMENTS IN ENERGY EFFICIENCY
(1) For the purposes of—

(a) improving the energy efficiency of residential accommodation;

( 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 noble Baroness said: My Lords, I can be brief. We have discussed this issue in the past. It is an important amendment to which we return. The amendment would require a 20 per cent improvement in domestic energy efficiency by 2010 based on 2000 levels. That is the target that the Government assured the public—they have done so no less than 15 times—would be set as the energy efficiency aim under the Sustainable Energy Act. The noble Lord, Lord Whitty, in the House on 27 October 2003, said the same thing. That was until the Government reneged on those promises in April and reduced the level by 16 per cent.
The 20 per cent improvement is a target supported by the Energy Saving Trust, the Government's official advisers on energy efficiency; the Cabinet Office Performance and Innovation Unit, the Government's advisers on energy policy; and the Sustainable Development Commission, the Government's advisers on sustainable development.
It is also supported by more than half of the House of Commons: 340 MPs have signed Early-Day Motion 96 in support of that target. We are sometimes criticised for not supporting energy efficiency: we are now being criticised for taking it on board. But those, of course, are standards that the Government have set and should be implemented.
The DTI, Defra and the Government's Sustainable Energy Policy Network have all publicly stated in one way or another that they support the improvement that is suggested in this amendment. I beg to move.
Baroness Maddock: My Lords, I support this amendment; I have put my name to it. The noble Baroness has laid out the important points. In responding to the previous amendment, the Minister said that we were being unfair in saying that the Government did not bring forward legislation. This target was set in the Sustainable Energy Bill, which was a Private Member's Bill that I saw through this House. Other targets have been set in other Private Members' Bills. Admittedly, we cannot get them through without Government support, but many of them have been Private Members' Bills.
However, this target was in the Government's own energy White Paper and is supported by the Cabinet Office Performance and Innovation Unit. At a time when climate change is so important, when gas prices are rising—we see rises in the paper every day—it seems that that is not the time to go back on targets that will help to ensure that we have more energy efficient homes and will tackle the problems that we face with climate change. This amendment has my full support and the full support of my colleagues on the Liberal Democrat Benches.
Lord Monson: My Lords, once again I run the risk of being accused of casting aspersions on motherhood and apple pie. This is a more extreme amendment than the previous one, which embraced only social housing. This one refers to "residential accommodation", which, as such, is not defined separately in the Bill. So it must include all residential accommodation in the country; that is, all houses and flats, including owner-occupied freeholds.
If just new housing was included, that would be all right. There would not be a problem. But this must apply to existing housing, so it would involve a considerable degree of compulsion. Again, I am surprised that it is proposed by the quarters from where it comes.
Lord Rooker: My Lords, I do not think that the noble Lord, Lord Monson, should apologise for picking out the inconsistency of the Opposition: they are on a roll. We may have been caught out on this, but, in mitigation, I make the following plea. The Government have a coherent, consistent, informed and sensible approach to energy efficiency. That is the final sentence of my brief, which I thought that I would get in first before I give some information. I really resent the words used earlier, "The Government reneged". That is very unfair.
In the previous debates on this amendment, which my noble friend Lord Bassam has dealt with in the main, we have referred to the Government's existing aim, set out in the energy efficiency plan of action published last April, to secure annual carbon savings from the UK household sector of around 4.2 million tonnes by 2010.
We pointed out that savings of that size would be broadly equivalent to the 20 per cent improvement sought in this amendment. I can confirm today that

385
that is indeed the case. Achieving 4.2 million tonnes is roughly equivalent to doubling the historic 1990s rate of energy efficiency improvement. As I have said, the action plan published in April sets out a robust and substantial package of measures to deliver the savings that we need.
We have also pointed out that we have the flexibility for review and, if necessary of course, to increase the aim; a flexibility that would not be afforded under the amendment. I can confirm today that this is indeed the case. Achieving a saving of 4.2 million tonnes is roughly equivalent to doubling the historic 1990s rate of energy efficiency improvement. The action plan published in April sets out a substantial package of measures to deliver the savings we need.
We have also pointed out that we have the flexibility for review and, if necessary, to increase the aim—a flexibility that would not be afforded under this amendment. I can also confirm today that we are taking up this opportunity to look again at the target as part of the Climate Change Programme review, on which Defra will be consulting shortly. We will also be formally reviewing our energy efficiency aim in 2007, ahead of the next phase of the Energy Efficiency Commitment that is to begin in 2008.
We have an appropriate vehicle in the Sustainable Energy Act 2003 for prescribing and reviewing energy efficiency targets. The Government remain committed to energy efficiency as the most cost-effective way to meet our Energy White Paper goals and we are determined to make steady progress towards the kind of sustained savings that have been discussed.
Savings of 4.2 million tonnes of carbon represent a very significant increase in activity from current levels, and achieving those savings will require a demanding increase in activity for the energy efficiency industry. It is also important to note that the reduction in carbon savings from the household sector, compared with the White Paper estimate—which I think is what was meant by "reneging"—will be more than compensated for by an increase in projected savings from the business and public sectors. We estimate that the measures set out in the action plan will achieve carbon savings of around 12 million tonnes per year by 2010 across all sectors. That is 20 per cent greater than the original White Paper figure of 10 million tonnes and will save households and businesses more than £3 billion a year on their energy bills by 2010. If that is called "reneging" on our commitments, I am a Dutchman. I say in genuine mitigation that we have a very good tale to tell on this. A degree of inconsistency has been shown and I certainly hope that the amendment will not be pursued.
Baroness Hanham: My Lords, I thank the Minister for that reply. I was the person to use the word "reneging", but I do not propose to say any more. It
386
was no more fair of me to accuse the Government of `reneging" on something than it was for the Minister earlier to try to pin various things about home improvement packs on the Opposition. We are quits.
I hear what the Minister has said. It is clear that the Government are making some efforts, and I recall quoting all those carbon emissions targets in my speech on Report. The noble Lord did not go through them all as I did and I would not dare to go through them again because I do not remember them all. I wish to test the opinion of the House.
7,13 p.m.
On Question, Whether the said amendment (No. 52) shall be agreed to?
Their Lordships divided: Contents, 136; Not-Contents, 96.

Division No. 4

CONTENTS

Addington, L.

Howe, E.

Anelay of St Johns, B.

Howe of Aberavon, L.

Attlee, E.

Howe of Idlicote, B.

Beaumont of Whitley, L.

Inglewood, L.

Best, L.

Jacobs, L.

Blatch, B.

Jenkin of Roding, L.

Bonham-Carter of Yarnbury, B.

Jopling, L.

Bradshaw, L.

Kimball, L.

Bridgeman, V.

King of Bridgwater, L.

Brooke of Sutton Mandeville, L.

Laird, L.

Brougham and Vaux, L.

Linklater of Butterstone, B.

Burnham, L.

Liverpool, Bp.

Byford, B.

Livsey of Talgarth, L.

Cameron of Dillington, L.

Luke, L.

Carlile of Berriew, L.

Lyell, L.

Carlisle of Bucklow, L.

McColl of Dulwich, L.

Carnegy of Lour, B.

Maclennan of Rogart, L.

Chadlington, L.

McNally, L.

Clement-Jones, L.

Maddock, B.

Colwyn, L.

Mar, C.

Cope of Berkeley, L. [Teller]

Mar and Kellie, E.

Darcy de Knayth, B.

Masham of Ilton, B.

Dean of Harptree, L.

Methuen, L.

Dholakia, L.

Michie of Gallanach, B.

Dixon-Smith, L.

Miller of Chilthorne Domer, B.

D'Souza, B.

Miller of Hendon, B.

Dundee, E.

Montrose, D.

Dykes, L.

Morris of Bolton, B.

Eden of Winton, L.

Murphy, B.

Elles, B.

Murton of Lindisfarne, L.

Elliott of Morpeth, L.

Neuberger, B.

Elton, L.

Newby, L.

Falkland, V.

Newton of Braintree, L.

Falkner of Margravine, B.

Noakes, B.

Finlay of Llandaff, B.

Northbourne, L.

Fookes, B.

Northover, B.

Fowler, L.

Norton of Louth, L.

Freeman, L.

Oakeshott of Seagrove Bay, L.

Garden, L.

O'Cathain, B.

Garel-Jones, L.

Onslow, E.

Glentoran, L.

Palmer, L.

Goodhart, L.

Park of Monmouth, B.

Greengross, B.

Peel, E.

Hamwee, B.

Phillips of Sudbury, L.

Hanham, B.

Platt of Writtle, B.

Hanningfield, L.

Powell of Bayswater, L.

Henley, L.

Prashar, B.

Hodgson of Astley Abbotts, L.

Rawlings, B.

Howard of Rising, L.

Razzall, L.

387

Reay, L.

Smith of Clifton, L.

Redesdale, L.

Steel of Aikwood, L.

Rees, L.

Steinberg, L.

Rennard, L.

Swinfen, L.

Renton, L.

Taverne, L.

Roberts of Conwy, L.

Thomas of Gresford, L.

Roberts of Llandudno, L.

Thomas of Swynnerton, L.

Rodgers of Quarry Bank, L.

Thomas of Walliswood, B.

Rogan, L.

Tope, L.

Roper, L.

Trumpington, B.

Rotherwick, L.

Vinson, L.

St John of Fawsley, L.

Waddington, L.

Sandberg, L.

Wakeham, L.

Sanderson of Bowden, L.

Wallace of Saltaire, L.

Seccombe, B.

Walmsley, B.

Selsdon, L.

Watson of Richmond, L.

Sharp of Guildford, B.

Wilcox, B.

Shutt of Greetland, L. [Teller]

Williams of Crosby, B.

Skelmersdale, L.

Williamson of Horton, L.

NOT-CONTENTS

Acton, L.

Hughes of Woodside, L.

Alli, L.

Hunt of Kings Heath, L.

Amos, B. (Lord President of the Council)

Jay of Paddington, B.

Jones, L.

Archer of Sandwell, L.

King of West Bromwich, L.

Ashton of Upholland, B.

Kirkhill, L.

Bach, L.

Layard, L.

Bassam of Brighton, L.

Leitch, L.

Borrie, L.

Levy, L.

Brooke of Alverthorpe, L.

Lipsey, L.

Burlison, L.

Lockwood, B.

Campbell-Savours, L.

McIntosh of Hudnall, B.

Chandos, V.

MacKenzie of Culkein, L.

Clark of Windermere, L.

McKenzie of Luton, L.

Clarke of Hampstead, L.

Maxton, L.

Clinton-Davis, L.

Mitchell, L.

Cohen of Pimlico, B.

Monson, L.

Crawley, B.

Morgan of Drefelin, B.

Davies of Oldham, L. [Teller]

Morris of Aberavon, L.

Drayson, L.

O'Neill of Bengarve, B.

Dubs, L.

Patel of Blackburn, L.

Elder, L.

Pendry, L.

Evans of Parkside, L.

Prosser, B.

Evans of Temple Guiting, L.

Rooker, L.

Falconer of Thoroton, L. (Lord Chancellor)

Rosser, L.

Rowlands, L.

Farrington of Ribbleton, B.

Royall of Blaisdon, B.

Faulkner of Worcester, L.

Sainsbury of Turville, L.

Filkin, L.

Sawyer, L.

Fyfe of Fairfield, L.

Scotland of Asthal, B.

Gale, B.

Sewel, L.

Gavron, L.

Simon, V.

Gibson of Market Rasen, B.

Snape, L.

Goldsmith, L.

Stone of Blackheath, L.

Gordon of Strathblane, L.

Taylor of Blackburn, L.

Gould of Brookwood, L.

Thornton, B.

Gould of Potternewton, B.

Tomlinson, L.

Graham of Edmonton, L.

Triesman, L.

Grantchester, L.

Truscott, L.

Grocott, L. [Teller]

Tunnicliffe, L.

Harris of Haringey, L.

Turnberg, L.

Harrison, L.

Turner of Camden, B.

Hart of Chilton, L.

Wall of New Barnet, B.

Haskel, L.

Warner, L.

Haworth, L.

Warwick of Undercliffe, B.

Hayman, B.

Whitaker, B.

Henig, B.

Whitty, L.

Hollis of Heigham, B.

Woolmer of Leeds, L.

Hoyle, L.

Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.
7.24 p.m.
Clause 213 [Additional power to give grants .for social housing]:
Lord Best Lord Best moved Amendment No. 53:
Page 165, line 18, at end insert ", to include measures to ensure—
(a) that tenants of homes built under subsection
(2)(d) are afforded the same protection as tenants of registered social landlords in respect of—

(i) legal rights;

(ii) terms and conditions of occupancy;

(iii) rent levels;

(iv) bankruptcy of landlord or managing agent;

(v) recourse to the Independent Housing Ombudsman;

(b) that all recipients of grant under subsection (2) are subject to the same regulation in respect of—

(i) disposal of land or property which has been the subject of grant;

(ii) accountability for the use of grant;

(iii) requirements to repay or recycle grant."

The noble Lord said: My Lords, I apologise for detaining the House for one more important amendment to the Bill. Amendment No. 53 seeks to improve Clause 213, the clause which would end the requirement that has prevailed for 30 years that social housing grant—previously housing association grant—can be paid only to not-for-profit, registered, regulated housing associations.
The Government's worthy intention is to produce more and cheaper affordable housing for the same amount of public money. To achieve this, the Housing Corporation would be empowered to pay grants directly to house builders and developers. At present, house builders will obtain planning consent for any significant development only if they incorporate 25 per cent or more affordable housing. That usually means having a housing association as a partner because only the housing association has access to grant. This partnership approach is going well and has provided many thousands of affordable homes.
But because the housing associations will own, manage and maintain those properties in perpetuity, they negotiate fiercely with the house builders and developers about the standards, the quality of the fixtures and the integration of the rented homes among the housing for sale. Some noble Lords heard yesterday from a number of housing associations how intense and hard-nosed the negotiations for Section 106 deals with house builders have to be.
But, freed from the constraints of having a housing association partner, undoubtedly the house builders will be able to bid for lower levels of grant. Naturally they will want to maximise profits and possibly cut

389
corners; they may want to cherry pick the easiest opportunities—for example, putting the social housing on the worst part of a site in a ghetto that can lead to well known social problems later on.
I am grateful to the Minister for Housing and Planning, the right honourable Keith Hill, for his helpful notes on how the Government hope to resolve the obvious conflicts of interest which will arise from switching grant from not-for-profit bodies dedicated to social housing provision to house builders who have so far often resisted and opposed social housing provision in their developments.
The Government hope that a contract between the Housing Corporation and the house builder will do the trick and will hold good for decades to come, even if the house builder merges, is taken over or goes bankrupt. But how can the Housing Corporation substitute for a partner housing association's intensive negotiations and on-site contract supervision? Where will all the new corporation staff come from to handle these local negotiations in place of housing associations? In terms of the powers of inspection, regulation and intervention, the Housing Corporation would be operating with one hand tied behind its back when dealing with house builders, despite the much higher risks involved. Gone would be the powers currently held over housing associations, which even include the power to dismiss and replace board members.
In terms of ongoing housing management, the Government hope that the house builders will use registered social landlords to do the managing, even though they will not own the property. But this has serious flaws. The housing association will be picking up the pieces after the homes are built, with whatever deficiencies the development contains. The housing association will be working with less grant aid for these homes than for their own and will have to levy 17.5 per cent VAT, reducing the amount from rents available for good services.
Moreover, and most significantly, if the housing association does not own the homes it will get no part of the long-term increase in property values. Tragically, the plan is that capital gains, which have to date been recycled 100 per cent for social purposes, will be split between the Exchequer and the house builder. The expectation of those future gains for house builders will also allow them to bid for less grant at the beginning, artificially undercutting the housing association's bids on day one.
What does the Treasury gain from Clause 213? A 10 per cent or 15 per cent cut, perhaps, in the level of social housing grant. But the Audit Commission has pointed out that the initial cost of a property for rent, when viewed over its life-cycle—with the constant spending on repairs, management, maintenance and improvements—represents only about 20 per cent of the total cost of provision. So savings of 10 per cent
390
on the initial grant will save only, perhaps, 2 per cent over the longer term—and even that 2 per cent is only a saving at all if the standards are as high as under the present arrangements. Yet, in return for that small saving, there will be the losses to tenants and taxpayers of half or two-thirds of the growth in property values.
It is these capital gains that have fuelled the excellent work on community, environmental, social and welfare activities of housing associations in recent years, as exemplified by the report, Social Capital, published last week by London's 15 largest housing associations. If, in the Housing Act 1974, the Government had chosen house-builders, not housing associations, to receive the grants and to provide the social housing, all this good work would not be possible now. Thank God the housing Ministers of the past locked in all those future benefits for today's communities and residents.
If this radical and risky change is to proceed, I believe that exactly the same protections and constraints that have applied to date for housing associations, as Amendment No. 53 requires, should be demanded of the house-builders and developers. Otherwise I fear the short-term savings from some cheaper social housing today will prove illusory and, as with the efforts to accelerate the building of social housing back in the 1960s and 1970s, will end in tears. I beg to move.
7.30 p.m.
Baroness Hanham: My Lords, I support the amendment moved by the noble Lord, Lord Best. We have had the most profound anxieties about this part of the Bill ever since we first saw it. As the noble Lord said, it is inexplicable why the Government would want to create another mechanism to ensure that social housing is provided and goes to the right people at all the standards to which the noble Lord referred. We have not even touched on the management of such accommodation.
I can only assume that this is tied up with the Deputy Prime Minister's wish to see hundreds of thousands of houses plonked all over the place, containing affordable housing, and a concern that the Housing Corporation and housing associations may not be able to cope. However, the housing associations have demonstrated that they can manage this and perfectly proper partnerships have been developed between private developers and housing associations for some time. That is a perfectly sensible way forward.
I simply do not understand the Government's insistence and requirement for this provision. I therefore support very heartily the noble Lord's amendment.
Baroness Miller of Chilthorne Domer: My Lords, I believe that this is one of the most important amendments that has been tabled to the Bill. Without it, as the noble Lord, Lord Best, said, developers will be able to cherry pick and the Government can wave goodbye to any affordable housing in smaller rural settlements which, at a previous stage, the noble Lord, Lord Bassam, defended so staunchly, because

391
economies of scale simply will not encourage them. Any savings the Government think they might make will melt away as local councils have to pick up vast amounts of management costs from developments which developers have built and then walked away from.
The amendment proposes very modest safeguards to an otherwise very dangerous path.
Baroness Maddock: My Lords, I have supported the noble Lord. Lord Best, in his concerns in this area. He has put the case extremely well at every stage.
There are one or two things about which I have real concerns. The noble Lord talked about capturing equity. The reason that housing associations have managed to do so well in the past is because they recycle their money. Quite frankly, the note that we received from Keith Hill gives me no confidence at all. The Housing Corporation is therefore looking at ways of recovering a proper share of equity growth. Clearly, it has not worked out how to do it.
We have had no proof from the Government about whether this will actually provide better value for money. Yesterday, people in the housing association sector told us of a pilot experiment some years ago by a developer who was involved in the Housing Corporation and thought that this was the answer. After he did it and looked hack, it was found not to have worked, and he was extremely disappointed. I think that the Government should consider that.
I do not understand how the rent regime will work. The Government control the rents of registered social landlords and local authorities. Are they really saying that they will control the rents of these private developers? How will that work? I really cannot see it. The Government have not thought this out, and we will be in the same sort of mess as when we were desperately trying to build houses in the 1960s and 1970s. I beg the Government not to fall into that trap again.
The Lord Bishop of Liverpool: My Lords, I support the amendment of the noble Lord, Lord Best. I believe that the best housing associations have contributed significantly to social capital in our communities. The best housing associations have enabled local people to take a lead in the regeneration of their own neighbourhood. The Prime Minister has spoken very clearly about the importance of local leadership in neighbourhood community renewal. I believe that any move to circumvent the housing associations when it comes to playing their fullest part in the regeneration of local communities should be resisted. For that reason, I support the amendment.
Lord Rooker: My Lords, I want to be brief, and I shall be. It is not a question of wanting to be brief and then taking a long time.
392
I refer noble Lords to the letter sent a few days ago by the Minister, Keith Hill, on this matter. It is a very long and detailed letter relating to Clauses 213 and 214, following the debate at Report. I certainly take second place to the noble Lord, Lord Best, in championing the housing association movement, but not to anybody else. I want to make that absolutely clear.
I shall not repeat everything in the letter. I have a long speaking note that I could use but, to be honest, I think your Lordships want to come to a decision on this.
My central point is that the amendment is unnecessary. It is not that I disagree with it, but it is unnecessary. It would restrict the Housing Corporation's flexibility to shape a competition that will curtail the non-registered social landlords in how they operate and make sure that we corral them. I am not in favour of restricting the Housing Corporation's flexibility in that way. I realise that it has not Clone this before.
The issues in the amendment are precisely those that need to be dealt with. They are all very important—I am not arguing about that. The longstop power of the Secretary of State to impose conditions will, of course, be available to use where the grant conditions are not protecting tenants' interests and public funds sufficiently. As Keith Hill said, we are determined to get value for money.
I accept the noble Lord's point that we will need to treat receipts differently. It goes without saying that we cannot require non-registered social landlords to recycle and invest their receipts as we can do with registered social landlords. The Housing Corporation will have to find alternative methods of protecting its claim on the proceeds to maximise the social benefit. I am not saying that they will not come back anywhere but they will have to come back by a different route.
This measure does not mean the end of investment in registered social landlords, as some people have said. The bids will he assessed for value for money and the risks to delivery. I think that I said in Committee, when the noble Lord put down his first amendments, that we were imposing so many rules and regulations—I shall not say restrictions—on non-registered social landlords that it made you wonder why anybody would bother to get involved. There will be conditions imposed by the Housing Corporation. However, we want to test whether innovation and change in another way of providing what is a small part of the sector can give us any material advantages. That is why the clauses are in the Bill.
The amendment is unnecessary because those points will be covered by the rules that the Housing Corporation will set for the bids to be assessed.
Lord Best: My Lords, I am very grateful for the support I have had from different parts of the House and also for the Minister's rather sympathetic response. However, if I may, I shall now test the view of the House.
7.39 p.m.
On Question, Whether the said amendment (No. 53) shall be agreed to?
Their Lordships divided: Contents, 87; Not-Contents, 95.

Division No. 5

CONTENTS

Addington, L.

McNally, L.

Anelay of St Johns, B.

Maddock, B.

Attlee, E.

Mar, C.

Barker, B.

Mar and Kellie, E.

Best, L.

Masham of Ilton, B.

Bonham-Carter of Yarnbury, B.

Methuen, L.

Bradshaw, L.

Michie of Gallanach, B.

Bridgeman, V.

Miller of Chilthorne Domer, B.

Burnham, L.

Morris of Bolton, B.

Cameron of Dillington, L.

Murphy, B.

Carlile of Berriew, L.

Neuberger, B.

Carlisle of Bucklow, L.

Newby, L.

Carnegy of Lour, B.

Northbourne, L.

Clement-Jones, L.

Northover, B.

Cope of Berkeley, L.

Norton of Louth, L.

Craigavon, V.

Phillips of Sudbury, L.

Darcy de Knayth, B.

Prashar, B.

Dholakia, L. [Teller]

Razzall, L.

Dykes, L.

Rees, L.

Falkland, V.

Rennard, L.

Falkner of Margravine, B.

Renton, L.

Finlay of Llandaff, B.

Roberts of Llandudno, L. [Teller]

Fookes, B.

Fowler, L.

Rodgers of Quarry Bank, L.

Freyberg, L.

Rogan, L.

Garden, L.

Rotherwick, L.

Goodhart, L.

Seccombe, B.

Greengross, B.

Selsdon, L.

Hamwee, B.

Sharp of Guildford, B.

Hanham, B.

Sharples, B.

Hanningfield, L.

Shutt of Greetland, L.

Howe, E.

Smith of Clifton, L.

Howe of Aberavon, L.

Steel of Aikwood, L.

Howe of Idlicote, B.

Steinberg, L.

Inglewood, L.

Thomas of Gresford, L.

Jacobs, L.

Thomas of Walliswood, B.

Jenkin of Roding, L.

Tope, L.

Jopling, L.

Waddington, L.

Kimball, L.

Wakeham, L.

Linklater of Butterstone, B.

Wallace of Saltaire, L.

Liverpool, Bp.

Walmsley, B.

Livsey of Talgarth, L.

Watson of Richmond, L.

McColl of Dulwich, L.

Williams of Crosby, B.

Mackie of Benshie, L.

Williamson of Horton, L.

NOT-CONTENTS

Acton, L.

Cohen of Pimlico, B.

Alli, L.

Crawley, B.

Amos, B. (Lord President of the Council)

Davies of Oldham, L. [Teller]

Drayson, L.

Archer of Sandwell, L.

Dubs, L.

Ashton of Upholland, B.

Elder, L.

Bach, L.

Evans of Parkside, L.

Bassam of Brighton, L.

Evans of Temple Guiting, L.

Borrie, L.

Falconer of Thoroton, L. (Lord Chancellor)

Brooke of Alverthorpe, L.

Burlison, L.

Farrington of Ribbleton, B.

Campbell-Savours, L.

Faulkner of Worcester, L.

Carter of Coles, L.

Filkin, L.

Chandos, V.

Fyfe of Fairfield, L.

Clark of Windermere, L.

Gale, B.

Clarke of Hampstead, L.

Gibson of Market Rasen, B.

Clinton-Davis, L.

Goldsmith, L.

394

Gordon of Strathblane, L.

Morgan of Drefelin, B.

Gould of Brookwood, L.

Morris of Aberavon, L.

Gould of Potternewton, B.

Patel, L.

Graham of Edmonton, L.

Pendry, L.

Grantchester, L.

Pitkeathley, B.

Grocott, L. [Teller]

Prosser, B.

Harris of Haringey, L.

Radice, L.

Harrison, L.

Rooker, L.

Hart of Chilton, L.

Rosser, L.

Haskel, L.

Rowlands, L.

Haworth, L.

Royall of Blaisdon, B.

Hayman, B.

Sainsbury of Turville, L.

Henig, B.

Sawyer, L.

Hilton of Eggardon, B.

Scotland of Asthal, B.

Hollis of Heigham, B.

Sewel, L.

Hoyle, L.

Simon, V.

Hughes of Woodside, L.

Snape, L.

Hunt of Kings Heath, L.

Stone of Blackheath, L.

Jones, L.

Taylor of Blackburn, L.

Thornton, B.

King of West Bromwich, L.

Tomlinson, L.

Kirkhill, L.

Triesman, L.

Layard, L.

Truscott, L.

Leitch, L.

Tunnicliffe, L.

Lockwood, B.

Turnberg, L.

McDonagh, B.

Turner of Camden, B.

McIntosh of Haringey, L.

Wall of New Barnet, B.

McIntosh of Hudnall, B.

Warner, L.

MacKenzie of Culkein, L.

Warwick of Undercliffe, B.

McKenzie of Luton, L.

Whitaker, B.

Maxton, L.

Woolmer of Leeds, L.

Mitchell, L.

Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.
7.50 p.m.
Lord Rooker Lord Rooker moved Amendment No. 54:
After Clause 215, insert the following new clause—

ALLOCATION OF HOUSING ACCOMMODATION BY LOCAL AUTHORITIES
In section 167(2)(d) of the Housing Act 1996 (c. 52) (people to whom preference is to be given in allocating housing accommodation) after "medical or welfare grounds" insert "(including grounds relating to a disability)"."
On Question, amendment agreed to.
Clause 246 [Meaning of "house in multiple occupation"]:
Lord Rooker Lord Rooker moved Amendments Nos. 55 to 58:
Page 187, line 8, leave out from "provided" to "occupation" in line 9 and insert "in respect of at least one of those persons'"
Page 187, line 30, leave out from "provided" to "occupation" in line 31 and insert "in respect of at least one of those persons'"
Page 187, line 41, at end insert—
"(aa) provide for such amendments to have effect also for the purposes of definitions in other enactments that operate by reference to this Act;"
Page 188, line 3, leave out lines 3 to 6 and insert—
""converted building" means a building or part of a building consisting of living accommodation in which one or more units of such accommodation have been created since the building or part was constructed;"
On Question, amendments agreed to.
Clause 254 [Meaning of "lease", "tenancy", "occupier" and "owner" etc.]:
Lord Rooker Lord Rooker moved Amendments Nos. 59 to 61:
Page 193, line 21, after "113" insert "and paragraphs 3 and 11 of Schedule 7"
Page 193, line 37, leave out "or sections 231 and 232" and insert "and has effect subject to any other provision defining "occupier" for any purposes of this Act"
Page 194, line 10, after "113" insert "and paragraphs 3 and 11 of Schedule 7"
On Question, amendments agreed to.
Clause 255 [Meaning of "person having control" and 'person managing" etc.]:
Lord Rooker Lord Rooker moved Amendment No. 62:
Page 194, line 39, leave out "Part 3 house" and insert "house to which Part 3 applies"
On Question, amendment agreed to.
Clause 262 [Short title, commencement and extent]:
[Amendment No. 63 not moved.]
Lord Rooker Lord Rooker moved Amendment No. 64:
Page 196, line 30, after "214," insert "(Allocation of housing accommodation by local authorities),".
On Question, amendment agreed to.
[Amendment No. 65 not moved.]
Schedule 6 [Management orders: procedure and appeals]:
Lord Rooker Lord Rooker moved Amendments Nos. 66 and 67:
Page 224, line 35, leave out from beginning to first "of" in line 38 and insert—
"(a) the right"
Page 228, line 38, leave out "may" and insert "must"
On Question, amendments agreed to.
Schedule 7 [Further provisions regarding empty dwelling management orders]:
Lord Rooker Lord Rooker moved Amendments Nos. 68 to 70:
Page 238, leave out line 4 and insert—
"(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"

Page 245, leave out line 35 and insert—
"(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"

Page 252, line 22, leave out "may" and insert "must"
On Question, amendments agreed to.
Schedule 13 [Residential property tribunals: procedure]:
Lord Rooker Lord Rooker moved Amendment No. 71:
Page 280, line 7, after "(7)" insert "or 129(1)"
On Question, amendment agreed to.
Schedule 14 [Buildings which are not HMOs for purposes of this Act (excluding Part 1)]:
Lord Rooker Lord Rooker moved Amendments Nos. 72 to 75:
Page 284, line 17, after "fire" insert "and rescue"
Page 284, line 20, leave out sub-paragraph (2) and insert—
"(2) In sub-paragraph (1)(e) "fire and rescue authority" means a fire and rescue authority under the Fire and Rescue Services Act 2004 (c. 21)."
Page 285, line 29, leave out "by" and insert "only by persons within the following paragraphs"
Page 285, line 33, leave out "and"
On Question, amendments agreed to.
Schedule 15 [Minor and consequential amendments]:
Lord Rooker Lord Rooker moved Amendments Nos. 76 to 79:
Page 291, line 44, leave out "265(1) or (2) to make a demolition order" and insert "5 of the Housing Act 2004 to make a demolition order under section 265(1) or (2) of this Act"
Page 292, line 19, leave out from "which" to "approved" in line 21 and insert "imposes in relation to the whole of the dwelling, house in multiple occupation or building a prohibition on its use for all purposes other than any purpose"
Page 293, line 40, leave out "section 1(5) to (7)" and insert "sections 1(5) to (7) and 2(1)"
Page 296, line 12, leave out from "which" to end of line 14 and insert "imposes in relation to the whole of any premises a prohibition on their use for all purposes other than any purpose approved by the authority.""
On Question, amendments agreed to.
Lord Rooker: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Rooker.)
On Question, Bill passed, and returned to the Commons with amendments.

Human Tissue Bill
7.51 p.m.
Read a third time.
Clause 1 [Authorisation of activities Or scheduled purposes]:
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner)The Parliamentary Under-Secretary of State, Department of Health (Lord Warner) moved Amendment No. 1:
Page 3, line 3, leave out subsections (10) to (12).
The noble Lord said: My Lords, I reflected with my colleagues on the debate on the opposition amendments agreed to last week on Report, which sought to allow use of residual tissue without consent for education and training in research. As I have said before, we are a listening Government, and I recognise that some powerful points were made in support or the proposition behind the amendments. I also recognise that the amendments had broad backing from all sides of the House. At the same time the Government were also aware that, as drafted, the amendments agreed to had a very mixed effect, and that the amended Bill was likely to cause confusion to clinicians and researchers in the field.
Amendments to Clause 1 were agreed to that would allow use of residual human tissue for research education and training without consent, provided that the tissue was anonymised. Amendments were also made to Schedule 1 to allow use of residual tissue for research education and training without any consent or safeguards. Strangely, amendments made to Schedule 4, to allow use of tissue for DNA analysis in research, education and training without consent, would have the effect of requiring the tissue used for this purpose to be identifiable. Taken together, these amendments do not make sense and would have been unworkable.
Noble Lords will be pleased to hear that I am therefore now introducing amendments to remove those passed on 25 October and replace them with government amendments to achieve a similar but, I hope, more consistent and clear effect. The Government's amendments remove education and training in research techniques from Part 1 of Schedule 1, allowing that purpose to be subsumed within education and training in human health, so that it will be lawful to store and use tissue from the living for both those purposes without consent under Part 2 of Schedule 1. Amendments to Schedule 4 will similarly allow DNA analysis for education and training in research techniques without consent.
Noble Lords will notice that as a result of this, Part 2 of Schedule 1 does not now contain an explicit reference to education or training relating to research in connection with the disorders and functioning of the human body. That is because this activity is simply a sub-set of education or training relating to human health. It was necessary to single it out when the effect of the Bill was to include research training in Part 1 of the schedule alongside research itself, while the remainder of education or training relating to human health was in Part 2. However, now that we propose to include all education and training in Part 2 of the schedule, research training is simply re-absorbed into the general category of education or training relating to human health.
The two kinds of activity were mistakenly treated as needing separate references in paragraph 7 of Schedule 4, which deals with existing holdings of material for the purpose of DNA analysis, and so Amendment No. 26 corrects that. We chose this route to allowing education and training in research techniques without consent, rather than the alternative option among the opposition amendments of tissue anonymisation, for reasons of simplicity and clarity. Noble Lords spoke eloquently of the difficulty in distinguishing education and training in research from that required for clinical practice, so we considered it best to save further confusion by aligning the two. However, noble Lords should be in no doubt about the scope of this change to the Bill. It will not be a back door to research use of tissue without consent. It will not, for example, allow people to undertake research using tissue without consent, simply by involving a research trainee.
The activities of training and education in research techniques are distinct from carrying out research. Research, as we pointed out earlier in our discussions on this Bill, is concerned with creating new knowledge by addressing clearly defined questions with systematic and rigorous methods. It is not about showing medical students or technical trainees how to operate research equipment and learn techniques such as the staining of tissue samples. Storing and using tissue for these last activities will fall into Part 2 of Schedule 1 and may be done without consent. Storing and using tissue for research itself will remain in Part 1of Schedule I, requiring consent or, alternatively, anonymisation and ethical approval for the project concerned, whether or not a research trainee is taking part.
I hope that all noble Lords will welcome these amendments which fully meet the concerns expressed during debate in this House, so that we can all join in supporting the Bill as it goes forward to its final stage. I beg to move.
Earl Howe: My Lords, I am sure that I speak for noble Lords around the House generally when I say how grateful I am to the Minister for listening so carefully to the points made last week on Report, and for introducing these government amendments, which I for one very much welcome. They achieve everything that I had hoped that we could achieve. The objective, which I am sure that other noble Lords share with me, is that we should have a set of rules which are clear and workable for clinicians, researchers and teachers. We have arrived at that point, and it is to the Government's credit that they have listened so carefully. I am delighted that the main point of contention—perhaps the single largest point of contention that we were faced with when the Bill arrived in this House—has been so satisfactorily resolved.
Lord Jenkin of Roding: My Lords, this is a justification for the very long processes that we use in Parliament to put new legislation on to the statute hook. It is interesting that it has taken until the final stage of the Bill in the second House, after the argument has been advanced over many months in both Houses, before finally we have persuaded the Government that the change is necessary. I welcome the Government's amendments, as did my noble friend, but we need to recognise that that is why we have those processes for legislation.
Lord Turnberg: My Lords, I must also say how welcome the Government's amendments are and how grateful I am, and many others in the scientific community are, for the enormous amount of effort that my noble friend has put into bringing forward these amendments and making the Bill workable. This was one of the most difficult areas for the scientific community, and these amendments will make it much clearer what they can and cannot do. I take absolutely the point that this should not be seen as a back door into research without consent: indeed, I believe that it strengthens that requirement.
8 p.m.
Baroness Neuberger: My Lords, I should like to echo what noble Lords have said around the House and thank the Minister for this change, which has dealt with perhaps the biggest single objection to the Bill as it stood before Report stage. I know that the heads of medical schools, much of the research community and many of the specialist patient groups also are extremely grateful. I should also like to echo what the noble Lord, Lord Turnberg, said about this not being a back door to research using tissue without consent. It seems to me that that would be quite wrong. I think that noble Lords on all sides of the House have agreed that that should not be allowed.
Baroness Finlay of Llandaff: My Lords, I do not wish to detain the House with a long list of thanks. However, I should like to add my thanks and the thanks of those in the clinical academic community who are involved in training and education and see this as a very important group of amendments. We are most grateful to the Minister for all the negotiations and for listening, which has made this possible.
On Question, amendment agreed to.
Lord Warner Lord Warner moved Amendment No. 2:
Page 7, leave out line 13.
The noble Lord said: My Lords, you will recall that opposition amendments were proposed in Grand Committee and on Report to remove the power of magistrates to order a custodial sentence for offences under the Bill. I said then that we would look again at the point. I now propose government amendments that should meet the concerns expressed about excessive penalties available on summary conviction for these offences.
These government amendments remove the power of magistrates to order a custodial sentence where such a power has not previously existed or where the offence is triable summarily only. The effect of the changes is that offences that are triable either way relating to consent and misuse of human tissue at Clauses 5 and 8 of the Bill, to licensing offences at Clauses 25, 30 and 31 and to the DNA offence at Clause 45 will no longer attract custodial sentences on summary conviction.
Magistrates can at present order a custodial sentence in relation to most offences under the Human Organ Transplants Act 1989, which is concerned with trafficking in human organs. They will continue to be able to do so for offences transferred to the Bill from that Act.
Consequential amendments to Clause 58 relate to the position pending the coming into force of the Criminal Justice Act 2003, and consequential amendments to Clauses 51 and 59 relate to the position in Scotland and Northern Ireland.
I hope that noble Lords will agree that these amendments meet their concerns. As I have said before, the penalties are there to act as a deterrent to future misuse of human tissue and we do not expect cases to
400
come to court. Only the most serious cases would warrant a custodial sentence and this will now be following a trial by jury. I beg to move.
Earl Howe: My Lords, while this particular issue is, I am sure, in the judgment of most of us, not as salient as the issue that we have just debated, my gratitude to the Minister is none the less great for the way in which he has listened to the arguments that I and others have put forward at earlier stages on the issue of judicial penalties. This is another set of extremely welcome changes to the Bill and will, I believe, send out the right balance of messages to the research community, without in any way damaging the message that the Government rightly wish to emphasise—that it is simply not acceptable to attempt to undermine or ignore the fundamental tenets of the Bill to which we all subscribe.
Baroness Neuberger: My Lords, I, too, should like to thank the Minister for agreeing to these changes. I know that they have been much welcomed by much of the research community, which was, I think, becoming rather nervous. Like the noble Earl, Lord Howe, I believe that it is important that we stick to the principle that those concerned need to take these issues seriously. But they were, I think, overly worried, and beginning to reach a position where they perhaps would not have done some of the research that we would wish them to do. So I thank the Minister most sincerely.
Baroness Finlay of Llandaff: My Lords, we know that we are faced with a national shortage of pathologists. I think that this amendment will go a long way to ensuring that we are able to keep on trying to attract people into this specialty. It is therefore extremely important that this group of amendments has our wholehearted support.
On Question, amendment agreed to.
Lord Warner Lord Warner moved Amendment No. 3:
Page 7, line 14, leave out from "maximum" to end of line 15.
On Question, amendment agreed to.
Baroness Hayman Baroness Hayman moved Amendment No. 4:
Page 8, line 26, after "Court" insert "or the Authority"
The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendment No. 25, which was helpfully tabled by the noble Baroness, Lady Finlay, to mirror my own amendment in relation to DNA. I tabled the amendment following the intervention that I made in our debate on Report where, fundamentally, we were looking at the issue of whether we should agree to an amendment that would transfer the responsibility for scrutinising applications, to dispense with the need for consent and/or anonymisation for research purposes when there was an overwhelming public interest so to do and it was not practicable to obtain consent or to anonymise.
The debate was essentially between the Government's view that these cases would be exceptionally rare and that it would not be onerous or

401
inappropriate to involve the High Court in determining whether consent could be dispensed with in those cases and the view set out in an amendment. That amendment, which proposed to transfer the authority to make those decisions to the Human Tissue Authority, argued that, in fact, it might not be such a rare occurrence—there might be perhaps tens of these cases, or even more than 100, every year—and that it is important to develop an expertise that is available to the Human Tissue Authority, which is taking parallel decisions in other circumstances.
My suggestion was simply that—since we are currently discussing the regulatory power and the Government would have to bring forward regulations in which they could stipulate that, in the first instance, the High Court should determine these issues—there was nothing to be lost by allowing the regulations, in an enabling spirit, to confer this power either on the High Court or on the Human Tissue Authority. If the Government are right and this is a very rare instance, they can start with the High Court and see how things go. If they are correct in their analysis that very few applications come up, then the status quo can pertain, but none of us knows exactly what the circumstances will be. If we leave the Bill as it is and find that, in fact, it is a more common occurrence, we would be faced with the option of only the High Court having the powers. We would have to find parliamentary time for primary legislation in order to amend the Act.
My amendment is truly intended to be helpful to the Government Front Bench and to allow the Government flexibility, without in any way prescribing how they should deal with the issue and accepting that in the first instance they will deal with it as laid out in the Bill at the moment. I hope that my noble friend will be able to respond positively. I beg to move.
Earl Howe: My Lords, this is an extremely neat amendment that forces the Government to do nothing whatever that they do not wish to do. For that reason, I can think of no grounds for the Minister to resist it.
As the noble Baroness explained, the amendment would give the Government flexibility in the future. I agree with her that the High Court will, no doubt, be the chosen point of reference in the regulations, when they are first issued. I do not have a problem with that. As time goes on, if it transpires that there is a significant number of applications to the High Court under those regulations, it would be open to the Government to consider whether the Human Tissue Authority, rather than the High Court, might be a more appropriate point of referral for decisions of this kind. I hope that the amendment will commend itself to the Minister as a neat way forward, bearing in mind that none of us knows what the future holds. If we can, we want to allow for the two eventualities.
Lord Clement-Jones: My Lords, I support Amendment No. 4 and Amendment No. 25. Clearly, I need to go away rather more often, as the Government have demonstrated considerable flexibility between Committee and Report. I was delighted that all that
402
happened in my absence. It was therefore with some disappointment that I read that the single act of inflexibility was failure to accept that there should be greater flexibility in Clause 7 as regards research tissue from a deceased person.
I have no doubt that the noble Baroness, Lady Hayman, is right. I agree with the noble Earl, Lord Howe, that this is a well drafted amendment. The Government have to make no commitment at all at this stage. The amendment would simply enable them, if experience showed that the High Court was not a suitable place for the matters to be resolved, to change it so that the Human Tissue Authority was designated by regulation at a future stage.
Reading the difference between the responses of the noble Baroness, Lady Andrews, in Committee regarding the first part of Clause 7 with the responses on Report is instructive. There is no reason why, on further reflection and in the light of experience, the Government might not come to the conclusion that the HTA would be better than the High Court, as they have done with living human tissue—rightly, in my view.
In Committee, the noble Baroness was at pains to say that the Government did not want a bureaucratic approach. That was in response to an amendment that put forward the idea of an advisory authority taking a view on these matters. The Government have clearly accepted that the HTA is the right way of going about this but, on the matters dealt with by the amendment, the High Court is going to be a far more bureaucratic way of dealing with them. I am sure that that will be demonstrated by experience, in terms of the type of expert witnesses required and the battery of lawyers that may well be required as well. The HTA could solve this in a much better way. There are many examples. The Human Fertilisation and Embryology Authority, which deals with other matters, is able to take decisions in a much more flexible way.
The Government's single reason for resisting that approach is that the cases are so exceptional that the only appropriate place to deal with them is the High Court. That again must be seen in the light of experience. At this stage, we do not know whether that will be the case, whether there will be quite a number of applications, or whether they will find proceeding through the High Court a problem in terms of timing and urgency.
I urge the Minister to reconsider the matter. All he has to do is indicate that the Government are prepared to keep their options open. Surely that is what all governments do.
Baroness Finlay of Llandaff: My Lords, as the noble Baroness, Lady Hayman, said, my amendment mirrors hers; she has already laid out the arguments for that. It would simply allow the Government to have flexibility. If many applications came forward, the Secretary of State could decide what was to be given as a power to the authority. That would not bind anyone into anything at this stage.

403
It is worth remembering that applications to the High Court are generally required where there are exceptional issues of life and liberty to be determined—where the consequences of decision-making are serious and grave. Quite a few requests may come forward that would not fulfil those criteria, but where the potential benefit to the health of the public of undertaking the research outweighs the risk of harm to the rights of the individuals concerned, the Human Tissue Authority may turn out to be the appropriate forum. It certainly would be less costly. The amendment would ensure appropriate expertise and independent scrutiny of an application, protect those from whom the samples had come, and allow the authority to consider the issues properly. The powers may never be needed, but if they were they would be in the Bill.
8.15 p.m.
Lord Jenkin of Roding: My Lords, in Grand Committee. I accused the Government of intransigence. I feel very much inclined to apologise and withdraw that charge, because of the large number of amendments that the Government tabled on Report and have tabled again today to meet the arguments advanced in Committee. I find myself wholly persuaded on this amendment by the arguments adopted and the case for flexibility. No one actually knows what the demand for the use of the clause might be. I would be able to withdraw the charge of intransigence with complete confidence if the Minister were to accept the amendment.
Lord Warner: My Lords, it is with some hesitation that I respond to the amendments; I do not wish to break the spell of harmony of our earlier stages. I welcome back the noble Lord, Lord Clement-Jones—our tabling the amendments on Report was nothing to do with his absence. I fully recognise the constructive thinking behind the amendments tabled by my noble friend and the noble Baroness, Lady Finlay. However, I hope that I can have a go at giving the grounds for the Government's position.
We accept that the amendments represent what might be described as a compromise approach, following Report. I understand where people are coming from in giving the Secretary of State the flexibility proposed in the amendments. However, underpinning the amendments is a belief that there could be a large volume of cases. Although I recognise the concern being expressed, it is that assumption with which I have to disagree.
The cases that we are considering in the context of Clause 7(4) are by definition rare. They will be ones where there is an urgent and immediate matter of public interest. That being the case, the High Court remains the appropriate forum for consideration. The noble Earl, Lord Howe, in speaking to his amendment on Report, said that the need for an order could arise quite frequently. He set out several scenarios in which he considered that one might be needed. Those were: where it was unclear whether a patient's previous consent was sufficiently broad to cover the research in
404
question; where the consent was unclear because of a failure of record-keeping; where a patient with a rare condition can no longer be traced and anonymisation is difficult because all practitioners in the field are familiar with the patient; and where a person has died of a rare condition and has neither friends nor relatives who could give consent.
Those arguments fail to take account of several highly relevant points. First, the power in Clause 7(4) is certainly not intended to provide a back-up for failures in record-keeping. It will provide only for cases of overwhelming public interest. As my honourable friend said in another place when we brought the provision into the Bill, it is there primarily to deal with situations involving the deceased, such as the death of a person with an unknown virus having just arrived through Heathrow, or in a terrorist attack using biological material. These are highly unusual situations and would call on the need for an overriding public interest.
Secondly, the order provides for the only situation under the Bill where research using the bodies of the deceased can be carried on without consent. There has long been a clear consensus against the state requisitioning unclaimed bodies for research or education purposes. The current power, under the Anatomy Act 1984, to use such bodies has never been used and is now being removed. We should approach this issue with extreme caution. The noble Earl, Lord Howe, suggested that the most likely case would be regarding the deceased where there was no possibility of obtaining consent. Yet there is no evidence that routine cases of that sort would require research in the overwhelming public interest. In the light of Alder Hey and other events, the control mechanism in such cases needs to be at the highest level. That point was made to me forcefully in a recent letter from Professor Margot Brazier, the former chair of the Retained Organs Commission. Anxious about this and other amendments being proposed, Professor Brazier described them as "deeply disturbing", because they would erode the confidence that is being built around an ethical framework of consent.
Thirdly, in the case of tissue from living persons, other means are available for using tissue for research, without resorting to orders under Clause 7. These are: first and foremost, with the consent of the patient; secondly, in the case of incapacitated patients, under regulations that will be consistent with research allowed under the Mental Capacity Bill or clinical trials regulations; in all cases, with Research Ethics Committee approval and anonymisation; and, in cases of major public health concern, it would most likely fall within the public health monitoring exception.
Most typically, if consent has not been sought or given, then REC-approved research with anonymisation will be the norm. The noble Earl referred to cases of very rare diseases where all practitioners are familiar with the patient and the patient cannot be found. Is it really a frequent occurrence that there is a disease so rare that all patients are known to all practitioners by sight of their tissue samples, yet none of them knows how to contact the patient? Those would be extraordinary circumstances that are highly unlikely to occur.

405
This power will not be applied to everyday situations, but only to truly exceptional cases. It is not comparable to the situation regarding confidentiality. The number of applications made to PIAG is not a relevant comparison, because the court order is not intended to provide a fall back for all cases where, for residual samples, obtaining consent or carrying out research anonymously proves difficult. The Government have made clear their intention that the regulations that will come before Parliament will provide only for rare circumstances where the overwhelming public interest requires consent to be deemed to be in place. The precise circumstances in which it will be exercised are, by definition, not yet known. So there will not be a flood of cases. The regulations will simply not allow that.
I hope that my noble friend will withdraw her amendments and that I will not lose my growing reputation with the noble Lord, Lord Jenkin, for avoiding intransigence.
Lord Turnberg: My Lords, before my noble friend sits down, perhaps I may ask for clarification. He has made a good case in relation to deceased people and the need to seek permission for research in the circumstances that we are discussing. Those may well be rare in relation to deceased persons, but subsection 4(d) describes,
"the storage for use for that purpose of any relevant material which has come from a human body".
Paragraph (e) also refers to "a human body". If that relates only to a deceased human body, the description given by the Minister would seem to be reasonable and rational. But if that relates to a human body that is living or dead—"living" being the operative word—would not that conflict with subsections (1) and (2) of this clause? I find that difficult to understand.
Lord Warner: My Lords, I was trying to deal with the two categories in my remarks, which I hesitate to repeat. The overwhelming point is that whatever the sets of circumstances, they will be rare and extremely unusual. Already there are a large number of ways of securing the use of tissue from a living body—the point my noble friend is making—in the ways I outlined.
My central point is that the powers in the Bill enable the Secretary of State to frame regulations which take account of those very rare circumstances which would go to the High Court. We must let time pass, but we are confident that because we are dealing with a very unusual set of circumstances in the cases covered, there will be no problem for the great majority of people. They are covered in the provisions throughout the Bill, living or dead. We are talking about a very unusual set of circumstances in which there may need to be an application to the High Court and the regulations will define those circumstances.
Baroness Hayman: My Lords, I listened carefully to what my noble friend said, but there is a circular logic to it; that the regulations will determine the number of applications and therefore ensure that it is small. Circumstances will actually determine the cases in
406
which applications are made. I fully accept that at present none of us envisages that there will be a large number of such circumstances, but I am tempted to say that there are more things in Heaven and earth than in my noble friend's philosophy. It may have been prudent to allow a little flexibility to be available as a backstop if necessary. I do not believe that that would erode confidence in the system.
I hope that the Human Tissue Authority will build up confidence in it; that over time, through its decisions and the way in which it conducts itself, people will have more confidence in the authority as a specialist in this area than simply in an application to the High Court. Looking to the future, I hope that we shall see the Human Tissue Authority as an important player and, it is to be hoped, a respected one. However, my noble friend has not found himself able to move in this area and I do not want to destroy harmony. Perhaps he will not receive the accolades of the noble Lord opposite, but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 [Restriction of activities in relation to donated material]:
Lord Warner Lord Warner moved Amendments Nos. 5 and 6:
Page 9, leave out line 3.
Page 9, line 4, leave out from "maximum" to end of line 5.
On Question, amendments agreed to.
Clause 11 [Coroners]:
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 7:
Page 10, line 42, after "for" insert "current or future"
The noble Baroness said: My Lords, I am grateful to the Minister for his detailed letter addressing my concern over Article 2 of the Human Rights Act. Some issues warrant clarification as we do not have the revised coroners' rules before us. First, no one is talking about the retention of whole organs. No one would consider the retention of anything without that information being available to the next of kin.
I am deeply offended by correspondence that has suggested that I am in any way whatever trying to allow or defend the actions of Dr van Velzen and others. I am trying to protect human rights. I am trying to ensure that post-mortems properly sample to establish microscopic confirmation of macroscopic appearances; that the quality of every post-mortem is of the highest standard; that the findings are explained fully to the bereaved and that they are involved and informed at every part of the process; and that everyone has the right to justice. Secondly, we need clarification of exactly when the coroner is functus. If we are able to recognise that that may never be the case, then there is recognition of the ability to reopen an inquest.
8.30 p.m.
In retaining tissue, appropriate to the ability to revisit, the amount retained is sufficient only to allow the issues raised by a death to be addressed. In the

407
majority of cases, that will entail blocks and slides. All other tissue should be returned to the body—if possible, prior to burial or cremation. If that is not possible, the coroner's consent form applies. That form, as it stands, states that,
"the coroner has legal power to order a full post mortem, including removal of body fluids and tissues for laboratory examination, and the taking of X-rays and other images".
The form is designed to help relatives to understand what is involved in the post-mortem examination ordered by the coroner. It states:
"During the examination, samples of body fluids and tissues may be removed for laboratory examination. Tissue samples are made into blocks and slides for examination with a microscope. Any tissue remaining from this process (residual tissue) will usually be disposed of. Blocks and slides are kept indefinitely as part of the medical record or in case they are needed in the future for further tests relating to the cause of death or your partner or relative's treatment".
The form then goes on to record officially what has been agreed with the relatives about what will happen to the body and organs once the coroner's duties are complete. It also provides an opportunity to donate tissue or organs from the body for medical education or research. Those tissues are part of the record; they are not pieces of evidence, such as a shoe or a knife. The slides are as important as clinical photographs, the drug chart, the record of clinical observations or the results of biochemical analysis.
What makes a coroner satisfied that an inquest after post-mortem is unnecessary? That is a judgment on balance of probabilities at the time. If the pathologist finds a "natural cause of death" at post-mortem, we need to ask what that means. When the anatomical cause of death is a natural disease process, that does not per se, after Middleton and particularly after the tragedy of Touche, mean that the death itself is natural. The circumstances of the death can demonstrate culpability for failure to save life.
If there is a serial failure of care, or another Allitt or Shipman, it may be essential to revisit material in order to clarify the circumstance. If there has been a wrongful conviction, as I cited in example on Report, there must be the right to clear one's name. If a new genetic test comes to light, families must be able to test the sample and realise that the death was due to a genetic anomaly and not their fault. They deserve to be absolved of guilt.
Therefore, if the blocks and all slides are handed back to every family in that acute phase of severe bereavement, then the convicted person must have the right to ask the court to retain some tissue, even when an appeal has failed. And every bereaved relative in every case when fully informed consent is sought must, as part of the process of being fully informed, have it explained in detail that if tissue is not retained, then if a failure of care comes to light later, they may have no redress.
If this legislation is comfortable with that potential distress to the bereaved or to the wrongfully convicted, so be it. I have consulted widely and several sound
408
legal opinions confirm my concerns. With the Bill as it now stands, I am concerned that human rights are not being respected. I beg to move.
Baroness Neuberger: My Lords, the hour is late but I do not wish to detain your Lordships for very long. I wish to support, in principle, the amendment of the noble Baroness, Lady Finlay, because we on these Benches have some concern about the kinds of cases in which a crime is committed by a family member to whom all the tissue is then returned and, therefore, no evidence remains. As the noble Baroness, Lady Finlay, cited, we are also concerned about a situation that may turn out later, if one were able to examine the tissue, to have been a case of medical negligence. Therefore, in principle, we support the amendment.
Lord Jenkin of Roding: My Lords, before the Minister replies perhaps I can ask a question. I shall be interested to hear the response to the amendment so ably moved by the noble Baroness, Lady Finlay of Llandaff. I found the Minister's letter on the subject of the coroners' powers very helpful in setting out the background which those of us not as familiar with these rules as we should be found very useful.
In that letter there is a paragraph that makes the point:
"Revisions to the Coroners Rules which govern these procedures are in hand, and will seek to clarify the functions and duties of both the coroner and the pathologist where material needs to be retained, and set out what information is to be provided to the family of the deceased, including options as to what should happen to the material once it is no longer required".
The question that I hope the Minister will be able to answer is: when is that likely to happen? When will we see the revisions to the coroners' rules? From the letter, it sounds as though that may well go some way to deal with the important points that the two noble Baronesses have made. I would find it helpful to know when that is likely to happen.
Earl Howe: My Lords, I cannot hope to match, nor would it be appropriate for me to do so, the very powerful case put forward by the noble Baroness, Lady Finlay. On the assumption that the Minister does not feel able to countenance an amendment to the Bill, I very much hope that he will nevertheless take this issue away with him because it is a very real one indeed. It should be a matter not of affording the coroner wide extra powers, but rather of affording all of us a greater degree of confidence that miscarriages of justice will be less likely in the future. That is what this is about. As I say, I hope that the Minister can detect that there is a wide measure of support around the Chamber for what the noble Baroness, Lady Finlay, has said.
Lord Warner: My Lords, the amendment revisits one that we have debated at earlier stages. As we said then, it wholly undermines the fundamental principle on which

409
the Bill is based. This principle can be enunciated clearly. Individuals, or those who were close to a person who has died, should have the right to determine the uses to which bodily material is put. It was the breach of that principle, especially in the retention of material following coroners' post-mortems, that gave rise to the need for the legislation in the first place. We cannot risk recreating that situation.
On an earlier amendment, I referred to a letter that I received this week from Professor Brazier, chair of the Retained Organs Commission. I wish to quote at greater length from his letter:
"In the Commission's meetings with well over a thousand relatives only a very few people were clear that if asked they would not have consented to the retention of tissue blocks and slides and even where a good case is made whole organs. They were however adamant that they should be asked. Extending powers to dispense with consent will simply be counterproductive and may result in further and damaging disputes between families and professionals".
The letter was received unsolicited this week. We should pay regard to those concerns, voiced by a person who has sat through many discussions and negotiations with relatives affected in this respect.
I also received this week a powerful letter from PITY 2, the parents' support group set up following Alder Hey. The authors of the letter have allowed me to draw upon it. They register very specifically and in the strongest terms their objections to the amendment.
Of course the Bill provides for coroners to retain tissue for their legitimate purposes, but that is, by definition, for a finite period. Professor Brazier, like all of us, has no argument with that. It would include any cases where there might be concerns about the cause of death. In the case, for example, of a possible miscarriage of justice, we know that samples used in a prosecution are retained until a conviction is spent or an appeal is determined.
Let us be absolutely clear: the Bill does not inhibit the retention of material where it is, or may be, needed for a coroner's investigation, a police investigation or in connection with a prosecution, conviction or appeal. The stated object of the amendment—I am not altogether sure whether the amendment would achieve it—is to go beyond even those situations, and to retain bodily material for unspecified future purposes.
The noble Baroness, Lady Finlay, asked when the coroner was functus. He is functus while his authority under the Coroners Act is current; that is to say, when he is considering the cause or circumstances of death. What that might involve is further elaborated on in the coroners' rules. To respond to the question of the noble Lord, Lord Jenkin, I can say that those rules are being amended and will clarify what information should pass between coroner, pathologist and family. They will also make it clear that the family's consent will have to be sought for any retention after he has concluded his inquiries. I am advised by the Home
410
Office that the coroners' rules should appear by the end of the year. The Home Office has been consulting the Royal College of Pathologists, coroners and others on the draft revised rules.
It has been suggested that forensic techniques may be developed so that cases could be reconsidered in the future. I have already written to noble Lords on that point. Clearly, any coroner's case might lend itself to that requirement, resulting in the retention of all tissue from the deceased in all cases. That is simply unthinkable. Where there is a legitimate state interest or concern, then, for coroners' or criminal justice purposes, material should and will be retained. But once those interests no longer pertain, the consent of the family must determine what happens with tissue or organs no longer required. To extend the coroner's purposes in that manner would be seen as a back-door way of recreating the organ retention scandal.
The noble Baroness has suggested that just small samples could be kept—without consent—that are maybe the size of a sugar cube. But we know that very young neonates have very small organs, so that might not solve the problem. We know that, for some people, it is important for religious and cultural reasons, and even simply for emotional reasons, that all parts, however small, are returned to the body. The debate is about whether people should have the right to consent over such matters. It is certainly a closed issue so far as we are concerned in this Bill.
8.45 p.m.
The noble Baroness, Lady Finlay, spoke to me before today's debate about the Department of Health model forms. I recognise that the current DoH model forms, published in early 2003, ensure that families are informed about the position of blocks and slides following coroners' post-mortems. They do not specify that consent is required. The point is that there is no statute requiring that at present.
However, the Bill will require consent for such retention in future. We are aware that the current forms and the guidance, which the noble Baroness cited, which, indeed, is on the website, will need to be revisited. I think that we are talking about the situation that pertained before this Bill and recognising that those forms will need amendments.
I must draw the attention of the noble Baroness to the fact that the Royal College of Pathologists' guidance states that once the coroner's interest has ceased,
"further use or disposal is subject to relatives' wishes".
That is the current position.
I have written to noble Lords to explain this matter. I take seriously the concerns that the noble Baroness has raised. But the Bill's consent requirements do not apply when tissue is retained in accordance with the needs of the coroner in the context of his present remit and authority. We are not seeking to extend the

411
authority of the coroner or to remedy any defects that there may be in the coroners' system. As I have said, any extension of the coroners' role is a matter for the Coroners Act and the Coroners' Rules.
While I am speaking, should like to put this on the record. At an earlier stage, the noble Baroness claimed that the Luce report on The Fundamental Review of Death Certification and Coroner Services proposed the retention of tissue following coroners' cases. It did not. On the contrary, Luce stated:
"We recommend that tissue or organs should never be retained for any purpose not directly stemming from the justification for a Coroner's autopsy, and in particular for teaching or research purposes, without the full and informed prior consent of the family".
That is precisely what this Bill does.
We have discussed this issue extensively. I do not want to go all over that ground again, but I have tried to set out fully the Government's position. We understand where the noble Baroness, Lady Finlay, is coming from. I understand where other noble Lords are coming from. But this goes to the heart of the Bill. We do not think that there are grounds for making a move in that particular area. I urge the noble Baroness to withdraw her amendment.
Baroness O'Neill of Bengarve: My Lords, I should like to ask for a point of clarification. It seems that the principle of consent is not overriding in this Bill. On the contrary, we would not have the office of the coroner if the principle of consent were overriding. I think that the Minister has said that there is legitimate public interest in the coroner having authority to remove tissues for a number of very serious purposes.
If that is the case, why is it that the coroner cannot retain those tissues, if necessary in police custody, rather than in the custody of hospitals? We are not talking about those tissues being retained for research or for teaching: we are talking about them being retained for purposes of criminal justice. At the moment, I cannot see what it is that restricts the coroner's authority in time when, as we know, in some very sad and tragic cases, there may be a longer-term investigatory interest.
Lord Warner: My Lords, I clearly failed to get the point across, and I shall have another go. The Coroners' Rules and the Coroners Act determine the role of the coroner, the rules pertaining to the coroner and the circumstances in which the coroner can do various things. Those are defined in that legislation—subordinate and primary.
The Coroners' Rules are being amended as we speak, so to speak. This Bill has nothing whatever to do with the Coroners' Rules and the functions of the coroners. It recognises that there are circumstances in which the coroner functions, which relate to activities in this Bill. It would be outside the scope of this Bill to redefine the roles of coroners and how they perform their duties. That is a feature of alternative and different legislation.
412
For those reasons, I do not think that this is an area we go into in this Bill. If noble Lords have concerns over the Coroners' Rules as drafted and being consulted on, that is the area people should address if this is a criminal justice matter. This is not a criminal justice Bill.
Baroness Finlay of Llandaff: My Lords, I am extremely grateful to all those noble Lords who support the principles that I have been trying to explore, and for the way they have spoken tonight. I am also grateful to the Minister for his detailed reply, but I want to emphasise yet again that I do not believe that parents should not be informed. They should be informed and they must know what has happened. It is a terrible tragedy when a child dies, in particular for the parents. But if one of those parents was the person who caused the death, it is in that rare and exceptional circumstance that I am concerned about a wrongful conviction.
I certainly do not think that we should dispense with consent, and the forms currently on the Department of Health website try to provide an explanation and allow for consent. I would never suggest that the coroner should have access to tissue for education and research purposes. That is something for which consent should be given when the functions of the coroner are over. I am concerned that, when those functions are completed, this Bill then comes into play, and does so on those self-same blocks and slides. It is for that reason that I felt we needed to allow for any future interventions of the coroner.
I recognise completely what the Bill seeks to do and I am certainly not trying in any way to undermine the principle of consent. Indeed, I take exception to any implication that that is what I have been trying to do. In terms of the Luce report, I apologise to the House for having expressed it badly before: I felt that this applied only in relation to the purposes of the coroner, and certainly that consent should be sought for any other reason.
The hour is late and I realise that we yet have a chance to look at the revised Coroners' Rules and how the whole coroners' system is to function. In itself, that is outside the scope of the Bill. For that reason, I shall not test the opinion of the House, but I do think that this is something which is potentially very serious. I hope that I am completely wrong and that there will never be a miscarriage of justice, one in which people may want to prove their innocence. I hope that there will never be a serial failure in the NHS. With that hope, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 [Breach of licence requirement]:
Lord Warner Lord Warner moved Amendments Nos. 8 and 9:
Page 16, leave out line 37.
Page 16, line 38, leave out from "maximum" to end of line 39.
On Question, amendments agreed to.
Clause 30 [Possession of anatomical specimens away from licensed premises]:
Lord Warner Lord Warner moved Amendments Nos. 10 and 11:
Page 20, leave out line 36.
Page 20, line 37, leave out from "maximum" to end of line 38.
On Question, amendments agreed to.
Clause 31 [Possession of former anatomical specimens away from licensed premises]:
Lord Warner Lord Warner moved Amendments Nos. 12 and 13:
Page 21, leave out line 34.
Page 21, line 35, leave out from "maximum" to end of line 36.
On Question, amendments agreed to.
Clause 45 [Non-consensual analysis of DNA]:
Lord Warner Lord Warner moved Amendments Nos. 14 and 15:
Page 29, leave out line 39.
Page 29, line 40, leave out "maximum" to end of line 41.
On Question, amendments agreed to.
Clause 51 [Offences: Northern Ireland and Scotland]:
Lord Warner Lord Warner moved Amendments Nos. 16 to 18:
Page 32, line 1, leave out from "In" to "32(4)(a)(i)" and insert "section"
Page 32, line 1, leave out "and 45(3)(a)(i)"
Page 32, line 3, leave out subsection (4).
On Question, amendments agreed to.
Clause 52 [Orders and regulations]:
Lord Warner Lord Warner moved Amendment No. 19:
Page 32, line 21, at end insert—
"( ) Subsections (1) and (2) do not apply to any power of a court."
The noble Lord said: My Lords, this amendment corrects a drafting omission which should have been included in the Bill when amendments were made on Report in the other place introducing the possibility of court orders allowing use of material or DNA analysis in certain circumstances.
Clause 52 deals with the secondary legislation to be made under the Bill, including the parliamentary procedure and consultation processes which apply to it. Subsections (1) and (2) refer to,
"any power to make orders … under this Act".
This is clearly intended to refer to secondary legislation only. However, as drafted, it could also apply to the powers of the court to make orders under Clause 7 and Schedule 4. It would be inappropriate for the clause dealing with secondary legislation to be applicable to the court, and the amendment ensures that that would not be the case. I beg to move.
On Question, amendment agreed to.
Lord Warner Lord Warner moved Amendment No. 20:
Page 33, line 6, at end insert—
"( ) Before acting under any of the following provisions, the Secretary of State shall also consult such other persons as he considers appropriate—
section 1(14);
section 6;
section 7(4);
section 10(9);
section 14(4);
section 16(5);
section 27(9);
section 33(3) and (7);
section 46(1);
section 54(10);
paragraphs 6(2), 12(2) and 13 of Schedule 4."
The noble Lord said: My Lords, the House will recall that opposition amendments in Grand Committee and on Report proposed that the Secretary of State should exercise his powers to make orders and regulations on a number of issues under the Bill only after,
"having consulted such persons as he shall consider appropriate".
A number of noble Lords were not quite convinced by my assurances that this was not needed as consultation is customary before regulations are made. I said that I would consult colleagues and come back to the House on this matter.
I am now proposing amendments which respond on this point and make it explicit that the Secretary of State will be required to consult appropriate persons before making any orders or regulations which are subject to the affirmative resolution procedure. This applies to the more important secondary powers in the Bill—that is, the orders and regulations listed at Clause 52(4). I hope that this explicit statement on the face of the Bill meets the concerns expressed at earlier stages. I beg to move.
Earl Howe: My Lords, once again it is a great pleasure to thank the Minister for bringing forward these amendments. They amply respond to the concerns that I and others raised at earlier stages of the Bill. I very much welcome them.
Lord Clement-Jones: My Lords, I also thank the Minister. This clearly goes beyond the merely technical and is a conscious attempt to meet the argument—despite, no doubt, the views of the parliamentary draftsmen. The Minister is to be congratulated on bringing forward the amendment.
On Question, amendment agreed to.
Clause 58 [Transition]:
Lord Warner Lord Warner moved Amendments Nos. 21 and 22:
Page 34, line 31, leave out from "in" to "32(4)(a)(i)" in line 32 and insert "section"
Page 34, line 32, leave out "and 45(3)(a)(i)"
On Question, amendments agreed to.
Clause 59 [Extent]:
Lord Warner Lord Warner moved Amendment No. 23:
Page 35, line 30, leave out "51(4),"
On Question, amendment agreed to.
Schedule 1 [Schedule purposes]:
Lord Warner Lord Warner moved Amendment No. 24:
Page 38, line 20, leave out from "health" to end of line 22.
On Question, amendment agreed to.
Schedule 4 [Section 45: Supplementary]:
[Amendment No. 25 not moved.]
Lord Warner Lord Warner moved Amendments Nos. 26 and 27:
Page 53, line 2, leave out from "health" to end of line 4.
Page 53, line 21, leave out from "health" to end of line 25.
On Question, amendments agreed to.
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 28:
Page 54, line 20, at end insert—
"( ) If the High Court is satisfied—

(a) that bodily material has come from the body of a living person;

(b) that it is desirable in the interests of another person (including a future person) to prevent mortality or significant morbidity, that DNA in the material be analysed for the purpose of obtaining scientific or medical information about the person from whose body the material is come ("the donor");

(c) that reasonable efforts have been made to get the donor to consent to the use of material for that purpose;

(d) that notwithstanding those efforts, a decision of the donor to refuse consent to the use of the material for that purpose remains in force;

it may order that this paragraph apply to the material for the benefit of the other person."
The noble Baroness said: My Lords, the amendment seeks to allow the right to life to be considered in the High Court in the very exceptional circumstance that a living competent person has refused the use of a DNA analysis on their tissue for the benefit of another, and his or her motivation for this seems to be malicious and to threaten the life or health of that other person. There needs to be a forum for their respective rights to be heard and an impartial ruling weighing up the balance of benefits and harms. Each must have the right to be heard in the narrow set of circumstances described in the amendment.
The issues have been well rehearsed at previous stages of the Bill. The practical problems are that under the Bill as drafted the competent adult has an absolute veto over the use of his or her genetic material and tissue, even when that prevents another person to whom he or she is genetically related from making an informed decision over whether to access potentially radical treatment. The absolute nature of the veto is arguably in breach of Article 2 of the Human Rights Act, which prohibits the intentional deprivation of life.
The use of the results of DNA re-analysis in the face of an individual's refusal should be a measure of extreme last resort, subject to the principle of proportionality and, as such, is likely to occur very rarely.
The amendment differs from that proposed at previous stages in that it acknowledges that reasonable efforts should at first be made to obtain consent to the use of the results of DNA analysis before an application to override refusal of consent is made to the High Court. This is an area where the intervention of the High Court is entirely appropriate, given that the refusal of consent may lead to serious injury or death. I beg to move.
9 p.m.
Earl Howe: My Lords, perhaps I may speak to Amendment No. 30, which is grouped with those of the noble Baroness. She has spoken powerfully on the issue, and the Minister kindly agreed to reflect upon it further, following our debates in Grand Committee and on Report. I should like to thank him for the letter he sent me during the past few days setting out his considered views on the subject.
Perhaps the simplest way to describe what divides us is to say that in the Minister's view, unlike mine, there can be no exceptions, in any circumstances, to the iron rule underpinning the Bill, which stipulates that. "No" means "No". In response to that, I totally understand the Minister's defence of the principle of individual patient autonomy, just as I enthusiastically support the key provisions of the Bill. Where I diverge from him is that I also think that we have a duty to look at the hard cases. The hard cases will almost certainly be very few in number, but they will occur. The Bill itself cannot legislate for them, but I am suggesting, as is the noble Baroness, that the courts should be allowed to deal with them.
In his letter, the Minister said that the law was not an appropriate mechanism for compelling people to perform what were essentially altruistic acts. I think we need to deconstruct that thought a little. The Bill, as the Minister will recognise, already makes provision for what he terms "enforced altruism", in the sense that tissue from living people can be used in research without their consent if it is anonymised. Indeed, given that we have allowed for wide exceptions to the consent rule, I am not sure how appropriate it is to refer to the Bill as facilitating altruism in the strict sense.
The point at issue is whether an explicit refusal to allow one's tissue to be used should be sacrosanct in all situations. The argument that I have been trying to put to the Minister is that it is possible to imagine situations in which such a refusal might be regarded by a court as inherently unreasonable. If my amendment were made, the line that the Bill would draw, therefore, would not be the Minister's line of absolute protection of one person's rights, but, rather, a line close to it which would be determined on a question of fact and judgment as to whether in all the circumstances of a case, the defence of those rights was reasonable when set against the rights of a close relative.
By accepting my amendment, we would be saying that, in some circumstances—we could define them fairly closely—the picture is not wholly black and white, and that as parliamentarians we should recognise that. When he wrote to me, the Minister countered that suggestion by saying that if a person's decision can be overriden, where, logically, should we stop? The answer, to put it simply, is that we can stop at any point we choose. There need be no slippery slope here.
The Minister's letter suggests that if my amendment were agreed to, we would find ourselves agreeing to the idea of forcibly removing a sample of tissue from someone so that it could be stored and used. I would

417
not be in favour of that, nor have I suggested it; and certainly do not believe that it follows from my amendment, any more than it follows from the existing provisions in the Bill, where a court has made an order of some kind in the absence of explicit consent. What we are talking about are situations where a piece of tissue already exists and is being stored and which is readily capable of being subjected to DNA analysis but for the refusal of the donor to allow that.
The reasonableness of such a refusal should be capable of being examined by the court. Again, the Minister does not agree with that idea. He has highlighted situations in other contexts in which doctors defend the right of patients to make seemingly irrational decisions, such as refusing life-saving treatment, and has pointed out that this principle of common law is well established in the courts. I accept that, but the two issues are not in fact congruent in all respects. If a patient refuses life-saving treatment, that is a decision about what happens to his or her own life and what can be done to his or her physical person. It is surely not the same as a decision about a piece of residual tissue originating from him but no longer part of him, which is being stored somewhere in a laboratory.
The simple proposition that I seek to advance is that we should allow a court to come to a view, in particular cases, as to whether an outright refusal to consent is reasonable or not; for example, whether it is based on a perfectly proper and understandable wish for privacy about one's own genetic make-up; or whether, for instance, it is based purely on spite or the hope of financial advantage. I do not ask that the Bill makes such judgments; only that we should not deny people the right to ask the court to make them.
I do not see such a provision as undermining confidence in the Bill or the consent-based system that underpins it. I say that because this would not be a coach and horses. It is about people who are closely related to one another being allowed to argue competing cases before a judge in very narrowly defined situations. It is not about the generality of situations where there are competing interests; nor in particular is it about research or transplantation or teaching. It is not even about facilitating "the public good". I am not sure that the Minister fully acknowledged that aspect of the issue in his letter, but it is a key aspect. So few cases would fall within the scope of the provision that I have in mind that I fail to see how it would erode public confidence in the Bill as a whole, or even begin to.
For those reasons, I very much regret that the Minister has not been persuaded that there is a valid case here. If the noble Baroness and I have not persuaded him today, I hope that he may nevertheless be able to provide some words of comfort about the human rights aspects of the matter. He may be able to tell us that, notwithstanding the provisions in the Bill,
418
there is scope to resolve difficulties of the kind that I have described through the courts by reference to and under the umbrella of human rights legislation.
Baroness Neuberger: My Lords, I rise to support the noble Baroness, Lady Finlay, and the noble Earl, Lord Howe, in these amendments. We have already discussed this issue at Report and before and I am also very grateful to the Minister for his letter. Equally however, like the noble Earl, Lord Howe, I have some difficulty with the reference to altruistic acts. I do not think that anyone is suggesting that it should be required that people have biopsies taken of their genetic material in order to benefit a close relative. That is when tissue is already being stored.
As the Minister knows from his previous life, dysfunctional families exist. In my ministerial pastoral experience as a rabbi—I do not mean "ministerial" in parliamentary terms—I have encountered dysfunctional families in which such issues have arisen. One family member did not know whether she should have a double mastectomy because she did not know whether other members of the family carried the BRCA 1 gene. That is common in Jewish families. Because the family had fallen out in a major way, she could not get the other female members of her family to co-operate. She ended up having a double mastectomy; it would have been better if she had been able to find out.
This is a serious issue. There are malicious people who will, for a variety of reasons, because of family relationships, refuse consent. It is a very rare occurrence, we hope—although it is not necessarily so. We believe that the matter should be able to be tested in the High Court. Like the noble Earl, Lord Howe, I hope that, even if the Minister cannot give us complete reassurance, he will at least give us some reassurance that he will address the matter or allow some reference to the Human Rights Act in this regard.
The Lord Bishop of Worcester: My Lords, when the Minister replies, will he make it clear whether it is the Government's view that a case of judicial review would lie in relation to the substance of the amendment? If there is a possibility that the courts might in any case be prepared to entertain an application for judicial review, it would be much better to have a provision in the Bill than to leave the matter in that area of chance. I speak from the position of believing that the right of consent is extremely important but that there is a gap somewhere between importance and absoluteness.
Lord Warner: My Lords, we discussed the issue on Report, and I undertook to look carefully at the arguments. I have done so, but we have concluded that this is a path down which we should not go. I wrote to noble Lords on the issue, so some of what I have to say may sound familiar. Some of it may help in extending the arguments in the letter.
The case was argued that there should be, in the Bill, a provision enabling the High Court to override the refusal of a person to consent to the use of their tissue for the purpose of gaining information that may be relevant to another person. The typical illustration

419
given in this case was of family members who were estranged but where DNA analysis of a sample of one member might benefit the care of another. We know—there is no argument about this—that in almost all cases of heritable disorders people agree to the use of their tissue for these purposes, so the number of refusals is already very low.
I would not dissent in any way from what the noble Baroness, Lady Neuberger, said about a degree of dysfunctionality causing pain and grief in particular families, but it is worth hanging on to the fact that in many cases involving hereditable disorders, there is full co-operation. We learn from geneticists—the issues relate almost entirely to genetics—that the difficulty is not so much failing to find people, or outright refusals once people have been found, as problems in communication. The High Court, however, is not the way to resolve that, nor is overriding people's informed choices. That view was endorsed on the Opposition Front Bench when this question arose in another place. I refer the noble Earl, Lord Howe, to the remarks of Andrew Lansley, on 28 June, at col. 29 of the Official Report.
We are trying to develop a system in which people choose to consent to research and other matters that are for the public good. To provide for a mechanism of override would undermine the whole basis of the Bill. The confidence that we need to restore and promote in this consent-based system will be seriously jeopardised if we include provision for consent, once clearly expressed, to be simply set aside. That is what it amounts to.
I accept, however, that there may be a number of cases where, after constructive efforts have been made, people continue to say "No" despite the fact that use of the sample could potentially benefit a family member. I recognise that the noble Earl, Lord Howe, does not necessarily accept that I have made the correct linkage, but it is worth bearing in mind that there is case law on analogous cases and examples of the courts being asked to override people's wishes. In the case of Re MB, Lady Justice Butler-Sloss said that,
"a competent woman, who has the capacity to decide, may, for religious reasons, other reasons, for rational or irrational reasons or for no reason at all, choose not to have medical intervention, even though the consequence may be the death or serious handicap of the child she bears, or her own death. In that event the courts do not have the jurisdiction to declare medical intervention lawful".
That situation is not totally identical to the one that the noble Earl cited, but I suggest that it is a relevant piece of common law. I think that it is worth reflecting on that fact.
A number of noble Lords have raised the issue of whether we are in conflict with human rights legislation by framing the Bill as it is without providing for an opening to the High Court. Certainly on advice, we have certified that the Bill is consistent with the Human Rights Act, and we are confident that it actually is as currently framed. Ultimately, however, I accept that any interested person who believes that their rights have been affected adversely would be free
420
to challenge that view in the courts. It would be a matter for individuals to make that case to the courts in the specific circumstances that pertain.
We do not, however, believe that it is necessary to amend the Bill as proposed. We believe that the Bill as currently framed is consistent with the European Convention on Human Rights and the Human Rights Act. We also have to take cognisance of the common law in this regard.
A number of noble Lords raised the issue of whether altruism is an overriding consideration. A public-spirited approach is strongly to be encouraged. In setting out the terms of the Bill, we have tried to provide the framework in which people can engage fully with the public benefit in donating tissue for beneficial purposes. The Bill is quite clear on that. However, confidence is an important part in ensuring that that altruistic spirit is maintained.
Lord Jenkin of Roding: My Lords, before the noble Lord concludes his remarks, will he address the point that my noble friend raised on the issue of looking at bad faith and at reasons which, far from being rational or irrational, may in fact be extremely undesirable, such as someone refusing consent for reasons of spite or jealousy or even for financial advantage? Is the noble Lord saying that even in those circumstances there would be no right to go to the court?
Lord Warner: My Lords, Ministers are not the arbiters on common law. In the spirit of helpfulness to the House, I gave a quotation from Lady Justice Butler-Sloss. That quotation is very clear that people can behave irrationally in matters relating to their own body. We may not like that fact and disagree with it, but that is a judgment that has been made by a senior judge. It is not for Ministers—the noble Lord has been a Minister—to begin debating with the senior judiciary on their rulings in these cases.
I have already said that the Bill is compliant with the Human Rights Act. I have also acknowledged, and I shall repeat, that if people disagree on individual cases, it is their right in this country to take their case to the court and seek a judgment. No one is quarrelling with that but what we, as a Government, are saying is that we do not feel it appropriate to amend the Bill in the way that is being proposed in these amendments.
Baroness Finlay of Llandaff: My Lords, before the Minister sits down, can he clarify one small point from the letter that he helpfully copied to all the noble Lords who have been involved in the Bill? After he mentioned altruistic acts, he stated that any interested person may challenge in the court the action of a public authority, if he believes it breaches his human rights under the European convention. One of the difficulties we have here is that it would not be a public body, but it would be the person to whom he was genetically related, who is of ill intent, who would be breaching his rights. Therefore, I am not quite sure to which public body a

421
person would refer if he wanted to put forward a point that would help in the making of a decision that would affect his health.
Lord Warner: My Lords, I was intending to be helpful in that letter. I have essentially repeated tonight the point that I made in that letter. I cannot give free legal advice, so to speak, on the Floor of the House on what might be available to individuals in some of the circumstances that might arise. But individuals would have to be adversely affected by the particular circumstances. If they thought that their human rights were infringed as a result, they could challenge in the court the Bill's compatibility with the European Convention on Human Rights. So, in that sense, I suppose that the public body would be the government of the day. It would depend on the precise circumstances with which a person was confronted and the strength of feeling that he had, or the confidence he had on legal advice, in trying to take a case to the court in the circumstances that affect him. I cannot answer what those circumstances would be. All I am acknowledging is that there is a right for people to challenge legislation in the courts, which is not in any way infringed by the Bill.
Baroness Finlay of Llandaff: My Lords, I am grateful to the Minister for his reply and to all the noble Lords, and the right reverend Prelate, who have spoken in this debate. I am grateful to the Minister for answering questions during the course of his response to this group of amendments.
This amendment is not a mechanism to override consent. It would not simply set aside the principle of consent and I have some concern that the Minister felt that it would. That would be to assume a High Court judgment. With the ability to go to the High Court that we were seeking, it would be for the High Court to determine in favour of or against the applicant. But there would be no assumption at all about how the High Court should go. The amendment would not set aside the principle of consent at all. It would be up to the High Court to decide whether it was appropriate consent or completely inappropriate withholding of consent.
422
I am slightly concerned that the example cited is thought to be directly relevant to these amendments because it involves harm to the mother, who has within her body the child whom she is carrying. So her decisions may be irrational, but they involve harm to her and her body in the process. We are talking about where a sample—usually blood—has already come out of somebody's body, is sitting in a test tube and is stored in some kind of refrigerator. No harm is going to come to that if somebody looks at it again for a very specific indication and no harm would come to the person from whom it came, other than that his or her pride would be dented. If they did not want to know any results at all from that subsequent analysis, it would be completely unethical to give results to them. If they decided that they wanted to know them, they should. It would also be completely unethical to give the results of the analysis overall to the patient, apart from the very specific point that would determine the way in which the decision was made that would affect their life and health.
There are some differences. I agree with the Minister that confidence is important. Within the amendments, we have tried to ensure that there is confidence that the Bill will respect a person's health needs, and that those health needs can be heard in the face of intransigence when there is a dysfunctional family. That said, the Minister has pointed out that someone can go back and look at the matter. Judicial review would certainly be a very lengthy, expensive and complex process. However, I will not test the opinion of the House, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 29 and 30 not moved.]
Lord Warner: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Warner.)
On Question, Bill passed, and returned to the Commons with amendments.
House adjourned at twenty-seven minutes past nine o'clock.

  Euro-zone
  Euro-zone
  Live Music
  Live Music
  School Sport Facilities
  School Sport Facilities
  Road and Rail Investment
  Road and Rail Investment
  Water Resources: Iraq and Turkey
  Water Resources: Iraq and Turkey
  Passports: Mr Ng
  Passports: Mr Ng
  Abdul-Hadi Al-Khawaja
  Abdul-Hadi Al-Khawaja
  National Asylum Support Service
  National Asylum Support Service
  Freedom of Information Act 2000: Local Authorities
  Freedom of Information Act 2000: Local Authorities
  Work at Height Regulations
  Work at Height Regulations
  Water Fluoridation
  Water Fluoridation

  Northern Ireland Housing Executive: Accounts 2003–04
  The Lord President of the Council (Baroness Amos)
  My right honourable friend the Minister of State for Northern Ireland has made the following statement.

  The accounts of the Northern Ireland Housing Executive (NIA 115/03) for the year ended 31 March 2004 incorporating the report of the Comptroller and Auditor-General thereon will be laid before the Northern Ireland Assembly on Wednesday 3 November 2004.

  Copies of the Northern Ireland Assembly paper have been placed in the House of Commons Library at Westminster and in the Northern Ireland Assembly Library at Stormont.

  Pharmaceutical Price Regulation Scheme
  The Parliamentary Under-Secretary of State, Department of Health (Lord Warner)
  We have today agreed a 7 per cent price reduction for branded prescription medicines with the Association of the British Pharmaceutical Industry (ABPI). The reduction has been agreed as part of a new pharmaceutical price regulation scheme (PPRS) agreement. It will save more WS 8
  than £1.8 billion over the next five years on these medicines. The money will be channelled back into frontline NHS services by local primary care trusts.

  The new PPRS agreement will last for five years. Its objectives are to secure the provision of safe and effective medicines for the NHS at reasonable prices; to promote a strong and profitable pharmaceutical industry capable of such sustained research and development expenditure as should lead to the future availability of new and improved medicines; and to encourage the efficient and competitive development and supply of medicines to pharmaceutical markets in this and other countries.

  It is important that we continue to encourage the pharmaceutical industry, in its first-class research and development work to deliver new and improved medicines for patients. For that reason, the agreement includes improved incentives for the research and development of new medicines, including those for children.

  The PPRS is a voluntary agreement between the ABPI and the four health departments in England, Scotland, Wales and Northern Ireland. It is backed by Section 33 of the Health Act 1999. It allows companies freedom of pricing for new active substances—new medicines when launched on the UK market and sets a target rate of return on capital and allowances for research and development and marketing expenditure. Companies that exceed the level of profit allowed under the scheme are required to repay the excess. Branded pharmaceutical companies that elect not to join the PPRS will be subject to a statutory scheme under Sections 34 to 38 of the Health Act 1999.