Sitting of 19 October 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 Derby.

Iraq: Legality of Conflict
Lord Watson of Richmond Lord Watson of Richmond asked Her Majesty's Government:
Whether they accept the judgment of the United Nations Secretary-General that the war in Iraq was illegal under the United Nations Charter.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, Her Majesty's Government respect the Secretary-General but in this case we do not agree with him. My noble and learned friend the Attorney-General has made clear the Government's position on the legality of the conflict in Iraq and your Lordships have debated and discussed the issue on a number of occasions. The division of opinion on this issue is clear and, I suspect, unchanged.
Lord Watson of Richmond: My Lords, I am grateful to the Minister for that reply and for its clarity, but I have a further question to put. Do not the Government understand that, with the credibility of their policy in Iraq eroded with every day of continuing violence that comes and passes and with the justification for their position in Iraq also eroded on the one hand by the acceptance now by the Government that the 45-minute warning was false and on the other by the Prime Minister's assertion in the other place in March 2003 that the justification of the Iraq policy is not on the basis of nation-building, it is really quite unacceptable at this stage for the Government to be considering deploying British troops in Baghdad under United States command? There simply is no mandate for such a policy.
Baroness Symons of Vernham Dean: My Lords, the noble Lord raises the question of the credibility of the Government on this issue. I remind the noble Lord that the credibility of the Government on this issue and the way that the Government have conducted themselves have now been examined by four separate independent committees: two from another place, one under the noble and learned Lord, Lord Hutton, and one under the noble Lord, Lord Butler, and on every occasion the Government have been acquitted of any wrongdoing on the question of good faith.
The noble Lord says that the Government's credibility is eroded. I wish that he had been in my office yesterday afternoon when the Vice-President of Iraq, Dr Shaways, came to see me. I wish that he had
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heard the Vice-President of Iraq, a Kurd, tell me how grateful the Kurdish people were, and the Iraqi people are, for what the people and the Government of this country have done in removing Saddam Hussein and giving Iraq back its future. I wish that the noble Lord would listen to the people on the ground and not just to the people on his own Benches.
Lord Archer of Sandwell: My Lords, can my noble friend confirm that the reason given to Parliament to justify the invasion was that the Security Council in Resolution 1441 had authorised military action? Does she agree that, whatever else may have been the case, at the time of the invasion the Security Council clearly was not prepared to authorise it?
Baroness Symons of Vernham Dean: My Lords, I cannot agree with that either. As your Lordships will know—we have been over this many, many times—my noble and learned friend the Attorney-General set out his views in answer to a question from my noble friend Lady Ramsay of Cartvale. I refer to the combined effects of UNSCR 678, which authorised the action in the first place, then SCR 687, which suspended it in certain circumstances, and SCR 1441. It was the combination of all those brought together which we believe gave us the legal justification for action in Iraq. We have been over this ground many, many times and, as I indicated in my initial Answer, I suspect that opinions are unlikely to change.
Lord Wright of Richmond: My Lords, do the Government accept that two of the justifications given by the United States for invading Iraq were, first, that Saddam Hussein had been behind the events of September 11 and, secondly, that they wished to change the regime? In the light of previous ministerial statements that it is not Her Majesty's Government's policy to change other people's regimes, does the Minister accept that both justifications are neither correct nor legal?
Baroness Symons of Vernham Dean: My Lords, I accept that those justifications were not United Kingdom justifications. I remember being asked over and over again in this House to make the link between A1'Qaeda and Saddam Hussein. I remember being asked that by the noble Lord, Lord Howell of Guildford, and refusing point blank to do so because it was not possible. I also remember the noble Lord himself asking me over and over again whether this was about regime change, and making it perfectly clear that it was not—it was about repeated flagrance of United Nations Security Council resolutions. That was and is the position of the United Kingdom Government.
Lord Howell of Guildford: My Lords, I concur with what the Minister says about the Vice-President of Iraq. I also had the privilege of meeting him and he asked me to give a goodwill message to the former Prime Minister, John Major, for what he had done for the Kurdish people and for Iraq as a whole. The Minister is absolutely right about that.

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However, I return to the narrower question. The noble Lord, Lord Watson, rather widened his own Question, but it is about the legality of the whole operation. Will the Minister define exactly what she regards as the source of international legitimacy for these operations? Were the operations in Somalia, Kosovo, Bosnia, or Haiti legal? Are not these criteria that we need to examine very carefully before coming to very general conclusions about these complex matters?
Baroness Symons of Vernham Dean: My Lords, it is important that we examine all the different instances. So far as Kosovo was concerned, questions were raised about the legality at the time. We can remember those; we debated them in this House. Then we turn to the justification of overwhelming humanitarian concern, which some noble Lords questioned. However, your Lordships will also know that a high-level UN panel has been set up to review the way in which the UN responds to threats to international security. It will make recommendations for reform in December.
I also remind the noble Lord, given that he mentioned his right honourable friend Mr Major, that the legality that justified the action taken in 1993 is the same legality as I cite in respect of 2003—that is, UNSCR 678 and 687. It was also the same justification we used in relation to the Desert Fox campaign in 1998, when those on the Liberal Democrat Benches went out of their way to support the Government's action. The noble Lord, Lord Wallace of Saltaire, said:
"I rise to support the Statement on behalf of the Liberal Democrat Benches. In the circumstances, it was unavoidable that Britain should take action with the United States. Clearly"—
this is the important bit—
"Saddam Hussein has broken all the terms of the UN conditions attached to his regime. Under those circumstances, we had no choice but to intervene".—[Official Report, 17/12/98; col. 1528.]
Why was a breach enough in 1998, but not enough in 2003?
Lord Goodhart: My Lords, we know from the Butler report that the Attorney-General advised the Prime Minister that, for the war to be legal, it must be,
"possible to demonstrate hard evidence of non-compliance and non-co-operation with the requirements of Security Council Resolution 1441".
Where is that hard evidence is to be found?
Baroness Symons of Vernham Dean: My Lords, the Attorney-General has made clear that his view in 2003 was that the war was legal. He has made clear only in the past couple of weeks or so that that view remains the same. I remind the noble Lord that the noble Lord, Lord Butler, said in his report—the noble Baroness, Lady Williams, called it "brilliant"—that the case for war rested on Iraq's non-co-operation and non-compliance.

Iraq: Multinational Forces
2.45 p.m.
Lord Hurd of Westwell Lord Hurd of Westwell asked Her Majesty's Government:
To what extent their representatives in Baghdad are consulted on the operational decisions of the multinational forces in Iraq.
Baroness Symons of Vernham Dean: My Lords, as I explained in answer to a Question on 24 June 2004, the Ministerial Committee for National Security—it is always attended by a senior British diplomat, usually now Ambassador Chaplin—issues strategic policy direction and guidance on national security issues. Strategic operational decisions are taken by that committee, but operational decisions on implementation of MCNS policy are a matter for force commanders, within the established rules of engagement.
Lord Hurd of Westwell: My Lords, I thank the Minister for that reply. However, can she please do her best to prevent her colleague the Secretary of State for Defence hiding, as he did yesterday, behind what is in Iraq a completely bogus distinction between political and operational decisions? What could be more political than what seems to be in the wind now—an operation to batter and break down the rebel cities in Iraq as a prelude to the election? Before the Government make their decision on the matter being discussed, can we be sure that this time—at last—there is a system under which our views are given proper weight, in accordance and in line with the contribution that we make and the risks that our troops run?
Baroness Symons of Vernham Dean: My Lords, the interesting phrase that the noble Lord used was "proper weight"; our views are given proper weight. He says that the distinction is bogus, but I am afraid that I have to disagree, with the greatest respect to him. The Ministerial Committee for National Security is chaired by Prime Minister Allawi. It meets once a week at ministerial level. I have indicated that those from the multinational force and ambassadors are involved in it. There is also the Security Action Committee, which has been established to co-ordinate consultation between the MNF and the Iraqi chain of command on security issues. The SAC provides support to the first committee under the chairmanship of the Prime Minister, but the operational decisions are taken by the commanders on the ground, as the noble Lord would expect and as is right and proper. The political direction comes from the senior committee that I mentioned.
Lord Garden: My Lords, what has changed since the end of June in the Coalition Provisional Authority? We now have it on record from Dr Larry Diamond, who was a senior member of the CPA, that it was American policy to freeze the British out of any strategic decision-making.
Baroness Symons of Vernham Dean: My Lords, the noble Lord cites that gentleman as a proper authority,

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but I have been to Iraq twice in the past year and have not felt that we were frozen out of decisions. Indeed, when I was last there, Secretary of State Powell went out of his way to include me—a mere Minister of State from the United Kingdom—in the discussions going on. I simply do not recognise the picture that the noble Lord chooses to paint.
Lord Howell of Guildford: My Lords, further to the question asked by my noble friend Lord Hurd, has the noble Baroness seen reports of the new American strategy, which is to pacify and recapture 20 cities in Iraq in the next two weeks? It has been listed in great detail in a number of newspapers. If that is the American strategy and if we are now, as looks inevitable, to be intimately involved in it—we are bound to be if we move troops up from the southern sector—can she assure us that there has been full consultation on the evolution of that strategy between British and American authorities?
Baroness Symons of Vernham Dean: My Lords, the strategy owes quite as much to Dr Allawi as to the forces on the ground. He has pursued a policy of talking to those among the insurgents or former regime elements to whom he believes that he can appeal, and to those on the Shia side who have also been a source of difficulty. So, on both the Sunni and Shia sides he has sought rapprochement in a number of areas. At the same time Dr Allawi naturally wishes there to be better security throughout Iraq and, therefore, has decided that appropriate military action should be used in respect of certain cities.
So there are two issues. The noble Lord used the word "pacify", which can be used in the sense of trying to persuade others to join the future of Iraq; on the other hand, it can be used when dealing appropriately with those who will not be persuaded.
Lord Corbett of Castle Vale: My Lords, what recent representations have Her Majesty's Government made to the regime in Iran, where there is continuing evidence of persistent interference in what is happening on the ground in Iraq? What has been the response of the mullahs to that?
Baroness Symons of Vernham Dean: My Lords, we wish Iran to be a good neighbour to Iraq. That is a point that my right honourable friend the Foreign Secretary and I have raised on a number of occasions. Most recently, I recall conversations that took place when we met some of our Iranian colleagues at the General Assembly of the United Nations about two or three weeks ago.
Lord Steel of Aikwood: My Lords, could the Minister tell the House whether we were consulted on the operational decision, right at the beginning of the occupation, to disband the Iraqi army, thus creating thousands of antagonistic, unemployed and armed young men in the streets of Baghdad?
Baroness Symons of Vernham Dean: My Lords, I shall have to look at what actually happened. The
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noble Lord asked me to recall something from quite some time ago. I will say this to the noble Lord: I believe that since that decision was taken, we have had cause to reflect upon it. It is the case that taking people out of senior ranks from security forces was highly questionable—and was subsequently reversed; but I fail to see the point of taking Ba'athist members out of schools and universities when anyone knows that under the former regime one had to be a member of the Ba'ath Party in order to hold any job of consequence.
Lord Roberts of Conwy: My Lords, has the noble Baroness noted that the Secretary-General of the United Nations has been talking today about the need for a pacific environment for the coming elections? Is it conceivable that we would be having elections in Iraq at all, let alone in a peaceful environment, without the assistance of the coalition forces?
Baroness Symons of Vernham Dean: My Lords, no—that was an excellent question. It is inconceivable that there would be any opportunity for the Iraqi people to say what sort of government they want. The Secretary-General is quite right to say that a secure environment must be provided for those elections. I discussed that with Dr Shaways yesterday and I also had the opportunity to discuss it with the Secretary-General himself when I was in New York recently.

Children in Care: Education
2.53 p.m.
Lord Laming Lord Laming asked Her Majesty's Government:
What action they are taking to secure an improvement in the education of children and young people in the care of local authorities.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Lord Filkin): My Lords, the Children Bill will introduce a significant new duty on all local authorities to promote the educational achievement of looked-after children. We have just announced a challenging new PSA target to improve placement stability and narrow the gap in the educational achievement between looked-after children and their peers. Meanwhile, we are actively implementing the recommendations of the Social Exclusion Unit's report A Better Education for Children in Care.
Lord Laming: My Lords, I am grateful to the Minister for that helpful reply. Can he confirm that the target set for educational achievements for young people in care is less than one-third of that set for other young people? Even worse, that target was achieved by only half and, as a result, more than 50 per cent of young people leaving care achieved no GCSE qualification at all. Can he say a little more about what the Government intend to do to ensure that local authorities have somewhat greater ambition for the young people in their care, who have experienced

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much disruption in their lives? Will the Government require local authorities to be better parents to those young people?
Lord Filkin: My Lords, the House will not be surprised to know that the noble Lord, Lord Laming, is absolutely correct that, so far, the achievements of the system in raising the educational attainment of looked-after children are woefully poor. There have been some signs that the achievement of looked-after children has risen, but the gap is still very considerable between their educational attainment and that of the rest of society. For example, nine per cent of looked-after children attain five A-C grade GCSEs, compared with over 50 per cent for the rest of the population.
We are clear that this matters massively. The central thrust is the Every Child Matters approach that we set out in our Green paper, which is to require local authorities in total to look at how they raise performance, particularly of looked-after children, in a root-and-branch look at their systems. But we have also set a clear PSA target for the next round in 2004, which aims to give incentives to local authorities to increase the stability of looked-after children. If those children are constantly moved around and change schools and foster placements, they cannot have the continuity in education or the stability in their emotional lives that is essential. That is one of a range of issues on which we will be working strongly in partnership with local authorities.
Baroness Massey of Darwen: My Lords, I am sure that my noble friend the Minister is aware that far too many looked-after children in our system end up in the criminal justice system, which is a great tragedy for them and for society. Are there any plans to increase the teaching of what might be called "life skills" and social skills to these young people to enable them to overcome their problems at an early age?
Lord Filkin: My Lords, my noble friend is absolutely right. We know that approximately a quarter of people in prison have, at some stage, been in care. That is completely disproportionate to the number in society. We also know why. It is because many, not all, looked-after children have low educational attainment. It means that the likelihood of their obtaining employment is low. They have a higher incidence of mental health problems and their lives have often been characterised by turmoil and instability. It is very easy, then, to turn to crime, drugs and other forms of malfunction.
The focus of the noble Baroness's question is part of the agenda at which we are expecting local authorities to get better, with government support, by trying to improve effective caring in practice for looked-after children, rather than regarding them as on the edge of the system and an issue only for the social services department. They are an issue for the whole authority and for the whole of government as well.
Baroness Seccombe: My Lords, the Government have had the target of reducing the percentage of
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children in care for at least 12 months who are not taking any exams to 10 per cent by 2006. In 2003, however the percentage of such children increased by a further 1 per cent, to 43 per cent. How can the Minister account for that, and what does he propose to do about it?
Lord Filkin: My Lords, I can account for it by saying that we—in which I include local education authorities, the Government and all of us—have not been successful enough at tackling this difficult problem. Nothing that I have said has indicated that we are in anyway complacent or satisfied with the performance of society and government in their width on this issue.
We will first tackle the issue of stability. There are also issues around the quality and number of social care workers, about which I shall say more in the new year. There is an issue of rebuilding the confidence of the social work profession, which we as a society have to treat seriously, rather than scapegoating and vilifying it.
As I said, however, local authorities have to put looked-after children at the centre of their agenda. My right honourable friend the Secretary of State for Education is absolutely clear that, as a society and as a department, we will judge ourselves in the future on whether we make improvements for looked-after children. They have to be a central focus of policy.
Baroness Walmsley: My Lords, the Select Committee on Education and Skills in another place, in its recent report on the admissions process, found that a number of local authorities are putting aside the guidance that says that when there are more applications than places, schools should give priority to looked-after children because of their multiple disadvantages. Members of Parliament regretted that that was guidance and not a duty. Do the Government plan to make it a duty?
Lord Filkin: My Lords, there is always a temptation to add to the number of duties, and undoubtedly there are occasions when we should put more duties on local authorities. But if it were as simple as that, we would have reached perfection already. The thrust of what we will be doing with local authorities is having a single discussion with schools around the totality of their performance.
Rather than a school receiving hundreds of missives from the LEA and government and a whole range of discussions, there will be one single, focused conversation between the LEA and the school about its performance. Last week, we discussed with the LGA how high on the list will be the school's approach to raising the attainment of looked-after children and the inclusion of children with special educational needs.
We believe that that is a strong focus for putting pressure on schools which are not pulling their weight in this respect.
Lord Maginnis of Drumglass: My Lords, while one is encouraged by the Minister's words, may I bring him

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face to face with reality in the part of the United Kingdom in which I live? I draw his attention to a particular example which represents the carelessness within the system in Northern Ireland. There, a 13 year-old child is allowed to absent herself from the children's home on a daily basis for hours at a time. She is known to be associating with middle-aged men, yet the police will do nothing about it because she has gone voluntarily. The senior social workers blame the legislation and say that it is not adequate. The girl, a difficult child, has moved, through the sniffing process, to hard drugs at the age of 15. In two years the system has destroyed her. What is going to be done about that type of situation?
Lord Filkin: My Lords, it is good to know that I have not escaped the penetrating questions of the noble Lord, Lord Maginnis, even though I have moved departments. More seriously, I shall not comment on an individual case in public. However, if the noble Lord cares to write to me in confidence, I shall no doubt be keen to look at the case and to see what, if anything, we can learn from it or do about it.

Disaster Reduction: Kobe Conference
3.2 p.m.
Lord Hunt of Chesterton Lord Hunt of Chesterton asked Her Majesty's Government:
Whether their policy objectives at the forthcoming conference on disaster reduction in Kobe, Japan, in January 2005 will include the improvement of the international exchange of predictions and warnings, and the provision of assistance to developing countries most at risk.
The Lord President of the Council (Baroness Amos): My Lords, DfID's objectives for the Kobe conference include an improvement in the dissemination of information on early warnings. The Government will continue to support developing countries most at risk of disasters.
Lord Hunt of Chesterton: My Lords, I thank the Minister for her reply. Is she aware that despite the great technical advances in the prediction of natural disasters, there are still very limited arrangements for the international exchange of warnings, especially of major floods, and that some countries have resisted the free exchange of warnings? Will the Government be assisting developing countries through governmental insurance arrangements which need to be established? I declare an interest as a member of the advisory committee for natural disaster reduction.
Baroness Amos: My Lords, my noble friend Lord Hunt is right; there are limited arrangements for the exchange of information. One of the things that we will be seeking to do at the conference is to promote the findings of the DfID commissioned scoping study
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which contains recommendations on a range of issues that can contribute to a more effective international response to tackling disaster risk reduction.
Baroness Northover: My Lords, is the Minister aware—she surely is—that 98 per cent of those affected by natural disasters are in developing countries and that the impact of these natural disasters has increased threefold since the 1970s? What plans is DfID now making to improve its country assistance plans so that it puts in the mainstream measures to combat these natural disasters?
Baroness Amos: My Lords, the noble Baroness is right. The figures for the impact of disasters on developing countries as against that on developed countries indicate that as well as the human factors the economic impact in particular is much greater in developing countries.
One of the criticisms made of DfID in a recent NAO report was that we should do more to encourage developing countries that are prone to disasters to include disaster preparedness in their country's assistance plans. The scoping study, which I mentioned earlier, is one mechanism for doing that. We will use the recommendations coming out of that report to develop a further strategy on disaster preparedness.
Lord Tanlaw: My Lords, does the noble Baroness not agree that catastrophes can occur not only in developing countries? If there is a connection between the greenhouse effect, about which the Government's Chief Scientist has recently warned, and any form of slowing down of or change in the circulation of the Gulf Stream, it will affect the whole of northern Europe, which does not comprise developing countries. Is anything being done to monitor the situation and possibly discover whether we are vulnerable to such a catastrophe?
Baroness Amos: My Lords, I hope that the noble Lord did not take from my reply that only developing countries are impacted by these changes. The impact on developing countries is much greater than the impact on the developed world.
On climate change, in its Synthesis Report for the Third Assessment Report in 2001, the Intergovernmental Panel on Climate Change noted the increasing body of observation giving a collective picture of a warming world. That is why one of the issues we are going to put at the front of our agenda as part of our G8 discussions next year is climate change not only in parts of Africa and Asia but also in the rest of the world.

Pakistan
3.6 p.m.
Baroness Falkner of Margravine Baroness Falkner of Margravine asked Her Majesty's Government:
What representations they have made to the Government of Pakistan about the restoration of democracy in that country, in the light of recent announcements on the military role of the president.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, my right honourable friend the Foreign Secretary and the Secretary of State for Defence have both spoken recently to the Pakistani Foreign Minister on the issue of democracy in Pakistan and President Musharraf's dual role as President and Chief of Army Staff.
We welcome the progress made so far in Pakistan's transition to democracy. We have emphasised our preference that any decision made by President Musharraf on retaining his position as both President and as Chief of Army Staff should be made in accordance with the Pakistani constitution and with parliamentary support.
Baroness Falkner of Margravine: My Lords, will the Minister associate herself with the remarks of the Secretary of State for Defence when he was in Pakistan two weeks ago, when he described this regressive move, in clear breach of a pledge to the Commonwealth, as "understandable"? Would the Minister similarly understand that were it to happen in Zimbabwe?
Baroness Symons of Vernham Dean: My Lords, I am afraid that in foreign affairs the noble Baroness has to understand that one size simply does not fit all. The fact is that we are dealing with very different positions. Ideally, in any state, we would prefer to separate the roles of the head of state and the chief of staff, but there are very considerable pressures on Pakistan at the moment—very considerable pressures on President Musharraf. The President's stance, for example, in dealing with the issues around weapons of mass destruction, in dealing in the way he has with issues of terrorism and in making the rapprochement he has with the state of India are all matters which are entirely different from those affecting Zimbabwe and the noble Baroness ought to take that into account.
Lord Howell of Guildford: My Lords, we all wish to see democracy in the broader sense of that concept—and it is a very broad concept indeed—spread as far as possible over the globe, particularly throughout the Commonwealth. We can all agree with that. However, does the Minister keep in mind—I am sure that she does—that Pakistan is suffering grievously from terror and from the most hideous atrocities and killings not only of the Christian community but of many other innocent people? Therefore, will she agree with me that when we speak of Pakistan we should spare a thought for its brave people and send them our good wishes in their difficulties; and that while we want to see political development there, we also want to see peace and security in that country as it evolves?
Baroness Symons of Vernham Dean: Yes, my Lords, I would like to associate myself very strongly with what the noble Lord has said. Peace and security are prerequisites for democracy. We have just been talking about the importance of stability in Iraq in relation to the elections there. Of course, President Musharraf was the subject of the attention of would-be assassins in
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December last year and mercifully escaped. We welcome all the steps that have been taken to clamp down on terrorist and extreme groups in Pakistan. The banning of such groups in November 2003 was a very positive step in undermining and destabilising their influence. I think that President Musharraf and the people of Pakistan are to be congratulated on the stance that they have taken against terrorism.
The Earl of Sandwich: My Lords, the noble Baroness has spoken about the Pakistan Government's success in combating terrorism. She will know better than any of us that they have also recently had military success on the Afghan border. But what about the propaganda war? Does she have any evidence that the Pakistan Government are taking seriously the websites emanating from refugee camps in Peshawar and elsewhere which are still extolling the virtues of the Taliban and, indeed, the virtues of that sector of their own society?
Baroness Symons of Vernham Dean: My Lords, I am very concerned about the way in which a number of websites are operating at the moment. I am very concerned that a number of groups seem to be able to operate with virtual impunity because of the difficulty of policing those websites; and it looks as though real questions of incitement arise from a number of different websites. I have enormous sympathy with what the noble Earl is saying on this matter, and I know that it is a question of great concern to my right honourable friend the Prime Minister.
Baroness Falkner of Margravine: My Lords, the noble Baroness will be aware that, while stability is what all well-wishers for Pakistan want to see, President Musharraf's declared aims in the military coup were to restore a political culture that was representative and to combat terrorism. He has failed in both in the sense that Sipah-e-Sihaba and many other terrorist groups have been banned but no effective action is being taken to stop them operating. The noble Earl's question about websites is an illustration of that. Therefore, the stated aims of President Musharraf are not being carried out, and yet we have no political space in which opposition parties can operate.
Baroness Symons of Vernham Dean: My Lords, I am not sure what the question was because the noble Baroness seemed to be making a statement. My point about websites is that it is a problem that affects a number of different countries. I hope that the noble Baroness will understand that her view is very different from that of the Commonwealth Secretariat, where the progress that Pakistan has made on questions of democracy has enabled it to rejoin the councils of the Commonwealth, and we are very pleased. The noble Baroness may shake her head, but I am afraid that the combined wisdom of the Commonwealth is probably more likely to endear itself to your Lordships than a personal opinion on this matter.

West Northamptonshire Development Corporation (Area and Constitution) Order 2004
The Chairman of Committees (Lord Brabazon of Tara): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, that, pursuant to the order of 7 September, a Select Committee be appointed to consider the matters complained of in the petitions against the order and that, as proposed by the Committee of Selection, the following Lords be named of the committee:
Boston of Faversham, L. (Chairman)
Brougham and Vaux, L.
Corbett of Castle Vale, L.
Dykes, L.
Sandwich, E.;
That the proceedings of the committee be conducted as if they were a committee on an opposed private Bill;
That the order and the petitions stand referred to the committee;
That the committee have power to adjourn from place to place;
That the committee do meet on Monday 25 October at half-past ten o'clock.—(The Chairman of Committees.)
On Question, Motion agreed to.

Housing Bill
3.13 p.m.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Rooker.)
On Question, Motion agreed to.
Clause 141 [Meaning of "residential property" and "home information pack"]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 144A:
Page 102, line 26, leave out "or intended to be occupied"
The noble Earl said: My Lords, as your Lordships will see from the groupings list, this amendment is grouped with Amendments Nos. 144B, 144D and 144E. I was not consulted on that grouping. I think that it is inappropriate, and I have told the Minister's advisers that at this stage I wish to break the grouping and speak only to Amendments Nos. 144A and 144B. I shall deal with Amendments Nos. 144D and 144E separately.
These are probing amendments to find out exactly what the situation will be for someone who is selling a dwelling that is in the process of being constructed. I am thinking here of a developer of a block of flats that is either at the planning stage or half way—or any variable stage—between the beginning of construction and completion.
Many such buildings, particularly in a good market—in a not so good market, they tend to stick around—will either be sold off-plan in advance or as the building is under construction. If a purchase takes place while the property is under construction, the property could well be modified at some stage during the construction. The purpose of the amendments is to elucidate the exact position for the developer. I am not talking here about a refurbishment of a property; I am talking about a new build. I am not clear whether the developer must produce a home information pack either before or during the process of construction. I beg to move.
Baroness Hamwee: My Lords, at the previous stage—I cannot remember whether it was this amendment or a similar one—I supported the noble Earl. It is helpful to have Hansard in order to consider precisely what Ministers say on these sometimes small but difficult points. I cannot support the noble Earl on this issue because I am persuaded by what the Minister said on the last occasion about marketing being important, both as a matter of drafting but more importantly as the substantive point. I believe that the issues raised by the noble Earl are very important but I am not sure that this is the way to proceed.
Lord Bassam of Brighton: My Lords, the answer to whether or not a home under construction will require a home information pack is obviously "yes". In the normal run of events, one would expect a home condition report to form part of that pack, but obviously it will not be required to be in the pack while the property is still under construction.
What happens when the property is finished is rather different. At that point, we would expect a home condition report to be added to the pack unless—this is another important qualification—the home is being sold with the benefit of an approved warranty. As I understand it, such warranties are fairly common in the industry and that term is understood. In that case, of course, no home condition report will be required. We can provide for this situation by way of regulation when the legislation is in place. I hope that that answers the noble Earl's point satisfactorily.
It may be worth adding that, during the process of consultation, we made it clear that home information packs included a proposition to allow home condition reports to be omitted from the packs for the sale of newly built homes so long as they were covered by the satisfactory provision of a warranty. The reference to how the Secretary of State will cover this point in regulations is found in Clause 155(9)(c).
It is also the intention of the Government to set up a specialist working group that will consider the way in which the measure is introduced. That will be part of the process of arranging for other elements of the pack and for advising on the appropriate contents of home information packs for the sale of new homes. I hope that that information aids the noble Earl.
The Earl of Caithness: My Lords, I am grateful to the Minister for his answer. It spells out more clearly

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in words of one syllable what I hoped he was going to say, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 144B not moved.]
The Chairman of Committees: My Lords, I should remind the House that if Amendment No. 144C is agreed to, I cannot call Amendment No. 144D because of pre-emption.
Baroness Hamwee Baroness Hamwee moved Amendment No. 144C:
Page 102, line 30, leave out from "or" to end of line 31 and insert "its terms of sale in accordance with section 155"
The noble Baroness said: My Lords, it seemed to me that whatever the technical answer to the concerns raised by your Lordships about the phrase, "become available for sale", if such a phrase causes problems, your Lordships may not be the only ones to be a little confused by it. I thought that the phrase was perhaps distracting. As I have just said, the issue is about marketing not about whether something is, or is to become, available for sale.
The words I have suggested are only a synonym for the words in the Bill. The obligations for which this part of the Bill provides are not in this clause. Therefore, I do not see why it is necessary to have a reference here to future availability. I try to be helpful, not, as I say, to be critical of the drafting for the sake of it but because if there is confusing terminology, when this Bill becomes law others may be rather confused. I beg to move.
The Earl of Caithness: My Lords, I support the noble Baroness in her amendment. My amendment No. 144D tackles the problem in a slightly different way. As I said in Committee, the noble Baroness with her legal training spotted the same problem as I did.
The problem is clear when you look at the Bill. Clause 141(2) states:
"References in this Part to a home information pack, in relation to a residential property, are to a collection of documents relating to the property or the terms on which it is or may become available for sale".
The key words there are "or may become".
The legal advice I have received is that everyone, regardless of whether they are marketing their property, has to have a home information pack because that house, or that flat, may become available for sale. We have here terminology which is highly confusing. If one has had legal advice which is contrary to that of the Government, it is best to try to resolve the matter before it has to be resolved in the courts. With due respect to the noble Baroness, no one wants to pay solicitors any more than is utterly necessary. Here is a very good opportunity to do so.
I do not mind which of the two amendments is accepted by the Government. However, if they do not accept the amendment tabled by the noble Baroness, I shall test the opinion of the House on my amendment.
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This is a fundamental point. It has nothing to do with the marketing of properties but with the clarification of what property is on the market.
In Committee, the noble Lord, Lord Rooker, went off at a tangent and associated this amendment with a lot of other amendments later in the Bill. He tried to wrap the whole thing up into one and said that this caused a major loophole. Let me say yet again to the noble Lord, Lord Rooker, that this is entirely separate. This is a freestanding amendment that is not related in any way to the subsequent amendments. It is a question of legal definition and making certain at an early stage of the Bill that there is clarity.
Lord Bassam of Brighton: My Lords, this is a curious debate. On the one hand the noble Baroness wants to be helpful in improving the quality of the drafting; on the other I fear that the noble Earl and I shall have to beg to differ on his particular amendment, for the reasons that we set out in Committee.
For the purpose of convenience I shall deal first with the amendment tabled by the noble Earl because I think that might assist. Amendment No. 144D would disapply the definition from properties that are not yet on the market. I am sure that the amendment is probably intended to protect people who mention around the dinner table that they are thinking of selling their house from being under a duty to have a pack. However, the amendment is not necessary to prevent such "conversational marketing" being caught by the duties. It will not be caught by the Bill as it stands.
If passed, the amendment would have other unwelcome effects. The noble Earl does not agree with us, but we are confident that it would open up a loophole which would enable estate agents to engage in supposed pre-marketing activities that would amount to actual marketing in all but name without triggering the home information pack duties. It would, for example, enable someone to evade the duty to have a pack when marketing begins by advertising a property as becoming available for sale shortly knowing full well that potential buyers would see that as a marketing gambit.
Noble Lords expressed concern in Committee that the reference to when a home may become available for sale could lead to people who were merely contemplating selling a house being under a duty to have a pack. As we made clear in correspondence on 11 October on issues arising from Committee, we are satisfied that the Bill imposes no duty to have a pack when someone is just considering putting a home on the market. I am happy to make that clear and put it on the record once again.
Clauses 145(1) and 146(1) identify when the duty to have a home information pack in Clause 148(1) arises and whether the responsibility is the estate agent's or the seller's. The responsibility arises when an action takes place that either puts the property on the market or makes public the fact that it is on the market. There is no responsibility and hence no duty at the "just considering" stage.

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Under Clause 152, estate agents must also have a pack when they take a qualifying action. That duty will apply even where a property is not on the market or the estate agent does not qualify as a responsible person. This is defined in Clause 152(3) as:
"action taken with the intention of marketing the property which—

(a) communicates to any person in England and Wales the fact that the property is or may become available for sale; but

(b) does not put the property on the market or make public the fact that the property is on the market".

However, this still does not mean that there is a duty to have a home information pack when an owner of a residential property is just considering whether to sell. Clause 152 affects only estate agents who intentionally make a direct attempt to market the property.
The amendment that the noble Baroness believes she has helpfully moved would also disapply the definition from properties that are not yet on the market. As I have explained, no amendment is necessary to prevent those who are merely considering putting their home on the market being subject to the home information pack duties.
Like Amendment No. 144D, this amendment would also open up the loophole that would enable estate agents to evade the duty to have a pack when marketing begins by advertising a property as becoming available for sale shortly which would, in our view, amount to marketing by any other name. If it is just a drafting amendment, again we cannot accept it because it would lead to problems with a number of references to home information packs elsewhere in Part 5.
Clause 141(2) is intended to be a general definition which works for all later references. All those later references make a distinction between the term "home information pack" as a general concept, and a home information pack which complies with the regulations on content. So, to define the pack by reference to Clause 155 regulations would cause problems. The references to "home information pack" within Clause 155 would also then become unhelpfully circular. I have tried to draw a distinction as to the unhelpfulness and the problems that both these amendments might cause. I hope that that enables both the noble Baroness and noble Earl to think further about the undesirability of their amendments.
3.30 p.m.
Lord Phillips of Sudbury: My Lords, before the Minister sits down, he talked about the danger of what he called "pre-marketing tantamount to marketing". In my view that is a nonsense of a formulation. If the amendment of the noble Earl, Lord Caithness, is not accepted, what would be the position of an auctioneer selling a property, who at the end of the auction said: "It may well be that the neighbouring farm will be coming on to the market in the autumn"? Is that caught by this section because the words "may become" are not omitted? That is just one of a
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thousand examples I can think of where the law will be unclear. But the Minister may be able to satisfy us about that.
Lord Bassam of Brighton: My Lords, the formulation used by the noble Lord probably would not be caught in the terms in which he described it. It is obviously something that we will have to think carefully about in framing the regulations and providing the guidance. But I cannot see that it would be in those terms because the reference is an exceedingly general one. Without sight of a map and looking to see where the neighbouring farm might be, it is a speculative offer from the auctioneer to say simply that there may be other farms in the area that are going to be coming on the market at some point in the future. I cannot see that that is pre-marketing.
Lord Phillips of Sudbury: My Lords, I am most grateful. This is precisely the danger of the words "may become". It is precisely a "may become" situation if the auctioneer says, "We may be marketing Black Acre in the autumn". That is precisely the point.
Lord Bassam of Brighton: My Lords, I think the noble Lord is probably creating the mischief of a potential evil that does not necessarily exist. I cannot accept the noble Lord's point.
Lord MacGregor of Pulham Market: My Lords, before the Minister sits down—unfortunately I was not able to participate in the earlier stages—what is the situation where two individuals are talking to each other and one says, "Well, I may be thinking of putting my property on the market within the next year"? Will that be caught under this provision?
Lord Bassam of Brighton: My Lords, we had some discussion of that in Committee. I do not think that that situation would be caught at all.
Baroness Hamwee: My Lords, I was not being as devious as the noble Lord thinks.
Lord Bassam of Brighton: My Lords, I would not like the noble Baroness to think that I thought she was devious.
Baroness Hamwee: Oh dear, my Lords, that is a terrible slur—mind you, it seems he has never noticed. I should perhaps have put a comma after the words "terms of sale". That is the relevant point. My phrase,
"in accordance with section 155",
was intended to refer to the home information pack, which is raised at the beginning of the sentence.
I was not attempting to achieve by the back door, a side door or down the chimney, the things that the Minister suggests. I am straightforwardly trying to stop other people in the future getting confused over the clause which, as he rightly said and spelled out before, is a definition clause, the duties being in

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subsequent clauses. That is why I have tried to take out anything that might be thought to relate to the duty in the terms we have been discussing.
However, there is a limit at which the Opposition Benches must stop trying to improve the Bill. I have reached that point and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Caithness The Earl of Caithness moved Amendment No. 144D:
Page 102, line 31, leave out "or may become"
The noble Earl said: My Lords, I spoke in part to this amendment when the noble Baroness, Lady Hamwee, moved her previous amendment. I have to say to the noble Lord, Lord Bassam, that I think the noble Baroness's drafting was more elegant than mine, but that this is an extremely important point. I am not trying to destroy the Bill but to be constructive because there is very genuine concern outside the House. I know that the Government Front Bench is not listening to any concerns. It has "big resist" over everything that we have put forward.
It is not up to noble Lords to get the wording of an amendment exactly right. We do our very best. We do not have a troop of lawyers behind us. Certainly, when I was a Minister, the point was the spirit of an amendment. If the Government accepted the spirit of the amendment they could easily redraft the provision in another place and send it back to us. Both the noble Baroness and I are trying to improve the Bill at this point. There is enormous confusion outside the House, which we are trying to lessen considerably. I beg to move.
Baroness Hamwee: My Lords, it is only right to say that—and I am sorry to have to say it—for reasons which I hope I have already explained, we would find it difficult to support the amendment if the noble Earl were to divide the House. The issue is about when a property is marketed. This is a distraction. We do not think that dealing with the matter as proposed by the noble Earl addresses the marketing point in a way that gets the outcome we would like.
I do not know whether the noble Earl has spoken to Amendment No. 144E. We have later amendments which address day one marketing. I thought it was right to say straight up, "Sorry, we will not be able to go with the noble Earl on this".
Lord Borrie: My Lords, before the noble Earl comes to a conclusion on whether he wants to call for a vote on the amendment, perhaps he would pay attention to Clause 142(2). An important point is made there. It states:
"A residential property is put on the market"—
that of course results in a home information pack having to be made available—
"when the fact that it is or may become available for sale is, with the intention of marketing the property, first made public in England and Wales by or on behalf of the seller".
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It seems to me that that intention must be clear before any obligation comes into play to have available a home information pack. I think that is also an answer to the point raised by the noble Lord, Lord Phillips of Sudbury; that at the end of the auction sale on one piece of property, the auctioneer says that another piece of property may become available in the spring, the autumn or whatever. But if you do not have at that point a clear intention to market the property, then none of the obligations about home information pack and so on comes into play. I hope I am right on that point and that it may persuade the noble Earl not to pursue this rather academic point about "may become" available for sale.
Lord Phillips of Sudbury: My Lords, the noble Lord. Lord Borrie, might agree with me, in the light of what he has just said, that if the auctioneer in the circumstances I was positing was to say not that, "We may be marketing Black Acre in the autumn", but, "It is our intention on behalf of the vendor to market Black Acre in the autumn", that would be caught by Sections 141 and 142. The issue then is, does one need to have a complete home pack ready there and then because you are notifying the world at large that come the autumn, which might be 11 months hence, you will be marketing?
Lord Borrie: My Lords, indeed why not? But it is rather unwise to say those words intentionally.
Lord Phillips of Sudbury: My Lords, it is unwise in terms of this Bill, but extremely sensible in terms of informing the world at large that in a few months' time that property will be marketed. It seems ludicrous to require the person who is giving that information, perfectly naturally, to have in-hand, nine months ahead of the date, one of these information packs, which will be completely out of date by then.
Lord Donaldson of Lymington: My Lords, perhaps I may draw attention to a distinction which appears to have been made by the Minister. He said that if somebody says, "In the autumn my client may be thinking of selling", that is all right. If he says, "In the autumn my client may be selling" that is not all right. So, "thinking" seems to be the great buzz word that you have to include.
Lord Bassam of Brighton: My Lords, I do not have a great deal more to say, because I responded to the points in our earlier debate, but I take exception to the noble Earl's assertion that the Government are not listening on the matter. We have been careful in how we have consulted; we have given commitments to future consultation on the design of the regulations; we have been working extremely closely with the industry on the Bill and carefully preparing these clauses because we understand the sensitivities that exist.

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We have had a helpful and useful debate. I take the point made by my noble friend Lord Borrie in his response to the noble Lord, Lord Phillips. He is absolutely right in his interpretation. I think we have got the provision about right but of course, in the end, it will come down to how we design the regulations and implement the provision to ensure that we get it absolutely right and that there can be no room for doubt about when the marketing commences.
I certainly sympathise with the noble Earl, Lord Caithness, in raising the issue, but I do not think that this amendment is the way to take us forward. In the end, it would significantly damage the Bill. If the noble Earl wants to carry on the sort of dialogue that he clearly relishes on behalf of the industry, it would be extremely unwise to pursue the amendment. The noble Baroness has been very wise in her comments in drawing a distinction between the intention behind her amendment and that behind the noble Earl's.
The Earl of Caithness: My Lords, there has not been much communication with me since Committee. I have heard absolutely nothing from the Government. They did not comment further on any of the points that I raised; there has been a deathly silence. If the noble Lord is now saying that if I am to be slightly troublesome about this amendment he will have difficulty in consulting with the profession, that is a threat to which I shall not succumb.
Lord Bassam of Brighton: My Lords, I am absolutely not saying that. That was not the intention behind my words.
The Earl of Caithness: My Lords, I shall read with great care what the noble Lord said, but that is certainly how it came over to me.
I take a contrary view to that of the noble Lord, Lord Bassam. I think that the point made by the noble Lord, Lord Borrie, was well answered by the noble Lord, Lord Phillips of Sudbury, who put the case extremely well and certainly better than I did. We should not wait for the regulations; we are certainly not going to get them before the Bill completes its passage through this House. There is immense confusion on the issue. If the Government understand what they are trying to do, they can revise the amendment in the Commons, if it is passed, but I think that it is right to test the opinion of the House.
Before I do that, I should just like to say how sorry I am that the noble Baroness, Lady Hamwee, has moved away. In Committee, she said that she had a lot of sympathy with me concerning exactly the same amendment. Now it comes to the crunch, she has moved away. I am sorry about that: I supported her amendment and would have done so in the Lobby; I hope that she may have a second thought and support me. I beg to test the opinion of the House.
3.42 p.m.
On Question, Whether the said amendment (No. 144D) shall be agreed to?
Their Lordships divided: Contents, 97; Not-Contents, 143.

Division No. 1

CONTENTS

Ampthill, L.

King of Bridgwater, L.

Astor of Hever, L.

Knight of Collingtree, B.

Attlee, E.

Laing of Dunphail, L.

Baker of Dorking, L.

Lindsay, E.

Biffen, L.

Liverpool, E.

Blatch, B.

Lyell, L.

Bowness, L.

MacGregor of Pulham Market, L

Brougham and Vaux, L.

Buscombe, B.

Mackay of Clashfern, L.

Byford, B.

Marlesford, L.

Caithness, E. [Teller]

Marsh, L.

Carlisle of Bucklow, L.

Masham of Ilton, B.

Carnegy of Lour, B.

Mayhew of Twysden, L.

Chorley, L.

Miller of Hendon, B.

Cobbold, L.

Molyneaux of Killead, L.

Cope of Berkeley, L.

Monro of Langholm, L.

Courtown, E.

Monson, L.

Craig of Radley, L.

Montagu of Beaulieu, L.

Crathorne, L.

Montrose, D.

Crickhowell, L.

Mowbray and Stourton, L.

Cumberlege, B.

Noakes, B.

Dean of Harptree, L.

O'Cathain, B.

Denham, L.

Onslow, E.

Dixon-Smith, L.

Palmer, L.

Donaldson of Lymington, L.

Park of Monmouth, B

Eden of Winton, L.

Peel, E.

Elles, B.

Peyton of Yeovil, L.

Elton, L.

Plumb, L.

Erroll, E.

Rawlings, B.

Ferrers, E.

Rees, L.

Fookes, B.

Renton, L.

Fowler, L.

Roberts of Conwy, L.

Gardner of Parkes, B. [Teller]

Rotherwick, L.

Geddes, L.

Saltoun of Abernethy, Ly.

Glentoran, L.

Seccombe, B.

Hanham, B.

Selsdon, L.

Hanningfield, L.

Shaw of Northstead, L.

Hayhoe, L.

Sheppard of Didgemere, L.

Henley, L.

Skelmersdale, L.

Howe, E.

Soulsby of Swaffham Prior, L.

Howe of Aberavon, L.

Steinberg, L.

Howell of Guildford, L.

Stoddart of Swindon, L.

Hunt of Wirral, L.

Swinfen, L.

Hurd of Westwell, L.

Ullswater, V.

Inglewood, L.

Waddington, L.

Jenkin of Roding, L.

Wade of Chorlton, L.

Jopling, L.

Wakeham, L.

Kilclooney, L.

Willoughby de Broke, L.

Kimball, L.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Berkeley, L.

Ahmed, L.

Bernstein of Craigweil, L.

Alton of Liverpool, L.

Best, L.

Amos, B. (Lord President of the Council)

Bhatia, L.

Billingham, B.

Andrews, B.

Borrie, L.

Archer of Sandwell, L.

Bragg, L.

Ashley of Stoke, L.

Brett, L.

Ashton of Upholland, B.

Brooke of Alverthorpe, L.

Bach, L.

Burlison, L.

Barnett, L.

Carter, L.

Bassam of Brighton, L.

Christopher, L.

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Clark of Windermere, L.

Macdonald of Tradeston, L.

Clarke of Hampstead, L.

McIntosh of Haringey, L.

Clinton-Davis, L.

McIntosh of Hudnall, B.

Cohen of Pimlico, B.

MacKenzie of Culkein, L.

Corbett of Castle Vale, L.

Mackenzie of Framwellgate, L.

Crawley, B.

McKenzie of Luton, L.

David, B.

Mason of Barnsley, L.

Davies of Coity, L.

Massey of Darwen, B.

Davies of Oldham, L.[Teller]

Mitchell, L.

Derby, Bp.

Morgan of Drefelin, B.

Dixon, L.

Morris of Aberavon, L.

Drayson, L.

Morris of Manchester, L.

Elder, L.

Northfield, L.

Evans of Parkside, L.

Parekh, L.

Evans of Temple Guiting, L.

Patel, L.

Falconer of Thoroton, L. (Lord Chancellor)

patel of Blackburn, L.

Pendry, L.

Farrington of Ribbleton, B.

Peston, L.

Faulkner of Worcester, L.

Pitkeathley, B.

Filkin, L.

Plant of Highfield, L.

Finlay of Llandaff, B.

Ponsonby of Shulbrede, L.

Fyfe of Fairfield, L.

Prosser, B.

Gale, B.

Prys-Davies, L.

Gibson of Market Rasen, B.

Radice, L.

Giddens, L.

Ramsay of Cartvale, B.

Golding, B.

Randall of St. Budeaux, L.

Goldsmith, L.

Rendell of Babergh, B.

Gordon of Strathblane, L.

Richard, L.

Goudie, B.

Rooker, L.

Gould of Brookwood, L.

Rosser, L.

Gould of Potternewton, B.

Rowlands, L.

Graham of Edmonton, L.

Royall of Blaisdon, B.

Grocott, L.[Teller]

Sawyer, L.

Harris of Haringey, L.

Scotland of Asthal, B.

Harrison, L.

Sewel, L.

Hart of Chilton, L.

Sheldon, L.

Haskel, L.

Simon, V.

Haworth, L.

Smith of Leigh, L.

Hayman, B.

Snape, L.

Henig, B.

Stone of Blackheath, L.

Hilton of Eggardon, B.

Strabolgi, L.

Hogg of Cumbernauld, L.

Strange, B.

Hollis of Heigham, B.

Symons of Vernham Dean, B.

Howarth of Breckland, B.

Taylor of Blackburn, L.

Howells of St. Davids, B.

Tomlinson, L.

Howie of Troon, L.

Triesman, L.

Hoyle, L.

Truscott, L.

Hughes of Woodside, L.

Tunnicliffe, L.

Hunt of Kings Heath, L.

Turnberg, L.

Irvine of Lairg, L.

Turner of Camden, B.

Jay of Paddington, B.

Wall of New Barnet, B.

Joffe, L.

Walpole, L.

Jones, L.

Warner, L.

Jordan, L.

Warnock, B.

King of West Bromwich, L.

Weatherill, L.

Kirkhill, L.

Whitaker, B.

Lea of Crondall, L.

Whitty, L.

Levy, L.

Williams of Elvel, L.

Lipsey, L.

Williamson of Horton, L.

Lockwood, B.

Woolmer of Leeds, L.

Lofthouse of Ponterfract, L.

Resolved in the negative, and amendment disagreed to accordingly.
3.53 p.m.
[Amendment No. 144E not moved.]
Lord Hanningfield Lord Hanningfield moved Amendment No. 145:
Leave out Clause 141.
The noble Lord said: My Lords, I wish to speak to Amendment No. 145 and the amendments associated with it. They would remove Clauses 141 to 156 and
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Clauses 162 to 169. It will not have escaped the Government's notice that the amendments would kill off home information packs. I shall refer briefly to Amendments Nos. 145 to 156, and my noble friend Lady Hanham will, in addition to addressing the main thrust of the amendments, give the details relating to Amendments Nos. 157 to 179.
I welcome and commend the Government's reported late decision to drop home information packs from the Bill. We look forward to receiving the Minister's confirmation of that today. It seems that the Government have finally seen the light and realised that packs will neither speed up property transactions nor stop gazumping. They have finally realised that the packs, at a cost of almost £1,000 apiece, would have been Labour's community charge—or, to put it another way, its property poll tax.
Although I applaud that noble decision, I must make one small criticism of the Government. Surely, rather than announcing the withdrawal of the packs in the most widely read Sunday newspaper in the country—I hope that both Ministers saw the report—
Lord Rooker: My Lords, before we start the debate, I can confirm to the noble Lord that we are not doing so. If that was reported in one of the Murdoch lie-sheets, does it not simply show how inaccurate the press is?
Lord Hanningfield: My Lords, I accept what the Minister says, but normal protocol is to make such announcements to Parliament rather than in the Sunday newspapers.
If the Minister will not remove the packs today, I shall explain why we are opposed to the idea of the packs and why we have tabled the amendments. The plan for mandatory home information packs, as contained in Clauses 148 and 149, is an unnecessary and badly thought-out measure, merely acting as a burden and, we feel, an additional stealth tax on house buying. It will do nothing to speed up the house-buying process or to stop gazumping, the two main arguments that the Government have consistently used to defend the packs.
The National Association of Estate Agents has stated that 90 per cent of its membership is against the home information pack. The Law Society, the Council of Mortgage Lenders and the Royal Institution of Chartered Surveyors have expressed doubts and concerns. Indeed, with the notable exception of the Consumers' Association, which also has reservations, we can barely find one organisation or business that is in favour of the packs. Something must be wrong when those who might benefit financially from such measures oppose them.
The home information pack concept has been around since 2000. Originally it was supposed to stop gazumping; now the Government claim that it will bring transparency to property sales. We feel that it will achieve neither aim. The Government feel that, if transactions are quicker and more user-friendly, it will reduce gazumping and bring benefit to the consumer.

667
The packs will do nothing to speed up property transactions, as it is more than likely that purchasers will still wish to commission their own surveys. Friends and other individuals to whom I have talked have said that they would still want their own information and to have their own survey done. Hence, the proposals will duplicate the number of surveys undertaken, adding to the cost of selling one's home.
There is also now evidence that the mortgage valuation carried out for the lender significantly increases the time between offer and exchange of contracts, unless it has been left until the eleventh hour to instruct a surveyor. Surveyors work on a four-day turnaround. One delay blamed on surveyors is that they require further reports or estimates for significant repairs. That is a justified complaint, but it will not be addressed by the home information pack, as the home condition report would not provide costings for remedial works. The Government's argument that home information packs would prevent gazumping shows a complete lack of understanding of the market, because there is nothing in the scheme to stop a vendor accepting a higher offer at any time after the sale is set up. As always, it depends on goodwill and trust between buyer and seller.
The main issues relating to the requirement of a home condition report have not been properly considered. The pilots have been fudged and ill thought out. Comparisons with Denmark or Australia are not relevant to the process, as the volumes are so dissimilar. Numbers in Denmark and parts of Australia are very small. As we have said, 1.4 million homes change hands in this country every year.
4 p.m.
Since the idea was proposed in 1998, there have been several trials: in Bristol in 2000 and in Cardiff, Coventry and Sheffield in 2003. The pilot scheme was not a success in any of those places, in spite of the fact that the public were not charged a fee for the pack. How much worse would it have been if a charge of up to £1,000 had been made?
Earlier this summer, the Law Society made the case that the packs could help criminals to target vulnerable addresses. That is a valid argument, but, as the Government had no satisfactory answer to it, their only option was to dismiss the report as scaremongering. It remains the case, however, that the packs would force sellers to disclose information such as details of house security systems ahead of a sale. Anyone will be able to receive the pack, whether or not they are serious buyers. What is stopping anyone from obtaining a copy of the pack? We had several debates about the matter in Committee. Where are the necessary safeguards to prevent abuses?
We are also concerned that the packs would put an end to first-day marketing, as detailed under Clauses 142 to 146, which relate to responsibility for marketing. It may be that a property is marketed one way or another some time prior to the detailed negotiations leading to the purchase of the property. Marketing a property does not necessarily mean that it will be sold. There is room
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for confusion in that area. Furthermore, it is vital that a person who wants to market a property can do so speedily. As people will not be able to market a property without a pack, there must be a sharper definition of what constitutes marketing.
I do not intend to repeat the many arguments in favour of retaining day one marketing, but I will raise again our concerns about the inflationary aspects of limiting day one marketing. The requirement is for a complete home information pack to be in place before marketing is started. We have just debated the amendments tabled by my noble friend Lord Caithness about the start of the marketing process. That requirement will, without question, delay a home owner's ability to market and, therefore, sell their property. Research into the matter has shown that such delays will inevitably reduce the number of properties entering the market. The predicted figures range from 13 to 30 per cent. Even if we take the lower figure, we can see that a 13 per cent reduction in the number of properties on the market would have an inflationary effect on house prices. Yet, the Minister's new policy is to have more houses on the market and available to live in, rather than fewer. Such inflation in what is arguably an already over-inflated market could have a devastating knock-on effect on the whole UK economy.
It was argued by Ministers in the briefing circulated last week that a reduction in the number of houses for sale would not affect the market, because sellers would not be deterred and those who were merely testing the market with no intention of selling would not be around. That is based on pure conjecture by the Countrywide Assured group. In any case, I am not sure that it is the role of government to second-guess the intentions of tens of thousands of consumers. It is not the best way to make policy.
There can be no escaping the cost involved in producing one of the packs. That cost will fall fairly and squarely on someone who simply wants to sell their home. Current estimates put the cost of the pack at between £700 and £1,000. It is a property tax—no ifs or buts. It is another tax to be imposed by the Government on property. As if that were not bad enough, the figure could increase. Following guidance and secondary legislation, the Government could impose additional requirements for the content of each pack, as set out in Clause 155. I wish to remove the relevant clauses from the Bill. I beg to move.
Baroness Hanham: My Lords, my noble friend Lord Hanningfield spoke to Amendments Nos. 145 and 146; I shall address the specifics of Amendments Nos. 157 to 179, before also turning to the general concerns about housing packs. Amendments Nos. 157 and 158 would remove Clauses 153 and 154, which relate to exceptions to the duties of a person acting as an estate agent. Amendments Nos. 161 and 164 address the kernel of our concerns and would delete the clauses on the content of home information packs and home condition reports. The remaining amendments—Amendments Nos. 171 to 179—are more technical and relate to the removal of

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supplementary provisions so that, consequently, the whole part of the Bill relating to the home packs would be taken out.
I endorse the comments that my noble friend Lord Hanningfield has just made. In Committee, we had a long and involved discussion on the home packs, and we have made it clear all along that we have considerable concerns about the proposals. Our concerns arise not only from the cost of the packs but from their impact in low-demand areas; the creation of an army of inspectors to administer and write the packs; the question of insurance, should something go wrong, which we still have not cleared up; and the important issue of trust between the vendor and the purchaser.
My noble friend referred to the fact that there was more than a little evidence that purchasers will not rely on the packs. They simply will not accept the information in them and will have to set about doing their own survey, at additional cost. The packs will do nothing to speed up property transactions or stop gazumping, as my noble friend Lord Hanningfield said. Gazumping may be a thing of the past, given the way that the price of housing is settling, as a result of the rise in interest rates. That need not delay us for too long; we may need to consider the other extreme of the housing market, in which case housing packs will probably be even less effective.
The Government propose to make home information packs compulsory in 2007. Yet, despite what the Minister said in Committee, we do not believe that there can be sufficient qualified home inspectors able to carry out the number of reports that will be required. That was also admitted by the Government. There must also be concerns about whether qualified home inspectors are as suitable as qualified surveyors to deal with the matter.
As we have said, 7,500 to 10,000 full-time home inspectors will be needed to produce the home condition reports for every property going on the market. At the moment, there are only about 3,000 full-time chartered surveyors, and the shortfall will be made up by recruiting home inspectors and giving them a badge after a one-year NVQ course. The Consumers' Association says that home inspectors will have to have professional indemnity insurance but that, below £5,000, they will carry the cost of claims themselves. As our compensation culture becomes more ingrained, it will be impossible for home inspectors to afford to warranty the condition of a property. Likewise, the cost of hidden defects insurance will become prohibitive.
The Council of Mortgage Lenders has stated that the packs will not be acceptable to mortgage lenders, who are likely to insist regardless on a second survey, so that vendors will be forced to pay twice. Surveys will also be quickly out of date, giving a limited shelf life to the packs. If a property is slow in selling, there is a possibility that the vendor will have to produce more than one pack.
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The packs will, in effect, end the process of "testing the water", whereby a property is put up for sale for a short, limited period in order to ascertain the state of the market. Similarly, the packs will end the practice of -first-day marketing", a matter of considerable concern to which we will have to return. We believe that day one marketing is important to many consumers who, for various reasons, desire that their property is placed on the market without delay; that is, without the delay of having to have a home information pack before they can do so.
While I acknowledge that the Minister has given an assurance that provisions are in place to avoid marketing being delayed beyond a short initial period, I can see no justification for abolishing the principle that property owners are entitled to commence marketing when they choose and before a home information pack is in place. If the packs can be produced as quickly as the Government believe possible, I fail to see what objection the Government have to maintaining day one marketing. The idea that large numbers of house sales will be concluded within a few days of marketing commencing, without buyers having the benefit of access to the packs, is not rooted in reality.
Anyone with practical or personal experience of buying and selling property will acknowledge that it takes several days for estate agents to generate initial interest in individual properties. It often arises only once house details have been produced, circulated to those on a mailing list and/or published in local weekly newspapers. Once prospective buyers have seen a property that they would like to view, they will contact an estate agent to arrange a viewing, often during the next weekend.
The Government have failed to take into consideration the steps already being taken to speed up the selling process. That includes the better use of technology, including the introduction of e-conveyancing, the action by mortgage lenders to provide title deeds more quickly and the action by estate agents to encourage purchasers to clear their lines of credit before making an offer.
All in all, we do not believe that there is any benefit to buyers or sellers in the housing market, either in a market where there is a quick demand for sale or, perhaps more especially, in a market where there is a slow and rather more laborious timescale for selling property, which we look as if we are about to enter. It is our fundamental belief that these packs are a mistake. I support my noble friend Lord Hanningfield.
Lord Hunt of Wirral: My Lords, I have watched, listened and read with great interest the debates on this subject. Looking around the Chamber, I see many of your Lordships who have sat through quite a number of those debates. So it must be with a sense of déjà vu that we approach another debate, but it is of enormous importance.
I was stimulated to speak to support my noble friends by—dare I say—a stray comment made by the noble Lord, Lord Bassam, when he spoke on 14 September. In response to some very real concerns

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voiced by the noble Lord, Lord Phillips of Sudbury, and a number of your Lordships, the noble Lord, Lord Bassam, said that it is,
"about ironing out wrinkles".—[Official Report, 14/9/04; col. 1070.]
He was referring to a comment made by a number of noble Lords about the proposed system being immensely bureaucratic and introducing a whole series of measures that would waste an enormous amount of time and money. I just think that the noble Lord, Lord Bassam, had it completely wrong.
We are very grateful to the Government for stimulating an important debate about the whole question of caveat emptor; being able to purchase a property with some notice of local authority charges or general structural defects. It has been a very valuable debate, but I completely agree with my noble friend Lord Hanningfield. What has gone wrong is the element of compulsion. It infects the whole measure now to such a degree that I agree with my noble friend Lady Hanham that it would be best just to cut it out of the Bill altogether.
I recognise that I have a later amendment for discussion, which seeks to introduce a voluntary principle. But, for the reasons that I want to set out, it would be better to cut it out of the Bill altogether. Of course, as your Lordships know, I should declare my interest as senior partner of a firm of solicitors—Beachcroft Wansbroughs—which has a strong property department. I have drawn on not only the views of my partners and our fee earners but also a number of other people in the legal profession.
4.15 p.m.
Perhaps I may just retirer pour mieux sauter and come back from the debate about the minutiae of home information packs and turn to the general principle of voluntarism versus compulsion. It is no exaggeration to say that this goes to the very heart of the relationship between the state and the citizen. Where is the boundary that should be drawn between the two in a modern free society? It must now be clear to Ministers that many people inside and outside this House regard the imposition of the packs as just that—I repeat, an imposition.
I believe, as do many others, that the measure now constitutes a rather clumsy and unnecessary intervention into a market that in the vast majority of cases works perfectly well. We are told by Ministers that their proposals now address a significant market failure, yet no evidence is adduced to demonstrate that there is substance in that claim. We still await that evidence.
If there is a significant shortfall of information for buyers, as Ministers claim, buyers would cry out for more. Yet the voice of the buyer has in the past been a series of complaints about gazumping, which, of course, has nothing at all to do with home information packs. It has more to do with the state of the market at a particular time.
If there is a great demand for measures like home information packs, surely those who are providing them on a voluntary basis would have a cutting edge in the market place. People who provide that sort of information would find it much easier to sell their homes, and they would probably get a better price. It is rather like selling a car. If one sells a car with its complete history, and a prospect of verifying the history, one is more likely to get a better price, and more likely to sell than someone who just says, "Caveat emptor: it is up to you to check whether there is a roof on the property" or whatever. Surely that is patently obvious.
However, as I have said already, Ministers have done a service in raising this debate. There is a feeling that more could be done. If the packs were established on just a voluntary basis without the need for legislation with some procedures that are clearly understood by everyone, surely potential purchasers would come to regard buying a house without a pack in the same way that they might regard buying a fridge or a washing machine without any instruction manual. It would be a feature of a good purchase that one had all that information.
My point is that the market is perfectly able to cope with this. Already we have concrete evidence of that happening. I have spent a little time with the Law Society and members of its conveyancing committee going through all these details. It has explained to me what I believe to be an increasingly widely used transaction scheme. I understand from the Law Society that more than 80 per cent now use the protocol in whole or in part. It is very flexible, very consumer friendly and might be a very useful blueprint for home information packs. I suppose that I have to draw a little on my experience.
I was once energy efficiency Minister. We as Ministers decided that the best possible way ahead would be for us to rate a dwelling on its energy efficiency. The purchaser would be aware of whether the home had a one-star, two-star, three-star, four-star or even five-star rating for energy efficiency, and the savings would be significant.
We sponsored a development in Milton Keynes where all the houses were energy efficient through the use of passive solar photo-voltaic energy in the roof, and I thought that some of the examples were marvellous. But we also set up a pilot scheme. I say this to the Government: I know that they have already tried to run pilot schemes, but there is nothing as good as a really well organised pilot scheme to demonstrate to Ministers that they are actually going down the wrong path. We ran a pilot scheme in East Anglia and the East Midlands, and my recollection is that it was a complete and utter disaster. Purchasers did not seem to be attracted by the star energy rating. Indeed, the property market is very complicated and complex, so it is no use trying to simplify it in the way the Government have done. I should apologise to my colleagues, some of whom served with me in a previous government, for having divulged this grievous error on

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my part, but that pilot demonstrated the way ahead and so we dropped it, which is what I hope that Ministers will do with this scheme.
What would be a good idea is the creation of a new gold standard in clear information packs at a non-prohibitive cost—that is, easily afforded and understood. I understand that this, too, is attractive to the Consumers' Association. It is rather like the Sandler investment products that we may see one day in the realm of financial services. They are simple, easy to understand and enable people to know exactly what they are purchasing. That could be an admirable development.
I believe that I could adduce many other arguments against compulsion in this area. We have heard some of them and no doubt we shall hear a few more during the debate. Sellers may not wish to provide the pack because of cost considerations, in particular in areas where property prices are relatively low. A number of previous speakers on home information packs have demonstrated that.
However, the Government seem to assume that the cost of compiling the pack will be absorbed by the selling agent until the sale goes through. I can see a number of serious problems with that, and I want to ask the Government how they can make that assumption. It is likely to put great pressure on the selling agent to effect a sale, which will in turn have an impact on vulnerable sellers. They may well feel pressurised into exchanging contracts, whether or not they wish to do so. Sellers should simply be required to make it clear whether they are using the home information pack on a non-statutory basis. If the packs prove to be popular, they will be widely adopted, but if they are not popular, they will wither on the vine.
A fundamental point of principle is at stake here, as well as a highly practical one. Voluntarism works, and this system ain't broke. The statutory imposition of this new requirement will make the market less flexible and more costly for buyers and sellers alike. It will also create a potentially crippling disincentive to those who wish to dip their toe into the market. I hope that the Government will recognise that this kind of meddlesome social intervention should have no place in a modern democracy.
Lord Borrie: My Lords, I am glad to follow the noble Lord, Lord Hunt of Wirral, because I thought that he made a much more reasonable speech for the Conservative Opposition than the rather extremist remarks from the Front Bench, in particular those of' the noble Lord, Lord Hanningfield. He started inadvisedly by relying on a report in a Sunday newspaper that has no basis, and went on to condemn some 20 clauses outright in what was a completely destructive approach, whereas in Committee I thought that a number of constructive amendments were put forward by Her Majesty's Opposition. Today they seem to have completely departed from that and want to sweep away the whole of the provisions in Part 5.
The Liberal Democrats have not yet spoken on these important matters, although I am sure that they will shortly. I hope that I can appeal to Members on the
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Liberal Democrat Front Bench—I do not hold out much hope for the noble Lord, Lord Phillips of Sudbury—to be less destructive in their approach than was the noble Lord, Lord Hanningfield.
At this point it is worth pointing out that Part 5 is designed to improve the way in which the housing market works today—and by that I mean the residential housing market. At present, we all assume that a potential purchaser has to make an offer on the basis of a false prospectus—or should I say, on the basis of no prospectus because he has nothing to go on except a few estate agent's basic particulars and a superficial, unknowledgeable view that he and his family may have formed of the property. There is a complete lack of transparency in the process.
Part 5 involves state intervention, which no doubt is ideologically significant to the noble Lord, Lord Hunt of Wirral, and probably to the rest of us. Perhaps I may say to the noble Lord that the state, in the form of governments of which he was a member, as well as Labour governments, has intervened in order to provide requirements for the seller versus the buyer in the field of sales of goods of all kinds, including the refrigerators of which he spoke—and since I mentioned false prospectuses, in relation to company law. Successive governments have intervened time and again to ensure transparency, fairness and a level playing field between the parties to a transaction.
If all vendors wishing to market residential property have to make available to prospective purchasers material along the lines proposed in the Bill, the purchaser will be able to put forward an offer to the vendor on a more rational, knowledgeable and informed basis than typically he can at the present time. That would bring about a wholly desirable change in the culture of the familiar transaction of buying and selling residential properties.
Because house purchases so often form part of a chain—I say this in particular because of what was said by the noble Lord, Lord Hunt of Wirral—the requirement on the vendor to provide a home information pack needs to be compulsory. Otherwise one of the purchasers, one of the links in the chain, is likely to fail or at least to be slowed down when he discovers problems in the property not revealed at the outset. The other transactions in the chain may then collapse as well.
The noble Lord, along with others, very rightly referred to the costs that no doubt the Government have to admit are involved in the introduction of Part 5, but what of the costs so often incurred as a result of failed transactions today? Those costs are borne unexpectedly rather than negligently when a sale falls through because there was no clarity, no home condition report, and there would not have been an abundance of information about the residential property for the interested purchaser. People then have to start all over again.
Let us consider the costs involved when one potential purchaser pays a surveyor to make a report while another potential purchaser pays either the same or a different surveyor, and so forth. That money is

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wasted in most cases; it is not wasted only in the case of the one purchaser who eventually becomes the owner of the property.
I shall not say any more at this stage because unfortunately we are talking about the sweeping desire of Her Majesty's Opposition to get rid of the whole of Part 5, and therefore I speak only in the most general terms. We would be wrong to do this. I appeal across the heads of noble Lords on the Front Bench opposite to the more reasonable faces I see at the back, to the Cross-Benchers and to almost all—with the exception of the noble Lord, Lord Phillips of Sudbury—reasonable people on the Liberal Democrat Benches.
4.30 p.m.
Lord Fowler: My Lords, I am not sure whether or not the noble Lord, Lord Borrie, regards me as one of the more reasonable faces at the back—probably not—but, contrary to what he said, I have a great deal of sympathy with what my noble friends Lord Hanningfield and Lady Hanham have said and with the case they have put.
A great number of professional bodies and organisations, which we all respect, have come out against the home information packs. They have raised questions about the costs—I wonder whether the public understand that the cost of these packs may be between £700 and £1,000, a fact which is not likely to attract their support—and about the delay.
They have raised also the essential question—it is right that we should deal with it in this way—about whether this is necessary. I wish to raise a specific point which continues the theme of whether it is necessary; it will help to determine my attitude towards the whole issue. Between 1992 and 1998 I was chairman of the National House-Building Council. I know that there is a later amendment in regard to the NHBC and other warranty organisations but, obviously, if these amendments are passed it will be killed off. However, it is worth putting on record what they say.
In view of what my old neighbour in Birmingham, the noble Lord, Lord Rooker, said at the outset, perhaps I should declare an interest in that I once worked for the Times. That was a long, long time ago, perhaps before it was described by the noble Lord as one of "Murdoch's lie sheets". I hope that he will not damn me with association in that regard, although it is not perhaps the most moderate description of the newspapers concerned.
The National House-Building Council is an excellent organisation. At its heart are trained and experienced inspectors who are dedicated to achieving the highest possible standards in new house building. I have heard about the new inspectors who are to be introduced. I have some doubts about whether they can be recruited as easily as the Government think. The NHBC inspectors do their job well; they have the support of the best house-building companies and the support of the best people working in the house-building industry—and by that I do not mean only the managers.
The NHBC is exactly the kind of organisation that the Government should support. Indeed, if it was not there, they would have to invent it. The acid test,
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obviously, is whether it provides consumer protection. In my view, the consumer protection provided by the NHBC and by other warranty organisations is very great; a 10-year warranty is much longer than you would expect from normal consumer protection measures. It is very unusual to have protection lasting for that length of time. It is a warranty based on close, stage-by-stage inspection of the house being built, and it is a warranty that can be passed on from one owner to the next. That is an enormous advantage when houses are being sold. That kind of warranty gives very strong protection to the house buyer.
Obviously the NHBC inspects a vast number of houses each year. In such cases, what additional protection is provided by a home information pack? Frankly, I can think of very little, if any; the warranty is far more valuable. I can see no point in adding the cost to the vendor of another pack and another set of inspections. There is no point in the additional bureaucracy involved.
This requirement is certainly unnecessary in the case of the new houses that are built each year. Therefore, before determining my attitude, I should like to know from the Government whether or not any exemption is proposed. If no exemption is proposed, the Government will be taking a very inflexible and unreasonable attitude. There are big questions over the principle and the approach that the Government are taking—I agree with all my honourable friends in that regard—and I should like guidance from the Minister about what the Government intend to do in the Bill in the specific area where protection for the consumer is already available.
Lord Rooker: My Lords, I want to be clear so that I can give the noble Lord a precise answer. The nuance of what he said shifted from full protection during 10 years to the new house as it is built and marketed by the builder. There is a difference in the way they are treated in the Bill and I need to be absolutely clear about this.
I can definitely satisfy the noble Lord in one area. For the first sale of a new house, a home information pack is not required. Neither is one required off plan. But a different situation prevails after, say, seven years, when up to three people may have owned the property.
Lord Fowler: My Lords, there is a perfectly sensible compromise amendment in the Marshalled List which provides an exemption for six years, having come down from the original 10 years. I am suggesting that, when the Minister comes to wind up on this issue, it might be appropriate for him to give some hint of what he would say about that. Otherwise, if these amendments are agreed to, he will not be able to say it in any event. It is rather important that we should know.
What is the Minister's attitude towards warranty organisations? I repeat, it seems to me that a warranty from an organisation such as the National House-Building Council which gives protection to the consumer is something exceptional which the Government should

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encourage at every stage. In the context of houses covered by such a warranty, I cannot see the case for a home improvement pack.
Baroness Gardner of Parkes: My Lords, there has been a great deal of discussion on this issue and I do not intend to speak for long.
The greatest objection to the home information packs is their cost. I do not understand for how long a pack will be valid. At the moment, everyone is saying that the domestic property market will be fairly slow until 2010. It may be that in that time people will have great difficulty selling their homes and the property will be on the market for a very long time. I should like to know how long it will be before there will need to be an update or a new set of papers. It will be costly enough to do it once.
Of course, the lower in value the home, the relatively higher the cost will be to have this done. If you are marketing a very expensive home worth millions, £1,000 is nothing in comparison. But if you are marketing your home at a much lower figure, perhaps £50,000, then £1,000 is very high in relation to that. So the first issue I do not understand is for how long the pack will be operable.
The second issue concerns the responsibility for marketing in general. Clause 144(3) states:
"Only the seller or a person acting as estate agent for the seller may be responsible for marketing the property".
The present practice is that very often you do not place your home with only one estate agent but with several. In that case, which of the estate agents appointed would be responsible? Would one have to be made head estate agent and the other subsidiaries, or does one offer a pack to each of them? If so, would that be another additional cost? How many people will be able to demand a copy of the pack? Does this provision tie one to a particular estate agent? How often will one be able to move if one's house is not selling with that agent?
Will the person requesting the pack have any obligation to help with the cost of producing it? I understand that the cost will fall totally on the vendor. One could be asked to produce unlimited quantities. Can they be photocopies or must the documents be certified each time they are produced for different people, which would add to the cost? Although I agree with my noble friend Lord Fowler about the NHBC, of which I was vice-president for many years, his argument applies only to new property. The more serious concern is with not-new property, which is where the provisions are needed.
What about those who own leasehold properties? They will have to get a lot of their information from the freeholder, who will no doubt be entitled to charge for that information. What limits will there be on such charges? When we dealt with the Commonhold and Leasehold Reform Act 2002, we discovered that, in many cases, after people had acquired all sorts of additional rights, they found that they were paying more rather than less to their freeholders. Even when
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people had bought their freehold, they had to pay a management charge that was much higher than the ground rent. How will those problems be dealt with?
My daughter married and moved house this year to a house a couple of doors away from where she had lived for 10 years. She found that there were new requirements. There have to be environmental studies. If any piece of commercial property had been built on land nearby, all sorts of additional environmental studies must be done to prove that the land is not contaminated. I suppose that the contamination laws will cover that to a certain extent, but the encouragement is for people to be building on brownfield sites. Therefore, a documented history of every bit of brownfield site will have to be included in the house information pack if the property is built on a brownfield site. In my daughter's case, it was £1,000 just for that survey. She did all the normal searches through the council and the experts under this new environmental law said, "That is not satisfactory, you will have to have much more." Even though she had lived practically next door to the property for years, had suffered no ill effects and was not worried about it, if she wanted to re-sell, she had to complete the environmental searches. The situation is much more complex now.
My noble friend Lord Hunt said that nothing in the Bill deals with gazumping, which is a much more serious matter. Something should be done about it, such as having lock-out agreements, which people can already enter into voluntarily. If someone makes an offer on a property, it is agreed that, if everything proceeds to a sale, a higher offer from someone else will not be entertained. That is the sort of thing that we should be looking for. It has already been mentioned that a number of people have a survey done and then someone else pushes the price of the property up and those people do not then get the property, even though they have borne all the costs of the survey. That is one thing that might be good about this provision, but it should be dealt with in a different way. If someone accepts an offer and the survey is done, one should be entitled to reclaim the cost should the vendor then reject the offer.
Looking again at the Bill, there is an incredible provision that I do not understand at all. Paragraphs (a) (b) and (c) of Clause 149(4) provide a defence against the duty of providing a copy of the home information pack. There is no duty to provide it if one thinks that,
"the person making the request—"
is,
"(a) unlikely to have the sufficient means"
to buy the property, or,
"(b) is not genuinely interested"
or,
"(c) is not a person to whom"
one would be likely to sell. Paragraph (c) is more identifiable. One would know whether one wanted to sell to a particular person. It is a personal view, which could be a defence. However, how on earth would one know whether the purchaser of one's house was unlikely to have sufficient means to buy the property? Everyone comes along and says that they are cash

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buyers, while they desperately run round the corner to get their mortgages. Indeed, I am sure that noble Lords have seen the television programmes about chains—everyone is waiting for the last person to get a mortgage, for the next person to get their mortgage and so on through the chain. It is not realistic to decide whether somebody has sufficient means.
I read in a Sunday paper—the one to which the noble Lord referred—that many years ago a rather scruffy-looking man walked into a Park Lane show room and bought seven Rolls-Royces. He was an Indian maharajah, but one cannot tell much about a person by looking at them. It was a marvellous story. He took them back and sent them out as waste disposal vehicles and insisted that the salesmen who had been so unpleasant to him went with him to see what they would be used for. However, such measures are impractical. I shall not go on because I know that other people have valid points to make, but there are real concerns in this Bill. Expense and time, which are inter-related, are the main concerns.
Lord Phillips of Sudbury: My Lords, I was flattered by the remarks of the noble Lord, Lord Borrie the—Government's one loyal Back-Bencher on this Bill—but even he will not provoke me into unqualified support for this set of amendments. They are a little too incendiary. They would blow up Part 5 altogether. Those of us—not only on this side of the House—who have serious reservations about this part of the Bill are not remotely acting on doctrinaire grounds but on the grounds of sheer practicality. It is fair to say that nearly all those who have spoken on this part at various stages of the Bill have been practitioners in the field—either solicitors or estate agents. There is a genuine, deep lack of conviction within the legal profession and the estate agency profession about the efficacy of the measures put forward, especially in relation to the aspirations that the Government have for them. We will not be deterred—at least I know that my colleagues and I will not—from continuing to oppose those aspects of Part 5 that are over confident.
For two reasons, however, I for one will not vote to eliminate these clauses. First, I believe that there may be substantial merit in the home packs arrangement, which deserves the opportunity to show itself. That is why we have tabled amendments on voluntarism and piloting. It is very important for the House to recollect what the noble Lord, Lord Bassam, said when we debated this on 14 September, which can be found in Hansard at column 1070. He made it absolutely clear that there will be a national "dry run" as we called it. So long as that national pilot is objectively put together, thoroughly carried out, objectively analysed and then acted upon, I say, "Fair dos, let's give it a go". However, very few would accept anything short of that.
We will return to that matter later. I merely wanted to say at this stage that, although potent reasons were advanced for eliminating this set of clauses, we should give a combination of voluntarism and a thoroughgoing pilot the opportunity to show the merits of this proposal.
The Earl of Caithness: My Lords, we are having almost a Second Reading discussion on Prescott's penalty against home owners. The question to which I have never had a sensible answer is why, if this is such a good idea, is not every other country doing it—or why have they not done it? There is not another country in the world that is doing anything remotely like what this Government are proposing. In Scotland, similar housing legislation is being introduced, but it goes nowhere near as far as this Government's, and there the scheme will be voluntary rather than compulsory.
I shall try to analyse the good and bad points of the whole of Part 5. The Government have based some of their arguments for proceeding with Part 5 on what is happening in Denmark and New South Wales. If it was such a good idea in New South Wales to have what is actually a lesser scheme than the Government are proposing, why has not every other state in Australia followed suit? The answer is that people do not like it—no one likes it. The buyers do not like it, the vendors do not like it and the agents and solicitors do not like it. They have found other ways in which to improve the housing market. And to use Denmark as a comparator, when more than 90 per cent of its housing is 20th century—very different from this country—and given that it is much smaller, is a wrong basis on which to work.
The market is working well at the moment. It can be improved, as we all know, and I would support any sensible measure by which to do so. There are undoubtedly some problems with the way in which the current market works, but they are very much in a minority, and Part 5 is not the right way in which to address them. As my noble friend Lord Hunt of Wirral has just said, under these provisions the market will be considerably less flexible than it is now.
Nothing in this Bill will stop gazundering or gazumping. We have heard a lot about gazumping in the debate so far, but nothing about gazundering. By all accounts, in some areas of the country, we are heading towards a gazundering market. In some areas, we are also heading towards a negative equity market. The cycle is coming back, as it was some 10 or more years ago, and the Government will hear howls of protest on negative equity and gazundering, let alone on the extra costs that will be imposed by the Bill. Nothing in the Bill will prevent people from withdrawing from a deal at any stage before exchange of contracts, just as they do now. The situation will be no different.
No proper research was ever done into whether home information packs would work. A short trial was done in Bristol in 2000, which involved fewer than 60 sales and was not designed to measure the effect of the pack on the market. The agent who did the trial was, of course, heavily involved with a company that produced home information packs, so she had a dual interest.
The Bill will stop the immediate marketing of a property, to the detriment of all. On that area, the National Association of Estate Agents has gone back and questioned closely its member firms. Its member

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firms have gone out to clients, and an overwhelming majority—in some cases, up to 95 per cent, but certainly more than 80 per cent—of all respondents, said that they wanted immediate marketing. This Bill prevents that. The Government are going right against the wishes of people who wish to buy and sell properties.
The pack is disliked by the majority of those in the profession. Indeed, the Select Committee of the Office of the Deputy Prime Minister disliked the packs, too. It said:
"We are concerned that even advocates of the scheme have identified a range of serious problems which remain to be ironed out … at this stage we cannot recommend that home information packs are made compulsory".
But what are the Government doing? They are making them compulsory.
The home condition report is a waste of time and money. The Minister confirmed in Committee that the report needs to be made within only three months of a property coming on the market. He also confirmed that one can make any alteration to the property without altering the home condition report. One can knock down walls or add an extension without declaring it in the home condition report. One can then say to the prospective purchaser that the home condition report was done within three months of the house coming on the market, and that it is up to the purchaser to verify its accuracy. One might not have made any alterations oneself; natural elements might have done that. If I had valued my property in Scotland in the second to last week of August, I could have said that the roof was in perfect condition. We had an early winter gale and lost three slates that have to be replaced before the winter, so the roof was not in 100 per cent sound condition at the beginning of September. That is how quickly a home condition report can go out of date.
The report will put a lot of extra cost on the vendor with no potential benefit to the purchaser—because the purchaser will need to have his own survey done, just as he does now, and as I would certainly recommend he did. As my noble friend Lady Gardner of Parkes said, the cost to the vendor is between £600 and £1,000 per transaction. That figure will be higher in parts of London and could be lower elsewhere—but that is the general cost. We are now entering a cooler period of the housing market, when properties will be on the market for considerably longer than they have been—and the average length now is many months. Those who carry out the work, such as the solicitors who will have to produce all the information up front, the agent who will have a lot of extra work to do and the surveyor who does the home condition report, will all want to be paid whether the property sells or not. As more properties are taken off the market, there will be a huge amount of wasted extra cost.
Part 5 will not speed up the buying and selling process, as other noble Lords have pointed out, but it will significantly reduce the number of properties coming to the market. The Consumers' Association has identified something like a 25 per cent reduction in
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the number of properties coming on the market because of the extra costs and hassle that a vendor will face. That will seriously distort the market and compound difficulties for a lot of people.
I was surprised by the comments of the noble Lord, Lord Phillips of Sudbury, as I always thought that he was a Liberal—and this is a highly illiberal measure being proposed by the Government. I should have thought that he would be one of the first to support his colleagues in another place. The honourable Member Mr Davey, who leads for the Liberal Democrats in another place, said:
"We believe that the home information packs represent a totally unnecessary regulation".
I thought that the noble Lord, Lord Phillips, had written that for him—and was disappointed to hear that he had not. Mr Davey went on to say:
"This is a market that the Government should leave well alone".—[Official Report, Commons, 11/5/04; col. 281.]
I agree with that. Yes, we all want to improve the buying and selling of houses, but this is really not the way in which to do it.
Lord Selsdon: My Lords, I had not intended to speak. However, I declare an interest as a director of a house building organisation that sells used and new homes. We seem to be having a lot of what are almost Second Reading speeches. The Government have tried extraordinarily hard and consulted very widely on the Bill. In all my time in the House I have never seen so much paper going to and fro, often on what I would describe as useless issues.
5 p.m.
The view of "my gang", if I can describe them thus, is that everyone wants to legislate more and more. If you want to sell a house, you provide as much information as you can. In a good market you have the maximum number of footprints and houses sell as though there is no tomorrow; when times are bad, they do not. When times are bad, you produce more information and you make more effort. You find in general that the people who hold things up are the professional classes—solicitors and lawyers. They cannot talk to each other.
In general, as the cost of these matters goes up, you do not talk to the professionals. You do not appoint them until 24 hours before you wish to complete so that you cannot pay more than 24 hours worth of fees, you do things direct and you break the circuit. As the Internet comes into the matter the younger brigade who are quick with their fingers gather a most amazing collection of information. They know about house prices and they have schedules of 29 houses of the same type. They have aerial photographs that they can download and blow up. An amazing amount of information is available.
I am probably closer to the noble Lord, Lord Borrie, in my views on this matter than are most noble Lords. I believe in fairness. I agree with the Scottish or the French systems of having a promis de vente; namely,

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that when you have said that you will buy a property, that is the case unless some information is proved wrong.
I do not believe that this is a question for forced legislation. In the old days it would constitute a form of code of practice. I move closer to the views of the noble Lord, Lord Hunt of Wirral, in this regard. If there is so much objection to the measure as a piece of legislation, perhaps some formula can be provided that tells people what information they should in good faith provide, how they source that information and how they check its reliability. In general we have such old housing stock that it is impossible to prove what goes on below the ground. Even in my experience of not selling houses very often, I have had dry rot emerge. That can happen even though you have had the most expensive surveys in the world, you have had heave and hump, you have had solicitors with trainees from some strange part of the world who have been over and disappeared, and everything goes wrong.
As we used to say in my family, Murphy's law operated on the basis that if anything could go wrong it did, but that Macdonald's law made Murphy's law look optimistic. The Government should try to see whether there is some non-legislative way to approach this matter. However, they have done a good job in raising this whole issue. All we are talking about is two people who wish to buy and sell something or deal together having proper information.
Lord Donaldson of Lymington: My Lords, the noble Lord, Lord Borrie, categorised various parts of the House as reasonable or inherently unreasonable but made an exception in one case. However, he said nothing about the Cross Benches. Therefore, I imagine that we are on probation, or that I am.
I make it perfectly clear, lest anyone should have any doubt about it—none of my fellow lawyers will have any doubt about it—that professionally I know nothing whatever about the subject matter of this Bill. I have had a solicitor for a long time, but for reasons that are not to his discredit—they are largely due to my geographical location and his—I have just changed solicitors and asked them to deal with the sale of a flat that I own. I made it quite clear to them they must not assume that I knew anything because on that basis they would be right. However, if they treated me as one of my own clients, they would have a fool for a client.
I am interested in this matter in a remote way as my wife had a policy, with which I agree, that when our family needs changed, we ought to buy a different house unless it was very financially disadvantageous to do so. As a result I believe that the flat I am selling is the eighteenth property that I have owned. Therefore, I can confess to a good deal of experience in this matter. I am interested in this matter on the basis of that experience but I had not intended to contribute to the debate because obviously I cannot make the contribution that the professionals, and others who have gone into the matter in greater depth, can.
However, I changed my mind about contributing to this discussion when I received an e-mail this morning from the Consumers' Association which said that it
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was afraid that Clause 141 might be deleted. The association wanted to enlist my assistance to ensure that did not happen. I rang the staff at the association and explained that I needed to know a great deal more about the arguments for and against their claim. The staff were very helpful, but I believe that they showed an extraordinary lack of judgment in sending me the e-mail. However, that must be a matter for them.
I entirely accept that there is a great deal to be said for sellers providing much of the information which this part of the Bill requires them to give. The Consumers' Association lists that information as the evidence of title—that is obvious—any planning approvals and building regulations consent—I agree—any warranties and guarantees for new properties—I agree—a draft contract for the sale of the property—that is probably necessary—and leasehold charges. My flat is subject to a service charge and that must be revealed at some stage and there is no reason why it should not be revealed in advance. A few days ago I was slightly taken aback to receive a note from my solicitor to say that he had been in contact with the freeholder with regard to obtaining unspecified information that he needed and that the freehold owner was charging £125 and would I please forward a cheque. I did but I wondered what I was getting for my money. However, that was by t he way.
The home condition report is a wholly different matter. I asked the Consumers' Association what was proposed in that regard. I asked whether the home condition report would in any way measure up to a full structural survey. I was told that it would not. I asked what it would amount to and I was told that it was still the subject of negotiation between all the parties involved. I asked what insurance would be provided by those who provided this unspecified form of condition report. I was told that it was very important that there should be insurance to which those who relied upon it should have access. I said that I agreed with that but asked what happened if problems arose. I was told—this may be news to the Minister—"Oh well, we shall have to have the Government as an insurer of last resort". The Consumers' Association showed itself to be an optimist.
The question arises of whether anyone would accept the home condition report as being sufficient. In that regard I was depressed and enlightened by the Consumers' Association. It told me—I assume that it is right—that the average purchaser does not consider getting a full structural survey but is content that the building society or other lender has accepted that the property is worth lending money on. That is a wholly different proposition. Of course, the greater the difference between the amount that the lender is lending and the actual purchase price of the property, the greater the foolishness in relying on the measure. There is a real case for mounting an education programme, illustrated with the bad cases that I am sure would be produced, in order that the average purchaser realises the importance of having a full structural survey and is able to make an informed judgment about whether he wants one.

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I shall not relay all the questions that I asked the Consumers' Association or all the answers that I was given. The lady in the campaign department—I believe that is what it is called—of the Consumers' Association said, "Of course, you have got to have faith. It will be an act of faith". I am not sure about that. It is not the basis on which I have previously voted for legislation, and I do not really think that I shall start now. There is a lot of common sense here, but the matter ought to be approached on the voluntary basis.
Baroness Hamwee: My Lords, I used an earlier opportunity to make a Second Reading speech, so I shall try to confine my remarks to only a few. We recognise that there are consumer interests. I have not heard from the Consumers' Association on the matter for some time. Our approach is one that many noble Lords perhaps implicitly supported with their remarks. We have detailed amendments later on the Marshalled List that reflect our use not of a hatchet, but of a small filleting knife. In particular, we have concerns about the compulsory nature of what the Government propose. We have amendments about voluntarism, the use of a pilot scheme, and the exclusion of the home condition report, about which we share concerns of the type that have just been expressed.
I will not attempt to respond to the whole critique that we have heard in the past hour and 17 minutes, but I want to say in particular how much I agree with the noble Lord, Lord Hunt of Wirral, about the relationship between the state and citizen. Previously on the Bill, I characterised it in a slightly different way, saying that the Government had taken nannying to a great extreme. Whether it is nannying or the inappropriate intervention of the state, I cannot help but observe that the Government have said that they will not alter the caveat emptor provision with which we are all familiar. I have not managed to gather enough expertise in Latin to translate "Caveat emptor the state"—at least, not with sufficient confidence to see it repeated in Hansard—but it is a case of "Beware of the state", which is not really what relationships between buyer and seller should be about.
The consumer interests appear on both sides of the deal. During previous debates, there seems to have been a tendency to approach the matter as though there were a single, small consumer against large producer interests. We have tabled amendments about enforcement, which I will use to make that point a little more later.
We are concerned about costs on the consumer. I say to the noble Lord, Lord Hanningfield, that they are nothing like a tax. However, there is certainly a problem about the cost, which is not one invariably incurred in transactions now. Not every purchaser by any means undertakes a survey. As we have heard, lenders seem not to be the remotest bit inclined to accept the home condition report as the basis of their
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own valuation, so there is a cost that, however much we think that it might be important for a purchaser to undertake a survey, does not currently occur.
It is a pity that some of those who deal with consumer interests have alleged that the concerns are because of self-interest on the part of professionals. In a way, it is perhaps a pity that so many professionals have taken part in our debates, although some of us have tried very hard to disclaim any professional expertise in the area.
I hope that the Government will tell us—I invite them to do so now—why a voluntary scheme that we wholeheartedly support needs legislation. Perhaps now is the point for them to spell that out. It is better to encourage acceptance than to impose it. For that reason, my noble friends and I agree with my honourable friend the Member for Kingston and Surbiton that we are talking about wholly unnecessary regulation. That is why we support a voluntary scheme, but not the wholesale destruction of the ideas that the Government have brought forward.
5.15 p.m.
Lord Rooker: My Lords, I shall do my best. It has been an extensive debate; I have not counted the speeches, but there have been more than a dozen. I shall try to answer many of the points raised by noble Lords and then make my set-piece defence of Part 5. Essentially, this is very much Second Reading. It gives a new meaning to "the revising Chamber" to take out a whole part of the Bill; it is true that that is revising the Bill, but it gives a new meaning to "revising". I may not cover everyone's points with my notes, but I think that they will then be covered in the set-piece points that I want to make. The issue is not unimportant.
The noble and learned Lord, Lord Donaldson, does not have to answer me—I am not prying—but I would be very interested in the other side of the coin of when he goes in to buy, bearing in mind that he said that he had owned 18 houses. I would be interested in the kind of questions that he, his lawyer and estate agent would ask; he was giving us the view as a seller. I do not ask him to have faith, either. Never believe a Minister who says, "We've got all the answers". I do not claim that; the Government are not perfect; Whitehall does not know best.
I shall make the best case in terms of good legislation to deal with a problem. People have referred to the nanny state. It can be irritating because, if the people who suffer any problem that arises in society get media attention, they say, "The Government should do something about it". The minute that the Government do so via Parliament, there is an argument that we are being oppressive. That is why we have had such massive and complex legislation since the Second World War. I do not accept that it is the Government's job to do something about every problem that comes along, but I want to make a case on this issue. There is a case for the Government, through Parliament, to take some action.
The noble Earl, Lord Caithness, asked about changes happening to the property after the home condition report had been completed. As anyone who

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has bought and sold knows, one already has to fill in the standard tick-box sellers' forms. Asking sellers whether anything has to their knowledge happened to the property since the home information pack was prepared will become a standard inquiry made of them. Any solicitor, even a trainee, will make sure that their client asks that question, because it is reasonable.
The noble Baroness, Lady Gardner of Parkes, made a point about the number of copies to be produced for potential buyers. Clause 149(8) allows the responsible person to charge a reasonable sum for the cost of supplying copies. She also asked about marketing by several estate agents. All of them would need a copy of the home information pack, but that does not mean multiple home information packs; they could have copies of the same pack. People would not have to produce different packs. She talked about it being the norm for people to use more than one estate agent. It is not my norm. When one signs up to multiple agents, one pays a lot more fees.
I shall respond to the noble Lord, Lord Fowler, and correct one thing that I said, although it was right from my point of view. I probably used the incorrect term, using "home information pack" as synonymous with "home condition report". If a new home is built and a warranty is provided by the builder, it is self-evident that, at the point of sale, a home condition report is not required. That does not mean to say that a home information pack itself, with the title and contract, would not be provided, but one would not need a home condition report for the first sale. I emphasise that the point is the first sale.
There are many proper warranty systems. I pay tribute to the National House-Building Council, of which the noble Lord was chairman. It does a first-class job in giving people comfort in buying new properties in this country, and has an excellent and efficient way of inspecting properties as well. These issues will be covered in regulations, as they were in the consultation paper.
I have extensive speaking notes to Amendments Nos. 151 H, 159A and 163E, but I do not propose to go through them now, because that would not be fair. But they make the general point, which is why I can meet the noble Lord, Lord Fowler, only half way. The legislation covers the purchase of second hand homes—not those bought from the builder.
I used the figure of seven years off the top of my head. I know that we have had a debate on the amendments, but I could have said four or eight years. The seven years did not imply anything about the six-year amendment. The point is that people can carry out work on their homes, but the cover is different from the warranty. Although I could stand corrected, it is also the case that the warranty provision for 10 years for new property is not the same throughout the whole of the 10 years. I understand that it changes at different stages, relating to matters such as central heating. So it is not quite a continuous cover. I am not knocking it, but it is not the same. If the home becomes second hand and may be bought and sold two or three times with people knocking
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bits and pieces about, then one might understand why we make the case that people ought to be covered if it is second hand.
The noble Lord, Lord Hunt, asked about the Government assumption about the cost of the pack being deferred until completion. The most successful current home information packs—and they are very much voluntary—operate on a deferred payment basis. The indications from the industry are that this facility will be widely available when the statutory scheme is introduced.
I am grateful for the positive remarks made by the noble Lord, Lord Selsdon. He did not say that he would be supportive, but at least his remarks were not as negative as some of the other contributions. I regret the personalising of the matter—I would not say abuse—by the noble Earl, Lord Caithness, regarding my right honourable friend the Deputy Prime Minister.
While I am on that subject, early last week I wrote a 12-page letter to all noble Lords who had participated in the first debate, including to the noble Earl. He shakes his head. I have had that accusation too often—I have given instructions that any future correspondence to the noble Earl will be sent by recorded delivery. Everyone else received the letter, as far as I know. I do not know about the question of email, but the fact is: here is the pack; I signed its covering letter, which was extensive. I do not claim that it answered all of the questions, but it covered all the points raised in Committee, and, I tell the noble Lord, Lord Phillips, it included a four-page annexe about what we will do during the dry run. It is important that if noble Lords ask questions, they are entitled to receive answers.
Someone asked about hidden defects insurance. We do not propose that that would he required. Many of the other points that have been raised will be covered by the speech that I am about to start, which will not take too long, but has to be put on the record. If I do not cover any particular matter, noble colleagues may come back to me.
The current situation is that more people than ever own their homes. I do not know what the current figure is—possibly more than 70 per cent. The most recent information figure was two-thirds and the point is that ownership is the most common form of tenure in the country. Many people who are not owners aspire to own, so we know that the figure will go up rather than down. At some point most of those people will buy or sell a property. But the process of buying and selling is appallingly inefficient. One-third of would-be house purchases fail before completion. I know that there are many reasons for that, but one-third is a huge number. As I said in Committee, some 40,000 properties every week are marketed—2 million a year. That means that anyone who legislates in this field has to be certain that the proposals will work when they come into effect. We are dealing with a huge number, but a large percentage fail before completion.
That does not mean to say that the two-thirds of sales that are successful go through smoothly without any problems. Our research shows that more than half of all

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transactions have some kind of problem. That explains why surveys show that nine out of 10 people are unhappy with the process and want to see change. For many people the house buying process is time-consuming, unreliable, emotionally draining and expensive. Therefore, we brought forward this proposal to honour a specific manifesto commitment to make provision for the introduction of home information packs—or sellers' packs as they have previously been described.
We have researched the system and we think that making key information on a property available right at the start of the process means that home buying and selling is made easier and, above all, more transparent. Therefore, it would raise the chance of a successful transaction. It will never be perfect—we do not aspire to perfection. But transparency will make it more successful.
We can pray in aid the full support of the Consumers' Association, although I was tempted not to say that, having listened to the speech of the noble and learned Lord, Lord Donaldson. Many progressive people in the industry support the proposal. I will name names before I sit down, which may be a surprise, but I have not been in a position to do that before and I shall do so with the approval of the people concerned. There are no surprises regarding the main components of the pack, because we provided a sample pack in our consultation paper on the contents of the information pack, so that people could see exactly what would be there. Much of it is familiar to anyone who has dealt with the ordinary documents, but the home condition report is the new element. The pack will contain local searches, the home condition report, including an energy efficiency certificate, and other legal documents.
So scare stories about the cost of the pack and the impact on the market have been somewhat exaggerated. Most of the documents have to be provided in any event. That is not new. The costs are simply transferred from the buyer to the seller. Importantly, first time buyers will benefit the most, because they will not have to pay those costs to step on to the first rung of the property ladder.
We have also responded to the concerns of consumers about the conduct of some, not all, estate agents. The Bill now provides for the Secretary of State to require that all agents who market homes with a home information pack must belong to an approved redress scheme. That will ensure that the cowboy element is eliminated from this sector of the market. It will give consumers greater confidence and the certainty of redress when they are let down.
We recognise concerns about the readiness of the industry to deliver the reforms on time. We have set up a programme of management arrangements to supervise implementation and we are involving all of the key stakeholders. We have said many times before that home condition reports will be introduced only when we are satisfied that there are sufficient numbers of inspectors to do the job and that satisfactory
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insurance arrangements are in place. They will not be introduced before those conditions are met. The same goes for the rest of the pack.
We have consulted on this and we will be examining the results of that consultation with the stakeholders and consumer representatives before we take final decisions. The industry needs certainty that the Government mean business and will deliver on their manifesto pledge. That is needed before those bodies can put the necessary investment into developing the new systems and the training that will be needed. I shall give examples of companies that have already made that investment. It would not be unreasonable to believe that many firms would not take part until such a Bill had received Royal Assent. We want to give an assurance that we will be in that position.
We recognise the advocacy of a voluntary scheme, as the opposition—certainly the Liberal Democrats—would prefer. That would mean that things would stay as they are now. That is not an option and if the amendment is not carried we can have a more detailed debate on that matter later in our proceedings.
I regret that a scare story was started this week about the poll tax. Frankly, it ill-behoves the Conservative Party to run a scare story about the poll tax. Let us face it, we have with us now living proof that the poll tax was not a great success. That story was unfortunate, because it was not true—as, indeed, the opening paragraph of the speech made by the noble Lord, Lord Hanningfield, was not true. I have not seen the newspaper cutting; my remarks stand; the Government have no plans to abandon this Bill; and I was correct in suspecting that the noble Lord quoted one of the Murdoch lie sheets.
Our argument is that the status quo is not acceptable. There are too many complaints and too many people are upset, emotionally drained and financially disadvantaged by the buying and selling process. But of course, that is what the main Opposition are offering.
Progressive interests in the profession, from small to large players, support the measure because they recognise that the consumer must come first—it is very much a consumer protection issue—and they are ready to run as soon as Parliament gives the okay. It is therefore indefensible to say that we want to carry on as we are.
Some of the issues that have been raised today in the media by the Opposition—for example, the idea that everyone must have a pack before they sell a house—are nonsense. They will not speed up house buying or stop gazumping. The real nonsense is in the suggestion that more and better information up front will not lead to better functioning of the market. More and better information is inevitably bound to lead to better functioning of the market. Sellers will be able to put packs together within days rather than weeks and we have plenty of evidence of that now from those who do so on a voluntary basis.
The home information packs are not designed to stop gazumping and we have never made that claim, but speeding up the process will of course make

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gazumping less likely. We can lay claim to that. Where gazumping happens, buyers will not incur the high, wasted cost that they do now on forking out for surveys on dwellings. Several surveys on one particular dwelling by lots of buyers is an absolute waste of money. We believe that the cost will be neutral as additional costs for sellers will represent an equivalent saving for buyers, but first-time buyers will benefit in particular.
The other claim that at £1,000 per pack it is another attack on home ownership is simply not true. We do not know where the £1,000 came from and no one has given any estimate. This is not a new cost, as I said in a previous debate. Our estimate of £635 includes £300 for the home condition report; £10 for the office copy entries from the land registry; £200 for the searches; and £125 in legal fees for putting the pack together. The main point is that the sellers will not have to pay the costs up front. We know now that the market will enable people to defer the costs, like they defer the estate agents' costs, until the money is in the bank.
It was also said today that the packs are not acceptable to mortgage lenders. That is simply not true and there is no evidence for it. I will later give an example of a key player that knocks that one on the head.
Another allegation made today is that there is real concern about the cost to people on low incomes and that there are insufficient inspectors to undertake the work. I will give some figures on that—I have given them before—to show that there will be more than sufficient inspectors from our current inquiries to undertake the work. With regard to the cost to people on low incomes and in low-value homes—this is a special issue raised by two noble colleagues—we made it clear that we were consulting on the matter and will issue regulations. We do not want to red-line properties, for lots of reasons, but on the other hand we fully accept that for very low-value properties, which exist in areas of major market collapse in parts of the north-west and north-east, that can be a problem. We will overcome that with consultation and regulations to follow.
Another allegation made today—I am really surprised that it was run out—is that as anyone will be able to receive the pack, whether or not they are serious buyers, this is a burglars' charter. As to all the nonsense about the security system in the house being part of the pack, I have made the position clear from this Dispatch Box, so it is on the record in Hansard. First, there will be no details about security systems in the home information pack. I do not know why this red herring is trotted out by those who claim it and the noble Lord, Lord Hanningfield, really should have known better.
The Bill allows sellers to refuse to provide a copy of the pack to people they do not believe to be serious buyers. This brings me to one of the points raised by the noble Baroness, Lady Gardner of Parkes. I am not sure how long it is since she walked into an estate agent with a view to buying a property. The estate agent will ask the prospective buyer, "Have you got the money?",
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and he will be expected to answer some of his questions. Oh yes, I am speaking as I find. The estate agents will make inquiries because they do not want to be in a position of sending you round to view a property, giving a false impression to their client that they have a serious buyer. They will need to know how the buyer intends to source the finance for the property. That is not therefore new.
On the other point, frankly, it goes without saying that someone trusting—
5.30 p.m.
Baroness Gardner of Parkes: My Lords, I thank the Minister for giving way. The point I made was that probably and often the least scrupulous buyer will say, "Yes, I've got cash". Having said that, there is no way in which the estate agent can ask him to prove it and he then runs off to try to get a mortgage.
Lord Rooker: My Lords, it is up to the estate agent to ask for the proof of that in certain circumstances. They are professionals. If someone goes into the office and says that he is paying cash, perhaps running to several hundred thousand pounds, so as not to mislead their client by sending loads of people round who just have a fetish for going inside houses which are for sale, it will be a reasonable for the estate agents to take steps. That is wholly reasonable.
It was also said that with parliamentary time running out we risk losing the entire Housing Bill if the Government insist on keeping the pack. Although I do not say this about every detail, I repeat that this issue appeared in two manifestos. We got it wrong the first time round by making it a criminal offence, so we have come back with a substantially amended proposal.
There is a poverty of policies from the Official Opposition. There is no doubt about that as there are no positive amendments. In fact, there are no amendments whatever. I am astonished because the only amendment from the Opposition to this Report stage of the Bill is to take out Part 5. There is not a single amendment to try to make the system work better, as there is from the Liberal Democrats, because it is not accepted in principle.
I have to make it clear that if we knock out Part 5, we knock out the redress system, too. For the first time ever, we have a redress system for consumers against estate agents who fall foul of the system. I want to make a partial apology. As for estate agent regulations in the Bill, the authorities in the House of Lords have made it clear that the redress scheme arrangements in Part 5 have to be tied to the home information packs in order to be within the scope of the Bill. We, the Government and the DTI, would have wanted it wider, but as the Bill was introduced it is not possible. The fact is that without the home information pack provisions in the Bill, there could be no redress scheme at all.
The Liberal Democrats recently published a document entitled A Place to Live, which sets out their policy in briefing note No. 29, by aim of reforming the market by moving towards a system of house purchase in England and Wales designed to suppress practices

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such as gazumping. The word "suppress" is important and clearly recognises that to ban gazumping would go too far—there is an impossibility—and give licence to buyers to drag their heels unreasonably. As I have said, the effect of the home information packs will be to help deliver a policy change sought by the Liberal Democrat policy note.
Action to improve the condition of the nation's housing stock is also an area highlighted by the Liberal Democrats. The Government are spending more than £500 million a year on a variety of programmes to improve the private sector stock, but we all know that because of the scale of the problem, because our stock is so old and because we have an absolutely pathetic record of replacing our stock—it is 0.1 per cent a year while in continental Europe it is 1 per cent a year—the average house in this country must last 1,000 years. You only have to say that to see how stupid it is and how far behind we are in replacing our stock.
Because of the scale of the problem, it can be tackled effectively only if there is an increased commitment from home owners themselves and obviously the home information packs represent a big step forward. The fact that there will be a condition report on the home when they come to sell it will spur the home owners to keep their homes in good repair and certainly do things regarding energy efficiency. That is another feature that has been prominent in Liberal Democrat policy. The home condition report provides a cost-effective way of implementing the EU directive on the energy performance of buildings and providing information on the energy efficiency of the property and ways of improving it.
I fully take on board what the noble Lord, Lord Hunt of Wirral, said about the pilot. He is right. Before you embark on a major area of policy, pilot it. We never had any lessons in Opposition about government, except for about three days at Templeton College, Oxford. There we had a succession of private sector people, ex-permanent secretaries and ex-Labour Ministers who were prepared to be open and honest with us about what to do and how not to make mistakes. If ever a lesson came out of that, it was, "If you're making a major change of policy, pilot it". We have undertaken many pilots in the past seven years on whole areas of policy.
I am not claiming that the pilot in Bristol is the be all and end all, but the way we will operate the dry run performs many of the functions that people draw attention to, including myself. I am sceptical in the department because in piloting London or a region, with the legislative framework needed, people may not put the necessary investment into training. There is a real problem in going for a large pilot on this, which is why the dry run is probably best.
I have been handed a note saying, "People are ready to vote", but I have a very brief note—my fourth—on progress to date on home information packs. I shall complete that and then I shall sit down. It is important because it shows the amount of preparation that has been carried out. It is not being done on a wing and a
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prayer, and it is not based on faith, as the noble and learned Lord, Lord Donaldson, was asked to do by the Consumers' Association.
The home information pack programme now being run by the Office of the Deputy Prime Minister involves working groups looking at the context of the packs in the light of responses to the consultation exercise. Stakeholder groups, including the Law Society, the Council of Mortgage Lenders, the National Association of Estate Agents, the Royal Institution of Chartered Surveyors and the Consumers' Association, are represented on the working groups or are deeply involved in the programme management arrangements to ensure the smooth and successful introduction of the packs. The working groups expect to report in the spring and we therefore expect to lay statutory instruments before Parliament in the summer of 2005.
One element of the home information pack has been the subject of a large amount of debate—the home condition report. I repeat that this is the only new area of the pack. All other parts of the pack must already be put forward but we are asking for that to happen at the beginning of the marketing process. I know that noble Lords will be pleased to hear that substantial progress has been made on this front. The format of the home condition report is now largely settled after successfully undergoing technical and consumer testing. We have arranged for independent research to be carried out on the availability of home inspectors, and the findings make us confident that there will be a sufficient number of home inspectors to deliver the home condition reports.
Many existing surveyors and members of related professions and trades have expressed an interest in becoming home inspectors. In fact, research has already identified more than sufficient of the required numbers, and we are holding a major trade fair in November for prospective home inspectors and firms interested in employing them. We are also well on the way to putting in place the safeguards that will ensure that the home condition report is objective and that buyers, sellers and lenders can rely on the report with confidence.
In that respect, the insurance market is softening. With the help of the Association of British Insurers and the industry, we are making substantial progress towards securing satisfactory commercial insurance arrangements for home condition reports and home inspectors based on minimum acceptable terms to be prescribed by the certification scheme. I can knock this right on the head: if there is no satisfactory commercial insurance scheme, there will be no system because the Government will not pay for it. I make that absolutely clear, whatever the Consumers' Association may be saying.
In addition, national occupational standards were approved by the Qualifications and Curriculum Authority in September 2003. It approved a qualification in home inspection to deliver the national occupation standards offered by the Awarding Body for the Built Environment—ABBE, which is almost like ABBA. It has also approved applications from the Royal

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Institution of Chartered Surveyors and Surveyors and Valuers Accreditation to operate assessment centres that will judge whether candidates' competence matches the qualification.
Other applications to run assessment centres from the Association of Building Engineers and the Institute of Maintenance and Building Management are close to receiving approval. All the main professional trade bodies and the Consumers' Association are actively involved in preparing a certification scheme for home inspectors and they intend to apply to the Secretary of State for approval to run the scheme.
Home information pack initiatives are well under way, and a growing number of estate agents, conveyancers and others and getting ahead of the game by introducing their own home information pack schemes with notable success. We expect the number to grow rapidly once the Bill is on the statute book. That will prepare the way for a statutory scheme and will mean that many buyers and sellers will not have to wait until 2007 to experience some, although not all, of the benefits of the home information packs. Many major players in industry are working on plans for launching home information pack initiatives and are looking to announce those after Royal Assent.
If I were to quote a small estate agent somewhere in the Midlands or in some obscure part of the country which was ready to go, together with a tiny building society or lender, noble Lords would laugh me out of court. But I can tell the House that the nation's largest lender, HBOS, and the biggest estate agent, Countrywide, are supporting home information packs. They are gearing up and are ready to go. The biggest home lender and the biggest estate agent practice are ready to go and they support this system. They see commercial advantage in doing so. Countrywide operates under many local names and it would take too long to go through them. But they are names with which we are familiar and it is the biggest estate agent in the country.
In the longer term, we are also planning, with industry, a full dry run of home information packs, which, of necessity, will have to be on a voluntary basis. All voluntary schemes have the drawback that, given the predominance of chains, which answers the question about why the voluntary system cannot be long term, fewer people are able to benefit. But this dry run will enable the industry to test its systems and ensure that the introduction of the statutory scheme goes smoothly. If the dry run reveals problems that would put at risk successful implementation, we have ensured that the Bill contains the necessary flexibility to address those quickly through regulations. In short, a great deal of work is being done not only in government but by all the practitioners outside in co-operation with the Government.
I shall quote one other company and then sit down. This is from the website www.findaproperty.com, which quotes Mr Smith, the head of the Spicerhaart group, which includes the estate agent haart. It is true that he makes a point about cost. However, despite the
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concerns, he says that he favours home information packs, which have been trialled in some Spicer McColl branches. The website reads:
"[Mr] Smith says they made sales go through faster and reduced the number of sales that fall through. The company has spent more than £500,000 on technology and made a number of appointments in preparation for the introduction of the Packs".
In other words, private sector companies are investing now, but the biggest lender and the biggest firm of estate agents are ready to act in backing this system. I hope that, in the interests of protecting consumers and giving home buyers a fair deal, the amendment to reject this part of the Bill will be defeated.
Lord Hanningfield: My Lords, we have had an interesting debate on the amendments which has shown the great concern and interest of many noble Lords and other people. This is the first time since I have been on the Front Bench and involved in legislation that people on the train have talked to me about a piece of legislation. There has been a lot of interest from the public. As I said earlier, the public particularly do not like the compulsory nature of the scheme. Many people today wished me good luck in trying to remove these clauses from the Bill.
There is nothing doctrinaire about why we want to remove the clauses. We would like a voluntary scheme, but the compulsory nature has to be removed from the Bill to have a voluntary scheme. As the noble Baroness, Lady Hamwee, said, we do not need legislation for a voluntary scheme.
I thank the noble Lords, Lord Hunt of Wirral, Lord Fowler and Lord Selsdon, the noble Baroness, Lady Gardner of Parkes, and the noble Earl, Lord Caithness, all of whom made valuable contributions with which I totally agree. I think that all of us can agree with those contributions. The noble Baroness, Lady Hamwee, agreed with the noble Lord, Lord Hunt of Wirral, that we are infringing the boundary between the Government and the individual. We are making something compulsory which should be voluntary. As I said, 1.4 million homes change hands every year. To make this scheme compulsory will be the most unpopular thing that the Government have ever done. It will be good politically for some of us, but it will be very unpopular indeed.
It is not a joke to say that this is a community charge/poll tax. The Government will regret it. If the scheme had been voluntary, many of us would have gone along with it. We have tabled these amendments because there was no "give" from the Government in Committee, and there will be no more give later if our amendments fail today. The Government seem to feel obliged to put forward this compulsory, unpopular scheme when they could have had a voluntary scheme along the lines suggested by the noble Lord, Lord Hunt of Wirral. The Government are making a great mistake and the only way to remedy it is to remove these clauses.
The noble Baroness, Lady Gardner of Parkes, made a valid point which the Minister addressed briefly. We talk about people wanting low-cost, affordable houses. This sum, whether £600 or £1,000, is a great

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percentage of a house costing £50,000 or £60,000. And I am referring not only to houses in the north. There are all kinds of low-priced houses around the country that young people want to buy. This will be a charge on them.
The Minister said that this is consumer protection, but it is the consumer who will pay. That is why some companies are jumping on board; they will make lots of profit at the expense of the consumer. That is absolutely disgraceful. Let us remove these clauses which provide for a compulsory scheme and go forward. I should like to test the opinion of the House.
5.50p.m.
On Question, Whether the said amendment (No. 145) shall be agreed to?
Their Lordships divided: Contents, 131; Not-Contents, 154.

Division No. 2

CONTENTS

Allenby of Megiddo, V.

Hanham, B.

Ampthill, L.

Hanningfield, L.

Anelay of St Johns, B.

Harris of Peckham, L.

Astor of Hever, L.

Hayhoe, L.

Attlee, E.

Henley, L.

Baker of Dorking, L.

Hooper, B.

Biffen, L.

Howe, E.

Blatch, B.

Howe of Aberavon, L.

Bowness, L.

Howe of Idlicote, B.

Bramall, L.

Hunt of Wirral, L.

Brooke of Sutton Mandeville, L.

Inglewood, L.

Brougham and Vaux, L.

Jenkin of Roding, L.

Buscombe, B.

Jopling, L.

Byford, B.

Kalms, L.

Caithness, E.

Kimball, L.

Carlisle of Bucklow, L.

King of Bridgwater, L.

Carnegy of Lour, B.

Knight of Collingtree, B.

Chadlington, L.

Laidlaw, L.

Cobbold, L.

Laing of Dunphail, L.

Colville of Culross, V.

Lamont of Lerwick, L.

Colwyn, L.

Lawson of Blaby, L.

Condon, L.

Lewis of Newnham, L.

Cope of Berkeley, L. [Teller]

Lindsay, E.

Courtown, E.

Lyell, L.

Craig of Radley, L.

MacGregor of Pulham Market, L

Crathorne, L.

Crickhowell, L.

Mackay of Clashfern, L.

Cumberlege, B.

MacLaurin of Knebworth, L.

Dean of Harptree, L.

Mar, C.

Denham, L.

Marlesford, L.

Dixon-Smith, L.

Mayhew of Twysden, L.

Donaldson of Lymington, L.

Miller of Hendon, B.

Eden of Winton, L.

Monro of Langholm, L.

Elles, B.

Monson, L.

Elton, L.

Montagu of Beaulieu, L.

Feldman, L.

Montrose, D.

Fookes, B.

Mowbray and Stourton, L.

Forsyth of Drumlean, L.

Moynihan, L.

Fowler, L.

Murton of Lindisfarne, L.

Fraser of Carmyllie, L.

Naseby, L.

Freeman, L.

Neill of Bladen, L.

Gardner of Parkes, B.

Newton of Braintree, L.

Garel-Jones, L.

Noakes, B.

Geddes, L.

Norton of Louth, L.

Glentoran, L.

O'Cathain, B.

Greenway, L.

Onslow, E.

Griffiths of Fforestfach, L.

Palmer, L.

698

Park of Monmouth, B.

Sheppard of Didgemere, L.

Patten, L.

Simon of Glaisdale, L.

Peel, E.

Skelmersdale, L.

Peyton of Yeovil, L.

Soulsby of Swaffham Prior, L.

Plumb, L.

Steinberg, L.

Reay, L.

Stewartby, L.

Rees, L.

Stoddart of Swindon, L.

Renton, L.

Strange, B.

Renton of Mount Harry, L.

Swinfen, L.

Rotherwick, L.

Tebbit, L.

Ryder of Wensum, L.

Thatcher, B.

St. John of Bletso, L.

Tombs, L.

St John of Fawsley, L.

Trefgarne, L.

Saltoun of Abernethy, Ly.

Ullswater, V.

Sanderson of Bowden, L.

Waddington, L.

Seccombe, B. [Teller]

Wade of Chorlton, L.

Selborne, E.

Wakeham, L.

Selsdon, L.

Willoughby de Broke, L.

Shaw of Northstead, L.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Gale, B.

Ahmed, L.

Gibson of Market Rasen, B.

Alton of Liverpool, L.

Giddens, L.

Amos, B. (Lord President of the Council)

Golding, B.

Goldsmith, L.

Andrews, B.

Gordon of Strathblane, L.

Archer of Sandwell, L.

Goudie, B.

Ashley of Stoke, L.

Gould of Brookwood, L.

Ashton of Upholland, B.

Gould of Potternewton, B.

Bach, L.

Graham of Edmonton, L.

Barnett, L.

Greengross, B.

Bassam of Brighton, L.

Grocott, L. [Teller]

Berkeley, L.

Harrison, L.

Bernstein of Craigweil, L.

Hart of Chilton, L.

Best, L.

Haskel, L.

Bhatia, L.

Haworth, L.

Billingham, B.

Hayman, B.

Blackstone, B.

Henig, B.

Borrie, L.

Hilton of Eggardon, B.

Bragg, L.

Hogg of Cumbernauld, L.

Brennan, L.

Hollis of Heigham, B.

Brooke of Alverthorpe, L.

Howarth of Breckland, B.

Brooks of Tremorfa, L.

Howells of St. Davids, B.

Burlison, L.

Hoyle, L.

Carter, L.

Hughes of Woodside, L.

Chester, Bp.

Hunt of Chesterton, L.

Chorley, L.

Hunt of Kings Heath, L.

Christopher, L.

Irvine of Lairg, L.

Clark of Windermere, L.

Jay of Paddington, B.

Clarke of Hampstead, L.

Jones, L.

Clinton-Davis, L.

Jordan, L.

Cohen of Pimlico, B.

Judd, L.

Corbett of Castle Vale, L.

King of West Bromwich, L.

Coventry, Bp.

Kirkhill, L.

Crawley, B.

Layard, L.

David, B.

Lea of Crondall, L.

Davies of Coity, L.

Levy, L.

Davies of Oldham, L.[Teller]

Lipsey, L.

Derby, Bp.

Lockwood, B.

Dixon, L.

Lofthouse of Pontefract, L.

Drayson, L.

Macdonald of Tradeston, L.

Dubs, L.

McIntosh of Haringey, L.

Elder, L.

McIntosh of Hudnall, B.

Evans of Parkside, L.

MacKenzie of Culkein, L.

Evans of Temple Guiting, L.

Mackenzie of Framwellgate, L.

Falconer of Thoroton, L. (Lord Chancellor)

McKenzie of Luton, L.

Mason of Barnsley, L.

Farrington of Ribbleton, B.

Massey of Darwen, B.

Faulkner of Worcester, L.

Maxton, L.

Filkin, L.

Merlyn-Rees, L.

Finlay of Llandaff, B.

Morgan of Drefelin, B.

Fitt, L.

Morgan of Huyton, B.

Freyberg, L.

Morris of Aberavon, L.

Fyfe of Fairfield, L.

Morris of Manchester, L.

699

Patel of Blackburn, L.

Smith of Gilmorehill, B.

Pendry, L.

Smith of Leigh, L.

Peston, L.

Snape, L.

Pitkeathley, B.

Southwell, Bp.

Plant of Highfield, L.

Stone of Blackheath, L.

Prosser, B.

Strabolgi, L.

Prys- Davies, L.

Taylor of Blackburn, L.

Puttnam, L.

Temple-Morris, L.

Radice, L.

Thornton, B.

Ramsay of Cartvale, B.

Tomlinson, L.

Randall of St. Budeaux, L.

Triesman, L.

Rea, L.

Truscott, L.

Rendell of Babergh, B.

Tunnicliffe, L.

Richard, L.

Turner of Camden, B.

Richardson of Calow, B.

Wall of New Barnet, B.

Rooker, L.

Warner, L.

Rosser, L.

Warwick of Undercliffe, B.

Rowlands, L.

Watson of Invergowrie, L.

Royall of Blaisdon, B.

Whitaker, B.

Sawyer, L.

Whitty, L.

Scotland of Asthal, B.

Wilkins, B.

Sewel, L.

Williams of Elvel, L.

Sheldon, L.

Williamson of Horton, L.

Simon, V.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
6 p.m.
Clause 142 [Meaning of "on the market" and related expressions]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 145A:
Page 103, line 4, leave out "or may become"
The noble Earl said: My Lords, in moving Amendment No. 145A, I shall speak also to Amendments Nos. 145B and 145C.
Amendment No. 145A leaves out the words "or may become". This is a similar debate to the one we had earlier on Amendment No. 134D. Clause 142(2) states:
"A residential property is put on the market when the fact that it is or may become available for sale is, with the intention of marketing the property, first made public in England and Wales by or on behalf of the seller".
We come back to a similar argument that we had earlier about being "on the market". Surely a property is either on the market or not on the market. If so, the words "or may become available" are obsolete and can be deleted.
Amendment No. 145B is about the regulations. The purpose of putting it down was to find out where the Government had got to with their regulations. The noble Lord, Lord Rooker, told us something as he wound up on the previous amendment. But we are, as the noble and learned Lord, Lord Donaldson, told us, making a blind leap of faith on this with the Government. We do not know what the regulations are. They are very difficult to amend and the Government have skilfully drafted the Bill so that we have no opportunity to discuss, amend or alter them. We are asked to take the matter on trust.
The noble Lord, Lord Rooker, waxed lyrical about who was taking part in the ongoing discussions, to which we are not privy. But of course it is only right that those people should be taking part. I can tell the House that a lot of those who are taking part do so because it is their duty to take part, but they do not like
700
one iota of what the Government propose under Part 5 of the Bill. They will have to work with it because the Government can bulldoze through their legislation without considering the points of view of those who disagree with them. At the end of the day they will come together with regulations and we will be told that all the parties have signed up to it. A lot will do so with a very heavy heart, knowing that the Government are doing something detrimental to the housing market in this country.
Amendment No. 145C seeks to leave out subsection (3) of Clause 142. It states:
"A residential property which has been put on the market is to be regarded as remaining on the market until it is taken off the market or sold".
I do not understand the necessity for the subsection. If instructions are given to market a property, it has always been marketed. The moment a vendor withdraws the instructions that property is off the market. I beg to move.
Lord Rooker: My Lords, Amendment No. 145C, as the noble Earl said, would delete Clause 142(3), which provides that when a property is put on the market, it is regarded as remaining on the market until it is sold or taken off. It is very important that it is made clear to sellers and their agents when marketing and the associated duty to have a home information pack begins. Clause 142(3) helps to achieve that.
The clause defines when a fact is made public. Its removal would make it unclear when a property is put on the market and the associated duty to have a home information pack begins. This helps clarity. I cannot see a problem about that. I would ask the noble Earl not to pursue the amendment.
Amendment No. 145B would provide the power for the Secretary of State to define the meaning of "marketing". That is unnecessary as Clause 142 already does that.
Amendment No. 145A is the first in the group. They are all designed to allow first-day marketing of homes by enabling marketing to start before a home information pack is in place. If the amendment were to be accepted, a seller could advertise the fact that his home was about to become available for sale and therefore start the marketing ball rolling in all but name, but without the consequential duty to have a pack in place. So it negates everything that I said in that rather overlong speech I made a while ago.
The Earl of Caithness: My Lords, I am grateful for what the Minister has said. The key amendment in this group is Amendment No. 145A. It is very important that marketing can take place as soon as possible at day one as soon as instructions are received. The majority of the responses to the National Association of Estate Agents proved that. The Government have been made aware of it. They will not listen to it. They do not think it is right; they do not want a vendor to have the flexibility or the right to market his property at day one. That is a major change in the structure of the housing market and is going to inconvenience the consumers that the noble Lord purports to protect.

701
In view of later amendments on the voluntary nature of the packs, I think that it would be wrong for me to press the issue at this stage. It is undoubtedly something to which we will return at a later date. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 145 B to 146 not moved.]
Clause 143 [Acting as estate agent]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 146A:
Page 103, line 13, leave out "if he does anything" and insert "only if he is so instructed to"
The noble Earl said: My Lords, Amendment No. 146A is a simple amendment. The Bill as currently drafted is not clear whether the subject is the person who has been instructed. The purpose of my amendment is to make certain that the person instructed is the subject of the clause. I beg to move.
Lord Rooker: My Lords, the amendment would remove a very important condition that there must be some kind of action on the part of the estate agent in order for the clause to apply. Somebody cannot act as an estate agent unless he or she actually does something. Furthermore, the amendment would duplicate the condition that already forms part of the clause, that the estate agent must be acting on the instructions of the seller. That is a fairly crucial element.
The Earl of Caithness: My Lords, I did not follow the Minister as clearly as I would have liked. If the estate agent is instructed, by and large, he or she will do something. If he or she does not do anything, he or she is going to get a pretty bad reputation and nobody will instruct him or her. Of course, we have a disadvantage in that the Government declined to accept my amendments to raise the qualification of estate agents and the whole profile of the profession. They have opted for a much lesser model—the back route escape model—which is the ombudsman scheme that picks up estate agents only if they have done something wrong. It does not take a proactive view of the situation and say that estate agents, like other people handling large investments for people, should be fully qualified and therefore more likely to be reliable.
I would just remind the House—for the benefit of those who were not present for the Committee stage—that anybody can set up an estate agency at any time without any previous qualification or experience and handle the sale or the purchase of what in the majority of cases will probably be that person's largest asset. That is something that would never be allowed in the City. I gave the example of selling £100-worth of shares. You must operate through a highly qualified person who is subject to very strict regulation. A £100,000, £50,000 or even £15,000 house may be someone's prime asset, but the person who handles that sale need not have any qualifications or previous training.
702
I will obviously read what the Minister said. I do not think that he fully answered what I wanted to know through the amendment, but I beg leave to withdraw it at this stage.
Amendment, by leave, withdrawn.
[Amendment No. 147 not moved.]
Clause 144 [Responsibility for marketing: general]:
[Amendment No. 148 not moved.]
Clause 145 [Responsibility of person acting as estate agent]:
The Earl of Caithness The Earl of Caithness moved Amendment No.148A:
Page 104, line 5, at end insert—
"( ) Advertisements in any media for properties on the market without a home information pack must carrying the following caveat in a bold and compelling style—
'This property is offered for sale without a home information pack or home condition report being currently available. Intending purchasers may be exposed to an increased risk of financial loss if adverse legal or structural matters affecting the property become evident after negotiations for the purchase have begun'."
The noble Earl said: My Lords, we move to another set of amendments concerning the voluntary nature of marketing. Amendment No. 148A is intended to take account of where a property does not have a home information pack. I hope that we will be able to deal with that in some detail later, but the purpose of the amendment is that any advertisements in the media for properties on the market without a home information pack should have a caveat attached to them. That would be only fair to potential purchasers and is a consumer protection measure.
Amendment No. 151B again refers to the voluntary nature of the scheme that we propose, as do Amendments Nos. 151D, 153A to 153C and 155B. I reiterate to the Minister how important it is to get on with marketing a property. I know that he does not like the idea, but there is so much demand out there that when someone gives instructions, you want to be able to get on and it would be so much more sensible if the Government would allow initial marketing. If necessary, that can be followed up by the home information pack. I beg to move.
Lord Bassam of Brighton: My Lords, I shall be extremely brief, because we have had the debate about whether we should have a compulsory or voluntary scheme. Essentially, the noble Earl proposes a series of amendments that would qualify the voluntary nature of the scheme that he would prefer to see in place. Amendment No. 148A would offer a form of wealth warning within a voluntary system. Amendment No. 151B would remove the duty to have a home information pack and replace it with a pack provided at the responsible person's discretion. Other amendments are consequential to deal with that approach.
Our view is simple: we do not think that the voluntary route is the most appropriate. We think it right to have in place something that is clear, understood and transparent. That is why we have approached this whole issue in the careful and

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considered way that we have. In contrast to that, the noble Earl represents a position that essentially says that voluntary packs and the application of technology to the process of conveyancing, searches and so on, is the way forward.
There is a clear and distinct difference of view here. We have recognised and acknowledged that. We have had the important debate in the early group of amendments. We cannot endorse this approach, although, of course, we welcome some other suggestions that have arisen as a product of the noble Earl's amendments. Especially in view of the debate that we have had, I cannot commend the amendments to the House and I hope that your Lordships will view them in line with our earlier debate. I hope that the noble Earl will not press them, or that the House will reject them.
6.15 p.m.
The Earl of Caithness: My Lords, I expected a more negative reply from the noble Lord, Lord Bassam. If he has strayed from his brief to be a bit nicer, I am grateful to him, but there is clearly a big "Resist" in bold letters written at the top of every page of his brief on the amendments. I remember that well myself, but I wish that this Government would show a little more flexibility and understanding of some other people's points of view, which in most cases are better than the Government's. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 148B and 149 not moved.]
Clause 146 [Responsibility of the seller]:
[Amendment No. 150 not moved.]
Clause 147 [Application of sections 148 to 151]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 150A:
Page 104, line 34, leave out from second "the" to "sections" in line 35 and insert "provisions of"
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 150B, 151A, 151F, 152B, 152C, 155A and 156A. I understand that the noble Lord, Lord Hunt of Wirral, will debate his Amendment No. 151G. I welcome that and thank him for it.
Perhaps it is a little late in the afternoon, but I thank the Minister for the compendium letter, if I may describe it as that, which was extremely helpful. It provided certainly me, and I think my noble friends, with much useful information. I shall refer to it in a moment.
We have argued that if the scheme succeeds, it will be taken up, and that it is better to encourage acceptance rather than to impose it. The Minister's argument is that it will not work unless it is compulsory. If I may, I shall use this group of amendments to ask him to explain to the House in more detail how the dry run will operate, because he places much emphasis on the dry run. In our long debate earlier this afternoon, I asked why it is necessary to have legislation in order to have the dry run, because it seems that the dry run is to be nothing other than a voluntary scheme. I do not think that he
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answered that point, certainly not directly. If a voluntary scheme will not work, how will the dry run work? How can it work?
It will test various aspects of the home information packs, which is all well and good. We heard that HBOS and Countryside Properties plc support them. We will come later to the question of whether they will accept the home condition reports in lieu of their own valuations, which is the crux of the issue. In the Minister's long letter, on the topic of enforcement, he said—it is important to get this on record so that the answer is intelligible:
"While there will be no formal role for enforcement authorities during the 'dry-run' we envisage that local weights and measures authorities will use this period to become acquainted with the new process and their impending duties to enforce the statutory scheme. In particular, we will discuss with the local trading standards representative body, LACORS, how trading standards departments might work with estate agents and others during the 'dry-run' to identify and address any enforcement-related issues in advance of the statutory scheme. This will help foster a better understanding of the new process and arrangements for its enforcement".
Well, if that is a voluntary dry run, how can that work? I am sorry to ask the Minister to go over the ground again when he has written to us, but I for one—or, judging by the expression on the face of the noble Lord, Lord Hunt, for two—need a more detailed explanation of that.
I acknowledge that a lot of effort has gone into the scheme over several years, but we still believe that it would be better to find a way of piloting or testing, and to report to Parliament and the stakeholders, after which the Government might decide to drop some elements and refine others. Legislation should be proposed at that point, instead of using regulations, to which both Ministers have referred on several occasions. We all know that regulations cannot be amended and therefore often cause a lot of resentment and concern. The Ministers have told the House that the provisions for regulations in the Bill will allow tweaking and adjustment; I do not think that that is the right approach.
Within the past hour or so the Minister has referred to the updating or otherwise of information in the pack. He said, rightly, that even a week-one trainee solicitor probably ought to ask whether anything has happened since the pack was put together. But, in response to the Select Committee, the Government said that if a property had been on the market for some time, the renewal of a home information pack would be a matter for the discretion of the parties. Again, that seems to support the argument for a voluntary scheme.
The Minister also mentioned insurance. In response to the Select Committee he said that the Government were encouraging the development and wider availability of insurance cover for wasted costs. What development has there been on that? Clearly it is a concern. If we are in a compulsory position, the House needs assurance about how close the Government are to achieving such cover. I have already acknowledged the consumer interests, so I do not need to repeat those points. I beg to move.
Lord Hunt of Wirral: My Lords, I agree with the noble Baroness that it would be better to have a wider

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debate now. That is why I seek to speak to Amendment No. 151G rather than initiate another debate later. I am grateful to the Minister for kindly agreeing to that.
Noble Lords may have noticed that the noble Lord, Lord Bassam, has just made an important, significant concession: he said, by implication, that a voluntary scheme would be appropriate. I am very grateful to him for that. Perhaps it was the advocacy of my noble friend Lady Hanham or the entreaties of the noble Baroness, Lady Hamwee. The noble Lord said that he did not believe that a voluntary scheme would be "the most appropriate". To arrive at that distinction, one must decide first that a voluntary scheme would be appropriate but that it is not the most appropriate, so it is a question of balance. The Government may have been surprised by the strength of the case put forward and by the vote, which was significant, bearing in mind that some noble Lords felt that we should perhaps hear a little more from the Government about the arguments in favour of compulsion. I do not believe that the Government will win this argument, so it is better to try now to find a way through.
I disagreed with the noble Lord, Lord Bassam, when he said that we had had the debate about voluntary and compulsory schemes earlier—not that much earlier. The noble Lord, Lord Rooker, in his forthright way, said that he looked forward to a major debate on the question of whether the scheme should be voluntary or compulsory. Somewhere in between, the wires have got crossed, but the Government should address the question. I have been in my place throughout the debate, and I have not yet heard the Government put that case. They need to; therefore I am particularly pleased that we are to have this debate.
I join the noble Baroness in thanking the Government for their useful compendium letter, but they still have a case to prove. The noble Lord, Lord Rooker, said quite emphatically, with a wide sweep of his hand, that the Government were always on dry runs—I do not know whether that is in comparison to wet runs or something else. He said that, whenever the Government had a new proposal, they always had a dry run first. Dare I whisper in his ear, "conditional fee agreements"? There we had an instance of where, at a stroke, the Government swept aside the whole system of civil legal aid, put in its place conditional fee agreements and ignored the entreaties from all parts of the opposition Benches to have some form of research, dry run or pilot scheme.
Conditional fee agreements have been an utter disaster. The "no win, no fee" regime has been scandalous, with television advertisements of some companies saying, "Where there is blame, there is a claim, and it won't cost you a penny". Sadly, because no one thought the scheme through, not only did companies such as Direct Line and Accident Group go to the wall, but the whole system has been discredited. If only the Government had listened to those of us who said that, before you make such a fundamental step, you have to research and to have a proper scheme. I have yet to hear the Government put forward a persuasive case on what sort of dry run they have in
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mind. Is it a dry run of a compulsory scheme, in which case it does not sound like a pilot scheme at all, or is it a dry run of a voluntary scheme? We need much more detail. I strongly urge whichever Minister is moved to reply to this debate—they have not yet decided—to give the answers that we have been seeking. We are listening but we believe that the Government have a case to prove.
The amendment that I have tabled has been drafted free of charge by the best lawyers in the land. The eminent minds of the Law Society have put together this amendment, which they believe would make the scheme voluntary yet retain the advantages of home information packs. Previously the Government were congratulated on having stimulated the debate. I add to those congratulations, but the Government are about to lose the argument, so why do they not accept that home information packs have a lot going for them, let the market now demonstrate their value and have a voluntary scheme? If they listen to the House, they will hear that message, and until they have proved their case, we remain unconvinced.
The Earl of Caithness: My Lords, I wish to take a small tangent to support what the noble Lord, Lord Rooker, said about the press. I have just been handed an article from today's Evening Standard. Apparently, I am leading a rebellion with Liberal Peers to defeat a section of the Housing Bill which requires agents to belong to an approved ombudsman scheme. The ombudsman scheme is not my favourite scheme. To use the words of the noble Lord, Lord Bassam of Brighton, it is second best to regulating estate agents. Certainly, I would like to regulate estate agents. The article goes on to say that I am a former director of Knight Frank. I never worked for Knight Frank in my life. That reinforces what complete rubbish the press is these days.
6.30 p.m.
I now have a copy of the letter of 11 October that the noble Lord wrote. I am sorry that I did not get it earlier; I made my remark in good faith, as I had not received the letter. The Minister's officials have kindly given me a copy.
I want to pick up the dry run point, and I am glad to see the noble Lord, Lord Phillips of Sudbury, in his place. It is not a dry run as most people would anticipate it; it is a dry run as a pre-entry to the scheme. All the regulations will have been laid. As I said earlier and the noble Baroness, Lady Hamwee, has just said, we will not be able to amend the regulations. They will be a hammer to crack a chestnut, and they will be hard to understand. Having got all that, all that the Government are going to do is have a six-month introduction scheme before it becomes law at the beginning of 2007.
In the short time in which I have been able to skim through the letter, I have seen nothing to suggest that the regulations could be amended. There will be no assessment, and nothing will be debated. Nothing will alter the Government's mind, which is firmly set, as it has

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always been, on this course. The only change that they have made is the change from criminal penalties to civil penalties. That is not good enough. We need a voluntary scheme of some sort.
It was difficult for me to speak to my earlier amendments because I wanted to hear what the noble Baroness had to say to what my noble friend Lord Hunt of Wirral said. I have tabled amendments in Committee and on Report in support of a voluntary scheme for home information packs. I have got nowhere, but I hope that we will get somewhere at a later stage.
Lord Rooker: My Lords, the thrust of the amendments is to replace the compulsory scheme with a voluntary scheme. I rest my case on one word that explains why it must be compulsory rather than voluntary: chain. That is the simple fact of the matter. If we do it any other way, one person can wreck everybody's attempt to operate the system. That is the central argument. That is the end of it, really.
It is abject nonsense to say that regulations cannot be amended. Regulations can be amended at any time. Any amending statutory instrument will be subject to the same parliamentary scrutiny. It will be laid in Parliament for 40 days, during which time parties can pray against them. There are two parliamentary committees that examine statutory instruments—the Joint Committee and the Merits of Statutory Instruments Committee. There is plenty of opportunity.
Lord Hunt of Wirral: My Lords, the noble Lord has made the remarkable statement that statutory instruments can be amended. I have been down that road with the Government. I objected to some regulations laid by one of the Minister's predecessors. His predecessor accepted my argument but found that he could not amend the regulations. So, he had to revoke them and then lay new ones. The whole thing was a wasted exercise that cost a great deal of money. We cannot amend regulations.
Lord Rooker: My Lords, I was describing the process. The point is that, during the dry run, which will be done on the basis of the regulations, but voluntarily, we may find issues that mean that we must change something in the regulations. The idea that we cannot change them is nonsense. We come back to Parliament with new regulations. We cannot change the particular statutory instrument—I am not arguing about that—but the noble Lord is making a false point, if I can say that with due respect. We are not talking about primary legislation or about something that we cannot do. We can easily make a new regulation to amend the other regulation. There is a parliamentary process for that, and it is tried and tested.
I take the view—the noble Lord probably does too—that Parliament ought to have the right to amend particular statutory instruments, but we do not. That does not mean that we cannot bring in amending regulations; we can.
Lord Phillips of Sudbury: My Lords, I am sorry to intervene a second time, but it is crucial that we get the
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business of the dry run or the national pilot sorted out. I am glad to see the Minister nodding. Having said what he has just said, is he committing the Government to consider objectively the outcome of the dry run and then, in the light of that, legislate by statutory instrument as may be necessary, further to that objective assessment?
Lord Rooker: Most certainly, my Lords. I could go further. There are no plans for it, and I do not know the detail, but that is almost axiomatic.
I want to expand on my answer to the noble Lord. As I said, our intention is to publish the proposed final contents of the home information packs next spring. We intend to go through the process of laying the regulations before Parliament around the summer of next year—I cannot be more specific than that. The industry will have full details. To help ensure that there is a smooth and successful implementation of the scheme, the intention is for the Government to facilitate a dry run of the scheme on a voluntary basis from, say, July 2006, to give us six months. We have a sort of target of January 2007, but it is not specific. It is not the date, but it is what we would like to do. If it happened to be April 2007, that would not be a failure.
During the dry run, we will have to consider what happens. Members of both Houses will take a big interest in what happens during the dry run. The Government will be expected to report on what we have found in the dry run and whether we need to change anything. I cannot say so far in advance that it is not conceivably possible that some change will be required; I would be astonished if that were the case. It is a complex issue, and it affects thousands of people every week.
The Government are open about it: we want the scheme to work. I am speaking in October 2004, but it will be the middle of next year before we do the regulations, and it will take a year to plan the dry run and the related issues. We are talking about 18 to 20 months before the dry run starts. My answer to the noble Lord, Lord Phillips of Sudbury, is "Yes". I meant what I said: we will not implement the scheme, in January 2007 or even April 2007, unless we are satisfied that the issues have been ironed out.
The note that I sent to colleagues last week ran to four closely typed pages. I am certain that it went to the Library, although I did not check personally. There are a lot of prerequisites for the dry run anyway. People need to know what system they are operating voluntarily and to know what is in the regulations. Discussions on the management of that are going on as I speak and will continue over the next few months. It is true that we want the operation of the dry run to be as near to the endgame as possible. That way, we can test it out. It would be great if, during the dry run, we could find an area of the country—a county or something like that—in which all the practitioners signed up on a voluntary basis.
I accept that there is a distinction between the dry run and the pilot. The dry run will be voluntary. Given the nature of the regulations, it has to be. Nevertheless,

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it should not be beyond the wit of all the professionals to get to work on it. We could suggest a voluntary dry run over all the country and we might get three quarters or a half, which is a lot of people every week. It would be great if we could find an area to run the scheme 100 per cent and test it, not to destruction. We might find that things are not working, but we are not fixed on a deadline for bringing the scheme in, so that it is all or nothing, and we will have the opportunity to come back with amending regulations, having discussed things with the industry.
As I said, 2 million homes are marketed every year; that is, 40,000 every week. One-and-a-half million homes are sold and the rest fall by the wayside. For any government bringing in this scheme, failing at the first hurdle would mean that each week—the second, third and fourth weeks, and so on—they would be dealing with 40,000 upset people. Any government who did that would be asking for real trouble.
I shall not give the noble Lord, Lord Hanningfield, the opportunity to come over here to do my job as he would expect me to do it. I am very grateful for his help on this. But this is a big project. I say to the noble Lord, Lord Phillips, that this is not something on the back of an envelope. I hope that some of the issues concerning the dry run will be taken on board.
I turn now to enforcement. By the way, the "weights and measures authorities" is a quaint phrase. It is a throwback. It is almost like the "watch committee" for the police. But we are referring to trading standards representatives. Obviously, as it says in the note on the final paragraph, we the Government will be discussing with the representatives of local government and the trading standards authorities how best they can be involved in the dry run on a voluntary basis. It is very important that they are able to test the kind of things that can go on. That will assist them in building relations with property professionals and preparing them for the duties when the statutory scheme is introduced. So there are plenty of opportunities.
I suspect that this will not be the first time that trading standards authorities have had the opportunity to have a look at a scheme in a little operational detail before it becomes statutory. So I do not envisage a major problem in that direction. Of course, they will not be enforcing it in the sense of penalties. Obviously, at that time it will not have legal force behind it.
Lord Phillips of Sudbury: My Lords, I am grateful to the Minister for giving way. He is being most helpful to the House and telling us very important things. It is a bit out of place because the whole issue of the pilot or the dry run is not part of the group, but somehow we have been sucked into it. It is almost inescapable.
The Minister has said words to the effect that it would be nice to have one part of the country—perhaps a county—where everyone is involved. That would then mean that we were having the equivalent of a compulsory pilot in that part of the country. Of course, it is a compulsory scheme that the Government have in the Bill. To ensure that that process works, why
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could the Government not have one county that compulsorily will have to be a pilot or dry run of the scheme as a whole? Under anything short of that or short of unanimous volunteering within that county, the chain problem to which the Minister referred will never be tested. Why therefore could we not have that?
Lord Rooker: My Lords, that has been discussed in the department by Ministers. I discussed it when I was the responsible Minister in the early days when the Bill was introduced. In a way, the Government are not running the scheme. The industry is running the scheme. A lot of investment is required. I gave a figure for one particular firm. Our difficulty with having a compulsory pilot is that the necessary training to bring in the accreditation for the inspectors needs to be fairly substantial. People will not invest on that national scale just for a pilot. There has to be a certainty that there will be a national scheme. Hence, we cannot pilot it.
However, with the progress that we are making—I have said that we have a lot of time, but 18 months is not that long—it may be that a part of the country will come up where, for example, some quite small, independent estate agents say, "Well, we will do this when we have to, but only when we have to"—that is, in 2007. It will be their right to do that because the law does not require them to do so beforehand.
But if we could find an area of the country where everyone is prepared to say, "Yeah, we will put our money where our mouth is to try to make the system work", we would obviously be over the moon about that; that is, if we could have the inspectors and so on operating. I cannot say that we can do that because that is not within the gift of the Government to do. Otherwise we would have done it. We would have gone for a regional pilot and tried something substantial. For example, if we could make it work in London, we could make it work everywhere else. From the discussions that we have had with the industry, it just is not possible. That is the long and the short answer for the noble Lord.
6.45 p.m.
The Earl of Caithness: My Lords, would the Minister be prepared to consider an amendment that permitted a period between the end of the dry run and the implementation of the Bill so that in that period the Government could produce an assessment which then could be debated in Parliament? As I have read his letter, which I reaffirm I have read very briefly, it looks as though this is a seamless transaction. There will be the regulations. The dry run will be there from July 2006. There will then be the introduction of the Bill. There will be no point at which the Government say, "This is the result of the dry run. These are the amendments that we are going to make. This is how we are going to alter the regulations and then, once we have altered the regulations, the Bill will come into force".
Lord Rooker: My Lords, the answer to the noble Earl's direct question is "no". Once Parliament has

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assented to the Bill, there will be a degree of certainty and confidence in the industry that this will happen; whether it is in 18 months, two years or two-and-a-half years, people will make the necessary investment in training. We are fairly certain of that. We have assurances to that effect.
During the six-month, dry-run period—if I can call it that—it may be that we will have to make amendments. But it could be, as I have said, that there will not be a period at the end of the dry run when everyone goes back to what they were doing today, as it were. Once the dry run starts, people will be operating on a voluntary basis. The expectation is that people will see the benefits of it.
I cannot say that we will be coming back to Parliament, but we will be looking at it. There will be parliamentary Questions. It is open to the Opposition and others to have debates on the issue during the dry run in autumn 2006, which I am sure will be the case in the other place and in this place. The Government will report back to Parliament on the operation of the dry run. Certainly, if we have to bring amending regulations back, we will have to explain why.
We will have research on this matter. We have had research already, but we will be checking, piloting and managing the dry run with our stakeholders. It is not something that we will just say to people, "Oh, just test it out and let us know what you think about it" in a laissez-faire way. It will be much more highly managed and structured than that.
Baroness Hamwee: My Lords, we have an opportunity to hear further detail of the Government's thinking on that later. Amendment No. 177B is not a million miles away from what noble Lords have been referring to. I am particularly grateful to the noble Lord, Lord Hunt of Wirral, for his amendment—or to whomever he wants to give credit for it. It is far better than mine, but I was very boring, did lots of consequentials and so on.
The Minister acknowledges that the dry run will be voluntary. I want to make it clear that we support a dry run, which I hope is implicit in everything we have said. But the fundamental question about how the dry run can be a real test of something that we are told can work only if it is compulsory has still not been answered.
The issue of changing regulations was dealt with very thoroughly in the intervention of the noble Lord, Lord Hunt. But it could only be that a government—perhaps any government—who might misunderstand that when a comment is made that regulations cannot be changed, the reference was intended to be to the democratic process of changing them rather than to the government changing them and then bringing another unamendable package to Parliament.
I am sure that we will come back to this issue. For today, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 150B and 151 not moved.]
Clause 148 [Duty to have a home information pack]:
[Amendments Nos. 151A to 151D not moved.]
The Deputy Speaker (Lord Geddes): My Lords, before calling Amendment No. 151 E, I must advise the House that if it is agreed to I will not be able to call Amendment Nos. 151F or 151G due to pre-emption.
[Amendments Nos. 151E to 151G not moved.]
Baroness Maddock Baroness Maddock moved Amendment No. 151H:
Page 105, line 12, at end insert—
"(3) The duty to provide information relating to the physical condition of the property shall not apply in the case of a new home sold—

(a) by the builder to a first buyer with the benefit of a ten-year warranty issued by a warranty provider, or

(b) within the first six years of a ten-year warranty period issued by a warranty provider.

(4) In subsection (3) "warranty provider" means the National House-Building Council or any warranty company designated by the Secretary of State."
The noble Baroness said: My Lords, this amendment concerns home condition reports on new homes. We have already discussed this issue today, as well as in Committee both in the Commons and in this House. In the mean time, I have also had discussions with the National House-Building Council, which is mainly responsible for issuing warranties on new homes. The council is extremely concerned about this provision. I know that the noble Lord, Lord Fowler, has also had discussions with representatives from the council, having been closely associated with it at one point in his career.
The National House-Building Council would very much like to see its 10-year warranty as the period. I am not so convinced about that. However, its representatives have convinced me that perhaps a period of six years would be a better period. The reason that period has been suggested is because, as I understand it, during the first six years after the completion of a property, the home owner continues to enjoy additional consumer protection through the statutes of limitation, which contractually oblige the builder to repair any structural problems. That is why I have opted for the six-year period.
The other area giving me concern is that of providing energy efficiency reports. Again I have had discussions about this, and as a result noble Lords will note that I have withdrawn Amendment No. 159 because it would have done away with energy reports altogether, which I did not want.
Energy efficiency reports present a more difficult problem because legislation is coming through from Europe—which I support, having promoted the introduction of legislation in this area myself both when I was in another place and in this House. The big discussion at the moment is climate change. We are changing building regulations and how to address the problem almost on an annual basis. It would therefore be quite wrong to rely on what is provided as regards energy efficiency in a new house today in six years' time.
The arguments have been made. We are also worried about the extra costs, in particular on new homes, which are the subject of this discussion. There is also the question of duplication and unnecessary delay.
While I do not expect the Minister to accept my amendment, I hope that he will acknowledge the concerns of all those dealing with new buildings. Perhaps he will look at some way of reconciling our difficulties in this area. I hope that today the Minister will at least recognise rather more than he did in Committee that something needs to give in this area. That may well not be what I have suggested in my amendment or in amendments tabled by other noble Lords, but this is an important matter which needs to be dealt with. I beg to move.
Lord Fowler: My Lords, perhaps I may intervene for a moment or two. As I declared earlier, I am a former chairman of the National House-Building Council. I strongly support the amendment and the spirit in which it has been proposed by the noble Baroness. She suggests a compromise that provides a sensible middle way.
I shall not repeat all the arguments I put forward at the earlier stage because I, and I imagine the National House-Building Council, will want to study what the Minister said in his reply earlier today, for which I thank him. It was a detailed response and one will want to give it proper consideration.
In brief terms, we are talking of consumer protection here, protection that warranty providers such as the NHBC provide. Of course, as a noble Lord mentioned at the earlier stage, it is perfectly true that it does not apply to all houses built throughout the country, but it does apply to that very important constituency: newly built houses. The warranty provides protection for the consumer in a number of ways, in particular by inspectors who trace every stage of the home being built. The consumer knows that the building has been checked and that there is a guarantee of standard. If defects are found, they will be put right by organisations like the National House-Building Council, which offers a further guarantee. Above all, the guarantee lasts for 10 years, which is an exceptionally long time for a guarantee of this kind. Indeed, I know of very few that last as long as that. It is extremely unusual both in consumer protection and in terms of insurance.
Given that there is already exceptional consumer protection, my basic point is that I do not see why we should attempt to duplicate such protection in respect of this class of housing; that is, newly built houses. I see no point in doing that. Protection and cover are already in place. Why should this important group, the new homes that are built each year, need home condition reports? That is the basic point that I put to the Minister and it is in that respect that I support the noble Baroness in her amendment.
The Earl of Caithness: My Lords, I am glad to follow a former Secretary of State of mine, who has more
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knowledge of this area than I. Linked with this amendment are two of my amendments, Amendments Nos. 159A and 163E, which aim to achieve very much the same thing.
I would add only that I support what the noble Baroness and my noble friend Lord Fowler have said. We had a good debate in Committee, but it is clear that since then this issue has emerged as a point of real concern, given that it will certainly lead to a duplication of costs. That is an unnecessary burden on both purchasers and vendors. I support the amendment.
Baroness Hanham: My Lords, our names are not attached to the amendment, but we support both the tenor and the tone of it as put forward. During his reply to the previous debate, the Minister referred to "second-hand homes", which is a slightly unusual term when applied to a home. However, he was covering the process whereby houses pass from one person to another. Perhaps there is an argument that things may happen in the interim, but I think that warranties provided by the National House-Building Council and similar warranties ought to be sufficient.
We should bear in mind that over the coming years it is the expectation of the Minister's department that a substantial number of new houses will be built. That will put great pressure on home condition reports. For the Minister to accept the amendment, either at this stage or after discussions on whether the warranty period should be six years or 10 years, would be most sensible.
Lord Phillips of Sudbury: My Lords, I too support the amendment and the conciliatory way in which my noble friend put forward her argument. There will be a fearful waste of money unless this amendment or something like it is introduced.
I would be grateful if the Minister would consider one point. He mentioned earlier that additions or structural changes could be made to a property after it was built. That is a relevant factor, but might not the answer to that be to accept this amendment subject to a requirement for a home condition report in respect of any structural changes made to the property since it was built? That would close the gap.
7 p.m.
Lord Bassam of Brighton: My Lords, it has been a useful debate. Where it states "Resist" in my speaking notes, it is qualified by, "But be nice to them", or something along those lines.
As noble Lords will know, there have been many discussions with the National House-Building Council about the application of home information packs to sales of new homes where a good designated warranty is in place. We are aware that the NHBC has some reservations about them. These amendments are clearly designed to meet and match those reservations.
It is fair to say that the ODPM consultation paper on the contents of the pack proposed that if a physically complete new home being offered for sale is registered under a warranty scheme, the seller—

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usually the developer—would be exempt from providing a home condition report. I shall explain the reason for that in a moment. Copies of that consultation paper and the report on it have been placed in the Library.
The replies from 17 respondents who commented on whether a home condition report should be provided to potential buyers on the practical completion of a property showed that there was a mixed view. Some thought that, to create a level playing field, a home condition report should be included in the pack; others believed that if a property is covered by a designated warranty there is no need for a home condition report. The House Builders Federation and NHBC additionally suggested that sellers of second-hand homes—an expression with which I know some people feel uncomfortable—where the period of the warranty cover has not expired should have the choice of carrying out a home condition report or simply updating their warranty.
We want to consider these views further. I undertake that we shall do so and that we shall consult very carefully with stakeholders.
As far as we are concerned, the home condition report is a very important part of the pack for the sale of second-hand homes. There is a danger that any attempt to substitute it with alternative provision could deprive consumers of the level of comfort and information they need in order to make what we all accept is an important decision.
The home condition report is a statement regarding the condition of the property. It is aimed at giving buyers good information about the condition of the property they wish to purchase. Potential defects in the condition of brand new homes will have less serious consequences if an adequate warranty agreement is in place, simply because the warranty will require the builder to put right anything defined as a defect which comes to light in the first two years and offer reduced cover in the subsequent eight years.
It is important to appreciate the distinction between the purposes of the two documents. A home condition report is aimed at giving buyers information about the physical condition of the property, its characteristics and its features—information to which every buyer is entitled—whereas a warranty is aimed at giving financial cover to the present owner of the property. So the two documents serve different and distinct purposes. Even if a seller shows a potential buyer the property's warranty, that will not necessarily reveal to the buyer the information that he or she wishes to have about the physical condition and characteristics of the building.
We understand the intent of the amendments, which have been well described by noble Lords who have contributed to the debate. We are content, at least in the current circumstances, to explore further some of these issues. My briefing note states that, "Our minds are not closed on this matter". Officials will continue to work with the National House-Building Council and other interested parties to discuss issues relating to new homes.
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For instance, it is our intention—I wish the noble Lord, Lord Hunt, was in his place—to look at the question of the energy efficiency certificate that would normally be included in the home condition report—an issue raised by the noble Baroness, Lady Maddock. I acknowledge that newly built homes are required by building regulations to meet good standards of energy efficiency. Even so, cost-effective improvements might still be possible.
I can give an assurance that discussions will continue. We resist these amendments, but we will ensure that interested parties are able to have further discussions on these matters. Having said that, I hope that the noble Baroness will feel happy to withdraw the amendment.
Baroness Maddock: My Lords, I thank the Minister for that reply. I am slightly worried that Third Reading is due to take place the week after next. If the Government are minded to do anything about this, perhaps they will give us forewarning. I shall discuss this issue with those who have expressed an interest today and with others outside the House. It may be that we shall wish to return to this matter on Third Reading. If the Government are thinking of doing so, I would be grateful if they would let us know.
I again thank the Minister for his helpful reply. I hope that he will keep looking at the issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Davies of Oldham: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Civil Contingencies Bill
7.7 p.m.
Lord Bassam of Brighton: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Bassam of Brighton.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Geddes) in the Chair.]
Clause 19 [Meaning of "emergency"]:
The Deputy Chairman of Committees (Lord Geddes): The first two amendments, Amendments Nos. 87 and 88, were both, I am advised, pre-empted by previous agreement to Amendment No. 86C. I am therefore unable to call Amendments Nos. 87 and 88.
[Amendments Nos. 87 and 88 not moved.]
Lord Avebury Lord Avebury moved Amendment No. 89:
Page 13, line 1, leave out "threatens" and insert "may be held to threaten serious"
The noble Lord said: The Committee has already had a substantial debate on Clause 19—when, for reasons that are not entirely clear, instead of finishing at the end of Part 1 last Thursday, it was decided to begin Part 2. As a result of the amendment that was made at the end of the proceedings last week, the definition of "emergency", on which the whole of Part 2 rests, has been altered so that, as the noble Baroness, Lady Scotland, explained, it does not include any event or situation which merely threatens serious damage to the security of the United Kingdom or a part or a region, but only,
"(c) war or terrorism".
The Government recognised that the definition was too widely drawn. I hope they will agree, on reflection, that it should be further refined as suggested in Amendment No. 89.
The definition has two elements. First, there is an event or situation which, in itself, need not be of any particular seriousness; it is only what may or may not follow in the cases dealt with under paragraphs (a) and (b) that may be of a serious nature. Our Amendments Nos. 87 and 88—which, as the Deputy Chairman said, were lost by pre-emption, although that was not made clear by the Chairman in calling Amendment No. 86C on Thursday—would have made it clear that the emergency powers could be triggered only when the event that threatens serious damage to the environment or to human welfare is itself of sufficient magnitude to justify the interpretation placed on it.
I mention that as a prelude to saying that the principle can be applied also to subsection (2), which elaborates on the kind of event or situation which is to be treated as potentially threatening damage to human welfare.
Our Amendments Nos. 89 and 92 do two things. First, they align subsections (2) and (3) with subsection (1) so that both refer to "serious damage". It is clear that the event or situation referred to in these subsections is identical with the event or situation in either paragraphs (a) or (b) in subsection (1).
Therefore, the same language should be used in referring to their potential consequences. The additional words,
"may be held to threaten",
reflect the fact that the event or situation does not threaten,
"human welfare … or … the environment",
as the case may be, unless a Minister holds that it does, the conditions specified in Clause 21 having been satisfied. An event of the kind listed in subsections (2) or (3) obviously does not of itself pose such a threat as to come within the definition and that should be reflected in the wording. I beg to move.
Baroness Buscombe: I rise to support the amendment. It adds clarity. It makes sense and helps those who have to look at this Bill in the event of an
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emergency or perceived threat of possible emergency to be able to remind themselves that we are talking only about serious threats. At the risk of repetition—as the Government may respond—it is important that it is absolutely clear, as suggested and proposed in these amendments, that the word "serious" is included.
Lord Elton: I endorse what my noble friend just said: the important word is "serious". In effect, we had this debate the last time we were discussing the Bill, when we discussed defining the trigger for the effect of the Bill. At the moment it is left extraordinarily imprecise. I hope that the Government have had time to think since the last debate and have changed their mind.
The Minister of State, Home Office (Baroness Scotland of Asthal): I thank the noble Lord, Lord Avebury, the noble Baroness, Lady Buscombe, and the noble Lord, Lord Elton, for their remarks, but I regret to say that the Government cannot support these amendments and we will resist their inclusion. I would like to give a wider explanation for that.
I indicated during the last session that it was my desire to treat the House to a detailed explanation of the Bill and its arguments. I start therefore by saying a few words about the definition of "emergency" in general and that may help to clarify some of the issues. I know that this is an issue that has troubled a number of noble Lords who participated in the previous debate.
The starting point for Part 2 is a clear definition of the circumstances in which emergency powers may be needed. The definition in the existing legislation is, we respectfully suggest, outdated and does not reflect modern society and the risks and threats that it may face. Recent emergencies have highlighted that as a real issue. Emergencies are, by their nature, unpredictable and we need to ensure that those in the future, perhaps not even imaginable at present, fall within the definition if we are to ensure that they can be responded to effectively.
The modernised definition reflects the breadth and variety of the possible risks and threats that the United Kingdom may face at present and in the future and has been drawn up in consultation with stakeholders, including the emergency services and civil liberties groups. It is intended to cover all the potential risks and threats that may lead to a situation so serious as to create a need to use emergency powers. It is deliberately detailed in order to communicate more clearly the kind of situations in which the use of emergency powers may be contemplated. The range of possible emergencies is broad. Therefore, so must be the definition. However, it is limited by the safeguards set out in the Bill.
The definition is just the starting point. Any emergency would have to satisfy the safeguards laid down in the Bill in order for the powers to be available—in particular, the triple lock that I spoke about last Thursday. First, the event or situation would need to threaten serious damage. Secondly, temporary new legislation must be necessary and

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needed urgently and, thirdly, any regulations made must be proportionate and aimed at preventing, controlling or mitigating the emergency. That is the triple lock.
7.15 p.m.
We have refined and reviewed the definition in the light of the results of the public consultation and recommendations made very properly by the Joint Committee. We have removed,
"political, administrative and economic stability",
and adjusted the definition of human welfare to make it even clearer. It is important, however, that the definition of threats to human welfare captures the full range to which we may have to respond. I emphasise that that is an important matter.
Clause 19 requires there to be a threat of,
"serious damage to human welfare … the environment or … security",
before the situation can be deemed to be an emergency. That is before any emergency regulations can be made. Any regulations must be needed urgently and be both necessary and proportionate given the prevailing circumstances. With that background, I now turn to Amendments Nos. 89 and 92.
It is suggested that the Bill be amended to specify that situations listed in subsections (2) and (3) of Clause 19,
"may be held to threaten serious".
damage. The intention is to ensure that the list of matters do not in themselves automatically constitute an emergency. If I may respectfully say so, the amendments are not necessary. One case of human illness may meet the requirement at Clause 19(2) of being a threat to human welfare. It would not, however, meet the requirement at Clause 19(1) of being a threat of,
"serious damage to human welfare in the United Kingdom or in a part or region".
The clauses of the Bill must be read in context. They provide a list of situations or events in subsections (2) to (4) that can be considered to be an emergency for the purpose of the Bill only if they threaten,
"serious damage to human welfare … (the) environment … or security of the United Kingdom or a part or region",
as outlined in Clause 19(1).
Amendment No. 95, would make any war, armed conflict or terrorism an emergency as it would remove the ability to establish—
Lord Avebury: I did not speak to Amendment No. 95.
Baroness Scotland of Asthal: I beg the noble Lord's pardon. The amendment was grouped with Amendment No. 89. If it has been regrouped, I will not comment further on that amendment.
Lord Avebury: I did not speak to Amendment No. 95 because I thought that it should also have been dealt with by the pre-emption, even though that was not made clear. It was an omission and Amendment
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No. 95, together with Amendments Nos. 87 and 88, ought to have been treated as though they had been pre-empted by Amendment No. 86C. However, that is a minor point.
To turn to the substance of what the Minister said, which is that we do not need to include these words in subsection (2), I do not understand. There is different wording now in subsections (1) and (2) and yet subsection (2) begins by saying:
"For the purposes of subsection (1A)".
Similarly, subsection (3) says:
"For the purposes of subsection (1)(b).
In my naivety I thought that the wording should be brought into line with the wording that the noble Baroness moved on Thursday last week. Obviously I am wrong because I do not pretend to be of anything like the legal calibre of the Minister. However, we shall take advice on what she has told us and, if necessary, return to the matter on Report.
Lord Elton: Before the noble Lord withdraws the amendment, I should like to comment further. I understand the triple lock mechanism, which the Minister explained, but the whole thing hinges not on the wording of subsection (2) but on the wording of subsection (1), which we have already agreed in principle at an earlier stage. But I hope that the Minister realises that the source of concern for myself and my noble friends is elsewhere in the Bill.
I refer to the draconian powers acquired by Ministers when the trigger activates. That is why we are still very leery of the words that have been inserted in subsection (1), because, for reasons which my noble friend made clear in our previous debate, the seriousness of the threat is not quantified; only the seriousness of the threat if it materialises is quantified. I know that that point slightly escaped the Minister when we discussed it before, but my noble friend was clear in pointing out that one can have a very serious threat of a minor disaster or a very minor threat of a serious disaster.
Clause 1 (1) says that in the first part of the Bill emergency means,
"an event or situation which threatens"—
unqualified—"damage", which is qualified as "serious".
I hope that the Minister will return to that point between now and Report. I am sorry to hang this point on to the end of the debate, but it is a coherent part of the Bill and the matters should be discussed together.
Lord Avebury: I take seriously the point made by the noble Lord, Lord Elton. He is right in saying that what we are considering is not so much important in itself, but important because of what hangs on it—that is, the enormity of the powers that come into operation once the trigger has been set. Therefore, it is important to be precise.
When people look at the Bill, they will see that there is a difference between the wording in subsection (1) and subsections (2) and (3). In one case, following the

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Minister's amendment last Thursday, it is necessary to have a threat of "serious damage". In subsections (2) and (3), the Bill requires only a threat of damage; it does not have to be "serious". The inconsistency between subsection (1) and subsections (2) and (3) could create confusion, even if the Minister is correct in saying that it does not alter the meaning.
The fact of having different words in two places in the Bill would give rise to difficulties of interpretation, which are completely unnecessary. I hope that before Report the Government will give further consideration to the matter. Perhaps, if they do not, we shall take further legal advice from our experts and come back to it at that stage. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Brougham and Vaux): I can tell the noble Lord, Lord Avebury, that Amendment No. 95 is pre-empted by government Amendment No. 93A.
Lord Avebury Lord Avebury moved Amendment No. 90:
Page 13, line 8, leave out paragraph (f).
The noble Lord said: We come to the various matters which can be dealt with under subsection (1). I shall first deal with what I have to say about floods, although I know that the Minister is going to delete subsection (3)(b). That paragraph is illustrative of the point we are raising. As Members of the Committee will be aware, there have been many flood episodes in England and Wales, notably in 2000, which was the worst year for flooding since 1947, when many parts of the country were under water. At that time, there was no sign that the emergency services were unable to cope, or that anything more could have been done by authorities if the powers sought in the Bill had been available.
Accordingly, we believe that the event or situation which sets in motion the Government's consideration as to whether serious damage to human welfare is threatened should be one that affects a significant proportion of the population or region. Obviously, to the people of Boscastle there was more than a threat to their welfare, but it was not such that Part 2 of the Bill could have done anything for them beyond what was possible under existing arrangements. That is what the clause is about.
With regard to Amendment No. 92, we acknowledge that there is at present a situation threatening severe damage to human welfare and the environment in the form of a progressive and accelerating loss of biodiversity. According to the strategic plan adopted by the 187 signatories to the United Nations Convention on Biological Diversity, the,
"rate of biodiversity loss is increasing at an unprecedented rate, threatening the very existence of life as it is currently understood".
One cannot imagine a much more serious threat than that. The plan goes on to say that the,
"maintenance of biodiversity is a necessary condition for sustainable development, and as such constitutes one of the great challenges of the modern era".
Declaring an emergency under this clause and passing regulations preventing, reducing or mitigating the effects of disruption to plant life or animal life is not the answer to the loss of biodiversity. We in the UK cannot solve global problems single-handedly, although we can and do make a significant contribution towards meeting the target of a substantial reduction in the rate of biodiversity loss by 2010. If the event is confined to the United Kingdom alone, such as Dutch Elm Disease or myxomatosis and threatens only plant or animal life without causing direct harm to human beings, emergency regulations would be ineffective. What would be called for would be long-term scientific measures to deal with the particular threat.
On Amendments Nos. 90 and 91, we assume first that, if the disruption in question arises from armed conflict or terrorism within the meaning of Section 1 of the Terrorism Act, it would be dealt with under that part of the new subsection (1). The disruption envisaged under paragraph (g) is not that caused by the incompetence of train operators or track maintenance contractors, but that caused by industrial action, for example. That was the reason for the use of emergency powers during the period of the Heath Government between 1970 and 1974. It has not been necessary to invoke the powers at all during the 30 years since then, perhaps because legislation since then has made it more difficult for trade unions to call national strikes. In the unlikely event that, in spite of those obstacles, national transport systems were disrupted by strikes at some time in the future, at the same point the situation could involve or might cause "loss of human life" or "human illness or injury", and would therefore come under paragraphs (a) or (b).
Lord Elton: I wondered whether the noble Lord had cast his eye on Clause 23(3), which says that:
"Emergency regulations may not … prohibit or enable the prohibition of participation in … a strike or other industrial action".
The power of the Bill is very much reduced in the circumstances to which he refers.
Lord Avebury: Then it is even more difficult to imagine what circumstances would give rise to triggering that subsection.
Paragraph (f) refers to the "other system of communication", presumably meaning the postal service, to which the same arguments apply as applied to transport. The postal strikes of last October caused huge disruption to business, and many small firms, in particular, suffered from the waiting period for cheques to come in. But it was not suggested that the emergency legislation then available should have been deployed. I am not sure, taking the point made by the noble Lord, Lord Elton, whether under the previous emergency legislation a state of emergency could have been declared under the circumstances of the postal disruption that we suffered last year.
With regard to electronic communications, individuals, companies and public authorities are vulnerable to denial of service attacks, as Members of the Committee will recall from the discussions that we had

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on the Computer Misuse (Amendment) Bill proposed by the noble Earl, Lord Northesk, in 2002, and from several references during the Communications Bill debates last year.
Ofcom's principal duty under the Communications Act 2003 is to further the interest of citizens in relation to communications matters. I suppose that that must include the promotion of security in relation to electronic communications. In fact, under Section 98 of the Act Ofcom has power to issue directions to a contravening provider where there is a serious threat to the safety of the public, to public health or to national security, while under Section 132 of the Act the Secretary of State has power to suspend a provider of electronic communications networks or services where it is necessary to do so to protect the public from any threat to public safety or public health or in the interests of national security.
7.30 p.m.
What the Secretary of State and Ofcom can do under the Act is, of course, limited to the providers, whereas the emergency regulations that could be issued under Clause 22 go far wider. Here again if the effects of the disruption are expected to endanger human life or health, as they might do, for instance, if we are talking about air traffic control systems, or the electronic systems of health service providers, if those were successfully attacked, paragraphs (a) or (b) could be invoked.
I certainly would not underestimate the capacity of malicious individuals to disrupt electronic systems by denial of service attacks, viruses or other malware, but to respond by making emergency regulations would be shutting the stable door after the horse has bolted. The Government would do better to invest in network systems survivability on the lines of the programme which has been developed at Carnegy Mellon University in Pittsburg to strengthen the capacity of national high tech crime units to deal with emerging threats to networks. These paragraphs are unnecessary. I beg to move.
Baroness Buscombe: I had not intended to speak to Amendment No. 90 although the noble Lord, Lord Avebury, has just made a very good point and a very good case for it. I say to the noble Lord, Lord Avebury, that I do not support Amendment No. 91. I believe that transport should be listed. I should encourage him by saying that we on these Benches will be working hard to remove Clause 23(3)(b)—the clause referred to by my noble friend Lord Elton—in relation to industrial action as we believe that that exception should not be on the face of the Bill.
I support the noble Lord, Lord Avebury, in relation to Amendment No. 93. A considerable number of people are questioning why it is necessary to have the category,
"disruption or destruction of plant life or animal life".
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If the Government are successful in their attempts to ban hunting, would such a clause ever be invoked should individuals or groups of people decide to defy that ban? What kind of instances are the Government thinking of in relation to,
"disruption or destruction of plant life or animal life"
that make the case for having this category listed on the face of the Bill?
The Earl of Onslow: It would be helpful to some of us if we could be given examples of what Ministers think could constitute these emergencies. Someone must have thought of a reason for including them. Therefore, what is that reason? Can we be given some examples of hypothetical situations?
Baroness Masham of Ilton: As regards the plant life, what happens if a fire is started accidentally on a moor and it gets out of control? Who will be responsible and who will be at fault?
Baroness Scotland of Asthal: I say straight away that the triple lock about which I spoke earlier comes into play in relation to these definitions. I should like noble Lords to hold those issues in mind. I shall go through each amendment and describe why I think that some may not be acceptable. The noble Lord, Lord Avebury, has already indicated his pleasure at our proposed amendment in relation to flooding.
I start with Amendment No. 90. The noble Lord raised a significant issue. The effects of any severe disruption to communications on human welfare may be disastrous. All our major services rely on communication to function effectively, including, for example, the emergency services, the trains, including the Tube, and the healthcare providers. All businesses and service suppliers are dependent on effective communication whose disruption would severely impact upon supply given the predominance of just in time delivery methods.
To give but one example, as I have been asked, the National Health Service relies on effective communication between providers of care and suppliers in order to ensure that it can order and receive the supplies required for vital patient care. That is not to mention what would happen if banks and benefit providers were unable to function because they could not verify information due to communications failure. There is no question that disruption to communications so severe as to threaten serious damage to human welfare should be a legitimate reason for considering the use of emergency powers.
Having considered the matter the Government are minded to accept that the reference to methods of communication should, however, be simplified by removing the express reference to electronic means in both Clauses 19 and 22. The Government are now satisfied that simply referring to protecting and restoring any system of communication ensures that both electronic and non-electronic systems are covered. We therefore propose—
The Earl of Onslow: I am requesting information. Let us assume that the electronic system has gone

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down and the banks cannot function. What will the Government be able to do about that which the people who manufacture and make the relevant equipment will not be able to do? What kind of powers will be needed and what kind of regulation will the Government want to put in place? That is what I find difficult to follow.
Baroness Scotland of Asthal: I want to make it clear that often when emergencies take place a whole series of things go down. Communications go down. It may be a question of a pollutant or it may be a whole series of things. The Government will need to put in place all those remedial actions that will be necessary to deal with the emergency situation as a whole. The fact that you cannot get communications between the services may be of significant importance depending on the nature or the species of the emergency that arises. It is a matter of being able to capture all the things that we will have to put right in an emergency.
Unfortunately, historically emergencies have not come single-handed. In the past we have debated the possibility of an emergency style No. 1 arising along with an emergency style No. 2. I make it clear that in a number of emergencies a cluster of things will happen at the same time. We shall have to deal with that cluster. We want to be absolutely clear that the emergency service, which will have to respond on our behalf, does not consider that it can deal with one situation but not another. We need to be able to deal with all the issues all at once.
Lord Dixon-Smith: I have much sympathy with what the noble Baroness is saying but I see the force of my noble friend's question. I seek further elucidation. What will the Government be able to do to put these failed systems right that the present providers will not be doing as hard as they jolly well can?
Baroness Scotland of Asthal: The most important thing is the planning. The clause is really an enabling exercise. We hope that all agencies will use their best endeavours—indeed, we will have to rely on the skills of the individuals involved—to assist us. The clause gives us the power to do what proves necessary at the time to deal with the emergency. It is very difficult to say with absolute precision that it will enable us to do A, B and C, but it will give us the ability to take the steps that may prove necessary.
Lord Lucas: I shall chime in third in a row on the same subject. I, too, find it very difficult to imagine what the Government can do—what is within the Government's capacity in the terms of this part of the Bill, which is about reacting very fast and doing something to solve an emergency—that will not be done anyway. Under subsection (c), to which we will come later, I can see that they can order cows to be shot. That is fine; we are all aware what that provision is about. However, if the communication system—the
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mobile-phone system—goes down, what can the Government do that the companies running the system cannot already do?
The Earl of Northesk: That is a desperately important point. Having lived through four hurricanes in the past six months in Florida, I have some experience of precisely the sort of emergency about which the noble Baroness is talking. What happens is that communications are lost, and the public and the services hunker down until the emergency has passed. I signally fail to understand what the Government's proposition is—what they can do at a central level that is not already done at a local level.
Baroness Scotland of Asthal: individuals may have to be ordered to do certain things. People may say that it is not cost-effective to do A, B, C or D. However, it has to be done for national security and national reasons, so the Government may do that. It is not necessarily a question of the Government using emergency powers to fix the breakdown or the means of communication; that will obviously be done on the ground. However, it will be necessary to deal with the effect of that breakdown. Those are important issues.
If one were to follow what was said by the noble Lord, Lord Dixon-Smith, and others, it would be a recipe for no action at all. If one were to say that all anyone would do was hunker down, we would all hunker down, not deal with the situation and hope that it would pass over. That is not the way. We seek to take those powers that may be necessary to assist us to deliver what we will need to have delivered on our behalf, to make sure that the situation makes sense.
Lord Elton: I shall court unpopularity for a moment by coming to the aid of the noble Baroness, as I can immediately think of two situations that might be relevant. One is where there is a massive breakdown in electronic communication. An awful lot of people on benefit would have no money at all very quickly. Something must be done to authorise payments or vouchers. Similarly, if there is a breakdown of communications, decisions of national importance have to be delegated to a much lower level. Both those matters would require regulation. My concern remains with the size of the emergency, not with the aspect that we are discussing.
Baroness Scotland of Asthal: I am grateful to the noble Lord, Lord Elton, as he is quite right. The issues are important, as we will have to take the steps necessary better to protect people in this country, and to make sure that they get the services that they need. That is why communications is an important issue, and why we may have to address it.
We cannot accept Amendment No. 91. It removes disruption of transport facilities from the definition of events that could threaten or damage human welfare, and would prevent emergency regulations being invoked if the damage threatened were serious. The 1920 Act

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recognises the potential scale of the effects of serious disruption to transportation, referring specifically to the means of locomotion in its definition of emergency—that is, the key facility for transport in the area. Omitting the reference to disruption of transport facilities would prevent, for example, a complete failure of the London Underground system leaving millions of commuters stranded in central London from potentially being classed as an emergency, until such time as the threat fell within another situation listed in Clause 19(2). By that time, action could have been taken to mitigate the situation.
7.45 p.m.
The Earl of Onslow: The noble Baroness says that action could have been taken. Let us accept that there has been a complete breakdown of the London Underground service, a bad crash, an electricity failure and all such things. I do not understand what extra powers are needed to put that right. London Underground will be working its socks off to get it right; everyone will be trying very hard. There is nothing that requires emergency legislation that cannot be done later. I do not understand; perhaps I am being stupid.
Viscount Goschen: We are in Committee, which may assist the noble Baroness in responding to my noble friend's point. I ask her to cast her mind back two years or thereabouts to the fuel protests. It would be very helpful if she were to tell us whether the level of disruption caused then by the fuel protesters would constitute a serious threat to the transport system. On its own, would that trigger the emergency powers in the Bill?
Baroness Scotland of Asthal: We come back to the test that has to be applied, which is a threat of serious damage to human welfare, the environment or security. The noble Viscount should ask whether the fuel protests were a threat of serious damage to human welfare, the environment or security. Then he would have to decide what would be proportionate. It is invidious to look back, but my assessment is that they would not fall within the definition. We are talking about emergency circumstances. I cannot say whether a future situation that may be significantly different from what happened two years ago would fall within the definition. The definition is clear and is there for very important reasons.
I would like to deal with the amendments. I thank the noble Baroness for her support in relation to Amendment No. 91 on retaining the inclusion of transport.
We cannot accept Amendment No. 93. Removing disruption or destruction of plant life or animal life from the definition of damage to the environment would mean, for example, that an outbreak of a serious infectious disease on a sufficient scale would not in its own right be capable of amounting to an emergency under Part 2. Similarly, a catastrophic release of pollutants could not trigger use of the powers, despite the fact that it might require measures
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that were possible only through the use of the powers, such as sealing off areas and requisitioning equipment to aid the clean-up.
The noble Baroness, Lady Masham, raised a question about a fire being started on a moor and who was responsible. I respectfully suggest that it would be highly unlikely to meet the criteria for an emergency. Once again, I invite her to look at how the triple lock would work in relation to the matter. The fire brigade would be the first responder, responsible for tackling a fire. I cannot really envisage a situation in which it would need emergency powers to do so; the matter is outwith the Bill.
I should speak about hunt protesters. The emergency powers are a last-resort option for dealing with the most serious emergencies. They must be used reasonably and proportionately, and only where existing legislation is insufficient. Although I know that the ingenuity of the hunting lobby is perhaps beyond my ken, given that it is difficult to envisage how the emergency powers could be used in connection with hunting, I cannot see it. I recognise the ingenuity of others to raise matters that are outwith my contemplation. But at the moment, I cannot see how that could be done.
Regarding other matters that have been raised, I should like to speak to government Amendments Nos. 92A and 109A, which are grouped here. The Government, having looked in detail at the issues, are minded to remove the reference to flooding from the list of threats to human welfare in Clause 19(2) and the specific reference to regulations being used to prevent or mitigate the effect of floods from the scope of emergency regulations in Clause 22(2). Having considered the issues, the Government are content that any floods so serious that they would trigger the use of emergency powers would be caught by elements that are already present in the definition of human welfare—loss of human life, homelessness, damage to property and disruption to the named essential services and resources. Similarly, Clause 22 sets out the purposes for which any regulations might need to be made in such circumstances, without the need for a specific reference to flooding. I hope that the noble Lord, Lord Avebury, can take a modicum of pleasure from that.
The provisions have been set out in this way to bring clarity and to brigade the sort of issues that are likely to give rise to an emergency.
Lord Lucas: I have no difficulty with the concept behind subsection (3)(c), but I find it difficult to understand why we should be worrying about disruption to plant life. This is the Committee stage. It is difficult to speak on such matters until one has listened to the Minister, as one might otherwise be wasting time, because she might have covered points that one wished to raise—particularly when they are small points, which these are. I do not know why we are worrying about disruption to plant life. Plants do not generally lead an active life.
Lord Hunt of Chesterton: Some noble Lords may recall that in the 1980s there was substantial concern about the danger from nuclear winter. That concept was associated with a series of massive nuclear events that would create sufficient dust in the atmosphere, releasing radiation for significant periods of time, and would seriously disrupt plants and vegetation for several seasons. That would include serious volcanic eruptions, such as that in 1816.
In this House we have even debated near events of astronomic objects coming past the Earth. If the Bill is concerned with very extreme events, there are those that could completely eliminate plants and vegetation for several years. Presumably, this legislation is all-encompassing, so I am perfectly happy that there are situations which we have discussed that would be covered by the Bill.
Lord Lucas: All such events would fall under subsection (2), because they would have serious effects on the human population as well. I am not concerned about the provision for the destruction of plant life. A serious disease that is in danger of wiping out the wheat harvest would be a matter which would require swift action. But what is envisaged under the term "disruption" of plant life that would make it reasonable to have emergency regulations? It does not strike me that plants are living the type of life that we should worry too much about. One disrupts plant life by walking across a meadow. I suppose that a hunt could be said to disrupt plant life because it plants hooves upon the receiving earth in a brutal fashion. I cannot see why "disruption" of plant life should be a cause for emergency regulations.
It is difficult to see that disruption of animal life should be a cause for emergency regulations. I agree with the word "destruction", because if there is a disease out there which is fatal to animals, that would be fine. But why does the clause cover "disruption" to animal life? What is the Government's thinking. Can they give some examples of disruption to animal life that might reasonably give rise to emergency regulations?
My other quibble is regarding subsection (3)(a)(ii). Why is oil not a harmful chemical and kept separate in that way? Oil, as a chemical, is a reasonable portmanteau word that certainly includes any known oil.
Baroness Scotland of Asthal: As I said earlier, we are trying to be as inclusive as possible. The Government consider that it is a significant merit in terms of transparency, in being as full and as forthcoming as possible, as to what kind of events and situations may trigger emergency powers. Thus, the Bill lists the full range of events where the Government consider that it might be necessary to exercise emergency powers. I endorse the comments made by my noble friend Lord Hunt of Chesterton in relation to fallout—particularly nuclear fallout and its effect on plants and other material. The Bill is designed to capture that. Damage to property may need to be of a serious or extreme nature. I have tried to make that clear. That
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nature could consist of damage to a nuclear reactor, or widespread or uncontrolled fire that could cause damage, before emergency powers could be exercised. Where human life is at risk, emergency powers may be exercised more readily.
A balance needs to be struck between the level and extent of the threat and the value being threatened. The balance to be struck would also depend on the value being threatened. It is not just a matter of disruption. Disruption could include destruction and a whole spectrum of activity. The Bill is designed to reflect that. While the Bill specifies exhaustively all the kinds of things that could constitute a threat to human welfare, the environment or security, the test is whether there is a threat of serious damage to human welfare, the environment or security.
I know that the noble Lord, Lord Avebury, has raised an issue regarding biodiversity, which I have not dealt with. The noble Lord said that threats to biodiversity may well pose a serious threat to the environment of the United Kingdom and how that falls within the definition of "emergency". I should make it clear that we consider that threats to the environment should be capable of triggering emergency powers in appropriate cases. But, for the reasons that the noble Lord gave when he outlined these matters, it does not mean that the current threat to biodiversity should or could trigger the use of emergency powers. It would not be necessary or proportionate to use emergency powers to address that point. Therefore, it is important to examine what the triple lock tells us. How can one unlock those keys? So the noble Lord, Lord Lucas, needs to reflect on how those matters, the type of examples given by my noble friend Lord Hunt, would have an impact upon our environment.
Perhaps I may conclude—I know that the noble Lord, Lord Dixon-Smith, is anxious to get to his feet, but one bite at a time might be a good way to proceed. There have been threats of damage to the environment in terms of human welfare. First, it should be noted that disruption to plant life will not necessarily constitute an emergency. While the Bill provides that that threatens damage to the environment, the event itself must threaten serious damage. Also, many serious animal diseases disrupt disastrously rather than destroy life. We need to keep those matters in mind.
Oil may be a harmful substance. However, many oils are not; for instance, edible oils. None the less, a major spill of olive oil, for example, could lead to significant environmental damage. Bird life in particular would be affected. We have been inclusive, but once again one would have to apply the triple lock and see whether the situation presented the envisaged threat before it would engage this Bill.
Bearing in mind that Members of the Committee are so anxious, after speaking I will remain rooted until everyone has indicated that they have dealt with the matters they want to raise. I will then deal with the matters all at once. Otherwise, none of us will ever sit down.
8 p.m.
The Earl of Onslow: Two things have arisen out of what the Minister has just said. The first is the nuclear power station scenario and the second is blue tits getting flooded by olive oil. I can assume an appalling situation. Two aircraft manned by suicide pilots crash into Sizewell B nuclear power station. That is obviously a serious disaster. It is hard to imagine worse. What will the Government do, apart from organising the police, the fire brigade and the Civil Service? I do not quite see what extra powers they need. If this were to happen now, I do not see that the Government would be completely handicapped. Secondly, the blue tits getting flooded by olive oil seems to involve totally glorious and unnecessary legislation to no possible purpose whatever.
Lord Dixon-Smith: I agree with my noble friend—I cannot help but think that olive oil is an irrelevance in this You would need such a flood of olive oil to invoke the damage suggested that it would be impossible.
I am concerned that we appear to have introduced a double standard. On the one hand, we take out flooding because it is covered elsewhere. If flooding were so serious as to invoke emergency regulations, it would be on a scale where it would threaten human life, homelessness and so forth. That I understand. But on the other hand, we mention oil and a series of exclusions. I accept the triple lock and that the situation must be sufficiently serious. But why do we need it? If the situation is that serious, it will also cause loss of human lives and threaten homelessness, damage to property and so forth.
We need to think seriously about the matter. The noble Baroness's argument would be consistent if the Government were not intent on removing flooding, but since they are, it is reasonable to remove one or two of these other issues which do not need mentioning.
Lord Stoddart of Swindon: There is a good deal of suspicion about the Bill. Many people believe that the Government are taking unnecessary emergency powers, and they are therefore concerned about some of the items we are discussing. I have not so far intervened in the debate, but I decided to speak because nuclear power and power stations were mentioned.
I would be very surprised, frightened and worried if the powers to deal with a serious nuclear accident did not already exist not only in this country but also in France in particular. I believe that the Government already have the powers to bring in all kinds of emergency services, to requisition the materials which would clamp down on a nuclear explosion or leakage and to request the assistance of other countries, particularly the French, to deal with such a disaster.
The example given by the noble Baroness therefore brought me to my feet because if we do not already have those powers, this Government and every other
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government have been failing in their duty. Nuclear power stations exist and they constitute a threat should anything go wrong. All governments ought to have been ready to meet those threats at any time since the power stations were built. Therefore, I am suspicious of using a nuclear accident as an excuse for taking emergency powers because I believe that those powers already exist.
Lord Lucas: The noble Baroness will have to tolerate going backwards and forwards because this is a difficult piece of legislation and the powers attached are so enormous. Let us suppose that a couple of weeks before an election, the Hunting Bill having been passed, it becomes clear that various hunts intend to go out and chase a fox. That clearly comes under subsection (3)(c). There is the intended disruption of animal life. If the Government believe that the laws they have to hand are not sufficient to enable them to stop such action, they can do anything. They can take it in their mind to stop a pheasant shoot, or to stop people fishing, or to do whatever they want, albeit that ultimately they are likely to have to answer to Parliament. These are enormous powers. We are giving the Government the power to react in an astonishingly broad way to any situation that may arise.
I remember when the BSE crisis blew up. The first reaction of SEAC, the advisory committee, was that we must instantly kill all cattle in the United Kingdom. Under the law as it was then, we did not have the ability to go out and do that. We would have had to take the matter through Parliament. If this measure becomes law, the Government can just go ahead and do it. So long as they do it fast enough, that will be the end of the matter.
We are allowing enormous powers and I think that it is reasonable to look at subsection (3) carefully. I support subsection (3) on the basis that some things may cause disruption to the environment or to animal or plant life and, given time, they will develop into serious threats to human welfare, although they are not immediately threats to human welfare. It might be argued that a small outbreak of an extremely serious disease of wheat is a scenario too far away from the powers in subsection (2) to trigger them, but one might well want to destroy all grass within a five-mile radius in order to eliminate the problem. It would clearly be a proper use of the emergency powers if the situation was sufficiently serious and if we had scientists and a Minister for agriculture who were sufficiently awake, which is extremely unlikely.
I can see the reasons for the measure but, by having a separate section for the environment, we are starting to allow the Government to take action of an extreme nature in situations which we may feel do not justify it. I think that the matter requires a great deal of consideration.
My feeling is that, where contamination of land, flooding or disruption are ultimately a serious threat to human welfare or can be seen as a serious threat,

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that is fine, and those situations are covered by subsection (2). But in subsection (3) we are covering events that involve the environment or animal or plant life, which are not covered by subsection (2) and which are not a threat to human welfare. Why, under those circumstances, should we give the Government such unlimited power? I think that it is a very serious question and one that we should consider very carefully.
In the instances that I can think of, it would have been misguided to use the powers. There is much to be said for taking the proper time and giving the matter proper consideration. Where things are not so serious that they pose a serious threat to human welfare, I think that there is much to be said for taking things in the proper course and not being panicked into emergency regulations.
Baroness Scotland of Asthal: I take it that all noble Lords have now had their say. I emphasise that we are dealing with the effects of an emergency. Perhaps I should run through some of the issues as we see them. I say to the noble Lord, Lord Lucas, that the scenario that he paints of our using emergency legislation to stop people fishing, hunting or carrying out the most modest form of disruptive activity will not engage this legislation.
The clause must be understood in its proper context. Perhaps I may take the example of the hunt, which is obviously a matter in the minds of noble Lords opposite. Breaking a ban on hunting could hardly be considered a threat of serious damage to,
"the environment of the United Kingdom or of a Part or region".
I hope that noble Lords will concur with that view. The breaking of a ban would be a matter for law enforcement agencies and the courts. I have already acknowledged to the noble Baroness that ingenuity may be greater than I can currently contemplate, but I cannot see that the breaking of a ban would engage emergency powers; nor could it be claimed that their use was proportionate or necessary.
I take the example of a Sizewell B crash and ask what emergency legislation might be needed. It might be necessary, for example, to put movement bans into place so that people did not go into the seriously irradiated areas; it might be necessary to restrict the movements of contaminated people and livestock without other authorisation; and it might be necessary to requisition equipment for the removal or disposal of the contaminated property.
The noble Lord, Lord Dixon-Smith, the noble Earl, Lord Onslow, and the noble Lord, Lord Lucas, dealt with the next point. It is not a question of the Government using emergency powers to fix breakdowns but to deal with the effects—requisitioning alternative means of communication. For example, they might need to requisition fleets of additional ambulances from elsewhere and any material that might be needed.
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A further example of the effects of an emergency is that we might need to declare a bank holiday in order to suspend trading in the City as many transactions would be disrupted. All those situations would require emergency legislation. With regard to the Underground, one might have to requisition buses in order to move millions of commuters and take them home. It might be necessary to requisition buildings as rest centres and to restrict unnecessary movement into a given area. All those powers would have to be used.
To quieten the concerns of the noble Lord, Lord Stoddart, we now have many powers to take emergency action. The whole point of the Civil Contingencies Bill is to modernise and improve our ability to react effectively, quickly and successfully in the new situations that we envisage. This whole opportunity has been given a lot of support, although one forgets it, across the piece by stakeholders who are clear that the Bill is needed, appreciated and well looked forward to. We are doing all we need to do to ensure that if and when an emergency arises we have the ability to move quickly to meet the needs of our people. That is why we have crafted it in the way that I have just described.
8.15 p.m.
Lord Avebury: I was interested to hear the Minister say that one of the measures that might have to be taken under the Bill as a result of an emergency is the declaration of a bank holiday, because that indicates the longevity of my grandfather's legislation, which was passed in 1871 and is still in force. It allows the Government to declare any additional days as bank holidays as may be necessary. I am sure he did not think when he was passing that legislation that one of the purposes to which it would be put would be to add to the armoury of the Government's measures to deal with an emergency of the kind we are discussing today.
We have ranged over a very wide area. When I saw the noble Lord, Lord Stoddart of Swindon, get to his feet I thought that he must be about to support the noble Baroness in her remarks on olive oil, which, ipso facto, presented a serious threat to human welfare because olive oil almost invariably comes from Europe and therefore must be tainted with the stink of Brussels. Instead, he talked about the nuclear threat as did a number of noble Lords. The noble Baroness gave a perfectly satisfactory answer to that: in the event of an attack on Sizewell or a nuclear incident of the kind which unfortunately occurred in other parts of the world such as Chernobyl or Three Mile Island, there would need to be directions to the emergency services and directions, perhaps, to people living in the area to move away from it. One remembers in the case of Chernobyl that there was a very big exclusion area from which all the inhabitants had to be moved. So, obviously, the powers are necessary. But that serves to emphasise that they would be invoked under the earlier parts of the clause, in particular those which deal with loss of human life, human illness or injury and, in the case of a large incident, perhaps homelessness.

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That brings me to the argument used by the Minister in relation to the floods provision. She said that if a flood was of a sufficiently serious nature it would in any case be caught by the definition of damage to human welfare. That is what we have been saying about the other provision on which the amendments are based. Amendment No. 90 refers to the disruption of communication systems. As the noble Baroness pointed out, if health services were unable to link with their suppliers, because of the "just in time" system which prevails universally nowadays, they might not get essential and immediate supplies of medication and other things which are necessary to human health. That underlines the same argument. The point which applies to the floods applies to the communication systems. Immediately the communication systems went down there would be a threat to human life arising in every hospital because they would be unable to get deliveries of their supplies. So, I still do not understand why Clause 19(2)(f) would be necessary in those circumstances when paragraphs (a) or (b) could be invoked instead.
Baroness Scotland of Asthal: I do not know whether the noble Lord is inviting me to remove the concession. I think he makes a powerful argument for including flooding.
Lord Hunt of Chesterton: I would support that.
Lord Avebury: I thought that the noble Baroness was very convincing. If the floods were of a sufficiently serious nature, they would enable paragraph (a) or (b) to be invoked. Precisely the same argument applies to the communication systems. If they were disrupted, supplies to hospitals would be affected. The other example given by the noble Baroness was that banks would not be able to pay social security benefits. Therefore people in receipt of those benefits would very rapidly run out of food and would perhaps suffer severe health problems in consequence. I think that the noble Lord, Lord Elton, also made the point that if they did not get their benefits, it would be necessary to do something immediately for the sake of their health.
On Amendment No. 91, the example quoted was the failure of the underground system. The noble Baroness said, "We could not wait to act until it fell within some other provision". She would not have to, because the wording in the Bill is that it "threatens". So, if the underground system came to a stop, other consequences would very rapidly ensue and the Government would be able to invoke the provision that deals with the threat rather than the actuality of harm to human life.
On Amendment No. 93, regarding infectious diseases among animals, I think that we have provisions that will deal with infectious diseases. We do not need to invoke the sort of emergency legislation we have in the Bill unless we get to the point where human health is harmed. So, the same arguments that apply to the floods and to the communication system mean that we should be able to do without that provision. Obviously, however, we are not going to convince the Minister. We shall have to consider what has been said in all quarters of the Committee this
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evening and possibly come back to these matters on Report. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 91 and 92 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 92A:
Page 13, line 16, leave out paragraph (b).
On Question, amendment agreed to.
[Amendment No. 93 not moved.]
The Deputy Chairman of Committees (Lord Haskel): I think that there is a misprint in the next group of amendments and that the first amendment in the group should be Amendment No. 93A.
Lord Bassam of Brighton: It has been spoken to.
Lord Elton: If the noble Lord will forgive me, I am not clear that we have debated it.
The Deputy Chairman of Committees: I do not think that it has been debated.
Baroness Scotland of Asthal: We thought that it was debated with Amendment No. 86C. Is it subsection (g) of Amendment No. 93A that we have not debated?
The Deputy Chairman of Committees: The "g" just shows that it is a government amendment. Amendment No. 93A is the first amendment in the group.
Lord Archer of Sandwell: I think that we debated Amendment No. 94 with Amendment No. 86C.
Lord Elton: As I understand it, Amendment No. 93A is grouped with Amendment No. 94 and should in fact be the head of the group; and we have not discussed that group. I was looking forward rather keenly to hearing what was going to be said because it is grouped with the amendment of the noble Lord, Lord Archer, to remove subsection (5), as I understand it. That is a debate we certainly have not had. Might I prevail on the noble Baroness to move Amendment No. 93A so that we can debate it?
Lord Archer of Sandwell: At the risk of being tiresome, Amendment No. 94 has already been debated.
Baroness Scotland of Asthal: I thought that Amendment No. 93A had already been debated. I was going to move it formally. I thought that it was debated on 14 October with Amendment No. 86C.
Lord Lucas: Yes.
Baroness Scotland of Asthal: I hear the noble Lord, Lord Lucas, affirming that Amendment No. 86C was debated with Amendment No. 93A on

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Thursday, 14 October. It was the last group. That is why I was proposing to move the amendment formally. I beg to move. Page 13, line 18, leave out subsection (4).
On Question, amendment agreed to.
[Amendments Nos. 94 to 96 not moved.]
Baroness Buscombe Baroness Buscombe moved Amendment No. 97:
Page 13, line 23, leave out subsections (5) and (6).
The noble Baroness said: One of my concerns about the way in which noble Lords must scrutinise legislation is the requirement to address individual clauses in isolation. It diminishes our ability to influence the Government overall in the context of contributions that noble Lords have made on previous amendments, those that I hope will be made on this amendment, and the remarks of the noble and learned Lord, Lord Archer, on Amendment No. 97A. Together these amendments and the previous ones try to address the deep concern about the enormously wide powers in the legislation—in the first group we are also talking about enormously wide powers. I therefore urge the Minister, in responding to this and other groups throughout Part 2, to bear in mind that in collectively considering Part 2 we are addressing each individual clause but saying that overall the effect is extremely draconian and of real concern, not only to noble Lords but to people outside the House.
Amendment No. 97 would delete subsections (5) and (6) of Clause 19, which allow the Secretary of State by order to state that a specified event or situation is an emergency which threatens serious damage to human welfare, the environment or the security of the United Kingdom. Subsection (5) also allows the Secretary of State to amend by order Clause 19(2), which lists events that must be present in order for human welfare to be threatened for the purposes of subsection (1)(a).
I cannot stress enough how concerned we are about the powers given to Ministers in the Bill. Throughout the debate on Part 1 the noble Lord, Lord Bassam, sought regularly to reassure us that there were sufficient safeguards to ensure that the powers would not be abused. But we remain unconvinced, as amplified by previous debates. A Minister has the power to change many things in the Bill, admittedly after an order is passed by each House, but let us face it: such procedures take place in the dinner hour or on a Friday morning. The power in subsections (5) and (6) relates to,
"a specified event or situation, or class of event or situation".
What does that mean?
In tabling these amendments I look to the Minister to reassure us that there is sensible thinking behind the subsections, and that it makes sense to have this extraordinary power basically to change everything that we have just been debating, by order, on a Friday morning or in the dinner hour, if a Secretary of State decides that that should happen. We must proceed with care. I am not convinced that the powers will not be abused. They may not necessarily be abused by the current Government—I am sure not—or by successor
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governments in the near future, but the Bill is intended to carry us well into the future. The powers in Part 2 are so enormous that we need strong reassurance on each of the amendments in the group. I beg to move.
8.30 p.m.
The Deputy Chairman of Committees (Lord Ampthill): I remind the Committee that, in the event that the amendment is accepted, I cannot call Amendment No. 97A.
Lord Archer of Sandwell: My amendment, Amendment No. 97A, refers only to part of Amendment No. 97. That is not because I disagree with the amendment moved by the noble Baroness, Lady Buscombe; I did not see it when I tabled mine or, at least, I did not notice it. I shall confine my comments to subsection (5).
Clause 21, which the Committee has just been debating, specifies the conditions that must be satisfied before a Minister is empowered to make regulations under Part 2. One of those conditions is that an emergency,
"has occurred, is occurring or is about to occur".
As the noble Baroness said, it is important to get right the definition of an emergency. That is found in Clause 19. Whatever we may say about subsections (1) to (4), they are carefully drafted to ensure that we all know what is and what is not an emergency. No one should have power to make regulations if there is no emergency. The Committee has already expended generous time and care in debating the various elements of the definition.
The Joint Committee made recommendations to limit the breadth of the clause. To their credit, the Government agreed to quite a number of them. Then, having gone through all that, the Government have largely neutralised it all by including subsection (5). I say "including" because my recollection is—I shall be corrected if I am wrong—that it was not in the original draft of the Bill. Subsection (5) declares that the Secretary of State may provide that any specified event or situation is to be treated as falling within any element of the definition. Having narrowed the definition, the Bill now says that anything may be included if the Secretary of State says so.
Of course, I take the point made by my noble friend that the situation must threaten serious damage, but the essential question is, "To what?". Serious damage to something that is of no consequence ought not to constitute an emergency. The Government can extend ad infinitum the provision that triggers their powers to make regulations.
In case that provision should somehow transpire not to be sufficient, the Bill, as the noble Baroness, Lady Buscombe, said, goes on to provide that the Secretary of State may declare that any disruption to a supply system, facility or service is to be treated as threatening human welfare and therefore as an emergency. The Secretary of State does not need to persuade anyone; he does not need to say that it ought to be included; or even to give a reason. All the

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reasonable and sensible concessions that the Government have made will be nullified if that proceeds. Cannot the Government trust themselves to provide in the Bill for the limitations that they accepted as appropriate? Are they afraid that they may have missed something? Have they no confidence in their own abilities?
Of course I take on board the triple lock, but what is the use of a triple lock if the very authorities that it is intended to confine are provided with a bundle of Semtex so that they can blast the three locks out of sight? I hope that my noble friend will explain the reason for the sudden bolt for cover. I am sorry; I did not intend that as a pun.
As my noble friend knows, I am the last person to deny the Government power to protect the public in an emergency. I fully accept that there is a danger that we criticise the Government when they fail to deal adequately with an emergency, yet we are in danger of begrudging them the powers to do so. But the Government are in danger of dissipating all that good will if they give the impression of seeking limitless powers. That is not only wrong in principle, it is unwise and counterproductive.
Lord Avebury: We have just listened to an extraordinarily powerful speech from the noble and learned Lord, Lord Archer: I agree with every word that he has uttered; there is very little that I can add. Subsections (5) and (6) are completely open-ended. They give the Secretary of State carte blanche to specify events or classes of event that are to be treated as coming within the definition of emergency and of adding to or amending the list of events or situations potentially threatening damage to human welfare.
As the noble Baroness, Lady Buscombe, pointed out, although there is a requirement that your Lordships and another place approve whatever orders are made under the provision, that is not an adequate safeguard for such a far-reaching provision. As the noble Baroness said, we may have only an hour or so on a Friday morning or late at night to approve what may be extraordinarily drastic provisions.
I have a couple of points that I would like to add. First, is it really necessary, even accepting that there is a case for the provisions as a whole, to give the Secretary of State power to define events or situations that are to be treated as falling within subsection (1)(c), which deals with war or terrorism? If we are at war or if a terrorist situation arises that threatens the security of the United Kingdom, there is hardly likely to be any question of fact raised about whether the situation falls within the definition. So I appeal to the noble Baroness to justify the inclusion of paragraph (c) in the provision.
In the case of paragraphs (a) or (b), it is remotely conceivable that some new supply system, facility or service, not at present even imagined by science fiction writers, might emerge that was so vital to our existence that it would need to be separately listed. The Explanatory Notes do not give any indication of what these systems might be. I suggest that the timescale for
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their development is such that it is unnecessary for the Government to have that power in secondary legislation. When the moment arrives, if ever, there will be years if not decades of warning before the system becomes so vital to our existence that it needs special protection in emergency legislation over and above what it would already have in any case under subsections 2(a) and (b).
Perhaps I may just suggest that the Government should set a competition for science fiction writers to define a hypothetical system that would justify the use of the amending power under subsection (5)(b). If it turns out that no one can think of a plausible idea that would fit—obviously it would have to be outside the field of communications, which is already covered—we would be even more reassured that subsection (5)(b) is unnecessary.
The Lord Bishop of Worcester: Like other noble Lords, I find subsection (5) chilling, frankly. I look to the Minister to reassure me on two points. The first has already been mentioned by noble Lords; that is, this subsection seems to give the Secretary of State the right to say, whenever he chooses, what words shall mean. Secondly, am I right in imagining that that right, in effect, will remove the operation of this Act by the Secretary of State from the scrutiny of the courts? If that is true, the matter is extremely serious.
It is perfectly understandable for the Government to seek powers to deal with emergencies and to protect the public, but there is a safeguard of the liberties of the subject and against the rousing of popular fears, which is easy to do, if it is always possible for someone to apply for judicial review, albeit in emergency session, of the decisions of the Secretary of State. If under this legislation the Secretary of State has the right to define what is an emergency, then it would seem that there can be no appeal to the courts against his decision. That is very serious and I hope the noble Baroness will be able to show that I am mistaken in that interpretation.
Lord Stoddart of Swindon: I, too, support the amendment. This surely must be the Henry VIII clause to end them all. If the noble and learned Lord, Lord Simon of Glaisdale, were in his place this evening, he would speak for at least three-quarters of an hour on this amendment.
As other noble Lords have pointed out, we have here two new clauses which can nullify the previous clauses that have already been agreed or at least discussed; we may disagree with them later, on Report. Moreover, the Secretary of State can add further powers provided that he makes an order. What worries me, as it does the noble Baroness, Lady Buscombe, is that such orders would go through almost on the nod.
One used to have a great deal of confidence in the other place, but the Bill passed through that House without this part being discussed in Committee, on Report or at any other stage. That is why this House has to spend so much time on it. In my experience of politics, and in my thinking, I have always believed that it was for the elected House to scrutinise Bills to

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see to it that their constituents would not be put at a disadvantage or endangered. So when we talk about orders, we ought to look at the behaviour of the House of Commons and the way in which the Government are running that House.
Noble Lords may say that it "could not happen here", not under our present administration or any possible future administration, but it is happening already—and this clause proves it. The behaviour of the House of Commons, the Government and, I am afraid, of the Opposition in agreeing to timetable a Bill of this sort without making provision for discussion of its most important part really does undermine one's confidence in our political process, as well as in our political parties.
This is a very important amendment and I hope sincerely—although I do not see how—that the noble Baroness will be able to convince us that these two clauses are good and that the amendment is unnecessary because it does not mean anything.
8.45 p.m.
Lord Elton: When the Minister comes to reply, in particular to the point made by the right reverend Prelate, she may be tempted to rely on the provision in subsection (6)(b) that no order may be made,
"unless a draft has been laid before, and approved by resolution of, each House of Parliament".
That is a shaky proposition in any case. I hope that she will resist that temptation.
In my view, this is the subsection that protects the Secretary of State from the courts. Were it not there, the Secretary of State could be the subject of a judicial review saying that what he had done was unreasonable. But that will not be the case because, as a result of the operation of subsection (6)(b), it will be the law of the land, de facto.
As to the wider question of the effect of the protection of subsection (6)(b) and the protection of Parliament, beyond what the noble Lord, Lord Stoddart, powerfully and relevantly put, I remind the Committee that we are not only providing for civil emergencies and civil conditions that we cannot foresee, but also for parliamentary conditions that we cannot foresee.
We have already had an object lesson on the way in which Parliament can be persuaded that something drastic must be done, later to discover that that something did not have to be done on the grounds that had been advanced at the time. That instance lasted over years; we are now talking about something that might last three days. It is very easy to rush a group of legislators—particularly a small group of legislators isolated from their Front Benchers who have all gone away for the weekend, or whatever—into thinking that an emergency exists, and thereupon this whole panoply of possible repression exists.
As I say, the political conditions of the day cannot be foreseen, but I wonder how many of the dictatorships of the western world have emerged from the declaration of an emergency.
The Earl of Onslow: I can help my noble friend Lord Elton on that question: there was one chap knocking
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about Germany who had a funny moustache and waved his hand in the air. He claimed emergency powers and persuaded Hindenberg to sign them.
I find the clause quite repellent. I also find the idea that this Government would not go down that route extremely difficult to stomach. We have seen the Government take powers which should offend against all libertarians. They have tried to tamper with double jeopardy; they have tried to introduce the use of people's records in criminal trials; they have banged up people in Belmarsh, without charges or witnesses against them. The Government's record on human rights and protecting the individual liberty of the subject is absolutely appalling.
Lord Elton: That is the very smallest part of the issue. We are talking about a succession of governments, years ahead, who may be far more extreme than any we have thought of.
The Earl of Onslow: I completely agree with my noble friend, but I am starting from here. I thought that we were in Parliament to stop governments doing something like this. I feel terribly strongly about the issue.
The noble Lord, Lord Stoddart, has got it right: these timetable Bills in the Commons are voted against by the Opposition, bulldozed through and away they go without proper consideration. We now have carryover, something to which we should not have agreed.
All the checks by Parliament on the executive have been whittled away by this Government. For them to ask us to trust them with these, not Henry VIII but Henry DCCC powers is an affront to Pym, to Hampden, to Walpole and to everyone who fought for the liberties of the Commons, the liberties of the British people and the liberties of the subject under the law. The noble Baroness should be ashamed of having to defend it—and I know how much she likes the law and how good she is at it.
Viscount Goschen: I support the amendments in the name of my noble friend Lady Buscombe and the noble and learned Lord, Lord Archer. Everyone who has spoken this evening on these amendments has been of one voice. The Minister showed the tiniest element of exasperation during the last group of amendments when the Committee wanted to take some time on the detail. One can understand why we would want to because subsection (5) suggests that although we spent all that time discussing subsection (2) none of it really matters because the Government can get round it in any event with subsection (5).
The noble Lord, Lord Stoddart, spoke of Henry VIII clauses, but this is not the biggest Henry VIII clause in the Bill. I recommend that that prize goes to Clause 22 (3) (j), which states that we can,
"disapply or modify an enactment (other than a provision of this Part) or a provision made under or by virtue of an enactment".
That is fairly broad.
The powers that the Government are requesting are very broad and draconian. They do not even believe that the low hurdles that they have put in place in this

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Bill are sufficiently easy to overcome, so there should effectively be a "Get out of jail free" card in Clause 5, allowing the Secretary of State to determine what will happen. There is no question that the Government should have access to emergency powers in the event of a genuine—potential or actual—catastrophe, but by asking for too much, the Government undermine the credibility of the legislation.
Lord Lucas: I find subsection (5) (a) dishonest in its expression because it is saying that the Government may by order say that the language—and we can understand the language used in paragraphs (a), (b) and (c) of subsection (1), as now amended—may mean anything. If the Government wanted to approach this matter honestly, we would be looking at powers to allow them to add further grounds for an emergency to subsection (1) (a), (b) and (c). However, the only purpose of subsection (5) (a) is to allow as an emergency something that is not included in subsection (1) (a), (b) or (c), not by adding it but by twisting the language. I find the approach chilling and I fear that it reflects somebody's intention in the drafting.
I share the noble Lord's inability to imagine what we might be talking about in subsection (5) (b). In any event, if there is a real need to make a change, we can actually make it faster by primary legislation than by secondary legislation. We can get primary legislation through both Houses in a few days whereas this proposal could require rather longer. All we are getting by this clause is a lack of scrutiny and a complete lack of check on anything that the Government may oppose to destroy the definitions that we have all spent a great deal of time polishing—and will spend further time polishing—in this Bill. I can see no justification for keeping or defending this clause.
Lord Brooke of Sutton Mandeville: I believe that I am the only member of the Delegated Powers and Regulatory Reform Committee present in the Chamber this evening. We considered this issue in relation to Clause 19, just as we had previously considered it in the case of Clause 1(5). We thought that in the case of Clause 1(5) the powers were appropriate. In the cases of Clauses 19 and 20, we thought that the matter was very wide and that it was therefore for the House to decide whether it was acceptable. In those circumstances, we were effectively making it possible for the House to have the debate that we have just had on the breadth of the powers.
I have to say that, in discussion within the committee, we were of the view that the nature of the powers being sought implied, or could imply, as my noble friend Lord Lucas has just said, that it would not be irrelevant for the Government to come forward with a short Bill in primary legislation to define what extra power they were seeking or what extra definition of an emergency they were seeking to introduce.
We understood that the Government were seeking to future-proof the legislation; we understood that there were aspects of the Bill not contained in the Emergency Powers Act 1920, so we were not as firmly against the Government as Members of the Committee have been in this debate. But my noble friend Lady Buscombe did say,
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in winding up on the amendments to Clause 1(5) to which the noble Lord, Lord Bassam, replied, that we would have to consider the matter seriously before Report, and might well wish to come back to it.
Baroness Scotland of Asthal: I regret that this part of the Bill has caused such consternation. I shall say straightaway to my noble and learned friend Lord Archer that I hope that I shall be able to quieten his beating heart in relation to this matter. I shall take some time to go through some of the anxieties that Members of the Committee have expressed.
First, I cannot accept the caricature of the noble Lord, Lord Stoddart, of what has actually happened to Part 2 and the way in which it was scrutinised in the Commons. It was scrutinised in detail in Committee in the Commons, having already been considered by a Joint Committee following a full public consultation exercise. I thank the noble Lord, Lord Brooke of Sutton Mandeville, for bringing to the Committee's attention that when the Delegated Powers and Regulatory Reform Committee considered the matter it did not in fact find objection to it.
In considering the power in Clause 1(5)(a) to specify that the event or situation falls within the definition of emergency in Part 1 of the Bill, which is virtually identical to the Clause 19 (5)(a) power, the committee noted that the exercise of the power cannot amend the Bill but,
"can particularise, so far as is consistent with what is in the bill".
The committee considered that to be appropriate, and that the affirmative procedure provided also seemed appropriate.
The committee went on to say in relation to the definition, in considering the limited power in Clause 1(5)(b) to amend the definition of "emergency" in Part 1—which is analogous to the power in Clause 19(5)—that it considered,
"the case for this Henry VIII power for Part 1 is sufficiently made out by"—
the memorandum submitted by the Cabinet Office, and that affirmative resolution procedure provided was appropriate.
In commenting on the power in Clause 19(5), the committee said,
"we find the delegated powers acceptable".
Lord Brooke of Sutton Mandeville: The Minister did not quote the words that come immediately after the phrase that she has just quoted. We also said that the context was "more significant".
Baroness Scotland of Asthal: I shall go on to say why we say that the context in this event is quite similar. In fact, we believe that the Delegated Powers and Regulatory Reform Committee approach was the correct—one and I shall explain why.
I know that it is late, but I do take strong exception to the caricature of the Government given by the noble Earl, Lord Onslow. I remind him that it was this Government who introduced the Human Rights Act and the freedom of information legislation. It is this

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Government who have been assiduous in ensuring that the rights of individuals in our country are properly represented. Each of the matters which the noble Earl raised were properly and extensively debated in both Houses of Parliament before they were passed. That is our democratic approach. I bow to no one on the way in which this House and, in matters of importance, the other House, scrutinise with rigour legislation, as we are doing tonight. Therefore, I disagree entirely with the way in which the noble Earl seeks to besmirch the good name of the Government in this regard.
9 p.m.
The Earl of Onslow: What about the people who are banged up in Belmarsh Prison without being charged and without seeing the witness against them? I gave examples of what has been forced through by this Government. I personally think that they are extremely illiberal and verging on the tyrannical. If the noble Baroness does not like that, that is bad luck.
Baroness Scotland of Asthal: We have had a number of debates on the emergency legislation, the Terrorism Act and the Criminal Justice Act. We have had extensive discussions about whether we have put in place appropriate measures. On this occasion we are discussing the emergency legislation. I regret to tell the noble Earl that I could not simply accede to the statements he made, with which I frankly cannot agree.
I turn to the powers that we have in place. It is important to remember that the emergency legislation exists to provide the legislative safety net. In part it is a recognition that legislation may become out of date as time goes by. If the definition for when it can be used becomes outdated itself, it will no longer be able fully to perform this function.
One has only to consider how much things have changed since 1920. The rapid development of, and our ever growing dependence upon, new technology, changes in lifestyle and patterns of employment, the growth of new means of production and the networks of supply and delivery that have developed since 1920 are startling. In those days, before the National Health Service, it is unlikely that disruption to health services would in itself have been considered so serious as to trigger emergency powers. The same could be said of disruption to systems of communication or the supply of money. With the pace of change seemingly ever increasing it would be irresponsible not to allow for the updating of the list of specified means of supply, systems facilities and services to ensure it reflects future developments whose disruption may threaten human welfare. Clause 19(5)(b) allows for that and only for that, not for wholesale changes to the definition of the emergency to be made. Any changes made would require the approval of Parliament.
Clause 19(5)(a) allows a specified event or situation, or class of event or situation, to be treated as falling or not falling within the definition of human welfare, environment and security. If a catastrophic event is expected, this allows the Government to make clear
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that it could be a candidate for use of emergency powers and allows Parliament to debate that in advance. For example, the Government may have wished to specify that the worst case scenario effects of the millennium bug should be treated as falling within the definition of a threat to human welfare. It would not necessarily mean that emergency powers would be used if and when the event occurred—that would depend on the particular circumstances—but it would allow the Government to indicate that they were considering their use if the worst happened, and allow Parliament to discuss the issues in advance. The Government would see that as a helpful way to build a consensus across Parliament and to ensure that any pertinent issues were raised that might inform any future legislation.
I hear what the noble Lord said about affirmative resolutions. Certainly I have been involved in some very trenchant debates on affirmative resolutions when this House has made its position absolutely clear. The beauty of affirmative resolutions is that if single issues are involved each House has a choice. We can strike it down in its entirety if we do not wish it, and it cannot be brought back during that Session, or we can affirm it. It is not a toothless bulldog. Affirmative resolution procedure is capable of being very effective if used properly by Parliament. I, for one, have confidence that this House and the other place would take such a resolution very seriously indeed, no matter what time of day it was put on our agenda. The Government do not therefore see the issue as being as threatening as many Members of the Committee have felt.
Lord Stoddart of Swindon: I have been around affirmative resolutions many times, and am particularly concerned about the power that this House has over them, which some people would like to remove. I remind the noble Baroness that whenever this House threatens to dare to disagree to and throw out an affirmative resolution, it is always threatened—it has been under all sorts of governments—with reprisals. Therefore, the check and balance in this House does not exist in reality. The Government make threats—Mr Blunkett is always doing so—against this House and its powers. I wish that she would not place such reliance on affirmative resolutions.
Baroness Scotland of Asthal: I hear what the noble Lord says but, frankly, my experience from this Dispatch Box is that the House has a tendency to be absolutely fearless. If it thinks that there is a matter of merit, this House deals with it in the way in which it deserves; so one would expect.
The Earl of Onslow: Can the noble Baroness tell me how many affirmative resolutions have been thrown out since the war?
Baroness Scotland of Asthal: I do not know the figures. The noble Earl will know that not only can affirmative resolutions be thrown out but, quite often, if it looks as if there is real difficulty, they can be

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withdrawn and be brought back on another day. I shall certainly be happy to inquire and see whether, within reasonable limits, we cannot find the answer that he seeks.
The Earl of Onslow: I may be able to help the noble Baroness. The answer is one—the 1968 Rhodesian sanctions order, which killed the first effort at changing this House. But I think that is the only one that has been thrown out since the war.
Baroness Scotland of Asthal: The noble Earl and a number of Members of the Committee have been present at the most trenchant discussions on how we get through such matters, which have been dealt with appropriately.
Clause 19(5)(a) does not enable an amendment to the definition of emergency in the wholesale way feared. Clause 19(5)(b) confers a very limited power to amend the list of supplies, systems, facilities or services, disruption of which constitutes an emergency. In effect, the power can be used only to amend Clause 19(2)(e) to (h).
I reassure the noble Lord, Lord Elton, the noble Earl, Lord Onslow, and the noble Viscount, Lord Goschen, about the effect that the provisions will have on the courts' ability to scrutinise. It is simply not the case that the order would not be scrutinised. It will still be made by the Secretary of State. His actions can be challenged in the normal way. There are a number of precedents in which statutory instruments approved by Parliament have been struck down. We will write to the noble Lord giving examples of when that has happened.
Viscount Goschen: Are there any provisions in the Bill that would remove access to the courts?
Lord Elton: The noble Baroness does not like getting up and down too often, so I would like to come back on what she said to me. Judicial review is not much protection anyway in a situation that may have completely expired and done frightful damage in only a week or two.
Baroness Scotland of Asthal: That is why we return to the fact that the triple lock will apply to anything to which these emergency powers apply. I understand that the noble Lord is anxious. I have tried to explain that the way in which it will operate will enable us, just as we have with the 1920 Act, to update, as we must, because things have moved on. It allows for that situation. It is not intended to be used as a wholesale revision of the clauses. That is why we have pursued the matter carefully, trying to be as comprehensive as we can.
Baroness Buscombe: My noble friend Lord Elton is trying to point out, as have other noble Lords in relation to redress to the courts, that, in the event of an emergency, reference to the triple lock comes too late. Redress to the courts will come too late. That is the problem. No matter how brilliant the triple lock might be, in the event that a Secretary of State decides to
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change or add a category under subsection (5), any redress in terms of access to the courts would be neither here nor there. It would be too late. The damage would have been done.
Baroness Scotland of Asthal: I should say, first, that the fact that the matter would have to go before both Houses of Parliament is an important fact that will ensure that Parliament has the opportunity to scrutinise these powers before they come into force. The noble Lord, Lord Elton, and the right reverend Prelate asks whether we are excluding the courts. We are not. Barrier number one is Parliament. I believe in Parliament. I believe that we are robust in dealing with such matters. I do not see us as the ineffectual implement that many noble Lords suggest. We have a powerful scrutinising role. If this matter comes before either of our Houses for scrutiny, it will be scrutinised. We have the powers if we wish to avail ourselves of them.
It is important to understand that the Clause 19(5) power is not intended to be used in an actual emergency. It is designed to keep the definition of "emergency" up to date. In an emergency there is unlikely to be time to obtain a Clause 19(5) change. The prior approval of both Houses will be needed. Perhaps I may use the millennium bug as an example, or that we may be threatened by some missile or other matter, and it looks as if the threat is coming towards us over a period of time. There would be time to obtain emergency powers to include that threat in the definition. That would enable Parliament to decide whether the consequences of, for example, the millennium bug should be included in the definition. It is not something that the Government would be able to use in an emergency. We would be able to amend the definition in good time, so that matters that may have changed can be taken into account.
Let us suppose that in 50 years' time we no longer use petrol, but all our energy is solar. Or, say, we no longer use food as we do now, and we ingest it in tablet or some other form which we have to control. We could amend the definition to take that into account.
Lord Archer of Sandwell: I am grateful to my noble friend for giving way. Up to this point, I have listened carefully to her comments, which I have found persuasive. But if she is saying that a situation may change in 50 years so that the legislation may become out of date, would one not need a clause such as this in every statute that had ever been passed?
9.15 p.m.
Baroness Scotland of Asthal: Let us say that something turns up not in 50 years but in one or two years' time. I will stick with the millennium bug-type issue which we do not yet know about. This legislation gives us an opportunity, through affirmative resolution, either to exclude something or to include it. That is the kind of model I am talking about.
The Lord Bishop of Worcester: I thank the Minister for giving way. I want to take further the point made

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by the noble and learned Lord, Lord Archer. I found the Minister's words reassuring in the sense of the stated intention. The difficulty with which I am left is that I cannot see where that is stated in the Bill.
I still have the fear that it is not unknown for senses of emergency to be generated. This Bill does not preclude the introduction of these changes in the midst of an emergency and I fully accept the Minister's good faith in saying that that is not the intention. But if it is not the intention, would she review the provisions of the Bill in such a way as to see whether at a later stage there can be some safeguard against what I can see as extremely dangerous; that is, the right to introduce new kinds of emergency in the middle of them?
Lord Avebury: Perhaps I may also ask the Minister a question to save her getting up twice. She mentioned that the
"specified supply, system, facility or service"
referred to in subsection (5)(b) was not meant to be some unimagined facility or service, as I had thought was the intention, but that it was only one of the services referred to in paragraphs (e) to (h) in subsection (2) of the clause. Will she therefore agree that if we table an amendment replacing the words
"specified supply, system, facility or service"
with the words
"services referred to in paragraphs (e) to (h) of subsection (2) of this section",
the Government will accept it?
Lord Lucas: Perhaps I may keep the noble Baroness seated for a little longer. She rightly took me to task at an earlier stage for confusing an event with the consequences of the event and pointing out that this Bill deals with the consequences. Then she commits the same crime herself by talking about the millennium bug. The millennium bug is either significant or not because of its effects. Whether its effects, or the effects of anything else, fall under subsection (2) is the question we should be asking, not what the latest misguided craze will be for our civilisation ending.
The events we are setting out in subsection (2) have a permanence to them—they have a pace of change which belongs to primary legislation. There may be something to add to them in 50 years' time and there probably will be in 500 years' time, but I jolly well hope we shall maintain a reasonable pace in keeping our legislation under review. Primary legislation is where that kind of timescale belongs.
Baroness Scotland of Asthal: I have tried to clarify why we believe that the provision is robust. I can see that Members of the Committee are confirmed that the current drafting is not as clear as they would like. I am more than happy to consider the drafting to see whether we can bring clearer definition to bear. I confess that at the moment I cannot see how that can be done, but I am sure that it is important that we look at it to ensure that this matter is right. Furthermore, the annotated notes which will go with the Bill can be
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used, together with what has been said by us in Parliament, to give clarity to interpretation of intention.
I can reassure the right reverend Prelate that we have in mind his concerns. I hope that I have reassured people that the courts are not excluded and that these matters can be properly challenged. Ministers will not be able to behave unreasonably in enacting an order specifying that a particular event is an emergency. Each Minister's action could be challenged. Similarly, if a Minister's judgment of an event poses a threat of serious damage to human welfare, environment or security, it can be challenged in the courts. Therefore, I hope that I have been able to say clearly that noble Lords' concerns about that situation are not well founded, although I understand why the concerns have been expressed.
I hope that I have now dealt with all the points that arose in relation to this matter. I see the noble Viscount, Lord Goschen, shaking his head as though I have not dealt with his points. I think that I dealt with the question which he raised about 15 minutes ago but which he may have forgotten. I am happy to give way if he thinks that I have excluded something from my response that he would like me to answer.
Viscount Goschen: I asked the noble Baroness whether there was any power within the Bill that could be used to remove access to the courts.
Baroness Scotland of Asthal: No, there is not. There is no provision in the Bill which removes access to the courts from those who wish to make a challenge. I hope that that reassures the noble Viscount.
Viscount Goschen: I shall make a severe attempt to intervene less as we proceed. However. Clause 22 states that any Act of Parliament may be set aside. Surely the rights of a citizen to access to a court is laid down in statute and that statute, whatever it may be, could be temporarily set aside. Is that not right?
Baroness Scotland of Asthal: I know, for example, that concern was expressed about the Human Rights Act, and we shall bring forward a provision in order to make it clear that the Human Rights Act will bite in relation to these matters. For the purposes of the record, I am saying that the courts are not excluded and we do not propose to add anything to the Bill which would exclude them or which would be implied or deemed to exclude them. That is not our intention.
Lord Lucas: I remember the story of the dean of an Oxford college who was able to circumvent the rules banning firearms by deeming the firearm in question to be a cat and therefore to be permitted as a pet. I have been reading subsection (5)(a) in that kind of spirit. It seemed to me to be a measure without limitation but,

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when the noble Baroness addressed us, she said that what could be done under that subsection was severely limited in some way. It is not clear from the wording that it is limited but she is saying that somehow it is. Can she write to me to tell me how? I suppose that these limitations must be set out somewhere but they are certainly not on the face of the Bill.
Baroness Scotland of Asthal: I shall be more than happy to write to the noble Lord. Indeed, bearing in mind the nature of the concern that this matter has given rise to, we shall seek to clarify what I must confess we thought was a modest provision. It had been given the assent of the Delegated Powers and Regulatory Reform Committee and we thought that your Lordships would be content also. Bearing in mind that our intent is honourable, we shall look at the provision again to see whether we can bring to it any further clarification. But I assure your Lordships that we consider this provision to be very modest.
Baroness Buscombe: Where to begin? I shall be brief because we have had a good debate on Amendments Nos. 97 and 97A concerning this extremely important area. Ultimately, much of this comes down to trust. Perhaps I may beg to disagree with the Minister. I do not believe that these are modest provisions; I believe that they are enabling powers. They are powers that will require this Government or a future government to act reasonably.
Bearing in mind very much what the noble Lord, Lord Stoddart, said this evening, I regret that I do not share the Minister's confidence in, in particular, the Members of another place and their ability to scrutinise properly this important legislation. I do not agree with the Minister that this legislation was properly scrutinised in another place. It was brief in many areas and, indeed, some clauses of the Bill were not considered at all.
I entirely agree with all the sentiments of the noble Lord, Lord Stoddart. It is deeply depressing that it is the Members of the elected House who are now leaving it to us, the unelected Members, to do their job. This is perhaps a debate for another day but I am sure that many noble Lords feel as the noble Lord, Lord Stoddart, does, and as I do, that that means that we have a diminished democracy. That is a sad fact of life in today's Parliament.
The words "chilling" and "repellant" were used by noble Lords. The Minister has worked hard to try to reassure us all that these are modest provisions, but I am not convinced. That said, I shall read with care in Hansard what has been said by the Minister. I am grateful, as I am sure are other noble Lords, that the Minister has agreed to take this away and look again at the drafting. In so doing, I am sure that the Minister will respect our deep concerns that the powers are too wide, that the checks and balances are insufficient.
One point made by noble Lords that I should like to reiterate is that, if Clause 19(5) were to be passed, it is the kind of provision where primary legislation
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would make a lot more sense. I agree with my noble friend Lord Lucas when he says that the list within subsection (2) has a permanence about it. It is very hard to envisage what it is that would require an extension to that list. However, enough said. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 97A not moved.]
Clause 19, as amended, agreed to.
Clause 20 [Power to make emergency regulations]:
Baroness Buscombe Baroness Buscombe moved Amendment No. 98:
Page 14, line 3, leave out paragraphs (b) and (c) and insert "or
(b) one of Her Majesty's principle Secretaries of State, whose sole responsibility relates to civil contingencies"
The noble Baroness said: Clause 20 is concerned with the power to make emergency regulations. As currently drafted, the Bill allows many people to exercise the power to make emergency regulation. A "senior Minister of the Crown" may exercise these powers and in this part a "senior Minister of the Crown" is the Prime Minister, any of the principal Secretaries of State and the Commissioners of Her Majesty's Treasury. In our view, that is too many people exercising too great a power. Our amendment would ensure that only the Prime Minister would have the power to make emergency regulations or a Secretary of State whose sole responsibility relates to civil contingencies.
Perhaps I may explain our thinking in tabling the amendment. Thankfully, this country has not had to deal in recent years with a crisis on the scale that befell the United States of America in the dreadful attacks on the World Trade Centre and the Pentagon. I know that it is the sincere hope of everyone that we shall never have to deal with such a large-scale disaster. However, America now has the experience that such disaster brings. It has learnt the lesson of what works best in such a situation and what is needed. The Americans have now chosen to establish one Minister, one Secretary of State, one director, to be in charge should such an emergency occur again. It has learnt that what is needed in times such as those is clear leadership and orders from top down, not a number of people who could be making very difficult, life and death decisions.
We believe that what is needed is a clear chain of command and one person in charge. Our amendment is a compromise with the Government. It would allow the Prime Minister and one other person who deals with civil contingencies on a daily basis—a Minister for homeland security—to make such decisions. Do the Government envisage appointing such a Minister?
Our amendment would ensure that there would be no confusion at a time when every second may be vital. It would ensure that everyone would know who they

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should look to and take orders from. It is clear common sense in our view and I look forward to the Minister's response. I beg to move.
Lord Elton: I am embarrassed to ask this question. Will the noble Baroness in her reply enlighten me as to who are the current commissioners of Her Majesty's Treasury?
Lord Garden: I thought that the noble Baroness, Lady Buscombe, had an elegant way of promoting part of her party's policies in terms of the establishment of a Minister responsible exclusively for homeland security. I support the concept that we need to have more clarity about who has ministerial responsibility in this field. In all these different emergencies you get so many departments involved; in the end it comes down to the Secretariat taking the coordinating role rather than an accountable Minister that one can go to.
I disagree that it is necessarily sole responsibility, in the sense that one could identify a senior Minister who could have this among his portfolio. Then there is the question of how many Ministers we need to give these powers to. If we were to accept this amendment, we might end up with too few Ministers and find ourselves in a state where no one was available to take the decision.
On the other hand, as the Bill is constructed at the moment, almost anybody can take on these powers. That sounds like too many in one particular respect; it seems to me that, when we talked about whether we would bring in Secretaries of State to have some responsibilities under the Bill, the Government were not desperately enthusiastic.
I hope that there will be some form of regular training in crisis management for the Ministers who will undertake these duties. This is not a simple day-to-day activity that we are talking about, yet we are expecting Ministers to be able to react at a moment's notice to an unprecedented event.
So, while not endorsing the noble Baroness's amendment, I think that it sparks a useful reconsideration about how many Ministers should be given these powers and then subsequently, but outside the Bill, how you would keep them trained and ready to use those powers.
Lord Stoddart of Swindon: I agree with that. I think that, bearing in mind that these are important emergency powers, the provision may very well have to go rather wider than that. Our government does not simply exist on the Government. There are other parties to be considered. In matters of emergency we might start thinking about the right of the Opposition to be consulted as well when emergencies are in the offing. That is something I throw out which we might like to consider.
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However, I am intrigued by these three people who will exercise the power. I spoke about it on 14 October when we discussed the Bill. I am intrigued in the first place because I find that when I was a Lord Commissioner I was a senior Minister. I have been promoted to a senior Minister. I think that I have a claim for some back pay because it is quite clear that the amount of money the Treasury paid me as a Lord Commissioner did not warrant my duties being considered to be senior. I would have had considerably more money than I did, so perhaps I have a long-term claim against the Treasury for underpayment.
I am also intrigued as to how this Lord Commissioner, who is a glorified senior sort of Whip, will exercise his power. He will exercise it on behalf of the Treasury. Why on earth he will exercise it when we already have the First Lord of the Treasury able to exercise it, I simply do not know.
What are the circumstances? A Lord Commissioner has no departmental responsibility, no department and no office in Whitehall—other than, perhaps, No. 12 Downing Street; but I do not know whether the Chief Whip still has an office in No. 12 Downing Street; I think that it has been filched by No. 10 by now. As far as I know, he receives no advice—he is not entitled to receive advice—from civil servants, or anyone else, for that matter. So how will this Lord Commissioner exercise this extreme power of agreeing that a matter is an emergency? I simply do not understand it.
I cannot for the life of me understand why the Commissioners of the Treasury are to be given that enormous power. No Minister of State, such as the noble Baroness, will be given such power. But a mere Lord Commissioner will have more power than the noble Baroness, who is a Minister of State.
Lord Elton: I am grateful to the noble Lord for reminding me that I am right in my suspicion of who the Lords Commissioners are. I thought it so unlikely that I wanted confirmation. In fact, however, the definition is not "a Commissioner of Her Majesty's Treasury", it is "the Commissioners". Senior Minister of the Crown means: one person, First Lord of the Treasury; one person, any of Her Majesty's Principal Secretaries of State; or, the Commissioners—plural—of Her Majesty's Treasury. That is a drafting point, but a genuine one that needs to be taken into account if the Bill is to remain as it is.
Lord Stoddart of Swindon: Perhaps the noble Baroness can answer that point. I took it that any Commissioner of the Treasury could be called on to do that job. I do not know how many commissioners there are—I think that there are about six—or whether they would meet in conclave to have a long discussion. If the matter was of some urgency for an emergency, it might be difficult to come to a conclusion. I should be interested to know how those Lords Commissioners will exercise that power. I return to the beginning: when emergency powers are to be exercised in a

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modern society, our system demands that the Opposition have a role. Perhaps we ought to start thinking about finding a role for them.
Lord Lucas: The points made by the noble Lord, Lord Garden, are immensely important. We will have very few people in a position to make these regulations. Unless they are well rehearsed, all sorts of mistakes will be made. Presumably, they will be backed up by some kind of dedicated Civil Service team. None the less, they themselves will need rehearsing and I am not aware that, at least in this country, the Prime Minister spends half his time playing golf. My impression is that the Prime Minister's diary is already pretty full. Loading down senior Ministers with the requirement that they should be well rehearsed and well versed in how to deal with emergencies immediately, without that task being capable of being delegated to a more junior Minister, seems to me something that we should think about.
There is also the question of why, as the noble Lord, Lord Stoddart, said, we should be extending these powers to people who have no ministerial experience, no experience of running a department, very little experience of legislation and who are merely party apparatchiks. There are a lot of experienced and capable Ministers who would have a better claim to that position.
How robust is the structure? Next year, we have the 400th anniversary of Guy Fawkes. Interestingly, we do not intend to celebrate that in any way; it is not politically correct to celebrate the anniversary of Guy Fawkes. Let us suppose that A1'Qaeda chose to support that anniversary, and succeeded, with a nice barge full of explosives on the Thames in the middle of Prime Minister's Question Time. Would we be left with somebody who could perform the roles set out in this paragraph? What is the process for creating a Prime Minister, a senior Secretary of State or the Lords Commissioners? What is required still to exist by way of personnel and offices to make that happen? In the event of the near-destruction of Parliament, with perhaps a few ill MPs the only survivors, how would one create the office that enabled the holder to make emergency regulations? How robust would this provision be in the event of a serious terrorist attack?
Lord Dixon-Smith: I wish to raise a slightly different point. Subsection (1) provides that:
"Her Majesty may by Order in Council make emergency regulations".
Subsection (2) provides:
"A senior Minister of the Crown may make emergency regulations".
Subsection (3) states:
"In this Part 'senior Minister of the Crown' means—
(a) the First Lord of the Treasury"—
that is fine—
"(b) any of Her Majesty's Principal Secretaries of State, and
(c) the Commissioners of Her Majesty's Treasury".
I see no limitation whereby only one person can exercise the power at any one time.
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My noble friend Lady Buscombe makes a serious point when she talks about a Minister for homeland security. That is not necessarily the appropriate solution, but, for any system to work, it is fundamental that there is a chain down which availability goes, with only one person on it at any time who can exercise the power, otherwise there would be chaos. I should be most grateful if the Minister would deal with that issue, because so far as I can see, the current wording of the Bill does not.
Lord Brooke of Sutton Mandeville: We had a paving debate on this subject during our debate on Amendment No. 48, which related to Clause 7, the last time this Committee sat, as reported at cols. 460 to 468 of Hansard. But there is a difference between that paving debate and this one: Clause 7 referred simply to a "Minister of the Crown" whereas Clause 19 refers to a "senior Minister of the Crown", which is clearly intended to differentiate. We know that it is intended to differentiate because "senior Minister" is defined whereas Clause 7 did not define "Minister of the Crown"—it was not needed because we all know what a Minister of the Crown is. However, "Minister of the Crown" includes members of the Government Whips Office, who do not have to be a departmental Minister.
Before agreeing with the latter part of the amendment moved by my noble friend Lady Buscombe, I have one query. The amendment eliminates everybody except the First Lord of the Treasury as having the ability to declare an emergency, and adds,
"one of Her Majesty's principle Secretaries of State, whose sole responsibility relates to civil contingencies".
I realise that the spelling of "principle" is a typographical error, and an upper case "P" is needed, but that is by the by. The fact remains that she has defined very precisely the alternative to the First Lord of the Treasury, since the person's sole responsibility as the Secretary of State will have to relate to civil contingencies. The implication is that we will have a new Principal Secretary of State for homeland security, who will be preoccupied with that one subject.
The Explanatory Notes indicate that any reference to,
"any of Her Majesty's Principal Secretaries of State",
relates to the Home Secretary, because of his responsibilities and duties, and I understand that that is so. However, there is the fall-back of any of Her Majesty's Principal Secretaries of State.
9.45 p.m.
With some diffidence, I ask the Minister to remind me which are the Principal Secretaries of State. There used to be league 1 and league 2 Secretaries of State, league 1 being those who ran full-scale departments and league 2 being people such as the Secretary of State for Air or the Secretary of State for War, who were under the umbrella of the Secretary of State for Defence. Although they had discrete responsibilities, they did not carry what might be described as the role of Principal Secretary of State.

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Those are my observations on my noble friend's amendment. We must have more than the two people envisaged in the amendment to have a fall-back position to cope with an emergency.
Lord Archer of Sandwell: I seem to recollect being told as a student that, in constitutional theory, there is only one Secretary of State. It is normal draftsmanship to refer to "the Secretary of State", without specifying which Secretary of State.
Lord Brooke of Sutton Mandeville: I do not disagree with that for a moment. The noble and learned Lord is right. There was, until recently, the exception of the Minister of Agriculture. He could not be included and could not serve as a Secretary of State, because he was not one. He was deliberately something else. The noble and learned Lord is right about the drafting convention. The Minister may reply that all Secretaries of State are Principal Secretaries of State. It would be helpful to have that confirmed.
Having made the remark about convenience, I come to the choice of the Lords Commissioners of the Treasury as the alternative, if none of the other Ministers defined in the clause is available. I mention it for a variety of reasons, some of which follow what was said by the noble Lord, Lord Stoddart of Swindon. The board of the Treasury was set up in 1677 and met with absolute regularity until 1827. It met reasonably regularly until 1856, when Lord Aberdeen left office. Lord Liverpool had departed in 1827. The board continued to meet very occasionally until 1919, since when it has met once—in 1983 for special and particular reasons.
Despite the convenience of having the Lords Commissioners available to sign things—I once signed for £49 billion, in conjunction with my noble and learned friend Lord Howe of Aberavon, as he then was not—it is difficult to see them as senior Ministers for the reason that the noble Lord, Lord Stoddart of Swindon, gave: they are paid less than the most junior Parliamentary Secretary. We cannot call them senior Ministers. I echo what the noble Lord, Lord Stoddart of Swindon, said: perhaps he and I were underpaid when we fulfilled those roles. Whatever happens, the Government must tidy up the wording of the clause, even if they do not accept the views of my noble friend Lady Buscombe.
Lord McNally: All I can say is that the Committee is lucky that we no longer have Lord Russell with us; if we did, we would be back in the 17th or 18th century by now.
As I listened to this interesting debate, it struck me that, in 1940, when France faced catastrophe, it was a junior Minister in the French Government who took control of the Free French: de Gaulle. More recently, there have been attempts to kill the Cabinet—in Brighton and in the rocket attack in Whitehall. The blue powder that was thrown by the disgruntled father could have been something else, something far more deadly. Whatever the solution, we are talking about
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emergencies and thinking the unthinkable, and any emergency powers should be proof against an attack that decapitates the decision-making power of government.
Baroness Scotland of Asthal: I respectfully say to the noble Lord, Lord McNally, that he makes a very powerful point. It is for that very reason that they are so described. We just need to get the historical context right.
Lord McNally: I forgot one point. If catastrophe did befall us, I could think of far worse places for power to rest than the Whips' Office.
Baroness Scotland of Asthal: I am sure that that will be warmly welcomed. Perhaps I should describe why Her Majesty's Commissioners are so described in the Bill. By virtue of the Treasury Instruments (Signature) Act 1849, action must be taken by at least two commissioners. One commissioner cannot act alone. There are seven Lords Commissioners, including the Chancellor and the Prime Minister as First Lord of the Treasury. As Members of the Committee have already said, the others are Government Whips. But the Prime Minister is mentioned in his own right in the Bill to ensure that he can act alone. Wherever your Lordships see the Chancellor mentioned, he is never mentioned as the Chancellor, he is mentioned in the way that we have defined. That is the appropriate, accepted way of describing that role.
The noble Lord, Lord Brooke, talked about first and second division Secretaries of State. We are in the happy position now of having only first division Secretaries of State. So all our Secretaries of State are Her Majesty's principal Secretaries of State and are so included. So it will be the Prime Minister, all the Secretaries of State and the commissioners in terms of the Treasury.
The noble Lord, Lord McNally, made a very good point about the nature of the threat that we face. It will be important to say that, of course, Her Majesty the Queen will be the first port of call. I must stress that it would only ever be the Queen who exercises these powers other than in the very unlikely situation that she is unable to do so. That would cause a serious delay, as defined in the Bill.
The Crown, as Members of the Committee will know, is highly resilient. Such a situation has never occurred in the past. It is extremely unlikely in practice that anyone other than Her Majesty would ever make emergency regulations under the Bill.
Lord Elton: In such an extraordinary situation, who would make the regulations if there was only the Queen to sign the order?
Baroness Scotland of Asthal: It would be made in terms of Her Majesty acting in Council, which is what the first provision says. The second provision relates to who, if the Queen was not available, would be able to act: then there would be the senior Ministers. In the event of serious delay, those powers may be exercisable

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by the Minister with the most relevant policy responsibility in line with the lead government department principle.
In practice, if it were the Queen who was acting, it would formally be the appropriate lead Minister advising her. Having them act in her stead where she cannot act is therefore most in keeping with existing constitutional arrangements. It would be unrealistic to expect any single Minister to have the necessary in-depth knowledge of all the policy area issues and implications and the full range of possible emergencies that would allow them to take properly informed decisions about the content of all possible regulations in all possible scenarios and answer to Parliament in a meaningful way.
Allowing only a single Minister to use emergency powers where the Queen cannot would not only confuse the division of responsibilities and dilute the expertise within government, but also create a single point of failure should this Minister be affected by emergency. It would be an unnecessary bureaucratic invention that would risk a delay by, in practice, forcing the lead Minister to act through a proxy rather than directly. Of course, I will give way.
The Earl of Onslow: Let us take this assumption: we are now assuming a Brighton that has succeeded. It is during an election period when there is no House of Commons. The Cabinet happens to meet and is destroyed by a terrorist act. The only time that happened—the mention of Lord Russell reminded me of it—was with the flight of James II when there was no House of Commons. Because it is never dissolved, this House produced the functioning part of government.
I know that this is hyperbole, but it is just within the bounds of conceptual possibility. What would actually happen if the Government were wiped out in a terrorist act or an act of war? Presumably the only people to take over would be the Lords Commissioners of the Treasury if they were still there; that is, junior Whips. Am I right?
Baroness Scotland of Asthal: That would assume that Her Majesty had gone as well. If Her Majesty was still there, she would be able to act in Council, as she is able to do under the Act, and there would be Her Majesty's Commissioners of the Treasury.
The Earl of Onslow: In this case, modern constitutional theory states that the Crown acts only on advice. If the source of that advice has been "spifflicated", how do we get around that problem? We are discussing here the absolute worst case scenario.
Baroness Scotland of Asthal: The second rank, if I may so describe Ministers of State, many of whom are already Privy Counsellors, would take the opportunity to make up the group of Ministers entitled to act. However, Her Majesty would be entitled to work in Council, and that would be the route used. Obviously, if Her Majesty's Commissioners of the Treasury were still in being, any of them could be so constructed.
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Our current civil contingency provisions enable Ministers to develop models to show precisely what would happen in terms of which responsibilities are delegated to whom in the event of the primary or principal Secretary of State having been removed. Contingencies of that sort are matters which are capable of being discussed and provided for when preparations are made. Clear outlines are given in the revised edition of Dealing with Disaster of how the day-to-day management of these issues would be provided for. Provision is made for the way in which lead departments would work and what would be expected of them. For example, paragraph 7.14 on page 59 states that:
"Departments must move into action immediately an emergency arises where they are designated as having the lead. Normally this will be contained within the Department's own contingency management arrangements. But where the LGD identifies a potential or actual civil emergency that poses a major disruptive challenge to the UK and where the Civil Contingency Committee of Ministers (chaired normally by the Home Secretary) may have to be convened to provide central oversight, then it will need to:"
What would happen is set out in sub-paragraphs (a) to (i).
The Civil Contingency Committee has been in being for a significant time. It plans precisely how these matters should be dealt with and some Ministers have participated in practice to cover precisely how these issues will run. This is very much the bread-and-butter type of contingency planning that would be done. It covers what would happen, who should take control and who would step in as the next in command. Indeed, all these matters are considered by the committee. The detail not contained in the Bill is set out in Dealing with Disaster, a fourth edition of which is on the way. Noble Lords may find it helpful to look at the document because it deals with much of the day-to-day detail of how these issues would be dealt with. So, noble Lords will see that the reason for adding the Lords Commissioners of Her Majesty's Treasury reflects the provision made in the 1849 Act. That is how they are described and how it has been dealt with.
10 p.m.
As to Amendment No. 99, it has always been the Government's intention that the fall-back option should be available only in situations where the balance of evidence suggests that there is likely to be a serious delay. The judgment as to whether it should be used will be based on an assessment of the magnitude of the damage such delay may cause.
There may be cases where the probability of the delay resulting in serious damage could be in doubt but, given the potential damage that the balance of evidence suggests, the fall-back option should be used. For example, a warning that a number of nuclear devices had been planted in key cities may require the making of emergency regulations as quickly as possible even if the credibility of the threat is in doubt. If the Queen was on official business in northern Scotland, it may not be possible for her to act quickly enough. The likelihood of delay resulting in serious

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damage may be in doubt but the implications of inaction would simply be unacceptable. Those are the kind of situations we envisage.
All the Ministers involved and named in the Bill would have specific duties, especially if they were in the lead department responsible for the kind of incident involved. I have already indicated the fall-back principle that, in the event of anything else happening, the Secretary of State dealing with such matters will of course be my right honourable friend the Home Secretary.
Lord Lucas: I accept the resilience of the Crown but, in terms of the Bill, is the Minister saying that our current constitution still permits the surviving monarch to appoint her own counsel, to choose her own advisers, so that in whatever state Parliament finds itself we will end up with a functioning government? This might give even the Liberal Party some hope that they will once again have a Prime Minister.
Baroness Scotland of Asthal: Clause 20(1) states explicitly:
"Her Majesty may by Order in Council make emergency regulations if satisfied that the conditions in section 21 are satisfied".
Noble Lords will know that, in the usual way, it is the senior Ministers in Her Majesty's current Government who make up the members of the Council and who act with her. In extremis, of course, failing there being any, I suppose it would always be open to Her Majesty to invite such members of her Council who may be surviving to attend her and assist her in that regard. I know that a number of noble Lords who sit on our Benches may be called upon in extremis.
Lord McNally: It is one step at a time for us. I am more interested in the idea of the noble Lord, Lord Stoddart, that the Official Opposition should be involved, because that is our first stage.
Baroness Scotland of Asthal: I should reassure the noble Lord that, in the normal way, Her Majesty's Loyal Opposition are consulted on emergencies, are kept fully informed of what is happening and participate fully. That is the way in which we have always operated and that will continue. I acknowledge the aspirations of the noble Lord, Lord McNally, to be so consulted.
Lord Brooke of Sutton Mandeville: I thank the Minister for her account of the Lords Commissioners of the Treasury, though the Bill she quoted was written within seven years of the Board of the Treasury ceasing to meet regularly. That would suggest that that was about the last time they could reasonably have been described as senior Ministers.
Significant power is being given to what is described in the Bill as a senior Minister. The current drafting goes straight from the First Lord of the Treasury and the Principal Secretaries of State to the Commissioners
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of Her Majesty's Treasury, leapfrogging all the Ministers of State, all the Parliamentary Secretaries, the Second Lord of the Treasury (the Chancellor of the Exchequer), the Paymaster-General, the Chancellor of the Duchy of Lancaster, the Lord Privy Seal, the Lord President of the Council, the Chief Secretary to the Treasury and the Parliamentary Secretary to the Treasury, who has served in Cabinet recently—all of which are Cabinet appointments. I still wonder whether a Lord Commissioner of the Treasury, except for the purposes of convenience, can really be described as a senior Minister.
Baroness Scotland of Asthal: I hope that I have made clear that, because of the way in which our law has been constructed hitherto, the way one describes—if I may put it that way—the Chancellor of the Exchequer is as your Lordships see it in the Bill. He is never described simply as the Chancellor of the Exchequer because of the way in which the rules operate. He operates with the other Lords Commissioners. It would be churlish in the extreme to use this as an exception to disapply that which has been applied so well and with such utility for so long. Among our current Government Whips in the Treasury, we have some exemplary people, who I am sure could be properly described as senior.
Baroness Buscombe: I thank the Minister for her full response to my amendments and all noble Lords who have taken part in this debate. It has been extremely instructive for me, as one who sadly has not had the experience of being in government. Therefore, it is news to me that there used to be different leagues of Secretary of State.
I am also grateful to my noble friend Lord Brooke and other noble Lords for assisting me in testing the Government about whether it is appropriate that the seven Lords Commissioners of the Treasury should take precedence over other Ministers. I am not sympathetic to either my noble friend Lord Brooke or the noble Lord, Lord Stoddart, when they questioned why they were underpaid as Lords Commissioners of the Treasury. They should try being a shadow Minister in Opposition in this House. We are not paid at all, so that falls on deaf ears as far as I am concerned.
I am grateful to the Minister for her response and sorry that your Lordships are not rushing to support the amendment in the sense of enabling us to have one Minister in sole charge. However, I take on board the reasons why that should not happen. I appreciate what the noble Lord, Lord Garden, said about the difficulty of having one person in charge, for all the reasons mentioned by other noble Lords who contributed to this debate—that it might be difficult if that person was not available or was struck down by this unprecedented act. What the noble Lord, Lord Garden, said about regular training in crisis management and so forth is important. The debate points up the need to think about how things will work in the event of an unprecedented act—what the chain of command will be and who will be in charge.

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I hope that all those lucky enough to become the First Lord of the Treasury, one of Her Majesty's principal Secretaries of State or a Lord Commissioner of Her Majesty's Treasury will read what has been said this evening in Hansard and understand where they might fit within this legislation. However, for now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Companies (Audit, Investigations and Community Enterprise) Bill [H.L.]
Bill returned from the Commons with amendments and with a privilege amendment; it was ordered that the Commons amendments be printed.
House adjourned at nine minutes past ten o'clock.

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  Supporting People Programme
  The Minister of State, Office of the Deputy Prime Minister (Lord Rooker)
  My right honourable friend the Minister for Housing and Planning has made the following Written Ministerial Statement.

  We are publishing today the Government's response to the ODPM: Housing, Planning, Local Government
  WS 32
  and the Regions Committee report on the Supporting People Programme. We welcome the committee's report and its reference to the progress the Government have made in implementing many of the independent review recommendations and the work undertaken to support the 2004 spending review.

  This progress will help bring stability to the Supporting People Programme, providing better opportunities for vulnerable people to live as independently as possible in their own home and community. Our work will continue to focus on ensuring that good quality, value-for-money housing-related support services are delivered to vulnerable people, and that Supporting People makes a positive difference to their quality of life.