Sitting of 20 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.

Advertisements abutting Motorways
Lord Harrison Lord Harrison asked Her Majesty's Government:
What planning, environmental, and transport safety concerns they have regarding the number of commercial advertisements mounted on farm machinery abutting motorways.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, outdoor advertisements are controlled by local planning authorities. They must consider amenity and public safety aspects on a site-specific basis before allowing an advertisement. Advertisements on land abutting motorways will have implications for road safety and are unlikely to be approved. We are unaware of any cases involving commercial advertisements on private farmland abutting motorways in England that have been taken to court. However, we know of 13 local planning authorities that have taken informal action to get such advertisements removed.
Lord Harrison: My Lords, I thank my noble friend for that Answer, but will the Government consider banning such commercial advertising, which is unsightly and frequently bereft of planning control? Does he recognise that there is a traffic hazard for those drivers slowing down to read the contact details on such advertising, especially when driving in very fast traffic?
Lord Rooker: My Lords, such advertisements are not bereft of planning control. Advertisements on land directly facing motorways and trunk roads require the express consent of the relevant local planning authority, as well as the prior permission of the landowner. There might be arguments about advertisements displayed on trailers parked in fields, but they would require express consent of local planning authorities if the trailer was not moving.
Lord Livsey of Talgarth: My Lords, does the Minister agree that the advertisements referred to are very few and far between? On one motorway, all there is is an elephant and an owl, which keeps the children amused. Far more serious are the advertisements of the franchisees on motorway service stations. Adverts for McDonald's seem to be getting bigger by the week, for example.
Lord Rooker: My Lords, I disagree. Such advertisements are proliferating in land abutting motorways; there is no question about that. Service stations are quite different. They are commercial
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property, so different rules apply. However, advertisements not on the public highway, but on private land abutting motorways, require express planning permission from local authorities. If they do not get it, the local authority can take enforcement action.
Lord Berkeley: My Lords, does my noble friend agree that most of the trailers that one sees with big advertisements on them next to motorways probably have not moved for five or 10 years? They may have wheels, but clearly those wheels do not go round, so they are as much an eyesore as some of the more fixed advertisements. What action can the Government take? Should the general public be contacting the planning authorities and complaining?
Lord Rooker: My Lords, some people site the adverts in such a way that, from the angle in the car, the fence usually hides the phone number or website address, so they are not that clever at locating them. If the adverts are on a trailer without an engine, with or without wheels or on the side of a container in a field, that is a permanent site that requires permission from the local authority. It is an advertisement on a site, not on a moving vehicle. It is up to the local authority to take the necessary action following complaints from people worried about the amenity, the despoliation of the countryside, or road safety hazards.
Lord Marlesford: My Lords, does the Minister regard it as satisfactory that local authorities should be able to give themselves planning consent for advertisements on land that they own, with the revenue from such advertisements accruing to them? An example is the A12 trunk road, on which the Highways Agency has for many years been trying to persuade Braintree District Council to remove placards. One of them is still there, as large as ever. Is it satisfactory that local authorities should be judge and jury in their own cases, in which they have an interest?
Lord Rooker: My Lords, I do not know; I cannot answer on a specific site. Local authorities own property and land and are the planning authority, but are required to follow the law as well. If they operate unreasonably, action can be taken.
The Countess of Mar: My Lords, how does banning all the signs equate with the Government's policy of encouraging farmers to diversify? In many cases, they are putting up advertisements—I can think of one on the M42 for a cattery—because they have diversified. The only way in which they can advertise their services is by such signs.
Lord Rooker: My Lords, that is perfectly okay. The farmer gets an income from it and declares it for the tax, but gets the planning permission. There is no problem about that; planning permission can be given. I do not start from the proposition that it would not be given. There is a booklet, by the way—I am supposed to wave

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it—called Outdoor Advertisements and Signs: A Guide for Advertisers, produced by the Office of the Deputy Prime Minister. It is free, so farmers will not complain about its cost. We are not against diversification; far from it. It is fine for farmers to get an income from the signs, provided that they have the necessary planning permission.
Lady Saltoun of Abernethy: My Lords, does the Minister agree that it is not only advertisements that take the driver's mind off the road, but the signs put up by the Highways Agency telling him how to drive and how to drive safely?
Lord Rooker: My Lords, I reject that completely.

Cancer Mortality Rates
2.42 p.m.
Baroness Morgan of Drefelin Baroness Morgan of Drefelin asked Her Majesty's Government:
How they intend to meet their revised public service agreement target to reduce cancer mortality rates by 2010 by at least 20 per cent in people under 75, with emphasis on reducing the inequalities between areas with the worst health indicators and the population as a whole.
Baroness Andrews: My Lords, we have made significant progress towards the 2010 target, with a 10.3 per cent fall in cancer mortality rates since 1996. As part of our commitment to reducing inequalities in health, we will target communities and areas where action is most needed to improve cancer outcomes through a number of measures, including reducing smoking prevalence, tackling obesity, improving screening coverage and ensuring that patients with symptoms that could be cancer present earlier to their GPs.
Baroness Morgan of Drefelin: My Lords, I thank my noble friend for her full Answer and in doing so, I wish to declare an interest as chief executive of Breakthrough Breast Cancer.
We have experienced a welcome decline in the mortality rates for breast cancer, but is the Minister aware that a deprivation gap is forming between the poorer socio-economic groups and those better off in terms of survival for breast cancer? Is she also aware that today the All-Party Group on Breast Cancer launched a report highlighting the fact that in key areas of deprivation the uptake of screening falls well below the desired targets for those areas? Does the Minister agree that by targeting those specific areas more could be done to reduce that deprivation gap?
Baroness Andrews: Yes, my Lords. This is an opportunity for me to say how much we appreciate the work that the noble Baroness has done over the years, and continues to do, in Breakthrough Breast Cancer. We have some of the fastest-falling cancer mortality
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rates in Europe, but we still have a persistent deprivation gap. It is our job now to focus on that and is why the PSA target will make our work focus on improving access and services in the one fifth of local authorities which have the highest deprivation rates. A list will be published later this autumn.
I am aware of today's report. Yes, take-up of screening and communication with those groups of men and women who are less likely to come forward is extremely important. We are putting in place a range of programmes. Much of the new money that is now being spent on new equipment and staffing is also being directed to those areas.
Lord Chan: My Lords, does the Minister agree that areas with the worst health indicators contain many people whose first language is not English and many first-generation migrants? What is the Government's plan for correcting cancer inequalities in those areas?
Baroness Andrews: My Lords, it is a serious problem and the noble Lord is quite right, because we know that black and ethnic communities have the lowest rates in terms of coming forward for screening. At both local and national levels we are trying to address that. For example, in the NHS Cancer Plan all PCTs were told to review screening and put specific plans in place. So we are beginning to see more training of receptionists from ethnic minority backgrounds, more working with community advocates and health educators, and providing more interpreters. But the London Health Observatory report in July confirmed exactly what the noble Lord said, and we clearly need to be doing much more regarding ethnic languages and outreach programmes.
Lord Skelmersdale: My Lords, does the Minister accept that speed of treatment, especially radiographic treatment, is of the essence? Does she agree with a recent report by the Royal College of Radiologists that the maximum acceptable waiting times for both radical and palliative treatment have more than doubled since 1998?
Baroness Andrews: My Lords, we certainly know that the crucial bottleneck is in waiting times for radiography. There is a world-wide shortage of radiographers. We are taking specific action. The National Cancer Director, Mike Richards, is currently conducting a stock take into what further measures we can take, but in the mean time the good news is that the number of therapy radiographers has increased by 18 per cent and that we have more than doubled the number of training places at university. Before those people come on stream, in the interim we will introduce a four-tier skill-mix programme to allow therapeutic radiographers to extend their roles. So we are urgently trying to address the capacity issue in a number of ways.
Lord McColl of Dulwich: My Lords, does the Minister agree that the way to reduce those mortality figures is to prevent cancer? What are the Government doing to try to prevent the incidence of colon cancer and cervical cancer?
Baroness Andrews: My Lords, regarding colon cancer, I understand that physical activity programmes can play

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an important role. We have a programme to reduce obesity and to improve diet and activity, which will be important. Regarding prevention, it is important to get across the message that people should report concerns or worries early to the doctor. Some people are very reluctant to do that. Achieving that would be a major step forward.
Lord Addington: My Lords, does the Minister agree that, since there is a strong link between general health and fitness and tackling such problems as obesity, the Government should consider moving responsibility for matters such as sports facilities and gymnasium activities to the Department of Health, where the linkage could be used to great advantage and would thus save money in the long term?
Baroness Andrews: My Lords, increasing access to sport is an important part of our physical activity programme, as part of the public health strategy as a whole. I know that the noble Lord is particularly keen on this matter. We have never been able to give him a satisfactory answer. I usually say that we have slowed down the sale of playing fields. We are encouraging, with billions of pounds going into sport, more activity in and out of school. I hope that that will have an important effect in the long term.
Baroness Hayman: My Lords, my noble friend mentioned the importance of tobacco control in terms of reducing tobacco-related cancers. I remind the House of my non-financial interests as chairman of Cancer Research UK. Will the Minister look carefully at the effects that a workplace smoking ban would have on reducing the deprivation gap in cancer prevalence and deaths, given that of the 2 million workers who are exposed to second-hand smoke with no protection whatever at the workplace, 1.5 million are from the lowest socio-economic groups?
Baroness Andrews: My Lords, when setting up the smoking cessation programme, we targeted it on manual socio-economic groups with the highest rates of smoking. Our evidence suggests that we are beginning to have an effect on those groups. However, the point she raises is important. This year, as part of the "Choosing Health" consultation, the Government talked to a wide range of people to obtain their views and proposals on how health might be improved. That consultation included how best to protect people from second-hand smoke. We have clearly said that we do not believe the status quo is an option and our conclusions will be covered in the forthcoming White Paper.
Baroness O'Cathain: My Lords—
Baroness McIntosh of Hudnall: My Lords, this side I think.
Noble Lords: Order!
The Lord President of the Council (Baroness Amos): My Lords, we have time for both questions.
Baroness O'Cathain: My Lords, I congratulate the Minister on her comments about environmental tobacco smoke, or passive smoking. The reality is exactly as has been said; that the people in the lowest socio-economic groups are most exposed to it. There is one simple way; that is to ban smoking in public places. Will the White Paper specifically recommend that?
Baroness Andrews: My Lords, that is a tempting question, but I can hardly pre-empt what will be in the White Paper. I ask the noble Baroness to be patient for a little while on this issue.
Baroness McIntosh of Hudnall: My Lords, the Minister will be aware that the report to which she and my noble friend Lady Morgan referred draws attention to the persistence of the so-called postcode lottery in the provision of cancer services in the UK, despite NICE guidance which attempts to deal with that inequality. How do the Government propose to strengthen the monitoring of this issue?
Baroness Andrews: My Lords, NICE has issued nine separate pieces of guidance, which is part of the whole collaborative process of raising standards and keeping all practices up to date and the best possible. In terms of reducing inequalities and improving services, the evaluation process is more rigorous. NHS trusts are reviewed on a peer basis and we have a regular report on, for example, the Cancer Plan. The last one was published in July and the next is imminent. Furthermore, regular monitoring takes place by the strategic health authorities in the system and that will tell us whether we are meeting our targets. However, as we are half way to meeting our targets of 2010, which is a drop of 20 per cent, we are optimistic that we can see that wonderful improvement, with the tremendous work that is being put in by NHS staff.

UK Trade Deficit
2.53 p.m.
Lord Roberts of Conwy Lord Roberts of Conwy asked Her Majesty's Government:
What steps they are taking to reduce the United Kingdom's trade deficit.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, in the year to the second quarter of 2004, the UK trade deficit was 3.3 per cent of gross domestic product, comfortably below the 4.1 per cent of GDP seen in 1989. Moreover, the current account deficit was 2.1 per cent of GDP, less than half the peak of 5.1 per cent of GDP in 1989.
The Government are committed to free trade and fighting trade protectionism and have put in place a range of measures aimed at boosting productivity and

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competitiveness. This is the best way to ensure that the UK economy is equipped to meet the challenges and exploit the opportunities of the global economy.
Lord Roberts of Conwy: My Lords, the noble Lord has of course put the position in its very best light. However, does he agree that the Government should give higher priority to developing an overall strategy to reduce the trade deficit? This year alone, the goods sector will probably result in a deficit of some £60 billion and the deficit is likely to increase year by year as oil runs out and as manufacturing declines? Is not the best way to deal with this by way of an overall strategy, rather than short-term, hand-to-mouth policies which go nowhere to meet the global economic challenge?
Lord McIntosh of Haringey: My Lords, the original Question was about the trade deficit and I acknowledge that the goods deficit is a significant part of that. However, I certainly reject any suggestion that we are not taking the issue seriously. The key to reducing the goods deficit, as any other deficit, is our competitiveness in the world economy. That is why the measures we have taken to increase competitiveness—for example, in the Enterprise Act, with R&D tax credits and with our low corporation tax limits—are important and continuing.
Lord Dykes: My Lords, will the Minister mind if I call his Answer "complacent", bearing in mind that the UK appears to suffer from persistent and often chronic deficit and has done so for many years? Should not the Minister be addressing his attention to the comparison between core EU countries, such as France and Germany, and others which now have enormous surpluses and export booms, and does not that show that years ago the Government should have taken us into the euro as a leading successful financial and investment currency?
Lord McIntosh of Haringey: My Lords, I wondered where that was leading. My friend, the noble Lord, Lord Roberts, says that I am putting the best face on it while my opponent, the noble Lord, Lord Dykes, says that I am being complacent. No, I do not believe it follows that the implication of our deficits is that we should now be going into the euro. The Chancellor has taken a principled and well-documented decision on this matter.
Lord Tomlinson: My Lords, as my noble friend emphasised so seriously the need for competitiveness, will he give us his view on the report of Mr. Wim Kok, the former Prime Minister of the Netherlands, concerning the lack of attainment in relation to the Lisbon agenda. This House has previously drawn attention to the frequency with which we commit ourselves to the Lisbon agenda but fail to attain its
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goals. Is not that failure, which Wim Kok has reported, a sign that the policy on competitiveness still has a substantial way to go?
Lord McIntosh of Haringey: My Lords, I would love to take part in a debate on these matters. I do not believe that Mr. Kok was referring to the UK trade deficit in his report.
Baroness Noakes: My Lords, does not the Minister accept that there is a link between competitiveness and the trade deficit? We have had a trade deficit every month since January 1998 and competitiveness has continued to slump even on the DTI's measures. Will he not accept that the Government are taxing and regulating British business out of the world market?
Lord McIntosh of Haringey: My Lords, I was the one who said that competitiveness was linked to trade deficit. Of course it is. We have had trade deficits in many years, under both Labour and Conservative governments. I have all the figures in front of me, but I shall spare your Lordships. Any attempt to turn this into a party historical point will not get very far.
Lord Pearson of Rannoch: My Lords, does the Minister agree that our trade deficit with the countries of the euro-zone is substantial, standing at perhaps record levels? If so, do the Government also accept that this means that the countries of the euro-zone have many more jobs dependent on their trade with us than we have dependent on our trade with them?
Lord McIntosh of Haringey: My Lords, I agree with one of the premises and not with the conclusion. I agree that we have a serious deterioration in our trade deficit with the European Union. It is matched by an increase in real effective growth in sterling against a basket of currencies. It is caused largely by higher UK growth, which means that there is an increase in imports from the European Union countries. That does not lead us to the conclusion of the noble Lord, Lord Pearson.
Lord Rosser: My Lords, is my noble friend managing to keep a straight face while listening to homilies from the Opposition Benches on, of all subjects, how to manage the economy? Is it not a bit like being lectured by King Herod on child care?
Lord McIntosh of Haringey: My Lords, I never allow levity to enter my answers.
Lord Greaves: My Lords, is it not the case that the trade deficit is intimately related to the long-term decline of manufacturing industry? Would the Government not have to spend far less on dealing with the effects of such a decline in areas such as west Cumbria or east Lancashire, where I live, in remedying the housing market collapse or the resultant social problems if much more attention were given to the health and growth of the manufacturing sector?
Lord McIntosh of Haringey: My Lords, again, I agree with the noble Lord, Lord Greaves, about the decline in manufacturing industry, and I have already referred to that. But I do not think that it is for lack of attention by the Government. I am afraid that this is a phenomenon which is happening in developed countries all round the world. I have already indicated the extent to which our policies on competitiveness are designed to fight that trend.
The Countess of Mar: My Lords, can the Minister say whether he considers the level of imports of food products and food from developing countries and other European countries to be satisfactory in view of the decline in British agriculture, which was once the most efficient in the world?
Lord McIntosh of Haringey: My Lords, I do not think I would say that I am satisfied, but, again, I think that an analysis of the reasons for that, including the efficiency of British agriculture, is a little wide of the Question, although one of my colleagues would be delighted to debate it with the noble Countess, Lady Mar.

Tax Law
3.1 p.m.
Baroness Noakes Baroness Noakes asked Her Majesty's Government:
Whether they believe that United Kingdom tax law complies with European Union law.
Lord McIntosh of Haringey: My Lords, the Government are confident that our existing tax rules comply with Community law.
Baroness Noakes: My Lords, I thank the Minister for that brief reply. I am sure he will be aware that estimates of the amount of UK tax that is at stake in the cases currently heading for the European Court of Justice are up to £20 billion, and that member states lose 85 per cent of cases that go to the ECJ. If we are to bow to Brussels with regard to our tax laws, does the Minister agree that that will open up another black hole in the Government's finances, which will mean either that the golden rule will be bust through extra borrowing or that taxes will be raised?
Lord McIntosh of Haringey: My Lords, I am as aware of the source of the Question as is the noble Baroness, Lady Noakes. I am aware of the PricewaterhouseCoopers report, and I am aware of the motives of those—not PricewaterhouseCoopers—who wish to encourage firms to take action against the United Kingdom Government in the European Court of Justice. Indeed, two cases now before the European Court of Justice have not yet been decided, and it would be inappropriate for me to comment on them or on any speculation—it is no more than speculation—about the cost to the Exchequer.
Lord Newby: My Lords, the most topical issue concerning UK taxation and practice in relation to EU
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law has arisen this week. It relates to the fact that the Treasury is facing legal action following the practice of Customs and Excise in seizing vehicles which have been returning to the UK full of booze or fags. Can the Minister give the House an assurance that HM Customs and Excise and the Treasury are acting with due speed to give a satisfactory response on the issue?
Lord McIntosh of Haringey: My Lords, unless that is a question about tax law, which I do not think it is, it does not really relate to the Question on the Order Paper. If it were a question about tax law, I should like to know in which direction the noble Lord, Lord Newby, is pushing us. Is he, for example, urging us to reduce our duties on alcohol and tobacco in order to get closer to other European countries? I hope that the Liberal Democrat Party will make a statement on the matter.
Lord Pearson of Rannoch: My Lords, does the noble Lord agree that, under the anti-discrimination clauses of single market legislation—particularly Article 44 of the TEC—the Commission or another member state could go to the court and claim that our direct tax system was discriminatory? If the court were to agree with that, would the Government accept that that would require us to change our direct tax system into a more European model?
Lord McIntosh of Haringey: My Lords, direct taxes have not been prominent in the issues raised by this Question. As the noble Lord, Lord Pearson, well knows, there are, at the margin, a few measures which are subject to qualified majority voting, but the only cases which have occurred in the courts have been the Fiscalis case and the Excise Movement and Control System case. If and when we are condemned by the European Court of Justice, we shall take appropriate action, but we have not been condemned.
Lord Lawson of Blaby: My Lords, does the noble Lord agree that, while the question of the noble Lord, Lord Newby, was somewhat confused, tax law is very clear that anyone can take unlimited quantities of cigarettes or booze into this country, provided that they are for his or her own personal consumption? Will the Minister instruct Customs and Excise to cease imposing on people who bring in such goods its own ideas of what is appropriate for one's own personal consumption?
Lord McIntosh of Haringey: My Lords, if a Question were to appear on the Order Paper about the issue, I should love to give examples of the many thousands of cigarettes which are claimed to be for personal use in a number of cases where travellers have been stopped by Customs and Excise. I regret that, as it is not part of this Question, I have not come armed with those delightful facts.
Lord Willoughby de Broke: My Lords, will the Minister tell the House the Government's position on

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harmonisation of VAT rates in this country with European rates? What will their position be if there is to be such harmonisation?
Lord McIntosh of Haringey: My Lords, we observe the directives on VAT rates, as do all other member states.

Hunting Bill
3.6 p.m.
Viscount Bledisloe Viscount Bledisloe asked Her Majesty's Government:
Whether the requirement (under the Human Rights Act 1998) for a Minister to state that a Bill is compatible with the European Convention was met in the case of the Hunting Bill when the Lord Whitty indicated at Second Reading on 12 October (HL Deb, col. 258) that he had made the statement of compatibility on the basis of an amendment which might thereafter be made to the Bill.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, the Government have repeatedly made it clear that the Hunting Bill is compatible with the Human Rights Act, regardless of the date of commencement.
Viscount Bledisloe: My Lords, I thank the noble Lord for making himself available to answer the Question at very short notice. First, does he accept unequivocally that, in giving the certificate of compatibility, he can look only at the contents of the Bill as it is before the House and not at any intended amendment? Secondly, after mentioning the general position on the convention, the noble Lord said:
"it is … true … that the issue of whether compensation is appropriate or not would be met by the amendment before us, in terms of the delay in the application of the main parts of the Bill. On that basis, I had no hesitation in signing the statement of compatibility".—[Official Report, 12/10/04; col. 258.]
From those words, is it not categorically clear that he had taken the proposed amendment into account in deciding whether or not to give his certificate?
Lord Whitty: My Lords, I am somewhat shocked at the noble Viscount's selective reading of col. 258. If he read out the full paragraph, it would be clear that I was referring to the views expressed by the Chair of the Joint Committee on Human Rights and that, before I reached the part about the basis of general consideration, I said that,
"the Government consider that there cannot be a right to compensation for an unperformed or unenforceable contract",
which is the very narrow ground on which concern was expressed by the Joint Committee. I then went on to say, quoting indirectly the Chair of the committee, that it was also true that she had made clear that her concern would be completely met by the amendment. It was on the basis of the totality of the analysis in that paragraph and not on the basis of the remarks of the
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Chair of the Joint Committee that I signed the statement of compatibility. Indeed, if the noble Viscount thought about the timescale, he would see that it could not be any other way.
Lord Hoyle: My Lords, does my noble friend agree that an important decision was taken in Scotland when the hunts went to court on the basis that their human rights were being infringed by the banning of hunting? In May, the Inner Court of Session in Edinburgh threw out that claim.
Lord Whitty: My Lords, yes, that is correct. Of course, I would not wish to imply that the Scottish courts could bind the English courts. Nevertheless, it is a pretty good indication of where the law stands.
Lord Livsey of Talgarth: My Lords, does the Minister acknowledge that in relation to compatibility the Chair of the Committee on Human Rights has admitted that the delay in the application of the main part of the Bill until 31 July 2006 and contained in the House of Commons amendment was not in the Bill? Would it not be easier for the Minister to apologise for the error and just get on with it?
Lord Whitty: My Lords, I thought I had dealt with that point. There is not an error. The conclusion of the Government, in the Commons and here, and therefore in the certificate of compatibility given by my right honourable friend Alun Michael and me, is based on the Bill as it now stands. The point for the Chair of the Joint Committee on Human Rights was that she felt that the anxiety on a very narrow point that her committee had expressed would be met by the amendment. However, that is not my view; that is her view.
Viscount Astor: My Lords, the Minister's response answered a question that I asked during the debate. There are two issues here with regard to compatibility. One is possession—we agree here with the Minister that it is compatible—and the other is vested rights. It is clear from the report of the Select Committee and from what Jean Corston said in another place that the Bill is not compatible without the amendment. Will the Minister admit that?
Lord Whitty: My Lords, I have not accepted that. Insofar as there is a vested right, it would relate to a contract which would be frustrated by the passage of that Bill or because there was not due notice of that. The compensation issue has been dealt with in this and a number of other contexts several times by this House and by Parliament as a whole. The restriction on the use of goods does not of itself constitute a breach of human rights and does not therefore threaten the compatibility of this Bill with the Human Rights Act. That has been the position of the Government throughout, before we even started discussing the date of implementation.
Baroness Mallalieu: My Lords, in the light of his Answer, has the Minister looked at the Defra website,

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which has questions and answers about the Bill and which indicates that the reason for the suggested postponement of implementation is to avoid the need for compensation? Are the reports in a Sunday newspaper to the effect that Ministers are considering compensation for hunt staff correct? If so, can the Minister tell us when an announcement to that effect is likely to be made to Parliament, as opposed to journalists?
Lord Whitty: My Lords, I spend a huge amount of hours on the Defra website but not on the Sunday newspapers. I can tell my noble friend that the report in the Sunday newspapers bore no relation to any decision or any impending decision by Ministers on compensation. Our view is that the Human Rights Act does not require compensation. That is based on our best legal advice and precedent. Clearly, there are benefits from the delay because hunts and others involved can make adaptations which will ease the effects on them. However, that is not an issue under the Human Rights Act; it is one of ensuring the smooth introduction of this Act.
Lord Campbell of Alloway: My Lords, does the Minister accept that the Bill can never be enforced as drafted—forget the suggested amendment—without the sanction of the court?
Lord Whitty: My Lords, I am not entirely sure that I follow the noble Lord. Clearly, enforceability of an Act is an issue which the House and another place take into account. I believe, and the House of Commons clearly believes, that the Bill will be enforceable and, indeed, we are supported in that in the view of the official representatives of chief constables.
There may well be a challenge in the courts to some aspects of enforcement. That is true of every piece of legislation, but an Act of Parliament is an Act of Parliament and must be enforced. I would hope that the noble Lord was not moving on to give some succour to those who oppose the Bill that it would be frustrated by civil disobedience. I would very much regret if that view was expressed in this House.
Lord Phillips of Sudbury: My Lords—
Lord Campbell of Alloway: My Lords—
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, I hope we can hear from the Liberal Democrat Benches.
Lord Phillips of Sudbury: My Lords, is not the real reason for the 18-month delay that the Government do not want the Bill to be forced through under the Parliament Act, so as to come into effect before the next election? If the House denies the Government the 18-month delay, will the Government still use the Parliament Act to force the Bill into effect before the next election?
Lord Whitty: My Lords, the triggering of the Parliament Act is a matter for the House of Commons
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and the Speaker, not for me. The main reason for the proposed delay that the House of Commons adopted was to give some time for the hunts and other people affected by the legislation to adapt and, it is to be hoped, to adopt less cruel countryside pastimes which would, indeed, give employment to many of the people currently involved in the hunt.
As I pointed out during the debate, it has the additional benefit that if, as some on the Opposition Benches claim, the country is really outraged by this piece of legislation, it has the opportunity to say so in a general election, but that is not the main point.
Lord Harrison: My Lords, is my noble friend concerned with the human rights of those who live in the countryside who suffer from hunt havoc and from hounds marauding into private gardens killing domestic cats, marauding over railway lines, interrupting the trains, and marauding down country lanes, frightening schoolchildren, as happened in Cheshire?
Lord Whitty: My Lords, clearly I am concerned about that. Regrettably, those on the Opposition Benches who laugh do not recognise that as a real feature of country life. However, there are laws to cover such instances. Regrettably, some country people feel intimidated by the hunt and its supporters and so do not invoke those rights.

Housing Bill
3.16 p.m.
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 148 [Duty to have a home information pack]:
Baroness Maddock Baroness Maddock moved Amendment No. 151J:
Page 105, line 12, at end insert—
"( ) The Secretary of State may make regulations prescribing the permitted period after the property has been put on the market before which a responsible person is not required to comply with the duties relating to home information packs."
The noble Baroness said: My Lords, Amendment No. 151J concerns a very important issue; that of day one marketing; that is, the ability of homeowners to put their property up for sale at a time of their choosing and with immediate effect should they choose so to do. That right will be denied in future under the provisions of the Housing Bill.
We on these Benches think that ending day one marketing is both unnecessary for the Government to achieve the objective it perceives with home information packs and damaging to the housing market in general in Wales and England.
The amendment allows the Government to remedy the situation through regulation. The issue of day one marketing was debated in Committee. Therefore, I do not intend to repeat all the arguments that were put

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forward in its defence at that time. However, I should like to respond to one of the comments the Minister made in his reply. He suggested that, if first day marketing were allowed to continue, it would encourage house sales to be negotiated and concluded within days of a property coming on to the market and before a prospective buyer had had the benefit of access to important information that would be contained in a home information pack.
Only a tiny fraction of property sales are currently concluded almost instantly. Our objective is not to change that small number. I accept the Minister's comments in the very helpful note that he wrote following Committee that instant marketing does not necessarily mean a quick sale. However, many people, such as those who are embarking on job relocation, feel the need to put their property on the market quickly. Retaining day one marketing would allow them to begin the process of selling their property by attracting initial inquiries and viewings while the home information pack is being compiled. Retaining day-one marketing would allow them to begin the process of selling their property by, hopefully, attracting initial inquiries and viewings while the home information pack is being compiled.
Retaining day-one marketing is a very modest objective. We propose that the marketing should be allowed to take place only during what—if we accept the Government's forecasts—will be a very short period between when marketing first occurs and the home information pack is available to buyers.
We can all argue about whether the Government are optimistic in their prediction about the length of time it will take to compile a home information pack, but it is hoped that this period will be relatively short, probably no more than two weeks.
The vast majority of buyers view a wide number of properties before selecting a smaller number to look at in more detail and before making an offer. So I see no good reason for abolishing the rights to one-day marketing.
We have had extensive debates on home information packs. As the Minister knows, we support a voluntary approach to home information packs, and we support providing buyers with information on which they can make a more informed decision in relation to buying homes, which is—we have mentioned it several times—probably the biggest financial commitment of a person's life.
However, we remain convinced that home information packs will be of most value to buyers when they have identified a small number of properties that meet their requirements and which they wish to go and look at a second time and maybe make an offer.
I am grateful also for what the Minister has said and written in relation to flexibility, particularly about the individual elements of the home information pack. That, he said—and we had extensive discussions on it yesterday—may be subject to revision following the Government's intended dry run. However, this flexibility does not provide justification for abolishing day-one
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marketing and we see no good reason why marketing should not begin while the home information pack is being compiled.
We do not seek a blank cheque for a long time. The amendment allows the Government to review progress of various things; for example, progress towards electronic data exchange before they determine the length of time between marketing commencing and when a home information pack must be made available. They do not actually need to make the decision now; this is about giving the Government permission through secondary legislation.
The amendment is intended to be a helpful measure to balance the interests of buyers and sellers. I hope it is one which the Minister, on reflection and after much discussion, will feel able to accept. I beg to move.
The Earl of Caithness: My Lords, I am delighted to be able to support the noble Baroness on this amendment. It is a theme that I have raised in many of my previous amendments. This provision is, as I have said before, very important to vendors. The National Association of Estate Agents carried out a survey of its clients through the firms that belong to the national association. The overwhelming majority—over 80 per cent and in some cases it was as high as 95 per cent—said that they wanted to be able to market immediately, at day one.
As the noble Baroness has said, this will not drive a coach and horses through the Government's proposed home information packs because the likely period will be only a few days or around a couple of weeks. But it will be important to vendors that this right is not taken away from them. Certainly from my experience—and it is not just in London that I have such experience—it is something that vendors want. In most cases they will be in a position where they have seen a house they wish to buy and will want to be able to get on and start marketing their house as soon as possible in order that they can complete their sale so that they in turn can move.
If this flexibility is not permitted to be continued under the new regime, it will slow down the housing market. There is no question of that. We already know from the research done by the Consumers' Association, which the Minister prayed in aid yesterday, that imposition of the packs will cause a reduction of up to 25 per cent in houses on the market.
So I very strongly support the amendment. It is a better amendment than mine—Amendment No. 151K—which is similar. It tries to build a little bit of flexibility into the increasingly rigid system that the Government are imposing. In all fairness to the vendor, this provision should be allowed to continue: he should be allowed to market his property at day one when he wants to.
Baroness Hanham: My Lords, I want to make it clear that we support the amendment, as we would have supported the amendment of my noble friend Lord Caithness, which I gather he is now not moving. I want to make it clear that we are on side with the fact that vendors need a bit of time to get the housing pack

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together. What happens of course is that if you have to have a housing pack available on day one, that is in itself a delay for a vendor wanting to begin to test the market and see whether there are purchasers available who are likely to be interested in the short term.
It seems to me that this absolute insistence upon the pack being available before the property is put on the market is likely to hold things up. It is likely to make the market worse. As we were discussing yesterday, the point that we have now got to take into account is that the housing market today is very different from the one when the Bill was initially put forward. We are moving out of a fast-moving, rapid market turnover into one which is clearly going to be much slower because of the increase in interest rates. All the reports coming out from the press are that the market is slowing.
So I make it clear that I support the amendments of the noble Baroness, Lady Maddox, and my noble friend Lord Caithness.
Lord Bassam of Brighton: My Lords, I think that probably at the end of all of this there are not a million miles between us on the issue. We certainly understand the concerns of the noble Baroness, Lady Maddock, that the requirement to have a pack should not cause unnecessary delays in marketing a property. I say to the noble Earl that none of us wants to see a delay in going to market.
In the end we probably come down to a disagreement about how long we think it will take for packs to be assembled and on whether they will have a negative effect on the market. I think that is where the area of disagreement is, but we recognise the worries and understand and accept their validity. It is for that reason that we are taking a cautious approach to this and building in precautions to ensure that we can pick up any potential problems.
There is to be an office of government commerce review of the home information packs' programme with extensive stakeholder involvement, building on what we have done already. A new, extensive programme support structure—I am not sure I like the jargon, but that is what it will be—will be in place to oversee the route through the home information pack implementation; and, as we discussed yesterday, there will be a six-months' dry run of home information packs before they become operable.
If the home information pack programme working groups or the dry run were to show up problems of the nature that have been described during this short debate, we shall need the flexibility to prescribe a permitted period during which marketing can take place without a pack. Happily, measures are already in the Bill which enable us to further reflect on that, and we do not really require any further amendment.
Clause 155(9) allows the Secretary of State to vary the time at which a document is required to be in the pack and, if necessary, could be used to achieve just the same effect as is envisaged with this amendment. I think that we are on side with appreciating the problem. We have listened very carefully to what has been said. We have the flexibility in the Bill which will enable us to vary the
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permitted period. So I would argue very simply today that we do not require the amendment because what the noble Baroness seeks to achieve can already be achieved through Clause 155(9).
The clause also enables the Secretary of State to make transitional arrangements and to make different arrangements for different areas—different descriptions of properties and other variable circumstances. So there is flexibility in the Bill, which will enable us to respond to some of the issues raised by the noble Earl and the noble Baroness in our discussion of the operation of home information packs. I see the noble Earl shaking his head, but the flexibility is there. If conditions in the housing market change, of course the Bill is flexible and we can respond to some of them. We accept that, over time, there will be changes, but we think that we have sufficient flexibility to deal with the problem identified here.
3.30 p.m.
Baroness Maddock: My Lords, I thank the Minister for his reply and the noble Earl, Lord Caithness, for his support. I may say that the wording has nothing to do with me: I am very grateful to my noble friend Lady Hamwee, who is the lawyer, not me. I am also grateful to her for her advice about the Minister's recommendation that Clause 155(9), on page 109, will give the Government sufficient flexibility. As a lawyer, she is not convinced that that is so. We had better look at that. We have made the point and won the argument; the question is where it should happen in the Bill. If the Government are really intent on understanding the issue and acting on it if necessary, my amendment would be the better way, because it makes it quite clear, whereas there is some confusion in the Minister's recommendation. However, at this stage, I will go away and make more inquiries. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 151K and 152 not moved.]
Clause 149 [Duty to provide copy of home information pack on request]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 152A:
Page 105, line 15, after "which" insert ", where available,"
The noble Earl said: My Lords, what the noble Lord, Lord Bassam of Brighton, said in reply to the previous amendment was, "You are going to get home information packs. The whole thing will be done by regulations. Trust us. Have faith. We will listen. We will alter the regulations. We can adapt for low-cost housing and different types of houses. We can do anything that we want to, but we are not going to allow Parliament really to have a say on that".
We discussed the possibility of amending regulations yesterday; we know that that is not a practical reality. I have no doubt that the Minister will use exactly the same arguments on all my amendments to follow. We know that there will be regulations, but these things, especially the previous amendment, should be in the Bill. That is not something that we

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should leave to regulation; it is far too important and something that this House and Parliament ought to decide.
I shall speak also to Amendments Nos. 152D and 155F. Another problem is getting the information. The Government are imposing a strict timetable and conditions before one can market a property. My concern here is not for freehold properties, because normally, if you can get a good solicitor, that should be in good order; my concern is for leasehold properties. That is where my firm and many other firms have had trouble in the past. I was talking to someone from one of the Countrywide firms today and the person agreed with me that the real problem when one comes to marketing is getting information from the managing agents.
Incidentally, when I talked to the person at Countrywide, I asked whether he agreed with the statement made by the Minister yesterday at column 695 that Countrywide is, "ready to go". No, it is not ready to go. Not a single one of its offices or sub-offices is operating with an information pack at the moment and it does not expect the information packs to be available until July 2006. What Countrywide said is that if the Government are to bring in the Bill, of course it will prepare for it because it will become law, but it is not ready for it now. When I asked, "Are you doing any home condition reports?", I was told, "Of course not". So what the Minister said yesterday must be taken with a pinch of salt.
On obtaining information from managing agents, for instance, it was the noble and learned Lord, Lord Donaldson, who yesterday pointed out that he would be charged a sum of money for the release of the information. Let us suppose that the vendor of a flat instructs an agent to market that property and that it is a leasehold flat. As an agent, I would try to get the information from the managing agent about the service charge, the sinking fund, repair programmes, what has been spent in the past and what is budgeted for in future. That information takes a bit of time to come. Not only that, the managing agent puts a whacking great fee on releasing that information. My client, the vendor, wants to argue about the cost of providing that information, but at the same time, he needs to market his property. He is being put in an almost impossible position where he is unable to negotiate with the managing agent, the managing agent will not release the information, and he cannot market the property.
That will become a charter for managing agents to push up their costs for releasing the information so that a vendor can market his property quickly. That is why we should be able to market properties as quickly as possible and, when it is not our fault as agents that we do not have the information, we should still be able to provide what constitutes the basis of a home information pack but without all the necessary details, within a sensible time frame. I beg to move.
Baroness Hanham: My Lords, in supporting my noble friend's amendment, I want to ask one question,
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because I am not sure that we have dealt with it. How long do the Government expect that it will take to put the packs together? My noble friend has raised a very significant potential problem concerning leaseholds. Will there be any limit to the length of time that people are allowed to take to put packs together? Potentially, the sale could be delayed for a long time because a pack cannot be made available. Perhaps the Minister would enlighten us on that as well.
Baroness Gardner of Parkes: My Lords, yesterday I drew attention to this problem of leasehold property and charges made by either managing agents or freeholders. We must consider that realistically. My noble friend Lady Hanham has raised the additional point that if they wanted to be sufficiently obstructive, they could defeat one's whole purpose in selling and, in the end, perhaps be the only people entitled to buy the property back, which could be greatly to the disadvantage of the leaseholder. That may be a real concern.
Lord Phillips of Sudbury: My Lords, I rise merely to agree with the noble Earl, Lord Caithness. From long practice, the danger that he conjectures about managing agents hanging on to information and embarrassing the whole process is real. Somehow or other, we must try to provide for that.
Lord Rooker: My Lords, can I just knock one thing on the head to start with? That concerns what I said yesterday about the dry run. The dry run will give us practical experience, which will be fed into the monitoring operations at the time. If we need to amend the regulations in the light of that, we can do so by negative resolution. There is not the slightest problem. So if the noble Earl, Lord Caithness, wants to keep repeating what is clearly not correct, that is up to him, but he will get the same answer every time.
I think that the thrust of the argument raised by every noble Lord is that homeowners are not taking home ownership responsibly and seriously. To be honest, I cannot believe what I have just heard. We are talking about homeowners who do not know what their service charge is; homeowners who do not keep a copy of the annual report that they may receive from the managing agent with details of the sinking fund. That is their problem; they are paying the bills. If they want to put their property on the market, it should not be necessary to go to the managing agent to get every jot and tittle of that information. Homeowners should know; if they do not, it is their responsibility, as they are putting the property on the market. Noble Lords should not blame the managing agent or raise all these hurdles. I know that Peers live in an esoteric world that in some ways is not real, but that applies to the generality of what I have just heard.
The vast majority of people will not have that problem. Homeowners will have a problem with their managing agent anyway, if they have bad relations. But if they are not keeping the bills and invoices that tell them what they are paying out in service charges, frankly they are just not taking home ownership

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responsibly and that will be their problem when they come o sell. It should not be used as an excuse to dilute the legislation to the detriment of everybody else. The issue arose in Committee, and I addressed it in my subsequent letter. We will look at the matter during the dry run.
In response to the question of the noble Baroness, Lady Hanham, I can say off the top of my head, based on evidence from current experience, that it takes five working days. I am reliably informed that, from a practical point of view, that can happen now. It can take about as long as it would take some estate agents to compile details, if someone walked into their office on a Monday and said that they wanted to sell. The agent would have to nip around to take some photographs, get the details of the property and show them to the seller to get approval before they dared to compile a package of estate agent's details—I am not talking about the home information pack. That would take the same time as it would take to provide the home information pack.
If arrangements have been made to compile a home condition report or to apply for the necessary documentation and a document has not arrived in time for the marketing, there is leeway in the Bill of up to 14 days, provided that reasonable steps have been taken to secure the document. It is no good saying, "We have not applied for it yet". The evidence is that it can be done in five working days. But, as I mentioned in Committee, regulations provide that, where the odd document is unavailable because someone has not delivered it or the application got lost in the post—that might be quite a reliable thing to say—it can be secured for up to 14 days and then inserted into the pack.
The Earl of Caithness: My Lords, I did not say that the regulations could not be amended at any time, but to alter a negative instrument in this House is complicated and seldom done. Therefore, such matters should be in the Bill, not left to regulation. I do not disagree with what the Minister has just said; of course you can alter a regulation at any time. But it is difficult for us in this House to alter a negative instrument when it comes before us.
With respect to the Minister, given the tone of his reply I do not think that he fully understands quite how the market works. However conscientious you are as a flat-owner, getting information out of a managing agent can often be difficult. I agree that flat-owners ought to have information on past bills, but, although some managing agents and tenants associations are extremely good at documenting matters such as the sinking fund or the proposed repair programme and having that information ready to give out to all tenants, others are extremely bad. In my experience, there have been cases where someone has bought a well managed flat, the freeholder has then changed managing agent, and that agent has claimed that the information was not passed to them from the previous one. There are all sorts of complications in the real world; it is not as straightforward as the Minister indicated.
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However, I do not think that we will make much more progress on the issue. I am grateful for the support of my noble friends Lady Hanham and Lady Gardner of Parkes. There is a problem in this area. The Minister does not acknowledge it, but it is there for those of us who work in the field. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 152B to 152E not moved.]
3.45 p.m.
The Earl of Caithness The Earl of Caithness moved Amendment No. 152F:
Page 106, line 12, at end insert—
"( ) All documents and information contained in the home information pack shall be confidential to the seller, the person acting on his behalf as an estate agent, a person acting on his behalf as a solicitor or conveyancer, and any bona fide buyer or potential buyer."
The noble Earl said: My Lords, this important amendment would make certain that all the information in the home information pack is,
"confidential to the seller, the person acting on his behalf as an estate agent, a person acting on his behalf as a solicitor or conveyancer, and any bona fide buyer or potential buyer".
The documents will probably contain confidential information. It is only right that they should be kept within the confidence of the smallest circle of people. I beg to move.
Baroness Gardner of Parkes: My Lords, I go along with many of my noble friend's amendments, but I do not understand this one. How will one establish that someone is a bona fide buyer or potential buyer? As a general sticky-beak who loves looking into property, I would be one of the first to ask for packs from anyone and everyone. Certainly, if I were buying property, I would want to get packs from as many different people as possible to decide which property to buy. Even if I were a bona fide buyer, I would probably buy only one of the 10 properties that I had considered. So how does one establish that point?
Lord Rooker: My Lords, Amendment No. 152F is helpful in identifying the key people who need access to information in the home information packs. However, as we said in Committee, we do not feel that the amendment is necessary to address the concerns about access to information in the pack because much of it will already be available to the public. Clause 155 restricts the content of the pack to the information about the property so that no personal information about the seller may be included. We intend to ensure that sensitive information about security systems, and even information about decoration and furnishings, will be excluded from the pack. For those who keep on about the fact that the packs will include security information, I am not saying that for the first time.
We recognise that there are circumstances in which the seller would not want information contained in the home information pack to be disclosed to anyone outside the immediate home buying and selling process. In Committee, we gave the examples of a journalist seeking information about the home of a

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public figure, or entrepreneurs such as double-glazing salesmen trying to identify business opportunities, which bring up serious issues. We need to ensure that the Bill addresses them and complies with human rights legislation. Clause 150 addresses that concern by enabling anyone who has a concern about the use to which any information would be put to impose conditions. He could, if he chose, restrict access to the documents to those set out in the amendment. Several noble Lords raised concerns in Committee that estate agents might make the packs generally available on their websites. Having gone through some of these processes in the past couple of years, I know that many websites now have the facility to make documents available or to enable viewers to have a good look at the property, only if they have a password and are registered with the estate agent. You cannot go willy-nilly; you can go to the website and you might be able to look at property details such as the road, the area, price and number of rooms, but access to further details such as a floor plan is restricted to those with a security code, for which you have to give up your personal details. If people want to put those restrictions on the home information pack, it would be reasonable for them to do so. I can imagine that the majority of people would wish to do so.
Clause 149(4) ensures that sellers and agents do not have to give copies of the pack or any document in it to someone who is not genuinely interested in buying the property. I realise that that is very difficult to define. I accept that, as was indicated by my answer yesterday to the noble Baroness, Lady Gardner of Parkes.
From my own experience, I know that on walking into an estate agent and asking about a property or after seriously looking at a property and making an offer, some fairly basic questions will be asked about how one proposes to pay. Will a mortgage be needed? If so, who with? How much will be the deposit? Has the purchaser got the deposit? Is he or she employed? Those are reasonable questions for estate agents to ask so that they can filter those people who get the information. I am not saying that that happens everywhere, but it happens now.
There are all kinds of scenarios where people other than those identified in the amendment will want legitimate access to the pack. A potential buyer might want a copy of the pack to show to an architect or builder. For example, he or she may say, "If I buy this property, I want to know whether I could build a single or double-storey extension, or something like that, at the side. Is that technically possible? If so, what might roughly be the cost?". So they may want to show the pack to someone outside, which, I hope, would be quite legitimate. Of course, the enforcement authorities would also need access.
The amendment would prevent disclosure of the pack for those legitimate cases. However, the amendment is useful in identifying the kinds of people who would legitimately want access to the pack.
Lord Avebury: My Lords, I wonder whether the noble Lord watched last night's programme about identity theft or whether anyone mentioned it to him. It showed the practice of people wishing to steal identities obtaining details of vacant premises from estate agents. They go into estate agents with very plausible stories about how they have the money to put down a deposit and so on. They then use those addresses as the basis for the fake identities that they have created.
Lord Rooker: My Lords, I did not see the programme: I was here. I do not know what time the programme was broadcast. I am familiar with the type of situation raised by the noble Lord, not only from my former constituency experience where people were doing that but also from my work in the Home Office during the first year that I was in this House. The noble Lord is right.
As I said, I did not see the programme. But it is much more difficult to steal identities today, even as regards mail redirection. There has been a lot of work done to close down those opportunities. But we have to stay ahead of the game, as it were. There will always be crooks and spivs around to exploit all kinds of loopholes. I freely admit that. As I think that I said yesterday, it will not be 100 per cent.
These issues have to be considered in the way we draft the regulations and how we raise the issues with our partners and stakeholders as we are preparing the regulations and experimenting with the dry run. Doing a bit of blind testing during the dry run would not go amiss, would it? Someone could do those things during the dry run to test whether the system can pick up that kind of thing.
The Earl of Caithness: My Lords, I am grateful to the Minister for a more sympathetic answer and a better effort in answer to my concerns. My noble friend Lady Gardner of Parkes was right to raise the problem of identifying a bona fide purchaser or potential purchaser. That is another reason why I spoke to Amendment No. 151K, which provides for a home information pack being provided only once an offer has been accepted.
The noble Lord, Lord Avebury, said that one of the problems in estate agency is that there is a constant stream of people coming through the doors who may be pretending to be of a worth that they are certainly not. In most cases, one learns by hard experience because one always tries to help those people. Therefore, if someone comes through the door, the estate agent's duty is to try to sell a property to that person for their client. The initial attitude to the person is welcoming in anticipation that he or she has got the money, but that often turns out not to be the case.
I am grateful for what the Minister has said, which I shall read with interest in tomorrow's Official Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 152G had been withdrawn from the Marshalled List.]
[Amendment No. 153 not moved.]
Clause 150 [Section 149: imposition of conditions]:
[Amendments Nos. 153A to 154 not moved.]
Clause 151 [Duty to ensure authenticity of documents in other situations]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 154A:
Page 107, line 1, after "duty" insert "to take all reasonable care"
The noble Earl said: The purpose of the amendment is to relieve the estate agent of the responsibility that he is put under in the Bill, which states:
"Where a responsible person provides a potential buyer with, or allows a potential buyer to inspect, any document purporting to be … a copy of a document (or part of a document) included in that pack, the responsible person is under a duty to ensure that the document is authentic".
My amendment simply adds the words,
"to take all reasonable care".
Of course, the agent will not be responsible for a great deal of the information, which will come from the surveyor who will have the home condition report and the solicitor who will have the searches. It is wrong that estate agents should be responsible for other people's work that is not up to the standard that is hoped for and expected. It is a simple amendment. I beg to move.
Lord Rooker: My Lords, I am more than happy to put on the record and, indeed, repeat what I said in Committee. An estate agent does not take on legal liability for any of the documents in the pack. The home inspector is responsible for the home condition report. The local authority is responsible for the local searches. Any redress sought by anyone for problems with documents in the pack is against the person who produced the document. Of course, the estate agent is not in the business of producing the documents to be assembled.
The trading standards officers will not serve a penalty charge on someone who has taken reasonable care or has taken care to ensure the authenticity of the contents of the pack. Obviously, it would be unreasonable to do so. To that extent estate agents are fully covered because there is no legal liability. I am happy to place that on the record.
The Earl of Caithness: My Lords, I thank the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 155 not moved.]
[Clause 152 [Other duties of person acting as estate agent]:
[Amendments Nos. 155A to 155D not moved.]
4 p.m.
The Earl of Caithness The Earl of Caithness moved Amendment No. 155E:
Page 107, line 29, leave out paragraph (b).
The noble Earl said: My Lords, the amendment seeks to leave out subsection (3) (b). Subsection (3) states:
"In subsection (2) 'qualifying action' means action taken with the intention of marketing a property which …
(b) does not put the property on the market or make public the fact that the property is on the market".
I find that a confusing statement because if one is instructed to market a property one immediately takes action. The Minister said a moment ago that an agent could wait for up to four or five days before taking any action. Such an agent should never have been instructed in the first place.
If the noble Lord, Lord Rooker, came to me and said, "I want you to market my house", I would immediately telephone a list of people who were looking for the type of house that the noble Lord wanted to sell. I would start marketing the house as soon as I had taken details or he had explained it to me. If the noble Lord came in and said, "You can come and measure up my house tomorrow but it has eight bedrooms, seven bathrooms and a billiard room", I would be able to look through my list of potential applicants and ring up those who were looking for something like that.
Equally, if it was a one-bedroom flat, wherever it was, I would look up my list of purchasers for one-bedroom flats. I would ring them and say, "I am looking at a flat tomorrow in the area in which you are interested; are you still looking?". Or, "I shall be taking details tomorrow. I will send you the information immediately thereafter".
That is why it is right that paragraph (b) should be deleted. I beg to move.
Lord Rooker: My Lords, we get a wonderful insight into the upper class and the way people live. Sellers such as the ones referred to by the noble Earl may be typical of the kind of people he works for—and I can understand his wish to protect them; obviously his amendments would make the clause null and void—but they do not reflect the real world or the generality of the 40,000 properties that are marketed each week.
We do not want to drive a coach and four through this, but nevertheless it is a key factor in what starts the ball rolling and it is important. The noble Earl and others, I suspect, may well come up with many new esoteric examples until the day we start.
Estate agents obviously talk to many people but they would not be in a breach of duty if they talk about a forthcoming sale with a spouse or discuss the arrangements with a colleague. Neither of those examples would be a qualifying action within the meaning of the clause, provided the communication was not aimed at marketing the property to the spouse or the colleague.

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We know that there are one or two "spivvy" estate agents in London who have flogged within the office a house that they were supposed to be marketing for a client. I shall not mention any names, but there are one or two quite famous ones that I would not touch with a bargepole. I would advise people to keep clear of them. It is not a very nice practice, but there is no doubt that it would be classified as marketing.
As to deleting Clause 152(3)(b), which of course provides that the qualifying action for the purpose of the clause is an action that falls short of putting the property on the market or marketing to the public, I have explained that the whole purpose of Clause 152 is to capture direct marketing to a few selected buyers. In the kinds of examples given by the noble Earl, if it is direct marketing to a buyer or potential buyer, it is a qualifying action. His amendment would negate the whole thrust of the clause.
I have no doubt that all these issues will come to pass in the normal course of business, travelling around, looking at one property and maybe reviewing another. It will then be up to professional estate agents to know whether or not they have taken a qualifying action. In due course, experience will tell.
The Earl of Caithness: My Lords, the examples I gave were to cater for those people with ministerial salaries and for those of us who receive only expenses. I was trying to allow the noble Lord the flexibility to deal with whichever property he wanted.
I was not going back to the old theme that we have beaten to death about who I can and cannot talk to. I genuinely did not understand the significance of Clause 152(3)(b), but I think the Minister came to it in the end. In fact, the telephone calls that I would make on a vendor's behalf would be for marketing because I had received instructions and I would want to get moving on behalf of the vendor. I think that is what Clause 152(3)(b) covers. The Minister is nodding his head. It is now clear. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 155F to 156 not moved.]
Clause 153 [Residential properties not available with vacant possession]:
[Amendments Nos. 156A and 157 not moved.]
Clause 154 [Power to provide for further exceptions]:
[Amendment No. 158 not moved.]
Clause 155 [Contents of home information packs]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 158A:
Page 108, line 22, at end insert "; and
( ) the core elements of the pack which must be made available before any marketing of a residential property may take place"
The noble Earl said: My Lords, in moving Amendment No. 158A, I shall speak also to Amendment No. 158C.
The purpose of Amendment No. 158A is to get the Minister to lift the veil a little on what his thoughts are for the regulations. He mentioned that it now looks as though the intention of the Government is that estate agents can start marketing a property within 14 days of instructions being received without all the information in the home information pack when there has been a genuine attempt to obtain the same. So there will be a 14-day delay as a maximum.
So, speaking as an agent, I receive instructions on day one and I ask for all the information; if by day 14 I have not had back all the replies, I can go ahead and market the property. I should like the Minister to confirm that, but that is my understanding.
This procedure will be covered in regulations and the Minister has said that the Government will have the flexibility to add bits, remove bits and make the key parts of the regulations. Are there core elements of the pack that the Minister believes will be essential and outwith the 14-day rule? In other words, are there any papers or pieces of information that will be absolute prerequisites before a property can be put on the market?
I think the Minister has dealt with Amendment No. 158C, which refers to an agent being able to market a property without all the relevant information, provided that it does not detract from the value of the property—in other words, there is no hindrance to the purchaser in assessing the price that he or she may pay for the property. I beg to move.
Lord Rooker: My Lords, to be honest, it is too early for me to bring forward draft regulations. They are some months away. If the amendment is intended to prevent a duty to include non-essential documents in the pack, it is ill placed to achieve such an effect. I can assure the House that the Secretary of State will prescribe under Clause 155 only documents that are necessary as part of the pack. We have seen the example in the consultation, but, to knock this on the head, the idea that we can start on day one with nothing and then try and get everything within 14 days is not one that I am offering. I do not think that that was implied in the noble Earl's comments. There will be core documents, but only those that are strictly necessary.
Some documents will be required from the seller and will be quite easy to provide. We will not require people to provide material that is not necessary. We still have work to do on this. Nobody will be committing an offence by failing to comply with the duties, as suggested in the amendment. Many groups have urged us to move from criminal to civil sanctions, and we have accepted their arguments.
The new subsection (4), as proposed in Amendment No. 158C, would provide that the responsible person could omit a prescribed document as long as it,
"does not detract from the value of the property".

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That is a pretty subjective judgment required by the sellers, estate agents, potential buyers and enforcement officers as to whether the omission of a particular document from the pack would affect the value of the property being sold. There is no question that that would cause practical difficulties. The value is one thing, the condition of the property something else altogether.
Information on the local searches or a home condition report cannot detract from the value of the report but can only help to reveal its true value. Someone is expected to make an offer for the property; the whole point about home information packs is that people make an offer on the basis of the maximum possible reasonable information available in a transparent way so that it will help to speed up the sale. The sale will be delayed if the relevant core documents are missing when the offer is made. People will want to alter their offer because something new has come up, but that new information could have been available when the pack was put together, if people had done their homework beforehand.
The Earl of Caithness: My Lords, the noble Lord's interpretation of the amendments is different from mine. Amendment No. 158A is in line with what the noble Baroness, Lady Maddock, and I were talking about earlier and deals with the need to market a property on day one, as soon as possible. That is very important to vendors, and I do not think that the Government have fully grasped that. That is why the amendment refers to,
"the core elements of the pack".
It does not say that estate agents could get away with having only the core elements. It was an attempt to get some information from the Government so that there is no undue delay in getting a property to the market. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hamwee Baroness Hamwee moved Amendment No. 158B:
Page 108, line 22, at end insert—
"( ) A statutory instrument under this section is not to be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament."
The noble Baroness said: My Lords, the amendment would provide for the affirmative resolution of both Houses in the case of regulations made under Clause 155 on the contents of the home information pack.
In Committee, a similar amendment was tabled that applied to this whole part of the Bill, not just the contents of the pack. The Minister's response was that various issues which had been the subject of debate were best dealt with by regulations rather than in the Bill. He talked about the flexibility of amending regulations. I shall not go into that as we had some exchanges yesterday. The Minister said:
"As presently drafted, the negative resolution procedure is right, should it prove to be necessary to make some changes".—[Official Report, 14/9/04; col. 1125.]
When I reread that, I realised that although it was an answer it was not accompanied by a reason. Although it repeats previous arguments, these are important matters, almost by definition, given the time that we have spent debating them. Seeking to ensure that both Houses of Parliament have the positive opportunity that the affirmative resolution procedure provides seems right.
I tabled the amendment to enable the Minister to amplify his short response earlier in our proceedings. I beg to move.
4.15 p.m.
Lord Bassam of Brighton: My Lords, Amendment No. 158B would change the Secretary of State's regulation-making powers as set out in Clause 155(1) from a negative resolution procedure to an affirmative one. That is my understanding.
Such issues need to be dealt with through regulations rather than in the Bill. I think that the noble Baroness's argument is about how these regulations are achieved. As I think I said in Committee, we need some flexibility to amend regulations quickly in response to the housing market. I made the point earlier that the housing market changes over time, and some items in the home information pack may become redundant or new sources of information may become apparent. The negative resolution procedure will enable us to act quickly.
Some examples of the likely contents of the pack are in the Bill, in Clause 155(5). We have also published, for consultation, detailed proposals for the contents of home information packs and have received a very favourable response. We have given a clear indication of our intentions.
For the most part, the documents and information are already provided under the present process. Clause 155 also restricts use of the power to the provision of information about the property, or its sale, that is of interest to potential buyers.
I hope that that reassures the House that the negative resolution procedure is right for making the regulations that relate to Clause 155. It is important to note that when the Select Committee on Delegated Powers and Regulatory Reform considered similar provisions in the Homes Bill, it was quite happy with them. The noble Baroness has pointed out that the committee's recommendations are not prescriptive, but we feel that we have got it right on this occasion. We require that flexibility, which is in everybody's interest.
Baroness Hamwee: My Lords, we are being asked to agree compulsory provisions. Let me suggest a situation which might, at present, seem quite unlikely. A government—not necessarily this Government—decide that it would be a good idea to remove one of the items in the pack which Parliament has decided should be compulsory. Surely Parliament should be able to review the matter, given all the consultation and the good work involving people outside these two Houses that has taken place. It seems to be out of scale with the importance of the matter for the Government

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to say that they are not sure that they can find parliamentary time sufficiently quickly and that we should trust them. I shall not take the matter further—I just had to get it off my chest. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 158C not moved.]
Baroness Hamwee Baroness Hamwee moved Amendment No. 158D:
Page 108, line 29, leave out "of interest" and insert "material"
The noble Baroness said: In Committee, I queried the definition of "relevant information", which was information that "would be of interest" to potential buyers. I used a frivolous example—although my noble friend Lord Phillips said that it was not at all frivolous to raise the point—by talking about a range of paint colours. However, this provision uses loose, wide phraseology. It is no answer to say that the Government have consulted widely on the content, because this phrase could mean everything or nothing. My concern is that it means everything. I propose "material" instead of "of interest", which I hope fairly reflects what the Government hope to achieve. I beg to move.
Lord Phillips of Sudbury: My Lords, I will briefly add to what my noble friend so ably said. This provision is part of Part 5. It will be looked at and referred to as much as any subsection in this part of the Act. I would be interested to know whether the Government could cite any other example of a statute using these words in a comparable situation because they are so rubbery as to create unnecessary confusion. That is not to say that the word "material" is beyond dispute, but at least the concept of materiality runs through statute law and has a better chance of being construed with some degree of certainty than this inadequate phrase.
Lord Bassam of Brighton: My Lords, may I just check that I have the right amendment? I believe that we are discussing Amendment No. 158D, which proposes the alternative wording "material".
Noble Lords: Yes.
Lord Bassam of Brighton: My Lords, I do not think that there is much between the expressions in the end. We think that information about the property or its sale that is important, essential or relevant is likely to,
"be of interest to potential buyers".
It is difficult to imagine information being prescribed for inclusion in the pack that is not material information, so there is not very much between us on this matter.
On balance, we believe that the amendment would not add anything to the drafting of the Bill. For a moment I was toying with the idea of having the expression "of material interest", but I am not convinced of that in the end because it would add unnecessary words and I can remember too many debates in your Lordships' House when I and other Ministers have been castigated for
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doing just that. I can see no particular benefit in the change of words. I do not think that one expression is any looser than the other. Such expressions crop up from time to time in legislation, although I am not prepared to indulge in extensive research for the benefit of the noble Lord, Lord Phillips, to find out how many times they do. We are happier with our wording and obviously parliamentary counsel are also happier, although mistakes can be made. They are the experts and I am not inclined to accept this amendment.
Lord Phillips of Sudbury: My Lords, before the noble Lord sits down and my noble friend stands up, would the Minister ask the parliamentary draftsmen specifically whether there is merit or demerit in the case that we have made for these alternatives and let us have the answer? As I understand from too long a career in the law, this is not an unimportant point and a very important clause.
Lord Bassam of Brighton: My Lords, I do not want to spend too long on this, but I have created a third possibility and I will take the matter away and have another look. However, I do not want to take too much of our time. The noble Lord makes a respectable point.
Baroness Hamwee: My Lords, I am grateful for the Minister's final comment. If the matter comes down to trading words, my one word would replace two, which we have done in the past, but that is not the most respectable of arguments. This is the sort of small practical matter that people can actually find themselves spending an awful lot of time on. I do not want to prolong the debate now because the Minister has not been as well served as he might have been. It is not fair to him to ask for examples that he clearly cannot provide off the top of his head. This matter is technical but also practical and it would have been helpful if somebody had thought about the "what ifs". My noble friend and I do not seek to make trouble but to save trouble. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 158E not moved.]
Baroness Hamwee Baroness Hamwee moved Amendment No. 148F:
Page 109, line 4, leave out paragraph (d).
The noble Baroness said: This amendment would remove the requirement for a home condition report. I accept that most components in a home information pack will be required in any event—we have been over that. However, the one that is not currently required is a home condition report—or, in old money, a survey. The noble Lord, Lord Rooker, said earlier that only a minority of people have a survey and suggested that more people should—I am not sure whether I reflect him correctly in that. However, it is the sort of thing that individuals should be able to decide for themselves.
In the compendium letter that the noble Lord, Lord Rooker, sent us, there were details about the proportion of transactions that fail and the reasons for

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failure. He said that of sales that fall through, research indicates that 43 per cent do so because of an unfavourable survey and, of those, 30 per cent—which is 19.5 per cent the total—fail following a lender's valuation survey and 13 per cent of the 43 per cent—or 8.5 per cent fail following the buyer's own survey. So about a fifth of transactions fail after a lender's survey and about 8.5 per cent after a buyer's survey.
Since the home condition report will not contain a valuation, we are talking about the problem of 8.5 per cent failure. The Council of Mortgage Lenders brief sent to your Lordships makes it clear that lenders,
"will still need to undertake a large number of physical valuations".
When I read what the Council of Mortgage Lenders had to say about home condition reports, I wrote "modified rapture" in the margin.
Yesterday, the Minister told us that HBOS and the Countrywide agency support home information packs. That is not the same as supporting home condition reports in a role that would contribute to the valuation of the property. The home condition report will not be cheap. With regard to a relatively low-value property, the cost of a home condition report could be proportionately quite high.
I have deliberately not spent as long on this issue as I might have done because we have covered quite a lot of ground already. I hope to have a specific response to the issue. I beg to move.
4.30 p.m.
Baroness Hanham: My Lords, this brings us back to something I was talking about yesterday—that is, the reliability that purchasers will be able to place on the home condition report. It is a pretty widely held view that people are not going to take the home condition report as gospel, and that buyers will have to undertake yet another survey. The Minister shakes his head at that, but the matter will depend to a large extent on the whole status of home condition reports and the people who undertake them. My noble friend Lord Caithness has an amendment to which we shall come later that deals with the training requirements, the value that people will be able to place on home condition reports with regard to what they cover, and the qualifications of the people carrying them out.
The amendment moved by the noble Baroness, Lady Hamwee, is sensible, but we also need to take into account the particular difficulties. The Minister said that there would be a "dry run"; I got the information on that, as have other noble Lords. One thing to be tested out in that dry run is whether people can actually rely on the home condition report and do not have to commission a further report.
The Earl of Caithness: My Lords, I rise to support my noble friend Lady Hanham and the noble Baroness, Lady Hamwee, on this matter. This is one of the Bill's Achilles' heels—Prescott's penalty on vendors. This is where the added costs will be.
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The Minister said yesterday that on home information packs, HBOS and others,
"are gearing up and are ready to go".—[Official Report, 19/10/04; col. 695.]
I have not been able to speak to that building society, but I have spoken to others, and they have told me quite clearly that they were not going to rely on the packs or the home condition report as a basis for lending. They will continue to do their own valuation. Therefore, the vendor is going to be put to huge extra cost.
Something less than 20 per cent of people buying a property have a survey carried out and, as the Minister rightly argued, some of that is wasted money because there is only one purchaser of a property. If three surveys are made of one property, two out of the three lose money. That is not different from the situation in Scotland, where there is a different form of buying and selling, but where the purchaser still has to do a survey before entering into his or her binding contract. We now face the situation in which there will be 100 per cent surveys. That will undoubtedly be a cost to the industry that is considerably more than the saving to potential purchasers. The measure is Prescott's penalty; this is where it will really hurt—and it will hurt the pensioners, the low-paid and those at the bottom end of the market in particular.
I talked to the Countrywide and a number of other agents this morning on the question of the home condition report. I can summarise what they all said—and the Countrywide is no exception. They say that the survey is only a matter of opinion at the end of the day and is out of date pretty quickly, but that they would run with it and make money with it. That is not a good reason to legislate—in fact, it is quite the wrong reason to legislate. Surely we should be legislating to benefit people. This measure will be a hindrance.
I talked to the Consumers' Association about the home condition report, and particularly the costs, and it said that the average cost will be £635. That figure is fine if it is based on a three-bed semi-detached house, but what about a wattle-and-daub house or a 1950s house built of concrete? That will not cost the same—it will cost considerably more. The Consumers' Association, which the Minister prayed in aid yesterday, agreed that it will result in a considerable extra cost.
The great advantage we have in this country is the wide mix of properties and their variation in age. There are Tudor cottages in small villages in which farm workers live. Some may have been modernised and updated by a rich lot of people, but there are still people living in those properties, which require a great deal more attention in a survey. They will to some extent fall within the standard form that the Government, along with the industry, have produced—but it does not tell the whole story.
The Minister told only half the story in reply to my Amendment No. 158A. He said that the home condition report would enable the purchaser to establish the true value of the property. That is wrong. It will enable the purchaser to have a look at the

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surface condition of the property, but it will not necessarily say anything about the roof, for example. If the roof is inaccessible—particularly in a block of flats—it will say nothing about that. The report will say nothing about foundations. It is not a full survey on which the true market value of a property can be assessed. The only survey that does that is a full structural survey.
I bought my property in London on the basis of the type of survey that will be in the home condition report, which did not indicate that one of the walls was sinking and that there would be a problem with the roof. Luckily for me, the insurance company paid the cost. It was a party wall, and the person next door who bought after me was not aware of the problem when he bought it, because it did not show up on his survey, either. It was a major structural fault that came to light after both my neighbour and I had bought our properties. It could have come to light with a full structural survey, but neither of us did such a survey and so were not able to establish what the Minister calls the true value of the property. We bought at the market value on what we could see—and that is all the home condition report will tell people.
I went into detail yesterday about how quickly the home condition report will go out of date. I shall come on to more specific amendments when we debate the next clause. I strongly support the noble Baroness, Lady Hamwee, on this matter. It would be possible to take the home condition report out of the home information pack without detriment to what the Government are trying to achieve. The survey is a matter of opinion; two surveyors will have different opinions of a property, just as two solicitors will argue over something that should be agreed on by everyone. I give the noble Baroness my full support.
Lord Bassam of Brighton: My Lords, as I explained earlier, we all accept that Clause 155 deals with the contents of the home information pack, giving the Secretary of State power to prescribe the documents to be included in the pack. That is no doubt the reason why the amendment has been moved at this point.
The information prescribed is subject to the condition that it must, in the opinion of the Secretary of State, be relevant to the property and its sale and that it relates to matters that are of interest to potential buyers. We had debates on that detail earlier this afternoon. The amendment would take out the commitment to have a report on the physical condition of the property, a report which would cover the particular physical characteristics and features of the property.
I think that we have a dividing line here, and that we will have to differ on this point. The amendment would not prevent the Secretary of State prescribing the information for inclusion in the pack because Clause 155(5) is expressed as being,
"without prejudice to the generality of subsection (4)".
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So the information mentioned is not meant to be a definitive list of what will be included in the pack. However, it is hard to see how anyone could argue that information about the physical condition of the property is not relevant or is of no interest to a potential buyer.
I have only recently found the time to read the Consumers' Association report kindly circulated to us in the summer. It asks, "What do people think about home information packs?". It conducted a fairly extensive survey, of over 1,000 people who had bought or sold a property, and 82 per cent of those surveyed thought that it would be useful to have a housing information pack that included details about the condition of the property. That is a pretty powerful expression of view by people who have had experience of buying and selling property in the market. Some 82 per cent thought that it was a pretty important thing to include in the pack. That is one of the reasons why we think it is important.
The other reason, alluded to by the noble Baroness in moving the amendment, is that our research shows that 43 per cent of transactions that fail are linked to an unfavourable survey report, either a report commissioned by the buyer or one produced by the mortgage lender. Does that not tell us how important it is to potential purchasers that they have knowledge and understanding of the physical condition of the property? It is important that they receive that information right at the outset so they can make a judgment between properties and understand what it is they are looking at.
The noble Earl made some points about the importance of the survey sought by the mortgage lender. That is another important document, and clearly very important in how the market operates. There seems to be an acceptance of that importance and the fact that the market would work better if people understood at the outset what they were being confronted with. As I said, 82 per cent of those surveyed believe that having a home condition report at the outset is vital to their pursuing an interest in a property.
Many other transactions do not fail, but are delayed following a survey report while renegotiations and further investigations take place. As most transactions are in chains, the effect of such delays and failures go beyond those who are immediately and directly affected and could have an impact on more than half of the transactions in one way or another. That is why, in a nutshell, we think that home condition reports on which all parties can rely are so important. That is also why we have to resist the amendment.
The amendment would strike a shaft through the Bill in a way that would undermine an important element of the package we are trying to put together. Amendment No. 161A is consequential on Amendment No. 158F.
4.45 p.m.
The noble Earl suggested that the whole package of a home condition report would cost as much as £600 and perhaps more. There is some debate in the industry about the likely cost of the reports and the

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impact on the overall cost of home information packs. We think that it will take a home inspector about half a day to prepare a home condition report on a typical three-bedroom semi-detached house. The cost of a home condition report will be determined by operation of the market. We estimate that in provincial locations the cost will be in the region of £300 for one of the more typical three-bedroom semidetached houses. So we cannot agree entirely with the claim that HCRs will cost the sum to which the noble Earl in particular drew attention. They are an important document, and we think it right that the pack should include them. We therefore have to resist the amendment.
The Earl of Caithness: My Lords, before the noble Lord sits down, will he say whether the Consumers' Association report to which he alluded asked whether people would be prepared to pay the costs of the home condition report and also drew attention to the fact that the home condition report has no shelf life?
Lord Bassam of Brighton: My Lords, as I said, I have not studied the report in depth. However, it contains a whole section on costs using the £600 figure. Most of the questioning seems to have focused on how potential purchasers would want to pay the sum, and there are various figures breaking down their favoured payment method. I am happy to study the document further and tell noble Earl what more I can deduce from it. However, I am sure that he will have found the document useful himself. I am happy to copy it to him if he does not have a copy.
Baroness Hamwee: My Lords, I too was going to ask whether the survey included a reference to price to give it a context and whether it questioned any first-time buyers such as a young woman I have in mind who I suspect could not have afforded to buy the flat that she bought last year if she had had to incur that bit of extra cost. As I scribbled that down, I thought, "I imagine that the Government are not trying to use this as a mechanism to dampen house prices", but one begins to wonder. That led me to wonder whether the Government—perhaps we will explore the point at the next stage—will use their regulation-making power and power to remove items from the pack to provide that the home condition reports are not appropriate in the market renewal pathfinder areas because of the disproportionate cost.
The Minister said that the cost would be determined by the market. If the report is made compulsory, that is precisely what will not happen. If it was voluntary, there would be competition and the survey price would be determined through that route.
The Minister referred also to the figures that I quoted, but he neglected to add to the statistic that 43 per cent of transactions fail because of an unfavourable survey the comment which I added—that the Council of Mortgage Lenders has said that lenders will be doing their own thing. That throws a completely different light on the percentage. We have not heard the end of the matter, but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 159 had been withdrawn from the Marshalled List.]
[Amendments Nos. 159A and 159B not moved.]
Lord Rooker Lord Rooker moved Amendment No. 160:
Page 109, line 30, leave out paragraph (b).
The noble Lord said: My Lords, Amendment No. 160 is a technical amendment that will remove a superfluous subsection from the Bill. I hope, therefore, that I do not need to say more about it.
I shall speak also to non-government Amendment No. 239B, which is linked to this provision in Clause 253. We believe that this is an instance where immediate commencement is both justified and desirable. Since 2001 the Office of the Deputy Prime Minister has funded an extensive programme of research and evaluation in connection with home condition reports and the certification scheme arrangements that will underpin the production of those reports. We see the home condition report as an important component of the home information pack.
The research and evaluation has examined requirements for national occupational standards for home condition inspections; assessment procedures to test the competence of home inspectors; complaints and control mechanisms; recruitment of home inspectors; the format of the home condition report; insurance products and the register that will be a central repository for home condition reports. We have made substantial progress. However, we have not been able to convert the results of all that research and evaluation into a development phase because, quite rightly, Treasury accounting rules limit expenditure on development before Royal Assent. It has taken rather longer than we had intended to secure parliamentary approval for the introduction of home information packs. As a consequence, planned investment in the development phase of the scheme has been delayed. We want to initiate this at the earliest possible moment, which will, of course, be Royal Assent.
More generally, we want the Secretary of State to be empowered to make regulations as soon as he is able in connection with exclusions from home information pack duties, the contents of home information packs and home condition report certification schemes. That is why Clause 253(2)(a) provides for these provisions to come into force on the day the Bill becomes an Act. Numerous commencement orders relating to a single Act are not in the interests of consumers or the industry.
For the reasons I have just given in relation to Amendment No. 239B, delaying the commencing of Clauses 154 to 156 and 167 is not desirable. Requiring the Secretary of State to make an order before he can make regulations or provide funding towards the cost of the development of home information pack components is, in our view, unnecessary. The order would not be subject to any parliamentary procedure in any event and would involve extra administration and inconvenience for those trying to negotiate an Act with numerous associated commencement dates. It is

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one order too many. Therefore, I hope that Amendment No. 243A will not be proceeded with. I beg to move.
Baroness Hamwee: My Lords, we are all accustomed to commencement orders introducing legislation in stages. However, I was curious about the clauses that are to come into effect immediately. Clause 154 allows the Secretary of State to make regulations but they would relate to clauses that would not be in effect, which seems to be a case of saying, "Let us have this cake of a Bill and eat it, as by having regulations we can amend primary legislation before we have even brought it into force". I may have that wrong but it is an interesting thought. Clauses 155 and 156 concern the home information packs. It occurred to me that the need to have these in force relates to how the dry run will operate. I may be wrong about that but I should be interested to know whether that is the case. I confess my confusion about the dry run. Is that the reason?
Lord Rooker: My Lords, we are serious about the dry run. We cannot have the dry run unless we have produced the regulations and they are in force. That is the reality. It is not being done on a wing and a prayer, so the noble Baroness is quite right.
Baroness Hamwee: My Lords, am I right in saying that there is no duty in this regard? That is where the confusion arises.
Lord Rooker: My Lords, the dry run is voluntary. It will occur before the full operation of the measure. However, you cannot have a proper dry run unless people know what is expected of them. The regulations will be in place so that people know what is required of them. We cannot have people in different parts of the country inventing different packs and deciding that they will do it differently. However, the measure would not be enforceable because the enforcement process would not be operational. This is a big operation. To have a proper dry run people need to know what is expected of them. As I said in the first few minutes of today's debate, if we find that things need altering within the regulations, we can introduce amending regulations.
Baroness Hamwee: My Lords, if there is no duty, there is nothing to stop people inventing their own form of the measure. However, I believe that people will be sensible. We on these Benches do not want to undermine the operation; we want it to go smoothly. Therefore, I am not advocating that people should do their own thing but it seems to me that they could.
Lord Rooker: My Lords, during the dry run people may do nothing. That is their choice. It is voluntary.
Baroness Hamwee: My Lords, they could do nothing or they could do their own thing. I refer to the Government amendment to delete paragraph (b) of Clause 155(9). The Minister dealt with that very
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quickly but the paragraph deals with incidental, supplementary and transitional provisions. We have been told how important it is to be flexible. I should have thought that by deleting that paragraph flexibility is, if anything, reduced.
Lord Rooker: My Lords, I am trying to make progress. I promised the Chief Whip that I would speak briefly. There is already a general power in Clause 233(2) allowing secondary legislation made under the Bill to contain such a provision. That is why I said it was a technical amendment that removed a superfluous paragraph. It is superfluous because we can already do what it says.
Baroness Hamwee: My Lords, with the leave of the House, the code that was used was a little too opaque for me. I am grateful for that. I am sorry that we have treated this rather like a Committee stage but I have found that helpful with regard to my amendments.
On Question, amendment agreed to.
[Amendments Nos. 160A and 161 not moved.]
Clause 156 [Home condition reports]:
[Amendment No. 161A not moved.]
The Earl of Caithness The Earl of Caithness moved Amendment No. 161 B:
Page 109, line 39, at end insert—
"(Regulations under section 133 shall ensure that home condition reports will satisfy minimum criteria likely to be acceptable to mortgage lenders."
The noble Earl said: My Lords, I have given notice to the Minister's officials that I want to break up the grouping that has been agreed. I was not party to agreeing that grouping. As I said to the officials—I am sure that they have passed this on to the Minister—I shall move Amendment No. 161 B but not Amendment No. 161C. I shall move Amendments Nos. 161D and 161E together. I shall move Amendments Nos. 161F and 163A by themselves. I shall not move Amendment No. 163B. I shall move Amendment No. 163C but not Amendment No. 163D. The reason for that is that we had a general debate on this matter with Amendment No. 158F. It seems a little pointless to have another general debate on the home condition report when we can—
Lord Bassam of Brighton: My Lords, for the convenience of your Lordships' House, is the noble Earl moving the amendments to which he referred as a group or in separate blocks? It would be easier if the noble Earl spoke to them all together.
5 p.m.
The Earl of Caithness: My Lords, I am sure that the Government would consider it easier if I spoke to them all together. As I was about to conclude when the noble Lord interrupted me in mid-sentence, because we had a general debate on Amendment No. 158F, I want to adopt a more targeted approach. Therefore, I shall move individually certain amendments as they concern specific points rather than wrap it all up.

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Amendment No. 161B requires that the regulations that the Government will make,
"under section 133 shall ensure that home condition reports will satisfy minimum criteria likely to be acceptable to mortgage lenders".
That is critical. If the Government are to put their money where they say that their thoughts are, it is essential that the home condition report is acceptable to mortgage lenders, if it is to be of any value at all. The noble Baroness, Lady Hamwee, and I spoke on the point earlier, on Amendment No. 158F.
I want the Minister to focus on that point. If the home condition report is not acceptable to mortgage lenders—I spoke to mortgage lenders this morning who said that it was not—the whole point of this part of the Bill is worthless. It means double costs, because the vendor will produce a survey. It has no shelf life and is out of date. The mortgage lender will not rely on it arid will require its own survey from the purchaser. I beg to move.
Baroness Hanham: My Lords. I support the noble Earl on the amendment. We have had some discussion about the home condition reports, but the amendment is very important indeed. The Minister is keen on telling us about when he has bought houses; perhaps we have all done it at some stage. There will always be a question of whether the home condition report will be acceptable to the purchaser but, if we are not to have a plethora of surveys going on, that must happen, as it will rule out one possible survey having to take place. If not, we are looking at three surveys having to be carried out—one for the mortgage lenders, the second a housing condition survey, and the third the one that the purchasers will almost inevitably commission for themselves.
Lord Bassam of Brighton: My Lords, I always try to approach such debates in a very constructive mode, because we need to be constructive in focusing on such issues. The provision will happen. The big lenders are coming behind it; my noble friend Lord Rooker made that plain yesterday. They support where we are going with it, and want desperately to get on with it. However, the noble Earl makes an important point. At the end of the process, we should all end up in the same position—that there be acceptance of the scheme, agreement to work towards it, and an understanding that elements of it have to work if the whole package is to be successful. The home condition report is a crucial part of that.
It is worth putting on record that, if we accepted the amendment, the Bill would have to state that the home condition report was acceptable to lenders. That is clearly a highly desirable objective. We fully intend that lenders should have a contractual right to rely on the home condition report, and it is crucial that the report contains the information that lenders will need to inform their decisions about the adequacy of the property as security for a loan. However, I am reluctant to single them out in the way that the noble Earl has suggested. It could be dangerous to do so, as it would effectively give them a right of veto over the format and content of the home condition report.
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In developing the home condition report, the ODPM has—as the noble Lord, Lord Rooker, and I have made plain on many occasions—had extensive discussions with mortgage lenders, particularly the Council of Mortgage Lenders, to ensure that their information requirements are met by the format and content of the home condition reports. Although detailed requirements may vary from lender to lender, we understand that the form of the home condition report is broadly acceptable to lenders.
The noble Earl said that there is not agreement among lenders, and that particular lenders object to the way in which the idea has been developed. We would like to know who those lenders are; we clearly need to talk to them and understand some of their problems with the proposition. We do not want it to fail, and I am sure that he does not want it to fail once it is in place.
We can demonstrate that we are trying to deliver something that the noble Earl is trying to support as well, at the end of the process. It would help us if we knew where the niggles were. We do not think that his approach is right; it would certainly be wrong to provide an effective form of veto in the legislation. It is far better to sort out such detail in continued discussions and negotiations with the Council of Mortgage Lenders and the major lenders. It is clearly in everyone's interests that the home condition report is a quality document that is accepted by all who operate in the business, and that works well for the consumer interest. That is the objective that we have to seek to satisfy, in the end.
I hope that the noble Earl does not press his amendment. He could certainly help us if he could identify some of the difficulties about which lenders have expressed concerns to him.
The Earl of Caithness: My Lords, if the mortgage lenders are behind the provision as the Minister says, there ought to be a statement from the Council of Mortgage Lenders saying that it is fully behind the Government on the question of the home condition report and will accept it. There has been no such statement and there will not be, because the home condition report has no shelf life, and no lenders will commit themselves to say yes to a home condition report over which they have no control on when it is made.
The noble Lord asks me to tell him who is not in favour of the scheme. That is the same as yesterday when the noble Lord, Lord Rooker, said, "Tell me about the costs. Tell me how you get to the justification of £1,000 per home information pack". We have told government officials time and again. It is fine if they take a different view, but they should not ask us to keep telling them who is against it; they know very well who is not behind them.
The noble Lord, Lord Bassam of Brighton, said that the big lenders were moving behind the scheme. I have not been able to talk to HBOS today, but it is true that it is doing so. However, the noble Lord, Lord Rooker, told us exactly why—HBOS sees commercial

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advantage in doing so. That is not a way to legislate. The scheme should be for the consumer—for the people buying and selling houses—not for the Council of Mortgage Lenders to profit, and not for us agents and surveyors to profit. Those are the people who will profit, and the people who will lose out are those people whom the Government are not protecting.
The noble Lord said that there would be a contractual obligation for mortgage lenders to agree the home condition report. I see no contractual obligation in the Bill; I am trying to get to one. They will not have a veto on the regulations. If he is so confident that they all want the home condition report, they will not veto the regulations. That is a false argument.
I shall not divide the House on the issue today; it is something that I need to discuss with the noble Baroness, Lady Hamwee, because of her concerns on it. However, it is a major point that we must get right. Without the support of the Council of Mortgage Lenders, there is another nail in the coffin of the home condition report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 161C not moved.]
The Earl of Caithness The Earl of Caithness moved Amendment No. 161D:
Page 109, line 45, leave out "one or more suitable certification schemes" and insert "a suitable certification scheme"
The noble Earl said: My Lords, this amendment is simple. Why can there not be more than one scheme? I beg to move.
Lord Bassam of Brighton: My Lords, Clause 156(4) allows the Secretary of State to approve one or more certification schemes. The amendment, as I understand it, would restrict that power, so that only one scheme could be approved at any one time, giving a virtual monopoly over the certification of home inspectors.
If there is more than one scheme, as long as they conform to the same exacting standards and criteria, we would have little difficulty with that. Clause 156(4) enables what the noble Earl is after.
The Earl of Caithness: My Lords, I am grateful to the noble Lord, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 161E not moved.]
The Earl of Caithness The Earl of Caithness moved Amendment No. 161 F:
Page 110, line 10, at end insert "which may be achieved by the government underwriting scheme"
The noble Earl said: My Lords, we come to the important point about insurance. The noble Lord, Lord Rooker, said yesterday in Hansard col. 694 that there would not be a Government scheme to back up the insurance industry, yet the Consumers' Association, upon which the Government have relied so much in the
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past, has said that without such backing the scheme would not work. Will the Minister lift the veil a little more? What progress have the Government made with the Association of British Insurers towards securing satisfactory commercial insurance arrangements? How do they see a scheme working that will cover all the pitfalls and potential liabilities that will arise from the home condition report? I beg to move.
Lord Bassam of Brighton: My Lords, I wish to make it clear from the Dispatch Box that we see it as essential for consumers that insurance is in place, so that lenders can rely on the home condition report. The insurance needs of home inspectors continue to be the subject of extensive research and discussion with stakeholders. As we detailed in Committee, that research includes work carried out on behalf of ODPM by consultants Willis Ltd and Bryan Fowler Consulting, into suitable means of providing a robust insurance regime, which will include insurance of last resort to be provided by the certification scheme. Substantial progress is being made, and we are confident that it can be made available.
We have been greatly assisted by the Association of British Insurers and the industry working group—of which the noble Earl will be aware—who have been advising us on insurance matters. Discussions with commercial insurers have continued since Committee, and will continue, aimed at identifying options based on a commercial approach. They would include commercially provided insurance complying with minimum terms prescribed by the certification scheme, and commercial insurers have responded positively to that approach. The possible basis for an insurance regime will be published when further work is complete. I cannot tell the noble Earl when that will be.
However, I can give a commitment. We do not intend to introduce compulsory home condition reports until we are satisfied that satisfactory insurance arrangements are available. We are confident that adequate insurance will be available without the need for a government guarantee. I think I have answered the noble Earl's point. Work is proceeding, we are making more than satisfactory progress and we are being greatly assisted by the industry and the stakeholders involved. We are confident that we can secure this matter in time to ensure that the legislation takes off on the due date.
The Earl of Caithness: My Lords, I am grateful to the Minister for that full answer, which was helpful and it is important for it to be on the record that insurance of last resort will be by the certification scheme or schemes. Has the Minister had any further contact with the Consumers' Association on its concerns? It has categorically stated that the scheme will not work without government backing. Has it been reassured by what is happening now?
Lord Bassam of Brighton: My Lords, I am not aware of any further communication with the Consumers' Association. I certainly cannot speak for it. The noble

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Earl has asked a question, and I shall check to ensure that the association is actively engaged in the process so that any concerns that it may have can be looked at.
The Earl of Caithness: My Lords, I thank the Minister again. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.15 p.m.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 162:
Page 110, line 13, after "for" insert "requiring"
The noble Lord said: My Lords, I think I shall give a classic lead-off here. This has a great start. It says here that it is vital for the public to have confidence in the new home condition reports. I shall simply move the lead amendment without speaking to the other amendments, which are technical, so I shall not detain your Lordships' House unless I am asked a question. I beg to move.
Baroness Hanham: My Lords, I am sorry but the Minister was moving so quickly. I am not sure that Amendment No. 165, which is in this group, is a technical amendment. Amendments Nos. 162 and 163 provide the way for Amendment No. 165, which is an important amendment on the register of home condition reports. I am on the ball today, am I not? Should I continue to address the matter before the Minister comments?
Lord Bassam of Brighton: My Lords, the noble Baroness is correct. I was doing the House a great discourtesy in not addressing Amendment No. 165. I shall riot speak at length, but I shall certainly describe the effect of that amendment.
It inserts a new clause after Clause 156 which would enable the Secretary of State to make provision for a register of home condition reports. We intend that the register will comprise an electronic databank of all home condition reports prepared by registered home inspectors. Only registered home inspectors would be able to store or "register" home condition reports. The new clause specifies that such a register may be kept by or on behalf of the Secretary of State or such other person specified in the regulations. We also envisage that the certification scheme would use the register of home condition reports to monitor the work of home inspectors to ensure that they maintain the required standards in their work.
I hope that that adequately describes Amendment No. 165, and I apologise for not referring to it directly because the other two amendments are more technical. I beg to move.
Baroness Hanham: My Lords, I thank the Minister for finally getting round to the new clause. I am glad that he did, because, having read it, and having heard the explanation of it, I am bound to ask, "Why?".
The only justification that the Minister gave for including the clause was so that someone could check up on the homes inspectors and ensure that they were
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compiling the reports correctly. We have already established that the home condition reports will have an extremely short shelf life. They will not he of any interest to anyone after a few months. What possible purpose is there in retaining a database of every home condition report carried out in the country over the year?
The Minister has waxed lyrical about the fact that there are over 40,000 sales a year.
Lord Rooker: A week.
Baroness Hanham: My Lords, that is even worse. I thought that the figure was rather small as I was saying it. I am not going to do the maths, because I shall end up in even more trouble.
Lord Rooker: Two million a year.
Baroness Hanham: My Lords, 2 million reports a year will be lodged on the data base so that some bureaucrat every so often can dip in to have a look to see whether they have been carried out correctly.
I am bound to say that this is one of the most ridiculous clauses in this quite ridiculous part of the Bill. Unless the Minister can come up with a far better justification for its inclusion before Third Reading, we would be minded to test the opinion of the House. This will be an expensive procedure as there are bound to be requirements for new IT systems, which always go wrong, and problems of who has access.
I question the whole clause, so perhaps the Minister would like to give better justification in reply. This is a ludicrous proposal.
Baroness Hamwee: My Lords, one of the provisions of the proposed new clause is that anyone can pay a fee, inspect the register and take copies of any documents. I would be interested to know how this lies with the assurances given to the House earlier today by his noble friend about confidentiality. The noble Lord carefully described the "password" scheme which agents operate. It allows only individuals who have registered with the agent and who have given their details and a password to inspect documents, including the home condition report. The searches are for public information in any event. The House needs to know how the statements made today are not undermined by the provisions of this new clause.
The Earl of Caithness: My Lords, I am grateful to the noble Baroness, Lady Hamwee, because I wanted to raise the same point. I have to say to the noble Lord, Lord Bassam, in the nicest possible way that his explanation of the amendment was not the best speech he has made on the Bill. I do not blame him—we have all had lousy briefs and perhaps it was thought that the amendment would be dealt with late last night and that their Lordships would not be paying attention. We are paying attention.
What a load of bureaucracy is coming out here. Who can have access to the register? Can anyone tap into it and obtain home condition reports? There are

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staffing implications. What are the costs of the register and have they been taken into account in the economic assessment of the Bill? What happens if on looking at the register one finds that two surveys were done within a month of each other but that both are quite different? A survey is someone's opinion, which is why it is not a valid document.
Will the certification scheme take one surveyor to task and cross him off the list? Will there be recompense because a potential buyer who looked at surveyor A's report thought that the property was not worth buying but if he had seen surveyor B's report would have said, "With that survey, I would have bought the property. It was the property of my dreams. Surveyor A wrote such a bad report but surveyor B has written a good report"? This provision is nonsense and it will lead to great dispute.
What will happen when two reports are made of a property within a short time? What action will the Government, the certification scheme or the registrar take? The proposal needs a great deal more explanation before it can be accepted.
Lord Bassam of Brighton: My Lords, I have listened carefully to the points that have been made. I express my gratitude to the noble Baroness, Lady Hanham, for spotting that I had not properly moved the amendment. Having listened to the points made by her and the noble Earl, Lord Caithness, I am minded to take the amendment away and provide further thought. Some good questions have been raised.
However, I want to make it clear that I would not want objection to be made to our bringing it back at Third Reading. The provision is of value, but I want to be able to provide better detail than I can across the Dispatch Box today. Rightly I have been asked important questions about data protection, costs, staffing levels and bureaucracy. Those are important points. We will need to undertake more consultation to ensure that we have the provision right because not only does it have merit but it is potentially an important element of the scheme.
If noble Lords are happy that I should not move Amendment No. 165 today but undertake to bring it back and provide further and better particulars between now and Third Reading and at Third Reading, with the leave of the House I am happy to do that.
The Earl of Caithness: My Lords, I was greatly encouraged by what the noble Lord said. Will he write to us well before Third Reading and ensure that this time I get a copy? The noble Lord, Lord Rooker, said that I have made accusations. I have not made accusations—it is a fact that I did not receive any of the letters. We need to have this information in advance.
Lord Bassam of Brighton: My Lords, I was very careful in what I said. I said that between now and Third Reading we would find some further and better particulars and write on the issue. My noble friend Lord Rooker is rightly agitated to ensure that the noble Earl receives his copy of the letter and it will be sent by
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registered post if necessary. We will also provide more detail at Third Reading when we bring the amendment back.
On Question, amendment agreed to.
Lord Rooker Lord Rooker moved Amendment No. 163:
Page 110, line 14, after "scheme" insert—
"( ) for the keeping of a public register of the members of the scheme;"
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 163A:
Page 110, line 15, at end insert "; and
(f)—that a home condition report must be no more than three months old at the point at which a property is marketed"
The Noble Earl said: We return to the validity of the home condition report. Here I am trying to help the Government to make it a more acceptable document. My amendment says that a home condition report must not be more than three months' old when a property is marketed. That is an important provision in that it ties the date of the report to within three months of marketing. It will not however solve the problem of the shelf life of the home condition report, which will be of continued concern. It could be out of date within a few hours or days due to natural causes. However, I understand that the Government want to include this by regulations, so surely it ought to be on the face of the Bill. I beg to move.
5.30 p.m.
Lord Bassam of Brighton: My Lords, in spirit, we do not disagree with what the noble Earl is trying to achieve through his amendment. We agree that the report should not really be more than three months old when a home is first marketed. As I suspected he would, the noble Earl anticipated my response—that is, we intend to provide for this matter in regulations rather than on the face of the Bill. As I have pointed out in debates on other amendments, we want flexibility so that the conditions of the scheme can be adjusted relatively speedily if circumstances change.
I know that the noble Earl will not be satisfied with that answer, but it is a rock-solid commitment and it will appear in the regulations. We are coming at this issue from the same point. We do not consider it right that that kind of detail should be on the face of the legislation.
The Earl of Caithness: My Lords, we are trying to arrive at the same point, but I want the commitment to appear on the face of the legislation. Can the Minister assure me that the Government have no intention of

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including in the regulations a condition that the home condition report must be made within three months of the date of the offer being accepted?
Lord Bassam of Brighton: My Lords, my noble friend Lord Rooker has this right. The answer is that the report must be made within three months of the property being marketed.
The Earl of Caithness: My Lords, I think that the Minister is giving me the assurance that no regulation will be tied to the date of the acceptance of the offer but only to the date of the marketing, even though the offer may be made a year and a half after the date of the marketing. Therefore, the home condition report relates to day one and not to a date 18 months later.
Lord Bassam of Brighton: Yes, my Lords, that is right.
The Earl of Caithness: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 163B not moved.]
The Earl of Caithness The Earl of Caithness moved Amendment No. 163C:
Page 110, line 15, at end insert—
"( ) The home condition inspector shall not be the employee or agent of a company or associated body linked to an estate agency."
The noble Earl said: My Lords, this is a consumer protection amendment. I think it would be quite wrong if the surveyor who was to carry out the home condition report was in any way connected with the estate agency or solicitor's firm involved. In the United States, the law states that such a person should not be connected. If the home condition report is to be accepted by the vendor, the purchaser and the mortgage lender, which is what the Government want, the report must be made by a third party outwith any firm associated with the purchaser or the vendor.
If someone goes into an estate agency and says, "I want you to market my property", and the agent replies, "Oh yes, we can do that for you. You need a home condition report. Sitting here at the desk beside me is someone who can do it for you. We'll run out and do it straight away", where is the independence for the purchaser and the guarantee that the report will be done at arm's length? I do not believe that any amount of regulation can satisfy a purchaser on that front. That is another reason why I do not think that the home condition report will be the success that the Government believe it will be and, in order to try to help them, I have tabled this amendment. I beg to move.
Lord Bassam of Brighton: My Lords, we said in Committee that we agreed with the noble Earl that the home condition report should be completely objective. I recognise and understand the concern that such objectivity could be compromised if there were to be any potential or actual conflict of interest. I know that
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particular concern exists about the risks that might arise where, for example, the home inspector and the seller's estate agent are employed by the same company.
However, we believe that the checks and balances that we intend to put in place will ensure that those fears, while completely understandable, are ultimately misplaced. We intend to tackle these risks through the regulations made in accordance with Clauses 155 and 156 and the terms under which home inspectors will belong to the certification scheme.
All the main stakeholders, including the Council of Mortgage Lenders and the Consumers' Association, are involved in this work, and certification schemes will not be approved unless all the interested parties can rely on the reports.
Perhaps overnight the noble Earl had the opportunity to read the letter of 11 October from my noble friend Lord Rooker. In that letter, he clearly outlined the checks and balances that we intend to put in place in order to ensure the competence and integrity of home inspectors. I am happy to repeat those assurances here.
We would expect a certification scheme to establish the duties and responsibilities of home inspectors and to publish clear guidance about the standards of conduct that they must adhere to, such as the behaviour required of inspectors in cases of perceived and actual conflicts of interest. An inspector could be required to make a statement on the front page of the home condition report if he or his firm were related to any of the parties or professionals involved in the sale or purchase of a property.
We would also expect a certification scheme to monitor and audit the work of home inspectors to ensure that the required standards were being maintained. As I said earlier, we intend that an electronic register of all home inspectors and condition reports will be maintained and, subject to what we may say at a later stage, we think that that may well assist with that responsibility.
We envisage home inspectors maintaining an internal mechanism for responding to consumer complaints and working within a quality assurance regime. Where consumers are not satisfied by the home inspector's response to their complaint, we propose that the certification scheme should offer a consumer-friendly mediation and adjudication service that would be run independently from the scheme. None of that would oust consumers' rights to pursue through the courts any civil liability that might arise through an inspector's or another person's negligence.
We foresee any certification scheme maintaining a robust disciplinary regime that would take action against inspectors who had failed to maintain the highest possible standards, whether of competence or conduct. We anticipate that that would be backed by a range of sanctions, including the option of expelling a home inspector from membership. If expelled, the former inspector would no longer he able to gain

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access to information that he had previously held, and it would prevent him or her producing any more home condition reports.
Our research indicates that mistakes in home condition reports will occur in only a small proportion of cases and that most of the resulting claims will be for modest sums. However, any approved certification scheme must contain provision for ensuring that home inspectors have suitable indemnity insurance.
I hope that, having said all that, the noble Earl will feel somewhat more assured. As I have said on a number of occasions, we are seeking to arrive at the same point, although we are taking a different route. I think that our route, with its extra flexibility and the rigour of our checks and balances approach, will achieve the objective that the noble Earl seeks.
The Earl of Caithness: My Lords, I am grateful to the Minister but I am not more reassured. We have a major difference of opinion. He believes that he can achieve by regulations sufficient independence and the integrity required for a surveyor. I do not believe that; I do not think that it will work in practice. I do not think that any of these checks and balances will be sufficient for the consumer. They will work, but the purchaser will always be wary of a report prepared by someone in the same firm as the estate agent or solicitor.
I would certainly not advise, and would continue not to advise, any purchaser to rely on a home condition report prepared by someone in the same office as the estate agent. Whatever the regulations or the Minister say, there is far too much scope for collusion. We are trying to protect the vendor and to achieve the best price for the vendor's property. That is what we are required to do. If a surveyor and a vendor are in the same office, the market is lousy and the instructions are "Get the deal done whatever", I believe that there will be endless scope for problems.
I remember the bad housing market of eight or nine years ago. People were dropping prices. Agents were saying, "You have to drop your price". It was not necessarily in the vendor's interest but they wanted the fee. The surveyor will want the fee. The payment of fees will not wait until the sale and therefore there will be huge pressure, particularly on big firms such as Countrywide, to ensure that sales go through at whatever price just to get the fees.
Having said that, I thank the Minister for the way he has handled this group of amendments on Clause 156. I think he will agree that we have probably had a better and more constructive debate in taking them individually than trying to wrap it all up generally. It has certainly been more focused and I have received better answers as a result. I thank the Minister for that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 163D to 165 not moved.]
Clause 157 [Enforcement Authorities]:
Baroness Hanham Baroness Hanham moved Amendment No. 166:
Leave out Clause 157.
The noble Baroness said: My Lords, in moving Amendment No. 166 I shall speak also to Amendments Nos. 167 to 170, which appear also in the name of the noble Baroness Lady Hamwee.
At the previous stage we spent a rather short time on the enforcement section regarding the home condition report and the home information packs. We have concerns that the enforcement regime will be carried out by the trading standards authority and about what enforcement is envisaged.
In Committee the Minister suggested that enforcement would really be carried out only as a result of complaints. That is not what the clause states. The clause gives some pretty wide powers to trading standards officers to demand the production of documents from both the vendors and their agents and the purchasers, who might be required subsequently to produce those documents, for a reason which is not at all clear within the clauses we are debating.
The clause also introduces a penalty charge notice scheme. I notice now that the enforcement agencies seem to be running around after people on bicycles, or people who are drinking alcohol in the streets. It is involved in all sorts of other innumerable areas of penalty charge notices. I suspect that there might be more chance of getting these penalty notices paid, but it is a very strange penalty. Of course, I accept that it is a civil penalty rather than a criminal penalty, but it is an unusual form of bringing people to task.
We did not discuss in much detail the enforcement provisions in the Bill as we sat rather late. We are very concerned about the implications of what is proposed. The provisions in the Bill simply allow enforcement by the trading standards officers; that is, to go in and ask wherever they wish for such information, and that does not seem to be regulated or restricted in any way.
We come back to the question of the bureaucracy attached to this. How much will it cost? What will be the purpose behind this form of enforcement, and how and to whom will these enforcement officers report? If they are trading standards officers, will it be the responsibility of the local authority to ensure that it knows what is being carried out?
It is quite a serious interference in the lives of a private citizen. It conjures up the suggestion that every time a "for sale" sign is put up the local trading standards office will immediately be sitting waiting to pounce to see what is going on. I do not think that estate agents or those preparing the home information packs will be particularly engaged by all of that. There is no indication of whether notice has to be given by the trading standards authority of the information it needs or whether it can make a sudden sweep.
In view of the enthusiasm with which the Minister believes that the home information packs will now be greeted by all sides, how many breaches does he anticipate are likely to happen within the 40,000 sales per week? All these clauses and provisions raise far more questions than we have had time to deal with in the past. I hope that the Minister will be able to give us some satisfactory responses. I beg to move.
5.45 p.m.
Baroness Hamwee: My Lords, as the noble Baroness said, these amendments are also in my name. I thought it would be inconsistent with the points that I have made earlier, together with my noble friends, on this part of the Bill not to seek to take out the enforcement provision. I do not think we were sufficiently on the ball to have tabled an amendment to remove Schedule 8, which we probably should have done.
In wanting to see a voluntary scheme, it would have been inappropriate to accept enforcement. As I said previously, I take the view—I know that we differ from the Minister—that we do not see it as the role of the state to enforce these provisions. Trading standards officers deal with matters where in fact or at any rate potentially—I say "potentially" thinking of situations such as food poisoning or something which should not be there cropping up in a pie or whatever—a large number of consumers are affected. Here, we are talking about transactions between two people. I support the noble Baroness.
Lord Bassam of Brighton: My Lords, if we were to go along with the amendment and the other amendments in this group, it would completely deconstruct the whole enforcement regime. That is clearly what the noble Baroness seeks to do. I find that most peculiar. As to the importance of these transactions, they can be the biggest purchase people make in their lives. They have the capacity for immense impact on those involved in such transactions if they go pear-shaped. Money can be lost and there is a potential for loss of business. All that can impact on the housing market. The case for effective regulation in this sector has been long and well established. The Estate Agents Act 1979 and the Property Misdescriptions Act 1991 are already enforced by trading standards and weights and measures authorities, which have responsibilities under that legislation. That seems to sit rather ill with the comments of the noble Baronesses, Lady Hamwee and Lady Hanham.
Obviously, if we are to have a statutory scheme we need to have a system of enforcement. It is the case that trading standards officers will play a major role in enforcing the home information pack duties. They seem to be best placed to do it. They are already involved in this and currently there is a lot of experience based on their activities.
The amendments are a series of clause stand part debates rolled into one. The noble Baroness will not be surprised to hear me say that we could not possibly accept them. They would make the scheme of much less value. Support would not be provided for the scheme without a system of enforcement. It would be foolish indeed to proceed without it.
I cannot accept that this will be, as the noble Baroness. Lady Hanham, describes it, an over-zealous exercise by trading standards officers. They have discretion. They act on good principles. Those are set out for good measure in the enforcement concordat, something of which I am sure those who have been involved in local government are well aware. We shall
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be consulting with LACORS (the Local Authorities Co-ordinators of Regulatory Services) and others on the best means of ensuring that trading standards officers can provide not just enforcement but effective help and advice to consumers and those providing services.
We see the trading standards officers' role in this area very much as protecting the interests of consumers. By that obviously we mean both buyers and sellers in the marketplace. Trading standards officers rely on public support in their efforts to protect consumers. There is a natural concern among some trading standards officers that the public's perception of their work might change if they apply home information pack sanctions, in particular to private individuals.
However, we think that we can address the issue in a public information initiative describing the role of trading standards officers. Effective enforcement is very much in the public's interest. Our objective is to look after the interests of consumers. We shall continue to work with those enforcement bodies and agencies which are responsible for coordinating the enforcement activities of local authority trading standards officers.
During my time working in local government as an official, LACOTS—the body that was the predecessor to LACORS—seemed to be very effective indeed in coordination. It seemed to work extremely well in terms of the advice it gave. It was much credit to LACOTS that the concordat was brought into being. It looked at a measured means of enforcement and an approach that sought to get compliance, not just through rigorous activity in the court setting or through confrontation but through guidance and assistance and enabling people to understand exactly what was required in achieving compliance.
The noble Baroness, Lady Hanham, asked about the level of activity that we anticipate. We are working very closely with LACORS. There will be an additional £2.2 million set aside for enforcement costs. That is based on information provided by LACORS. Of course we may well need to adjust those figures as and when the details of the packs are finalised. So we are making financial provision for enforcement. The sum suggests to me a fairly modest additional element will be included, but nevertheless it is right that we try and work with LACORS to assess the impact on trading standards workloads that this provision will bring. We certainly respect that point. I cannot give the noble Baroness more precise figures. Obviously, it will depend on the operation of the market and how many properties are bought and sold in a given year. As we all know, they can fluctuate fairly wildly. There are now about 2 million sales a year; in the past there have been half that number when the market has not worked as efficiently and effectively as it currently does.
Having heard that, I hope that the noble Baroness will feel able to withdraw her amendments.
Baroness Hanham: Well, my Lords, I suppose that if you set about having a statutory scheme, you then have to try and find out about having statutory enforcement. The one route leads you to the other

819
route. It is obvious to the Minister that we are not in favour of a statutory scheme. Of course this statutory enforcement therefore falls very much within our view of Part 5 being a statutory obligation.
I note that the penalty charge notice system, which, as I have said, is creeping in all over the place, has a penalty of £500. Presumably, that is for any breach that the trading standards officers might decide has occurred—perhaps something wrong with the housing condition report or the fact that somebody had not put in a particular survey. It is very unclear. I can only assume that once again the regulations, which we are not going to be given the opportunity of seeing during the passage of this Bill or, by the sound of it, during the passage of anything else, will give an indication of likely problems that will be sussed out by the trading standards officers.
I hear the Minister's reply. I shall look at it carefully. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 158 [Power to require production of home information packs]:
[Amendment No. 167 not moved.]
Clause 159 [Penalty charge notices]:
[Amendment No. 168 not moved.]
Clause 160 [Offences relating to enforcement officers]:
[Amendment No. 169 not moved.]
Clause 161 [Right of private action]:
[Amendment No. 170 not moved.]
Clause 162 [Application of Part to sub-divided buildings]:
[Amendment No. 171 not moved.]
Clause 163 [Power to require estate agents to belong to a redress scheme]:
[Amendment No. 172 not moved.]
Clause 164 [Approval of redress schemes]:
[Amendment No. 173 not moved.]
Clause 165 [Withdrawal of approval]:
[Amendment No. 174 not moved.]
Clause 166 [Office of Fair Trading]:
[Amendment No. 175 not moved.]
Clause 167 [Grants]:
[Amendments Nos. 176 and 177 not moved.]
Baroness Hamwee Baroness Hamwee moved Amendment No. 177A:
After Clause 167, insert the following new clause—

EFFECT OF PART 5
Part 5 shall cease to have effect five years after commencement."
The noble Baroness said: My Lords, the last three amendments in this part are not ones that I want to spend time labouring over. On an earlier occasion when my noble friend and I gave the Government an indication that we were not intending to move an amendment we got a note back saying, "Please move
820
it because we have got things to say". I should hate to miss that opportunity tonight. But they really are all points that we have already touched on in the debate.
Amendment No. 177A is in effect a sunset clause providing that Part 5 will die a natural death—mourned or unmourned, who knows? after—five years. The reason for that is that compulsory provisions which do not work will, as I say, die. If they do work, we shall have new legislation. I think that that would be right because we have heard so much about how the Government intend to learn from this experiment. I do not think that "experiment" is the wrong term. So it will be new legislation with the benefit of that experience. In our view this would be second best to a voluntary arrangement. As I say, the Minister may have something to add to what the Government have already said. I beg to move.
Lord Rooker: My Lords, I say at the outset that I fully appreciate the sentiments behind Amendment No. 177A, which I suppose indicates that we are not minded to accept it. I certainly hope that the House will not accept it.
If—and there is an if—as the Government believe to be the case, a few years after the introduction of statutory home information packs everyone loves each other, the system will work like Rolls-Royces used to work. Estate agents will be loved, which they are not, of course. In terms of level of esteem, they are lower than Ministers and Members of Parliament. They are bottom of the heap. The esteem of estate agents will be raised higher than government Ministers. They will be up there with the doctors and the nurses. I never mentioned the lawyers.
Lord Phillips of Sudbury: My Lords, the Minister must distinguish between gentlemen and ladies in the other place and this esteemed assembly, where we, surely, cannot have sunk that low.
6 p.m.
Lord Rooker: My Lords, I do not know; I just remember seeing the list with government Ministers on it and we were somewhat underneath Members of Parliament.
After a few years, it will be sweetness and light. Home buyers and sellers will be convinced of the advantages of the home information pack—I am now back to my notes. Home information packs will have delivered the benefits that we are suggesting will flow from them. There will be less emotional unhappiness from deals that fall through because, hopefully, they will be severely limited—I am not saying that 100 per cent will succeed; that will never happen. Home information packs will have become an established and valued part of the home buying and selling culture.
Then comes the amendment, which means that that wonderful system will be finished because five years ago those Liberal Democrats introduced an amendment to the Bill to say that it must finish after five years, and everyone will say, "No. Please keep the system". We believe—and this will be the proof of the pudding—that the vast majority of people will learn to use the system and see the benefits of it.

821
I shall miss out the second part of my notes, except that they say that,
"in the fullness of time"—
but I cannot put a date on that—
"alternative ways will be found to minimise non-compliance to a point where the legislation can be removed".
The ultimate test would be if estate agents, conveyancers and others in the industry simply said to people who wanted to sell property, "We will not sell or market your property unless there is a home information pack. So we will not take your instructions, because the system will not work otherwise". Only at that point could we say that we did not need the legislation. But we think that we will need to keep it in place to protect the interests of consumers so, at this early stage, while we are putting the scheme together, it is best not to forecast that it will last for only five years. It may take more than five years before everyone comes to love it so much that we can do without it.
Baroness Hamwee: My Lords, about 21 years ago, our political opponents in my local authority said that pigs might fly, but we won the by-election in question, so I do not use that term. Let us hope that we achieve the state of happiness that the Minister has forecast. I think that our insurance policy is perhaps the wiser course, but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hamwee Baroness Hamwee moved Amendment No. 177B:
After Clause 167, insert the following new clause—

OPERATION OF PART 5
(1) The Secretary of State—

(a) shall not earlier than five years and not later than eight years after the commencement of Part 5 lay before both Houses of Parliament a report evaluating its operation;

(b) may thereafter by regulations amend Part 5 to provide a duty to have a home information pack (whose contents he may prescribe) and to provide it to a potential buyer on request.

(2) A statutory instrument under this section is not to be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament."
The noble Baroness said: My Lords, I am moving the amendment to enable the Minister to explain how the Government intend to evaluate the operation of Part 5 and report to Parliament on it. The amendment goes wider and of course one could suggest different time-scales, but we have touched on that less than the other parts of the amendment. I raise it so that the House can hear about that. I beg to move.
Lord Rooker: My Lords, I am happy to accede to the request of the noble Baroness and to explain the arrangements that we have in mind to monitor the operation of the voluntary phase of the home information pack initiative and, thereafter, to monitor and evaluate the effect of the statutory scheme.
Our starting point is to create the baseline. To do that, we propose in the first half of 2006 to carry out a major study into the home buying and selling process. We expect that to be as extensive as the wide-ranging
822
study we carried out in 1998. The 1998 study was the most extensive research ever undertaken into home buying and selling. It involved tracking transactions through the process in a range of property markets across England and Wales, and interviews with buyers, sellers and their professional advisers. We now need to update the baseline so that it is as authoritative as the 1998 study.
Having established the baseline, we propose to initiate with the industry a full dry run of home information packs on a voluntary basis. We propose that that will take place during the second half of 2006. As I implied earlier today, it will be a dry run of the full statutory scheme. Full details of the transactions to which the home information pack duties will and will not apply will be available. The prescribed home information pack forms will be available for use. The certification scheme for home condition reports will be set up and operational and, crucially, the register of home condition reports—to which we shall return under the previous clause—and the home inspectors will be in place.
I say that only because there is a good reason for doing what we propose to do, but neither I nor my noble friend thought that we had given a sufficiently robust explanation to the House and we need to get further and better particulars. We need that kind of arrangement to give confidence to the system, especially for the home inspectors.
We will be working closely with the industry throughout the dry run and, of course, while planning for the dry run. Together with the industry, we will be monitoring the operation of home information packs, identifying any problem areas and devising solutions. We intend to be responsive to the needs of the industry.
By the way, I do not necessarily want to pat people on the back. It is true that we have somewhat teased the noble Earl today to tell us to whom he has been talking, other than his chums, because it would be nice to know if earlier on he was actually speaking on behalf of companies. I know that there have been problems within the estate agents' profession. Most of them are professional people; I fully accept that, notwithstanding what I said earlier in a lighter mode.
I know that there has been historical opposition, and there still is in some parts, but I want to pay tribute, in particular, to Peter Bolton-King, chief executive of the National Association of Estate Agents, who has been in and out of my department and on the phone regularly, chivvying us along, pointing out things that we should be doing and generally assisting in ensuring that we are fully acquainted with the views of the estate agent profession. That will continue and probably speed up a pace as we get together to plan for the dry run.
So we want and intend to be responsive to the needs of the industry and consumers where necessary, and will make changes, if required, through regulations in preparation for introducing a statutory scheme in 2007. We have not stated a date in 2007. Our objective is to introduce it earlier rather than later, but it will not be a failure if it is not in January. We will not introduce

823
it until we are ready and have the commitments in place that I, my noble friend Lord Bassam and Ministers in the other place have given. That close liaison and monitoring will continue following the introduction of the statutory scheme.
At some point between 18 months and two years after the introduction of the statutory scheme, we propose to repeat the study of the home buying and selling process and compare the results against the findings of the 2006 baseline study. All studies will be carried out by experienced and independent researchers, commissioned in the normal way, and the results will be published.
During the whole process, the Secretary of State will be able to use the flexibility provided by the Bill to make regulations to fine tune the statutory requirements if necessary. I hope that your Lordships will agree that that adds up to an extensive programme for monitoring and evaluating both the voluntary and compulsory phases of the introduction of the home information pack. A good deal of information on the preparation for the dry run—there is quite a bit of work still to do—is provided in the letter that I provided to colleagues some time ago.
I have set out a lot of detail, but I hope that it gives a broad picture of commitments, dates and things that will happen in the voluntary period, on the introduction of the statutory scheme and, then, to follow up on the statutory scheme after a couple of years to find out if it is working in the way that we and Parliament intended.
Baroness Hamwee: My Lords, I am grateful to the Minister. Of course, this bit of Parliament still thinks that it should be a voluntary scheme, but we will come back to all that. The Minister has given the House information that we did not have before and I thank him for that. We will return to the bigger issues at the next stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Phillips of Sudbury Lord Phillips of Sudbury moved Amendment No. 177C:
After Clause 167, insert the following new clause—

PILOTING EXERCISE
The Secretary of State shall undertake a piloting exercise of home information packs lasting not less than two years and shall publish a full analysis of it."
The noble Lord said: My Lords, I wish to speak to this amendment on behalf of my noble friends. The Government have implicitly accepted that hitherto there has been a serious lack of sufficient research and evidence to underpin this massive change in transacting properties. The 11 October dossier, if I can so refer to the Minister's helpful cache of papers that he circulated on that date—I shall not call it a "dodgy dossier"; it was helpful—showed clearly that, although there have been lots of bits of research, there is a serious lack of major in-depth research of some of the issues upon which, let us face it, the whole Bill is posited.
In 2000–01, the Suffolk and North Essex Law Society conducted in-depth research among all its members. I gave the results to the noble Lord,
824
Lord Whitty, when he was responsible for the Bill that fell prior to the previous election. I shall make it my job to give the noble Lords, Lord Rooker and Lord Bassam, a copy of it now, because it still seems the most current and in-depth work done on the issue. In summary, the outcome of the long exercise was that the solicitors in the frontline have serious concerns about some of the assumptions underlying the Bill. I refer, for example, to the upfront costs—the Minister was talking yesterday about around £600; to the impact on the number of properties coming forward for sale, questioning the 15 per cent figure that the Minister produced; and to information on the real causes of breakdown of transaction, an issue that underlies all the legislation. The whole House is grateful for the open-mindedness that Ministers have expressed on this crucial aspect of the Bill over the past couple of days. We will return to what was said by the noble Lord, Lord Rooker, last night at cols. 708 and 710 of Hansard.
I would like briefly to justify this amendment, which deals with the pilot. In the first place, the timing seems to have one serious defect. I do not expect a studied response now, as Ministers will want to consider the matter. Everything is fine up to the end of 2006: there is a half-year in which to set things out, consult widely and get the scheme up and running in principle. The six-month trial concludes at the end of 2006. Yesterday the Minister said that he hoped that the national compulsory scheme would be launched in January or, at the latest, April. I am worried that, if that dry run is as fulsome and effective as the House wants it to be, evaluating it will take time. Getting in the results and making a proper, considered and studied evaluation could take three months, especially as some of the key stakeholders will need to be consulted on the results that the Government draw from the exercise.
The Government will then need to begin the very difficult exercise of deciding what changes by secondary legislation they want to make to take advantage of the dry run—there is no point in doing it unless that is the outcome. I do not doubt the sincerity of what the noble Lord, Lord Rooker, has said today, but the proof of the efficacy of the dry run will be in the amendments that the Government bring forward. I ask the Minister to reiterate what today was a more open-minded approach than last night regarding the crucial last phase and its timing. Even if it takes nine months to do it properly, the importance and stretch of the scheme is so great that we ought to do it.
6.15 p.m.
The amendment is headed "Piloting exercise"; it is also a pilot amendment, as we will need to consider the Minister's response and decide whether to table a more fully fleshed amendment at Third Reading. There should be a compulsory dry run in one part of the United Kingdom. It is an odd pilot that is comparable with the scheme that will be imposed nationally except in the most striking particular: the compulsoriness. The odd thing is that the dry run that the Minister talks about rather conforms to our view that the scheme

825
should be voluntary, as the pilot will be voluntary. There is an innate paradox about having a voluntary pilot when we are to have a compulsory scheme.
The Minister will forgive me if I say that I was not too impressed by what he said on the issue. He said:
"The industry is running the scheme".
We do not like that. We do not like the thought that HBOS and Countrywide are running the scheme. They may be bona fide, decent businesses but they should not be running the scheme. He added:
"A lot of investment is required. I gave a figure for one particular firm"—
I think that that was HBOS or Countrywide—
"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".
I accept that, but we have at least 18 months before the pilot starts. I do not believe that it is beyond the wit of government to arrange for one county to be in a position to have a compulsory scheme with the necessary training and accreditation by then. Finally, the Minister said:
"People will not invest on that national scale just for a pilot".—[Official Report, 19/10/04: col. 710.]
If the Government are committed to going national and compulsory—by then, the Act would be in force—and if they are open-minded and genuine in saying that as a result of the pilot they will make amendments, I do not think that whoever the Minister was talking about will be in any doubt that the exercise is just a pilot or a prelude to a national scheme. I am sorry to have laboured the point, but we believe that the way in which the dry run is set up and its aftermath put to the test all our concerns about the Bill. As we have already said, we want the Bill to succeed.
I do not ask the Minister to respond to my final question immediately. It seems that a lot of unease about just how the scheme will work could be resolved if the Government were prepared to set up a working group to advise them on setting up, running and evaluating the dry run. Far from being anything for the Government to worry about, it would strengthen and legitimise the exercise. With those thoughts, I look forward to hearing what the Minister and others say. I beg to move.
The Earl of Caithness: My Lords, I support the noble Lord, Lord Phillips. He said that it was not beyond the wit of government to get a county to do a proper dry run in advance of legislation. I thoroughly support him on that. If the legislation is on the statute book, regardless of whether some estate agents and lawyers dislike it, they will implement it because that is their job.
The Minister told us yesterday, as reported at col. 695 of Hansard, that HBOS and Countrywide support the home information packs because it is to their commercial advantage so to do. They will be very keen to do a dry run because during that period they will iron out any difficulties, giving them a commercial advantage over other practices not operating within the county that is the subject of the project proposed
826
by the noble Lord, Lord Phillips. If that works, they will stand to gain hugely on a national basis. If what we are talking about is helping mortgage-lenders, solicitors and estate agents to make money, they will be very keen to take part in a dry run.
Lord Rooker: My Lords, perhaps I may say at the outset that the intentions of the amendment generate a good deal of sympathy among Ministers, both in this House and in the other place. I do not deny that it would be incredibly helpful if we could carry out the envisaged pilot on a county or regional basis in a way that would demonstrate the effectiveness or, indeed, the lack of effectiveness of our proposals. It would he helpful to do it on a 100 per cent basis because that is how it will have to work.
Last year, Keith Hill, the Minister of State for Housing and Planning, reviewed with the industry and consumer representatives a whole range of options for piloting home information packs. It is not as though we have not discussed going down that road. The Select Committee in the other place suggested that there should be a pilot testing before home information packs are introduced nationally. The conclusion, which I should stress was the unanimous view of the industry, was that voluntary local pilots simply could not replicate the compulsory national scheme.
We discussed that in some detail with representatives from the Law Society, the Royal Institution of Chartered Surveyors, the National Association of Estate Agents, the Council of Mortgage Lenders, the Council for Licensed Conveyancers and the Consumers' Association. It was their unanimous view that the introduction of home information packs was best carried out across England and Wales from a single date and that this was one of those issues where a "big bang" approach was the best option.
I am not knocking this idea. But I am still of the view that I expressed last night that everyone would have to play ball, including buyers, sellers and so on. There are a number of reasons for that. The Consumers' Association kept reminding my ministerial colleagues that the home information packs will generate a change in culture. There is no question about that. Therefore, it would be difficult to do that on a local pilot.
Another more practical issue arising as far as the industry is concerned is that many if not most or all lenders have national systems for processing mortgages. They will not operate two systems—one for the pilot area and another for the rest of the country. From what I understand, they simply will not undertake what would be from their point of view substantial investment adapting their valuation processes to incorporate home condition reports for a pilot.
Similarly, the employment, training and regulation of the home inspectors has to be organised on a national basis. Of course, that requires some major investment, which will not happen for a pilot.
There is another practical issue that it would be useful to test during the dry run. More than 60 per cent of dwellings are in chains, which is part of the problem in

827
this country. Chains of transactions will extend beyond local and even regional boundaries. I have not used this argument and I would not accept it in the department as an argument for not doing a pilot. When I was the day-to-day Minister before Keith Hill on this issue, I made it clear that that was not the argument.Wherever boundaries are drawn on a pilot, there will always be people crossing them.
The more practical issues relating to the regulation of employment, the lenders and the financial arrangements are against us doing a pilot. As I say, transactions will go over boundaries, but that would not be the main argument. However, even in a long chain, a single property dropping out of the chain would completely destroy that aspect of the pilot. There is a problem because of the chains involved, which is why, in our view, it has to be compulsory.
However, no one is arguing that it means that piloting is a waste of time. It still has a very important role in testing the mechanics and obtaining people's views. Recently, we used piloting to good effect with the technical and consumer testing of the latest format for the home condition report. So there is work going on on that basis, but not in terms of piloting the whole system.
We are not inventing the wheel. We are learning from the ever-growing number of home information pack initiatives springing up around the country. There is a growth in this issue on a voluntary basis. Of course, we can learn from that experience. So we fully recognise that a "big bang" introduction in England and Wales carries risks.
The management board of the ODPM has discussed this from a management point of view. This is one of those issues on which members of the board have got to keep their eye on the ball, from the Permanent Secretary downwards. If it is a big success, the whole team will share the credit. If it is a failure, we Ministers will carry the can. That is our responsibility. There will be no sharing of blame.
But the management board knows that this carries significant risks. As I have said before, there are 40,000 properties marketed every week: that carries significant risks. Therefore, we have to get it right. That is why we will not introduce it until we are satisfied that we can do it.
Our programme management arrangements, which will involve all the key players, are designed to deal with those risks and to minimise them. We intend to lay the regulations prescribing the contents of the home information packs towards the end of next summer, which is some time from now. We will have about 18 months in which to develop and test the systems and procedures.
We are planning the dry run of the packs in 2006, which will test the full home information pack process. We are confident that it will pave the way for a successful introduction from 2007. We think that the dry run is the best means of testing the packs. I can assure your Lordships that if problems are highlighted
828
that would put at risk the successful implementation, we will lose no time in introducing the necessary regulations. We will also monitor the position closely.
When I met a large group of officials earlier today to discuss aspects of this, I said—this is for the record—that everything we say here in this Chamber, whether it is said by my noble friend Lord Bassam or myself, or the Ministers in the other place, which is recorded in Hansard, has got to be carried out by our successor Ministers and officials on the dates outlined. As I have just said, we are talking about a four-year programme for monitoring post-introduction from 2007. I have spoken about monitoring for 18 months to two years after that, so we are talking about 2008–09.
I will give way in a minute. We are but transient holders of office, but we are affecting people's lives with what we are saying. We will make it absolutely clear that our commitments—some are in Hansard; they will not necessarily all be in the regulations, but we will obviously bring forward the regulations—have to be carried through because it is on that basis that we are taking the legislation through Parliament. Now, if the noble Lord, Lord Hanningfield, wants to have his little joke, I will give way.
Lord Hanningfield: My Lords, I hope that the Minister will not hold Conservative Ministers responsible after the next general election when they would be implementing it.
Lord Rooker: My Lords, I certainly am. Parliament will have passed the legislation. It will be being carried through. The Conservatives would have a duty to carry it through to the best of their ability, if that is the case, unless, of course, legislation is passed to pull the plug. That would be their decision. One Parliament cannot bind another. I fully accept that. I make no bones about that. I am not saying that it does.
The fact is that what has been planned here, by definition, will span more than one Parliament. That is obvious because I have talked about 2007 and an assessment 18 months to two years after that. Woe betide anyone who interferes and upsets people at the rate of 40,000 families a week. As I say, this is a high-risk strategy, so these issues have to be taken fully into account.
I hope that having put enough heads on the block, in that sense, the noble Baroness will not pursue her amendment.
6.30 p.m.
Baroness Hamwee: My Lords, this was intended to be a compulsory pilot. I make that point now because, even though almost everything the Minister said would apply in the case of a compulsory pilot rather than a voluntary one, he was talking about voluntary pilots. He may want to add something.
Lord Rooker: My Lords, I do not. We are planning, in effect, a voluntary pilot. The noble Lord, Lord Phillips, said that it was a paradox that he was calling for something to be done on a compulsory basis to test

829
what they wanted to be done voluntarily. This is because of the chains. If the Liberal Democrats get nothing else out of the debate on Part 5, they will have accepted that, because of the chains, if it is to work it will have to be done on a compulsory basis. That is why they have put forward a compulsory pilot for a voluntary system. Only the Liberal Democrats could argue that. I leave the noble Baroness to defend it.
Baroness Hamwee: My Lords, I have to. When I suggested a number of amendments to my noble friend I said that we would be teased about some of them being inconsistent. We can put up with that because we want to explore the different ways of approaching the issue. Although we have been laughing about it, it is a serious point. We were trying to explore an alternative way of making sure that ultimately we get a system that works properly. I shall now leave it to my noble friend.
Lord Phillips of Sudbury: My Lords, it is worth repeating that on these Benches—I do not think it is any different on any other Benches—we believe that if we are going to have this scheme we need to make it work as well as it can. That is common ground.
I am grateful to the Minister for his long response to the amendment. His excuse for not having a compulsory pilot in one region or county was that the big boys did not want to gear up because they would have to change all their systems if there was a compulsory pilot in, say, Northamptonshire. I think that is a summary of what he said. That points to a completely failed pilot. If they are not going to change their systems in order to accommodate the new regime, they will not do so for a voluntary scheme. We will then have the worst of all worlds. We will have a bum pilot on the basis of which we will reach bum conclusions.
Lord Rooker: My Lords, that is why we need Parliament to put the regulations in place before the dry run. In other words, the legislation is already there; what is not there is the start date. Everything else is in place.
I expect the big boys to have changed their financial systems for the dry run; that is part of the planning process for the next 18 months. However, because we would not have the legal authority, we cannot force the buyers and sellers to be 100 per cent compliant. It is to be hoped that, with the co-operation of the estate agents and all the professionals involved, we will encourage as many buyers and sellers as possible—or, in this case, as many sellers as possible.
That is why I said last night that if we could find an area in which all the estate agents and everyone else involved would say, "In this area we want to market only properties for this dry run, to test it out for everyone's benefit", that would be fine—but it would have to be on a voluntary basis.
Business will change its procedures provided Parliament has put the regulations in place, which we will have done. We will not have given the final blast on the horn to start, which will come on a date in 2007.
Lord Phillips of Sudbury: My Lords, this is becoming a discussion. I should like to talk to the Minister about
830
the issue after today because I believe that there is still a contradiction. The Minister is saying that Parliament will put the regulations in place. We will then have a voluntary scheme, but the big boys will not want to gear up and change their systems and so on. On that basis, they simply will not operate the voluntary scheme.
Lord Rooker: My Lords, they have said they will.
Lord Phillips of Sudbury: My Lords, if they have said they will, why the heck can we not have a voluntary scheme in one county? To say that Parliament cannot require that as part of a pilot is not true. We could decide that the Minister should have the power through regulation or statutory instrument to nominate a particular area as an area within which there will be a compulsory pilot. That would leave the rest of the nation with a voluntary pilot—so it would not disturb what the Government are contemplating—and give us the precious advantage of having one part of the country where you are not guessing what the difference will be when you sound the second horn and the whole thing becomes compulsory. I do not think it is undoable.
However, we are not going to satisfy each other on this issue across the Chamber. Accordingly, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 168 [Interpretation of Part 5]:
[Amendment No. 178 not moved.]
Clause 169 [Index of defined expressions: Part 5]:
[Amendment No. 179 not moved.]
Clause 176 [Repayment of discount: periods and amounts applicable]:
[Amendment No. 179A not moved.]
[Amendment No. 179B not moved.]
Clause 179 [Right of first refusal for landlord etc]:
[Amendment No. 179C not moved.]
Clause 180 [Information to help tenants decide whether to exercise right to buy etc.]:
Lord Hanningfield Lord Hanningfield moved Amendment No. 179D:
Page 131, line 35, after "tenants," insert—
"including an initial one-off delivery of it to all existing secure tenants."
The noble Lord said: My Lords, it is time we moved on. Amendments Nos. 179D and 179E would simply bring greater clarity and transparency to the process of informing a tenant of his or her rights under the right to buy.
It would appear sensible that a tenant on completion of a tenancy agreement be provided with such information, as is the intent of Amendment No. 179D. Amendment No. 179E would furthermore ensure that there was a one-off delivery of such information to all existing tenants.
The Minister commented in Committee that his department was consulting on how landlords could most effectively inform their tenants about the right-to-buy scheme. He then went on to mention that the thoughts of his department were along the lines of the

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amendments we had tabled. That is why we are tabling them again today, in the hope and expectation that he will accept them. I beg to move.
Lord Rooker: My Lords, Clause 180 supplements the existing duty placed on landlords by Section 104 of the Housing Act 1985 to provide information about the terms of their secure tenancies and the landlord's repair obligation. It also places a duty to provide information in respect of right to buy. Clause 180 also requires landlords to supply information to tenants on the responsibilities and consequences of being a homeowner. The aim is to help them to decide whether to exercise their right to buy.
The Secretary of State and the National Assembly for Wales have consulted separately on what information should be provided and when. The vast majority of responses supported the proposal.
The amendment was also tabled in Committee. It would specify that the information must be provided at certain specified times to secure tenants. However, it would pre-empt the power given to the Secretary of State by new Section 121B of the Housing Act 1985, which is inserted by Clause 180(1). This allows the Secretary of State to provide in an order when the information shall be published and supplied by landlords. The power will be exercised in respect of Wales by the National Assembly for Wales, and a power was taken so that different provision could be made in respect of each jurisdiction.
As I said to the noble Lord in Committee, the Secretary of State's proposals for England are similar to those in the amendment. In consulting stakeholders we stated that we envisaged specifying that landlords must provide the specified information to their existing tenants as soon as is reasonably practicable after Clause 180 comes into effect; to all new secure tenants as soon as they take up their tenancy; and, thereafter, once every five years or whenever substantive changes are made to, for example, the right-to-buy scheme, the home buying and selling process or the regime for service charges payable by leaseholders.
We are currently considering the responses to our consultation paper, but I can assure the noble Lord that we do not envisage that the final details will differ significantly from those envisaged in the consultation. I hope the noble Lord finds that response helpful.
Lord Hanningfield: I thank the noble Lord for that response. Although he did not accept the amendment, the effect of what he said will implement what I was suggesting. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 179E not moved.]
Lord Avebury Lord Avebury moved Amendment No. 180:
After Clause 186, insert the following new clause—

PROVISION OF ADEQUATE AND SUITABLE ACCOMMODATION FOR GYPSIES AND TRAVELLERS
(1) It shall be the duty of every local authority, being a district council, the council of a metropolitan district or London borough, or unitary authority, to facilitate the provision by Gypsies and
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Travellers or by registered social landlords of adequate and suitable accommodation to meet the needs of Gypsies and Travellers residing in or resorting to their area, and to exercise their powers under section 24 of the Caravan Sites and Control of Development Act 1960 (c. 62) (power of local authorities to provide sites for caravans) so far as may be necessary to provide sites for Gypsies and Travellers who in the opinion of the designated authority are not able to meet their own needs once the provisions of the Planning and Compulsory Purchase Act 2004 (c. 5) have come into effect.
(2) Where it appears to a local authority that any other authority could, by taking any specified action, help in the discharge of their duty under subsection (1), they may request the help of that other authority specifying the action in question.
(3) An authority whose help is so requested under subsection (2) shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions.
(4) The Secretary of State may, if at any time it appears to him to be necessary to do so, give directions to any local authority to which subsection (1) applies requiring them to provide, or facilitate the provision by Gypsies and Travellers or by registered social landlords of, pursuant to subsection (1), such sites or additional sites, for the accommodation of such numbers of caravans, as may be specified in the directions; and any such directions shall be enforceable, on the application of the Secretary of State, by mandatory order.
(5) In subsection (1) "accommodation" includes temporary stopping places as well as permanent accommodation, and "designated authority" means any authority designated by the Secretary of State and in subsection (3) "other authority" means any local authority, including a county council, district council, the council of a metropolitan district or London borough or unitary authority.
(6) Section 24 of the Caravan Sites and Control of Development Act 1960 (c. 62) is amended as follows.
(7) In subsection (2)(c), for "gipsies" substitute "Gypsies and Travellers".
(8) In subsection (8) for "gipsies" substitute the following definition—
"Gypsies and Travellers" has the meaning given by regulations made by the appropriate national authority."
The noble Lord said: My Lords, before I speak to these amendments, I would like to thank the Minister very much for the meeting that we had on Monday with him and with his colleague, Mr Keith Hill, the Minister of State for Housing and Planning, and also for the meeting we had the previous week with the department's officials. It was useful in elucidating some of the government amendments that we are considering in this group.
As far as Amendment No. 180 is concerned, we have always acknowledged that the majority of Gypsies and Travellers would like to develop their own sites and have the capacity to do so if the land is made available to them through the planning system. We also accept that the Planning and Compulsory Purchase Act 2004, together with the integration of Gypsies and Travellers' needs into local authority housing needs assessments from 2005 onwards, provides the framework to ensure that from 2006, site-specific planning policies will start to mature.
The Gypsies who want to look after their own accommodation needs should then be able to go the local authority to find out where land has been designated as suitable for Gypsy sites, buy the land and develop their own sites without all the hassle of appeals and confrontation, which is the common experience at the moment.
So far, so good. Of the caravans on unauthorised sites last January, 2,000 were on unauthorised developments. It is assumed that all the people living in the caravans on those sites would move on to the land which is now to be designated as appropriate for Gypsy sites. However, there remains to be solved the problem of how to persuade those people when it means that, having already forked out the money for the land that they are occupying and for the development of that land, they will now have to spend the same amount of money, or perhaps even more, on developing a second site on the land that has been allocated by the local authority.
Has the ODPM given any thought to the idea of the land swap, which was mentioned briefly on the previous occasion? It would enable these families at least to escape paying more for the second piece of land than they receive from selling the first. That may be seen in some quarters as compensating people who broke the planning laws, but they would have done so only because, at the time, it was the only alternative to moving from one roadside to the next every few weeks. It is in the public interest, moreover, to encourage the return of land to a conforming use, particularly in the green belt. Thirdly, it would help to avoid the human disaster and expense which occurs every time there is an eviction where families could not afford to abandon their investment and start again.
Sonic thought must also be given to the unrecorded number of caravans for which short-term planning permission has been granted for up to two years. We understand that that practice has been fairly common recently. Is the ODPM looking at the problem and, if it does not have the figures, will it consult those who have, particularly Dr Donald Kenrick? As I mentioned on the previous occasion, he makes it his business to look carefully at the numbers of people who are granted planning permission of different kinds for Gypsy sites and the number of people who are refused permission.
Here again, as I mentioned before, in the end the local authorities will have to make up their mind whether to allow these sites to become permanent. If not, what arrangements can be made for Gypsies to move on to the land now to be allocated? Will that be dealt with in the guidance which is shortly to be issued on how to extend the housing needs assessment to incorporate the accommodation needs of Gypsies and Travellers? We greatly welcome the government amendment in this group which gives effect to the undertakings on incorporating the needs of Gypsies and Travellers in the housing needs assessment.
There remains the problem of the 1,600 caravans on the roadside. That number has remained obstinately stable since 1997, as the written evidence of the ODPM to the Select Committee shows. It is common ground between us that as far as possible, registered social landlords should be enlisted to provide sites for Gypsies and Travellers who cannot look after their own needs. Many if not most of the families in those caravans probably fall into that category.
The RSLs are also in the frame to rehouse the people living on local authority sites which are in unacceptable locations such as under motorways or next to sewage
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works. In its written evidence to the Select Committee, the ODPM lists 62 that are definitely in that category, but says that half the 324 sites under local authority management suffer from problems associated with adjoining land or activities to some extent. If only a quarter of those people have to be relocated, that is another 1,500 caravans that have to be dealt with by the RSLs under the new scheme.
6.45 p.m.
We had a seminar in this building organised by the Novas Group to launch its Travellers Charter. The founder and chief executive, Mr Michael Wake, confirmed what I said in Committee—that is, Novas is now the only RSL providing accommodation for Gypsies and Travellers, managing nine sites, ranging from five to 31 pitches in London and the south-east. It does not know of any other RSL which is coming forward, although I understand that the ODPM has had discussions with others. It would be interesting if the Minister could tell us something about the extent of contributions it is thought that the other RSLs could make.
There is a controversial scheme in Oxfordshire where the sites, formerly managed by the county council, have been put out to external contractors without any previous consultation with residents. I hope and expect that that will not set a pattern.
It will take some time for RSLs to build up relationships with the Gypsy and Traveller communities. There may well be some parts of England where, for logistic or other practical reasons, no RSL will want to provide services. Amendment No. 180 would provide that local authorities have a fallback responsibility in those cases.
If the Government are correct in thinking that the vast majority of Gypsies will look after themselves and that RSLs will accommodate just the negligible remainder, there will be nothing for local authorities to do under the new clause. But while we agree the principle that Gypsy and Traveller needs should be mainstreamed in the housing and planning systems, there is manifestly a huge difference between those communities and the rest of the population when it comes to accommodation. For the Gorgios, rented flats and houses are provided by a large variety of private landlords including many RSLs. For Gypsies and Travellers, there is no rented accommodation because pitches are held under licence, an inherently inferior form of tenure, and in any one local authority area there is generally only one landlord. It is not a classic free market where an excess demand attracts further supply, because it is not profitable. The misguided attempt by the DWP to apply rent controls to local authority Gypsy site landlords just at the moment when local authorities will be looking to hand over their sites to RSLs is absurd.
The noble Lord, Lord Bassam, repeated the ODPM line that when local authorities had a duty under the 1968 Act, unauthorised encampments fell by only 1 per cent. So let me give the figures published by the ODPM's predecessor at the time, which I gave in writing to the Minister, Mr Keith Hill. A fairer test is to see what happened during the final years of the Act's

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operation when the 100 per cent grant was in force and the Government were beginning to use the powers of enforcement in Section 9 of the 1968 Act.
Taking the 11 years from 1986 to 1997—bearing in mind that following the repeal in the Criminal Justice and Public Order Act 1994, some sites were still in the pipeline—the number of caravans on unauthorised sites fell from 3,804 to 2,591, a drop of 32 per cent not 1 per cent—while the number of pitches on local authority sites increased from 4,766 to 6,324, an increase of 33 per cent. As a matter of simple arithmetic, if the Act had continued in force and local authorities had gone on constructing sites at the same rate, there would have been 1,467 more pitches on local authority sites now and by next year there would have been enough to accommodate all the families at present camping on the roadside. I hope that the Minister will not argue the case against this amendment as he has done on previous occasions by trying to rubbish the 1968 Act.
In any case, what happened under that Act is irrelevant to this proposal. As we have said repeatedly both in correspondence and in the House, we are not seeking to restore the 1968 Act or anything remotely approaching it, nor are the Government saying that local authorities should never construct sites. The power still exists in the Caravan Sites and Control of Development Act 1960 and if the funding were available, some local authorities would undoubtedly use it. Once the land becomes available and RSLs get going, the proposed new duty would come into play only when there was no other way of preventing homelessness in the area. Under Section 3(1)(b) of the Homelessness Act 2002, the local housing authority already has the duty of,
"securing that sufficient accommodation is and will be made available for people in their district who may … become homeless".
It is difficult to imagine, if there are no other providers available, how the authority can discharge this duty other than itself providing a site under the 1960 Act. We hope that the circumstances would be rare, but unless the Minister can say that they would never happen, it would be reckless and irresponsible not to provide the safety net of this new clause.
Amendment No. 181 relates to security of tenure. There is no difference in principle between us and the Government and we know that they are working hard to ensure that, whatever solution is adopted, it is in full conformity with the judgment of the European Court of Human Rights in the case of Connors, the details of which I summarised in the important debate on 16 September.
The noble Lord, Lord Bassam, said that a great deal of further consideration had to be given to bringing Gypsies more into line with social housing in this respect and that that could not be done within the time scale of the Bill. However, the Government have had six months to respond to the Connors judgment and have to give an answer by 29 November.
Government Amendments Nos. 185 and 186 go some way towards the objective, but it would be useful to know what further work is under way in the ODPM and whether the Government are intending to discuss the matter with representatives of the Gypsy and Traveller communities. The Minister indicated that the Government had not yet got as far as putting any proposals to the Law Commission, which I understand is to be asked to consider the problem as part of its general review of the law on tenure. When they do get that far, will they publish the proposals so that others can contribute to the debate? Are they satisfied that, with the interim measures in the amendments now to be considered and the promise of a more thorough review, we will have done enough to satisfy the European Court next month? Will the Minister say something about the possible timing of the Law Commission's report and when it might lead to legislation giving effect to its recommendations?
We did some further thinking after the previous debate and we came up with the modified version of the "protected sites" amendment that we discussed at that time which sought to bring Gypsies and Travellers into line with people living on sites covered by the Mobile Homes Act 1983. I acknowledged that part of our amendment was unnecessary because, as the noble Lord, Lord Bassam, said, it had already been achieved in Clause 186. We also reluctantly disapplied the succession rights that Gypsies would have if the whole of the 1983 Act regime were applied to them, because that was one of the grounds used by the Minister for turning down our proposal, not because we did not think that Gypsies should enjoy the same rights as other mobile home residents. I beg to move.
Baroness Whitaker: My Lords, I would like to apologise for missing the first two minutes of the speech made by the noble Lord, Lord Avebury. An unexpected turn of speed in the progress of the Bill took me by surprise. I support all the amendments in this group and would like to welcome most warmly those of my noble friend. They show that the Government take the deprivation of Gypsies and Travellers seriously, and are proposing, perhaps more than any government hitherto, measures which go far to make a proper framework to redress the unequal life chances and violations of human rights experienced by our Gypsy and Traveller communities.
But there are still a few bits of the jigsaw to be done. I shall speak to Amendment No. 182, which would confer commensurate consideration—equal treatment—by housing authorities in providing accommodation for homeless Gypsies or Travellers as for any other homeless person. This is, of course, not identical treatment. It is treatment, i.e. the provision of suitable accommodation, which meets their need.
The amendment would implement the ruling in Price v Camarthenshire County Council that local authorities dealing with a homelessness application from a Gypsy or a Traveller must consider,
"how best to facilitate the Gypsy way of life".

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I should emphasise that the amendment is not intended to provide a long-term solution to the shortage of sites, which is the concern of other amendments in this group, but simply to oblige housing authorities to provide suitable accommodation for homeless Gypsies and Travellers in priority need. There will inevitably be some, even after the new dispensation. At present about 20 per cent are homeless. And over 70 per cent of councils with unauthorised camps do not mention them in their homelessness strategy.
"Suitable" will be defined by the authorities—following the Price judgment—and so will "Gypsies and Travellers". It would be right for full consideration and consultation to be given to the definition, so we do not essay a hasty one here.
I should just reassure my noble friend Lord Bassam, who expressed anxiety in Committee that broadening the definition of accommodation as the amendment does could have the unintended consequence of making every reference—some 1,000—to housing and accommodation also cover Gypsy and Traveller sites. This amendment only changes the definition of accommodation in Part VII of the Housing Act 1996 covering homelessness. Its consequence is thus entirely specific and intended.
I add in conclusion that I also welcome the Government undertaking to expand the role of the Housing Corporation as set out in Committee, and ask my noble friend to set out for the record how this will be done and if not in the Act, when.
Baroness Turner of Camden: My Lords, I would also like to support the amendment. My noble friends on the Front Bench will not be surprised that what one could describe as the usual Peers are once again raising the issue of support for Travellers and Gypsy families. I am delighted that the Government have tabled some amendments and I wait to hear what the Minister has to say about them because he will be aware that the main problem that has followed us for a long time is the lack of suitable sites.
The lack of suitable sites is responsible for the fact that children of Travellers often do not have proper access to healthcare or education. For a long time I was a member of the council of Save the Children and we constantly had before us the whole issue of Travellers and Gypsy children who we thought were not being properly looked after because of the lack of suitable sites. The Government are clearly seized of the problem and the intention of the amendments is to ensure that suitable sites are provided and that local authorities perform their duty of care in relation to these families. I support these amendments. I think that this is a very good initiative on the part of all concerned.
Baroness Hanham: My Lords, I just want to raise one small aspect of this amendment that I think I touched on briefly when we discussed it last time. The availability of sites is absolutely crucial to the introduction of these amendments to the Bill. In my previous days as leader of the council in Kensington and Chelsea, I recall the extremely difficult problem
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that we had under the caravans Act of finding a site in inner London for Gypsies. We resolved it—although perhaps not entirely satisfactorily—in conjunction with another inner London local authority. My concern is that the amendment places a very heavy onus on the London boroughs.
I dare say that it is not just London boroughs that will suffer—it is possible that metropolitan areas will, too—when there is a complete lack of suitable land for either temporary or permanent sites for Travellers. I am sure that the mover of the amendment will shrug and say, "Well, she would say that, wouldn't she?", but any spare land in inner London at the moment is not only extraordinarily expensive but is probably brownfield land which may or may not be contaminated. It is certainly land for which the Deputy Prime Minister will have aspirations as regards permanent housing. I am very alarmed that the onus is so strong on the boroughs and that the proposal would create an absolute duty.
7 p.m.
I appreciate that subsection (2) of the proposed new clause says that local authorities can work with other local authorities to fulfil the duty. However, I am bound to say that the only local authorities with which one would be able to work would be outer London or out of London authorities. That is not the burden of the amendment. Has the noble Lord, Lord Avebury, given any consideration to that problem?
I am bound to say that the caravans Act was amended in the past to deal with that problem. Now here we are, rolling ourselves in again to the same stresses and strains that were put on everybody, not least the Travellers, over the requirement for inner London authorities in particular to produce those sites. I am also bound to say that I do not know where the sites are. That is not really a question to the Minister but a question to the mover of the amendment, and I would be grateful for a response.
Lord Bassam of Brighton: My Lords, I am grateful that I have been let off having to answer a question. It makes a pleasant change.
I start by congratulating the noble Lord, Lord Avebury, and the noble Baroness, Lady Whitaker, on their persistence. I am drawn to conclude from this debate and others not only on this Bill but on the Planning and Compulsory Purchase Bill and others that my noble friend Lord Rooker and I have been involved with over the past few years that we are making some genuine progress in tackling some of the issues for Gypsies and Travellers. It makes a welcome change from the rather grim picture that used to confront me periodically when I led my local authority, when we had no powers and little jurisdiction to deal with a lot of the issues for Gypsies and Travellers. I was a recipient of fairly regular visits from Gypsy and Traveller groups into the borough, when there were no facilities that could easily be provided. We were surrounded by other local authorities that were fairly hostile to providing some strategy and way in which to cope with problems associated with Gypsy and Traveller groups.

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We are now in a much happier position and are approaching the matter stage by stage and step by step. It may be worth reminding ourselves that while we are moving amendments today that have been broadly seen as helpful, the ODPM itself continues to carry out its review of Gypsy and Traveller policy, so that progress can be made in matching their needs and aspirations and ensuring a more comfortable fit between those aspirations and those of host communities.
I shall deal with the amendments in turn, before speaking to the government amendments. Amendment No. 180 is designed to facilitate the provision of Gypsy and Traveller sites by registered social landlords and Gypsies and Travellers themselves. We had a long discussion on this issue in Committee, and I made it clear that it was not our favoured option, which is still the case. We want to see progress made in a rather different way, which is why we have approached the matter by trying to mainstream Gypsy and Traveller issues within the wider housing and planning systems. That is recognised as being the way forward.
As a consequence of our amendments, in future the needs of Gypsies and Travellers will have a more strategic and accountable approach put in place. Land for sites and a fair sharing of responsibilities, which was certainly one of the issues that I had to deal with, will be delivered through the new planning system. The revision of Planning Circular 1/94 will provide greater clarity on planning permission issues. Registered social landlords are being brought into the market as providers. I heard what the noble Lord, Lord Avebury, said on that point. It is worth saying that we recognise that there will be a difficulty in seeking to develop more interest among registered social landlords. We know that that is a challenge, but we are talking with potential RSLs in the field. We must work away at the matter, as it is not something that can be easily solved, although I wish that were the case.
I am confident that these and other changes that we are making will lead to the increases in provision, although I heard what the noble Baroness, Lady Hanham, said. There is a particular difficulty in inner urban areas—I have seen that for myself. It is right that we try to create a situation in which local authorities work constructively together, rather than what has happened in the past, whereby—I am afraid to say—Gypsy and Traveller groups have been pushed from one local authority area to another by using enforcement powers to evict them.
I am grateful to those who have been involved in the discussions on the amendments. The noble Lord, Lord Avebury, asked some other questions in moving Amendment No. 180. He asked about land swaps. There are problems here because of the differential in costs. However, we are of the opinion that it is up to local authorities to decide how to proceed, and if there is to be good co-operation, it is up to the local authorities to sort that out for themselves. We do not need legislation to do that; in fact I would suggest that this is an area in which voluntary agreements and arrangements are best developed.
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The noble Lord also asked about needs assessments for Gypsies and Travellers. We shall issue detailed guidance on our strategy and shall consult widely; we are happy to consider a range of issues, and will contact experts in the field. No doubt the noble Baroness, Lady Whitaker, and the noble Lord, Lord Avebury, will make available their expertise in this field, which we greatly welcome. We expect local authorities, in exercising their consideration of Gypsies and Travellers, to evaluate sites carefully and determine those that are unsuitable. We appreciate the point often made about Gypsy and Traveller groups being forced onto the margins and not having access to good facilities on the land that has often, in the past, been made available to them.
Amendment No. 181 would widen the definition of protected site in the Mobile Homes Act 1983 to include local authority-owned and/or managed Gypsy and Traveller sites. That would bring the status of those occupying local authority sites into line with those occupying park home sites. That is something that we debated in Committee. We do not believe that that change is the right way forward; we accept that tenure on those sites is inconsistent with mainstream social housing—perhaps the nearest comparator—and with private sites, but we are fully committed to a careful consideration of how the problem could be resolved. To move in the wrong direction in the short term will not offer a solution.
Subsection (2) of the amendment seeks to get round one of the problems that I identified in Committee—that occupation could be assigned to others. However, we do not see that as being the only problem. The balance of rights and responsibilities between landlord and resident is crucial in enabling proper management of sites and proper protection of residents. One cannot simply lift a regime from one situation and impose it on another, which is different in terms of landlords, residents and management issues. There needs to be more proper and thorough consideration of who might be affected by the changes and how they would be affected. So any changes that are made could have very major and long-lasting consequences. We prefer the approach of getting it right rather than doing it quickly.
The noble Lord, in moving the amendment, asked a question about the Law Commission which was also asked at an earlier stage. The Law Commission has not been asked to look at tenure issues for Gypsies and Travellers. Rather, we want to review the site security issue in the context of that work. The Law Commission tells us that we will have a draft Bill early next year. It is then up to Ministers to decide how to proceed. We are also considering the security of tenure issue in the policy review being conducted of Gypsy and Traveller issues.
We will respond to the Council of Ministers on Connors v UK in November. We think that the government amendments will go some way to meeting the concerns raised in that judgment.
Amendment No. 182 seeks to amend Part VII of the Housing Act 1996 so that every reference to "accommodation" is taken to include accommodation

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to meet the needs of Gypsies and Travellers. I fully understand the aim of the amendment—to ensure that the particular accommodation needs of homeless Gypsies and Travellers are taken into account by local housing authorities—but we do not think that the amendment is necessary. Section 175 of the 1996 Act already provides that a person—including a Gypsy or Traveller—who has a caravan but nowhere lawful to place it and live in it is homeless.
Moreover, Section 206 of the 1996 Act also provides that where a duty to secure accommodation is owed to an applicant, the authority can discharge the duty only by securing accommodation that is suitable for the applicant and their household. So we feel that that is already a requirement in legislation.
The noble Baroness raised the issue of expanding the role of RSLs. It is our intention to extend the permissible purposes of RSLs by secondary legislation to allow them to provide managed Gypsy and Traveller sites. We have not yet set a time-frame on that, but we hope to act on it early in the new year.
I should like now to speak to the government amendments in this group and explain their effects.
Amendment No. 185 addresses the anomaly that county council-owned sites that provide accommodation for Gypsies are not protected sites under Part 1 of the Caravan Sites Act 1968 whereas other local authority residential sites are. This amendment will ensure that county council Gypsy sites fall within the definition of protected sites in Section 1 of the 1968 Act. The amendment will also ensure that security of tenure for those occupying county council sites is the same as that for those occupying other residential sites; that is, that possession can be obtained only by seeking a court order.
Amendment No. 186 will have a very important effect. Section 4 of the Caravan Sites Act 1968 already gives discretion to the courts to suspend eviction orders made in respect of most privately owned caravan sites, but until now that discretion has not been available for eviction orders made in respect of local authority-owned sites, including Gypsy and Traveller sites. The new clause amends Section 4(6) to remove the limit on the discretion in that subsection so that judicial discretion will in future be available in respect of eviction orders relating to local authority sites.
7.15 p.m.
Amendments Nos. 215, 216, 239 and 243 are aimed at mainstreaming the accommodation needs of Gypsies and Travellers, provision that has already been welcomed in the debate. Amendment No. 215 will require local housing authorities to take a strategic approach to assessing and meeting the accommodation needs of Gypsies and Travellers, as we are very concerned to do. Local housing authorities already have duties to assess the housing need of their population and to prepare strategies. We want to make it clear that that extends also to Traveller and Gypsy groups and communities. The amendment also requires local authorities to take the needs of Gypsies and Travellers into account when
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exercising their other functions including planning, education and social care as well as housing functions. So it has that beneficial effect as well.
The definition of "Gypsies and Travellers" is one on which we want to consult further. As such, we have allowed for a regulation-making power to allow us to consult on the definition. Regulations will also allow for the possibility of the definition to change over time if necessary.
Amendment No. 216 allows the Secretary of State to issue guidance on carrying out needs assessments in preparation of housing strategies for both Gypsies and Travellers. Amendment No. 243 allows the National Assembly for Wales to have separate commencement powers in respect of the above.
Amendment No. 239 amends the section of the Local Government Act 2003 covering housing strategies to ensure that the definition of housing includes Gypsies and Travellers.
The two other amendments in this group, Amendments Nos. 240 and 244, are minor and technical. Amendment No. 240 provides the commencement date, and Amendment No. 244 provides a minor and technical amendment to the Long Title of the Housing Bill.
I hope that that package not only meets some of the concerns of noble Lords who have been particularly enthusiastic in pushing housing and related issues for Gypsies and Travellers, but endears itself to all Members of your Lordships' House.
Lord Avebury: My Lords, we very much welcome the Minister's explanation of the government amendments. Having had previous discussions with him and with the officials, I think I can say on behalf of the movers of our amendments that we very warmly welcome what the Government have done.
We also warmly welcome the context in which the amendments have been proposed—the package which the Minister described, including the long-term policy review that began at the end of last year, the results of which we had hoped to receive by now. The Minister, Mr Keith Hill, said that they would be available by the end of the summer. The icy winds are whistling round Westminster and the leaves are falling, but the clocks have stopped and summer has not yet ended at the ODPM.
We look forward to the results of that policy review, particularly when parts of it dovetail so closely in with the rest of the strategy being followed: the Planning and Compulsory Purchase Act, which for the first time creates a framework in which adequate land will be available for Gypsy sites; the revision of Circular 1/94 to create an interim regime in which we hope planning permissions will be more readily awarded by local authorities; and the review of security of tenure, in relation to which we are grateful to the Minister for giving us more details on timing.
I had understood that the Law Commission might complete its review by the beginning of next year, but not that it would have produced a draft Bill as part of that. If I understood the Minister aright, the Law Commission will produce the final answer to the

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Connors judgment in the European Court as part of that strategy. I hope that he will satisfy the European Court that this is an adequate answer to the judgment when he comes to make a reply on 29 November.
I cannot, however, avoid expressing a certain amount of disappointment that, after all this time and the many discussions we have had, the ODPM still has not understood what we were trying to do in Amendment No. 180; that is, to provide them with a fall-back solution to the problem that will arise if the RSLs do not come forward in sufficient numbers or with sufficient energy to deal with the very large problem which we have agreed exists—not only the 1,600 Gypsies who are on the roadside, but, as I said, those who are on the 62 sites enumerated by the ODPM in its written evidence to the Select Committee, which all sides have acknowledged to be totally unsuitable because they are next to sewage works, on the motorways or in locations of that kind. The Minister did not respond to my invitation to tell your Lordships what will happen with those 62 sites. Will they be closed and will the inhabitants of those sites be candidates for the new ones that are to be provided by the RSLs according to their scheme?
However, I think that we have taken this matter as far as we can. I shall not undertake on behalf of my noble friends that we shall not consider with our advisers between now and the next stage and perhaps bring forward some modified suggestions. However, for the present I again thank the ODPM for all the work that it has done so far.
I have not responded to the noble Baroness, Lady Hanham. I saw her getting to her feet and that reminded me. I do not think that she listened to my speech. I have said on more than one occasion that we do not propose a return to the 1968 Act duty and that therefore although, as she said, there were particular difficulties in meeting the targets set under the 1968 Act for the London boroughs, that is not the issue at the moment. I also think that the noble Baroness did not read the Mayor of London's letter of 11 October that was sent to her in which he sets out a policy for London which goes a long way towards what we are asking for. I shall not read out the whole letter as I am sure that it is in the noble Baroness's in-tray. However, I shall read one out one paragraph which states:
"I have undertaken to investigate the feasibility, depending on the availability of data, of setting targets for site provision for Gypsies and Travellers in London to form part of the next review of the London Plan in 2006. In the meantime I will ensure that the accommodation needs of Gypsies and Travellers are considered for the unitary development plans, and now local development frameworks, of London boroughs in the context of the existing London plan".
The noble Baroness might like to have a discussion with the Mayor and see what contribution she can make to the success of the plan which he has announced and which makes it clear that London is not exempt from the responsibility for the provision of accommodation for Gypsies and Travellers that applies to the rest of the country.
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Obviously, we agree that there is greater difficulty in metropolitan areas and in London to make this contribution but we very much welcome the Mayor's undertaking that these matters will be fully considered in the plans of the local authorities within the metropolis. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 181 and 182 not moved]
Baroness Wilkins Baroness Wilkins moved Amendment No. 183:
After Clause 186, insert the following new clause—

ACCESSIBLE ACCOMMODATION FOR DISABLED PEOPLE
(1) The Housing Act 1996 (c. 52) is amended as follows.
(2) After section 167(2E), insert—
"(2F) Regulations may make provision as to how the scheme is to ensure that disabled people in housing need—

(a) receive timely and accessible information about existing or planned accessible or easily adaptable residential properties in the local authority area including the details of the access features, based on common definitions, relating to each property; and

(b) are given reasonable preference in relation to such properties.""

The noble Baroness said: My Lords, I shall be very brief. Amendment No. 183 has the same objective as the disabled housing service amendment moved at Committee stage, but it has been amended to address the Minister's concerns. Does the Minister agree that these core elements of a disabled housing service set out in this amendment are entirely compatible with choice-based letting; indeed, that they are vital if best use is to be made of accessible housing stock and disabled people's needs are to be met? Does he also agree that the cost of establishing these elements of a disabled housing service are far outweighed by the long-term cost savings that accrue to the local authority and the NHS? I hope that he will give a positive reply.
The current statutory framework does little to encourage the development of disabled housing services and, indeed, in many ways mitigates against it. It does not reflect this Government's strong commitment to removing barriers for disabled people. The requirement to meet access needs is not made explicit. I know that the Minister shares my concern and I hope that he is able to announce some positive steps forward in that direction. I beg to move.
Baroness Darcy de Knayth: My Lords, I would like to give very strong but very brief support to my noble friend. We had a very helpful meeting with Keith Hill yesterday and I look forward to what the Minister is going to say. My only regret concerns the amendment that I moved on these lines at col. 1410 of Hansard in Committee to insert a mention of access needs in addition to medical needs, which would raise the profile of the social model of disability, which I think is important. Further, there have been instances where adapted dwellings have been allocated to someone with a medical need who did not need the access facilities. I did not want to put that amendment down

845
after such a helpful meeting yesterday but I am chewing the matter over and I give notice now that I just might bring it back at Third Reading, so I would love Ministers to address that thought.
Baroness Maddock: My Lords, I support very much the amendment moved by the noble Baroness, Lady Wilkins, and supported by the noble Baroness, Lady Darcy de Knayth. There are compelling reasons why we should support the measure. We know that such provision is working in some cities. There is strong evidence that it is not incompatible with choice-based lettings. That has been made quite clear. Therefore. I hope that the Minister will be able to satisfy the noble Baroness who so ably moved the amendment.
Lord Rooker: My Lords, I have a long brief in response to the amendment which I have been busy editing and chopping down. However, I am not prepared to curtail my response to this amendment concerning disability after the House has just spent 45 minutes discussing Gypsies and Travellers on an issue that, by and large, the Government had conceded and on which they had brought forward a pile of amendments. It is unfair to the three noble Baronesses who have spoken on the amendment to curtail my response to a 10-minute period, and I shall not do so. I propose to set out the detail as I have some important points to make.
The proposed Amendment No. 183 is different in detail but clearly has the same purpose as Amendment No. 228 which we debated in Committee on 16 September. In that debate my noble friend Lord Bassam gave a commitment that we would be happy to reflect on the comments made during the debate to see what more could be done.
We have given this further consideration. As we said during the debate on that amendment, the Government are fully committed to ensuring that people with disabilities are housed appropriately and that they receive the right level of priority for housing which meets their needs. We are also committed to ensuring that we make the best use of our accessible housing stock. However, we remain unconvinced that it is either necessary or appropriate to introduce legislation to achieve this. Having said that, the Government do accept that there is ample scope for strengthening the statutory code of guidance on allocations which we provide to local housing authorities and we are certainly prepared to give a commitment today that we will do this. I will return to that matter.
The new Amendment No. 183 would give a power to provide by regulations how local housing authorities can ensure—through their allocation schemes—that disabled people receive timely and accessible information on existing or planned accessible or easily adaptable residential properties in the local authority area, with details of the access features relating to each property. Believe you me, I know the value of that having been a Member of the other place and having torn my hair out, along with my
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constituents in Birmingham, trying to locate people with regard to dwellings that I knew had been adapted. Getting access to that information was not easy.
While I appreciate that information about the stock of accessible housing is useful, we believe that it is more important that disabled people in housing need know about suitable accessible property which is actually available for them to rent. We believe that the key lies in social landlords adopting lettings schemes which offer tenants more of a say in choosing where they live. Such choice-based lettings schemes operate by openly and widely advertising available vacant properties. Under a choice-based lettings approach landlords can ensure that vacancies which are advertised are properly labelled as to the type and level of adaptations, so that those with disabilities can select appropriate housing at the time it is available to let. We think this is the best way to make sure, as far as possible, that disabled people are matched to suitable housing.
I recognise that some people with disabilities may need additional assistance or support to take part in a choice-based lettings scheme. They may need someone to advise them about the properties to bid for or assistance to visit the properties. They may need longer to consider an offer of accommodation for all the reasons that are self-evident. It is also important that information which is published, including property adverts, should be in accessible formats. A lot of good practice is being developed by social landlords who have implemented choice-based lettings schemes. We will ensure that it is shared, through guidance, with other local authorities and housing associations. That is another commitment that we are happy to make today.
7.30 p.m.
The amendment would also ensure, through regulations, that allocation schemes in fact gave reasonable preference to disabled people in housing need in relation to accessible and easily adaptable properties. The allocation legislation already provides that people who have a medical or welfare need to move should be given reasonable preference for an allocation. That can include people with needs arising from disabilities or particular access requirements, which means that they must be allocated housing that meets their needs. We do not think it necessary to spell that out in legislation. In the same way, we do not think that the legislation should draw a distinction between medical and access needs. Indeed, it would be counterproductive to do so. However, we recognise that the matter is something else which we should be able to address through statutory guidance. The current allocations code is silent on the subject of access needs.
We are happy to give a commitment to consider, in consultation with the Disability Rights Commission and other interested parties, what more we can do to strengthen the statutory guidance to ensure that disabled people are housed appropriately, and to make better use of properties which have been designed or

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adapted for disabled people. Although statutory guidance does not have the same force as legislation or regulations—there is no doubt about that—local authorities must have due regard to such guidance in exercising their statutory functions. They can be challenged if they do not take account of such guidance, or if they wilfully refuse to take account of it or ignore it. The benefits of statutory guidance are that it can be fully consulted on, and that it is more flexible, as one can cut corners. It can also be revised as circumstances change.
That is a fairly inadequate reply, and I have gone through it much too fast. However, I am more than happy to answer any further questions relating to it before we adjourn for dinner.
Baroness Wilkins: My Lords, I am extremely grateful to the Minister for making those commitments to strengthen the guidance. There is a slight niggle about the fact that we would like to see access in the legislation, to show that it is moving with the times.
Lord Rooker: My Lords, we take the matter seriously. It has gone into the Planning and Compulsory Purchase Act 2004. There is a serious intent to deliver on it in substance, in a practical way that helps people with disabilities.
Baroness Wilkins: My Lords, I thank the Minister. He made the point that there was no distinction between medical and access needs, but access is different. I am most grateful to him for his reply, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Legal Services Complaints Commissioner (Maximum Penalty) Order 2004
7.34 p.m.
Lord Evans of Temple Guiting Lord Evans of Temple Guiting rose to move, That the draft order laid before the House on 8 July be approved [26th Report from the Joint Committee].
The noble Lord said: My Lords, I will give the House a little explanation on the background to why the order is necessary. In September last year, we announced our intention to appoint a Legal Services Complaints Commissioner to ensure that the Law Society of England and Wales improved its complaint-handling services for members of the public. We took the decision that we could no longer stand by and do nothing while consumers were let down, after the society had been asked repeatedly since 1999 to deliver substantive improvements in its handling of
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complaints. We wrote to the society 13 times between July 1999 and March 2003 asking for improvements in the handling of complaints. Each year, the society agreed that it had failed to meet the targets set. Despite those numerous requests and, it must be said, the efforts of the Law Society, the handling of complaints failed to improve sufficiently.
Getting the handling of complaints right is of critical importance, as the solicitor's role as the conduit between the public and the legal system is vital, but it will continue to work effectively only if the society can ensure that its services are carried out to a high standard. Despite all the society's efforts, by last September it still had not met the required standards. Therefore, we appointed the LSCC to ensure that, in future, it does.
The Government and the Law Society agree that customer service must come first. The LSCC's role is to ensure that the society is as good as its word and actually delivers good customer service. The role was provided for in the Access to Justice Act 1999 and has been taken on by Ms Zahida Manzoor, the Legal Services Ombudsman. In her role as ombudsman, Ms Manzoor has unique knowledge of the handling of complaints in the area and has been able to engage speedily with the society on how it intends to improve its services. The LSCC's role is a challenging one. She has to drive the society to improve its performance at handling complaints, while not undermining its role as the independent regulator.
To ensure that the LSCC has the right tools to assist her in her task, we have granted her a range of suitable powers, to be directed at the society. She can require the society to provide information about the handling of complaints; conduct investigations; make recommendations; set targets; and require the society to submit a plan showing how it is going to handle complaints, for her approval. It is the society's intention, with the LSCC's help, to secure the necessary improvements in its handling of complaints, so that the public get the high standards that they are entitled to expect.
We want to ensure that the society will not let down its customers again. A customer complaint unresolved is bad publicity for all solicitors, and we cannot stand by and let poor performance in one area bring down the standing of the whole profession. Therefore, if the society fails to submit to the LSCC a plan which she considers adequate, and/or submits an adequate plan but fails to handle complaints in accordance with it, the legislation provides for the LSCC to levy a penalty fine on the society. However, before the LSCC can levy a fine of any amount, Parliament has to specify the maximum amount of the fine.
The purpose of the debate is, therefore, to seek the House's approval that the maximum penalty should be the lesser of 1 per cent of a body's annual income and £1 million. We arrived at that arrangement by taking into account the key points—first, sending the message that failure to handle complaints properly is a serious matter warranting a significant penalty, and, secondly, identifying a formula that would be applicable to all

849
the professional bodies that could come under the remit of the LSCC if they also fail to handle complaints properly.
To ensure that the proposal was reasonable, we researched fining practices in other regulatory regimes. We asked the LSCC for her views, and then consulted all the legal services professional bodies. The professional bodies and the LSCC all agree that the arrangement is reasonable.
Let me be absolutely clear: the LSCC does not expect to fine the Law Society the maximum amount unless it completely fails to make appropriate efforts to handle complaints properly. Indeed, we hope that the LSCC will not find it necessary to fine the Law Society at all, but she has the power to levy a fine of a suitable amount if appropriate. That will act as an incentive to the society to improve its performance, and act as a deterrent should the society consider further reducing its efforts. We believe that the consumers have a right to expect an effective and efficient service from their legal professionals and this is why we are doing everything we can to help achieve this.
To ensure success, however, the LSCC needs all of the relevant tools at her disposal. As I have explained, the power to fine the Law Society is a key among these tools. I ask noble Lords, therefore, to approve the regulations and I beg to move.
Moved, That the draft regulations laid before the House on 8 July be approved [26th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)
Lord Henley: My Lords, I congratulate the noble Lord on moving these orders in the absence of his noble and learned friend the Lord Chancellor. He did so with admirable brevity; almost quicker than his colleague, Mr David Lammy, in another place. These matters have been through another place and there are few extra points I want to put to the Minister that were not dealt with there. It would be unwise to waste too much time in this House.
Will the noble Lord say a little more about how the Government arrived at the figure of £1 million or 1 per cent, whichever is the lesser? How long has the Legal Services Complaints Commissioner been without a penalty? In other words, when was she appointed? I assume that she will have the power to issue a penalty as soon as this legislation comes into effect. What appeal process is there for the Law Society, for example, if it feels it has been fined too much?
I want to make one point on the parent Act, the Access to Justice Act 1999, in relation to our discussions on the Constitutional Reform Bill last Monday. I made the point to the noble Baroness, Lady Ashton, that I was worried about the way in which the ombudsman was dealt with in that Bill. The ombudsman was announced at Clause 53. Clause 53 indicated that Clause 13 would deal with him. Clause 13 contained nothing about his functions, and one had to go to Clauses 82 to 86.
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I want to make a point which the noble Lord can take back to the noble Baroness, Lady Ashton, who can take it back to the noble and learned Lord the Lord Chancellor. The drafting used back in 1999—we simply had Sections 51 and 52 plus a schedule—was a much more felicitous way of dealing with the matter. Perhaps that can be taken on board when the Government are drafting further pieces of legislation creating such commissioners or ombudsmen.
Lord Thomas of Gresford: My Lords, I declare an interest as a former solicitor and a member of the Law Society.
We support these regulations for purely practical reasons. There seems to be an attitude that there are two species of humanity; lawyers and everyone else. The determination seems to be to introduce lay people to control the profession in every possible way. It is sad that the Government are adopting such a negative view of the Law Society and its works at this time and that the commissioner feels that a big stick has to be waved over it.
The Minister gave us an idea of the situation in 2003 when it was decided to introduce the penalty. However, as the response of the Law Society to the consultation paper on the review of the regulation of legal services in England and Wales, dated June 2004, points out in paragraphs C.6 to C.8, there has been a significant improvement in what was an unsatisfactory situation. The number of complaints since June 2003 has been less than the number of cases closed. The overall number of cases in progress as at June 2004 had fallen by 1,000 and the number of cases closed was 40 per cent higher than in the corresponding period in 2003.
Again, the average proportion of cases referred to the Legal Services Ombudsman by dissatisfied complainants was 8 per cent and that has fallen to 6 per cent. The society's compliance board, which oversees complaints handling, contains 50 per cent lay membership.
I hope that that is accepted by the Government and that the Minister will acknowledge that the Law Society is still required to act as an independent regulator of private practice. It is a strange paradox that the Government appear to want the widening of the provision of legal services from a highly regulated professional body, the Law Society, to less self-regulating bodies which are guided by a different ethos. Surely, monitoring of these lesser bodies will be more difficult.
One therefore wonders whether this is a genuine attempt to protect the customer, or the consumer, or an attempt to apply pressure on the profession to justify the widening process, which goes on all the time, of extending the provision of legal services to more bodies.
The profession is burdened by the control of non-lawyers who are supposed to represent the public, as if lawyers themselves were not members of the public; as if they were removed to a different planet from the public whom they serve. We support the introduction of these regulations, but it is a sad day that they are being brought forward in this way.
7.45 p.m.
Lord Evans of Temple Guiting: My Lords, I am grateful to both noble Lords who have contributed to this short debate. I thank the noble Lord, Lord Henley, for his kind remarks. In reply to his questions, when we set the figure of £1 million or 1 per cent of turnover we wanted to arrive at an amount that would send out a clear message to the society that failing to handle complaints properly was serious. We looked at other regulatory regimes and took into account that the Law Society and other professional bodies that may come under the LSCC's remit are not the profit-making organisations. We took on board the views of the professional bodies and the LSCC itself. The formula I have outlined was agreed by all those bodies.
The Secretary of State announced in a press release dated 26 September 2003 his intention to appoint an LSCC. The LSCC was appointed on 26 February 2004. The noble Lord, Lord Henley, asked whether there is an appeals mechanism if the Law Society wants to appeal against fines at any level. The LSCC has been asked to introduce an appeals mechanism in accordance with the Better Regulation Task Force recommendation to independent regulators made to government in February 2004. There is obviously available the option of judicial review.
I agree with a point made by the noble Lord, Lord Thomas of Gresford. I have sat in this Chamber listening to many debates thinking that there are lawyers and the rest of us. I was concerned that in speaking to the order I would receive the response that the Government are being unfair to the Law Society. When looking at the facts, we see that we are not being unfair. We are genuinely trying to protect the consumer. The Government have been put in a position in which they have had to take this action.
The noble Lord read out some encouraging statistics, but let me give him some that are not so encouraging. From June 1999 to December 2000, the Law Society met only two of the five targets set in agreement with it. They failed therefore on three. In 2001, it met 10 out of 15 targets, and between January and December 2002 it met five out of 12 targets. In the most recent example that I have for January to December 2003—let us not forget that these were set in agreement with the Law Society—it achieved only two out of the 14 targets.
There is a great deal of evidence that the Government have done all that they can to obtain compliance from the Law Society but, in the face of this rather dismal record of problems, they have had to take this action and that is why this order is before your Lordships. I commend it to the House.
On Question, Motion agreed to.

Legal Services Ombudsman (Extension of Remit) Regulations 2004
7.50 p.m.
Lord Evans of Temple Guiting Lord Evans of Temple Guiting rose to move, That the draft regulations laid before the House on 15 July be approved [26th Report from the Joint Committee].
The noble Lord said: My Lords, these draft regulations implement provisions contained in Section 26 of the Courts and Legal Services Act 1990. The regulations extend the remit of the Legal Services Ombudsman, allowing her to oversee complaints handling in respect of probate services provided by members of bodies authorised by the Secretary of State for Constitutional Affairs. As a result, they will provide an additional layer of protection for consumers who purchase probate services from authorised bodies.
The draft regulations will allow the functions of the Legal Services Ombudsman, as set out in Sections 21 to 25 of the 1990 Act, to apply in cases where probate services have been provided for a fee by a member of an authorised body under Section 55 of the 1990 Act.
If the House approves these draft regulations, and once further negative regulations have been laid to open the probate market to new providers, the Legal Services Ombudsman will be able to investigate the way in which a complaint regarding probate was dealt with by the authorised body. If she is dissatisfied with the way in which the complaint was addressed, she may then require the body to reconsider that complaint.
To ensure that suitable legislative protections are in place for consumers before approved bodies begin to offer services in this area, these draft regulations have been laid prior to laying further regulations that will open the probate market to new providers.
As your Lordships know, when a person dies, it is necessary for someone to deal with his or her estate. By "estate", I refer to the money, property and possessions left by the deceased. That person is responsible for collecting in all moneys, paying any debts and distributing what is left to the people legally entitled to it. In order for a person, or persons, to obtain the required authority to do that, they usually need to obtain a legal document, called a grant of representation, from the Probate Registry. The grant of representation will be either a grant of probate or a grant of letters of administration. I refer to all those when I talk about probate services.
Currently, only a solicitor, a barrister or a duly certified notary public, most of whom are already qualified solicitors, are able to take instructions or to draft or prepare the papers on which a grant of probate or letters of administration depend. Section 23 of the Solicitors Act 1974 makes it an offence for anyone else to prepare these papers for payment.
In his report, Competition in professions, published in March 2001, the Director-General of Fair Trading suggested that consideration should he given to

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implementing Sections 54 and 55 of the Courts and Legal Services Act 1990. Implementing Section 54 would allow banks, building societies, insurance and trust companies to prepare the grant of probate or letters of administration for a fee. Implementing Section 55 would allow bodies authorised by the Secretary of State to provide those papers for a fee.
It was considered that doing so would increase competition in the market by allowing a greater number of providers to offer these services for a fee. The recommendation does not apply to individuals conducting their own applications for probate as they may already do so unhindered by the Solicitors Act.
The Government accepted the recommendation to increase competition in this area and announced their decision in July 2003 in the report, Competition and Regulation in the Legal Services Market, published by the Department for Constitutional Affairs.
The provisions of the 1990 Act require that new providers of probate services must be members of a complaints-handling scheme and satisfy any requirements of the Secretary of State with respect to complaints handling. As a result, before any new providers may charge members of the public for offering probate services, they must demonstrate to the Secretary of State that they belong to a complaints-handling scheme and have their own complaints-handling mechanisms in place.
However, in addition to ensuring that new providers have a suitable complaints-handling scheme, the 1990 Act also provides that the Legal Services Ombudsman may oversee complaints handling by the bodies authorised by the Secretary of State under Section 55. Her powers are contained in Section 26 of the 1990 Act.
In preparing these regulations, the Legal Services Ombudsman has been consulted. She has confirmed that she is content for them to go ahead.
As noble Lords will see, the draft regulations apply only to bodies seeking authorisation under Section 55 of the 1990 Act. They do not apply to banks, building societies, insurance and trust companies under Section 54. The reason for that is that the Legal Services Ombudsman does not have jurisdiction over the financial institutions specified in Section 54.
As there would be no equivalent oversight for financial institutions, the Government have decided that it is not in the public interest to move ahead with implementation of Section 54. That decision has been taken after consultation with the Law Society and the Legal Services Ombudsman.
In the mean time, it remains the Government's intention to implement Section 55 by the end of the year in order to allow bodies authorised by the Secretary of State to provide probate services for a fee. A statutory instrument will commence Section 55. That will go some way to removing the competition barrier identified by the Office of Fair Trading, while ensuring that the necessary consumer safeguards are in place. I beg to move.
Moved, That the draft regulations laid before the House on 15 July be approved [26th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)
Lord Henley: My Lords, again, the Official Opposition do not oppose these regulations and we consider their substance to be uncontentious.
As regards any delay that there has been in implementing the provisions of the 1990 Act, it seems to me that both sides can share the blame equally. It has been 14 years since the Act was passed, for seven of which we were in office, and it is seven years since the noble Lord's party came to office. However, as I understand it, there has not in fact been a delay because it was not until July 2003 that the Director-General of Fair Trading made the report that encouraged the Government to bring forward this measure, and the Government then made the decision to do so. As I said, we welcome that.
I have only one brief question. I think that the noble Lord answered it but I probably did not hear him. Do I understand that further regulations, of both an affirmative and negative nature, will have to be brought into effect before this measure comes into operation? At what stage will the Government consider extending it and bringing Section 54 into effect, or will we have to wait until the appropriate mechanism is in place for complaints handling within the banks and financial services? Having said that, and as I said earlier, we have no intention of opposing these regulations.
Lord Thomas of Gresford: My Lords, I am not surprised that the noble Lord, Lord Henley, is not opposing the regulations. They emanate from an Act in 1990 which was passed at the height of pro-market and anti-professional Thatcherism. As this Government have now embraced Thatcherism to the point that the Prime Minister was yesterday described as a "neo-con" by an American right-wing thinker, it is perhaps appropriate that they go along those lines.
Obviously it is practical to extend the remit of the Legal Services Ombudsman. Therefore, I do not oppose the measure, but I regret that it is deemed desirable to widen the provision of legal services to non-lawyers in the name of competition, as though each firm of solicitors throughout the country is not in competition with all the others. There are no fixed fees, and the provision of legal services between firms is highly competitive, from the point of view of both fees and efficiency. Lawyers have always competed among themselves.
There is possibly a case for licensed conveyancers because the transactions that they govern on the conveyancing of a house are immediate and are immediately under the oversight of the client. But probate is a very different sort of animal. Probate is a service which deals with the administration of large assets and possible trust funds. It deals with people who are bereaved and weakened and there is undoubtedly potential for fraud. It has happened in the past that solicitors have been found guilty of fraud in this field.

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A new body, which is less qualified and less well regulated may not be in the public interest. This is a precursor to the extension of probate services to non-professional bodies. I can only hope that the procedures set out in Schedule 9 to the 1990 Act are rigorous enough to ensure that standards are kept. I think we can expect to see aggressive marketing of probate services, as we have in other spheres, aimed at the most vulnerable, and competing no doubt on afternoon television with stair lifts and walk-in baths and the like, just as happened with the competition for ambulance chasers. Fortunately, many of the firms who adopted that particular way of earning a living have gone into liquidation.
I note that only Section 55 of the Act is affected. Section 54, which relates to banks and insurance companies, must surely await the outcome of the Clementi report. I did not have much to do with probate as a solicitor in my youth, but I wondered at the way in which banks could charge for administering small estates when the local solicitors would not have charged anything at all. This is just another way in which banks and insurance companies are going to make a lot of money.
Lord Henley: My Lords, before the noble Lord sits down, he seemed to think that this is ultimately a Thatcherite measure. I wonder whether he was speaking for his own party or whether Mr David Heath was in another place on 13 October 2004 at the Fifth Standing Committee on Delegated Legislation when he said:
"I have no problem with the regulations, which appear to enact provisions in the correct order, for once".
Lord Thomas of Gresford: My Lords, I think I made clear that we have no problem with the regulations if they are the precursor to the widening of the provision of legal services. It was the provision of legal services by non-professional bodies to which I addressed my criticism.
Lord Evans of Temple Guiting: My Lords, I thank the two noble Lords for their contribution to this discussion. I am particularly grateful to the noble Lord, Lord Henley, for sharing the blame. I accept that seven years on our side and seven years on their side, here we are. There will be further regulations, but this is by way of affirmative resolution. The rest will be by way of negative resolution.
What are the next steps, particularly in relation to Section 54? Obviously further statutory instruments will be required to open up the probate market while ensuring that suitable complaints handling mechanisms are in place. These statutory instruments will open up the market to new providers and allow the Council of Licensed Conveyancers to offer probate services by commencing Sections 53 and 55 and Schedule 9 of the Courts and Legal Services Act 1990 and also to prescribe the requirements of the complaints handling scheme with which the person seeking exemption under Section 55 must comply.
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It is likely—this answers a point raised by the noble Lord, Lord Thomas of Gresford—that we shall want to await the publication of the Clementi report before again considering the question of allocating to banks and building societies the right to offer probate services.
The noble Lord, Lord Thomas of Gresford, had a few things to say and he said them. They seemed to centre around the fact that here is a legal profession which is rather anxious not to allow other organisations in to provide those services, presumably to the detriment perhaps of certain solicitors.
Lord Thomas of Gresford: My Lords, perhaps I may respectfully interrupt the Minister. My concern is not for solicitors but for the consumer and the protection of the consumer, and for the protection of assets and estates where a person has died.
Lord Evans of Temple Guiting: My Lords, yes, but the presumption is that solicitors are the only people qualified to offer that service. Our argument would be that other professional bodies are able to do that very successfully. The noble Lord must take on board the fact that we were responding to a suggestion by the Director-General of Fair Trading. This was not a government initiative plucked out of the air; it was an absolute response to a person and an organisation for which I think all noble Lords have great respect.
There is little more for me to say. I commend the regulations to the House.
On Question, Motion agreed to.

Roads (Amendment) (Northern Ireland) Order 2004
8.6 p.m.
Baroness Amos Baroness Amos rose to move, That the draft order laid before the House on 7 September be approved.
The noble Baroness said: My Lords, the purpose of this order is to streamline the statutory procedures relating to the development of major road schemes in Northern Ireland. The order contains only three articles. Its intention is to streamline the statutory procedures relating to the development of major road schemes in Northern Ireland.
Under current Northern Ireland legislation the Department for Regional Development may be required to hold up to three separate public inquiries into different aspects of any major roads proposal. These would cover environmental impact, direction or designation orders relating to the line or type of road proposed, and vesting orders which relate to the compulsory acquisition of land.
The provision contained in the order would allow the department, where practicable, to take all three strands of the statutory procedures concurrently as part of a single inquiry process. At the same time, the rights of the public to object to a proposed road scheme would not be diminished. Indeed, the new procedures present

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a more user-friendly system as objectors will be able to present a single case incorporating all of their objections to the inspector on one occasion.
This provision, if enacted, would significantly streamline the statutory procedures in Northern Ireland, thereby allowing the Roads Service to commence construction of major road improvement schemes more quickly, subject to the availability of the necessary funding.
In developing this proposal the department has consulted extensively with MLAs, district councils, other government departments, various other bodies and members of the public. The views expressed have been considered and, where appropriate, taken on board. The proposal enjoys widespread support in Northern Ireland. I commend the draft order to the House. I beg to move.
Moved, That the draft order laid before the House on 7 September be approved.—(Baroness Amos.)
Lord Glentoran: My Lords, I thank the noble Baroness for bringing the order before the House tonight. It certainly would appear to me to be a practical and helpful order. I only hope that perhaps something as simple and straightforward as this could happen to the Planning Service in Northern Ireland, which would make all our lives considerably easier and save a huge amount of money, and perhaps even a lot of lost jobs.
I also note in the notes to the order that 180 individual groups were circulated and that there were only 19 responses. The noble Baroness will remember that not long ago I wrote to her asking about the amount of money that was spent by consultants in the name of government consultation. I wonder how many more of those consultations have responses similar to this. I give notice that this is a line that, until we get devolved government again, I shall want to hound the Government on a little bit, to improve the way that this process is carried out.
Having said that, I believe that this is a step in the right direction. I ask the noble Baroness to reassure me that adequate appeal processes will still be available to those who appear to be wronged. I see the noble Baroness looking towards the Box. I actually asked them this morning whether that was going to happen and was reassured, but I should be grateful if that response came from the Dispatch Box. Other than that, I support the amendment.
Lord Smith of Clifton: My Lords, I, too, thank the noble Baroness the Lord President of the Council for introducing the order. It is to be hoped that it will reduce bureaucracy and time delays but without reducing opportunities for objections from the public. Like the noble Lord, Lord Glentoran, I ask the Minister for that reassurance. We trust that this will be the happy result.
Lord Rogan: My Lords, this is a short order and does not require a lengthy response. Most of the concerns my colleagues and I had regarding the order were raised in the other place by my colleague the honourable Member for South Antrim with the roads
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Minister John Spellar. As my colleague said on that occasion, far be if from us to reject or criticise anything that seeks to streamline the Roads Service inquiry process, enhance its efficiency, and bring it into line with the rest of the United Kingdom.
Mr Spellar did not however answer one question with regard to the costs involved. Is the noble Baroness in a better position to give us an estimation of how much it will cost to bring about the changes and how much will be saved by the introduction of the changes?
In response to questions regarding the M2 motorway, Mr Spellar said that the Government were working with the developers with regard to future road improvements. It would be most helpful if the Government could spell out what they intend to do to avoid past mistakes and to ensure that motorway work does not cause the severe congestion it has in the past.
I shall end with the same note of caution as my colleagues in another place did. Improving efficiency and eliminating unnecessary bureaucracy can only be measured in practice, and the Government can rest assured that the Ulster Unionist Party will keep a close eye on how this regulation works in reality.
Baroness Amos: My Lords, I thank noble Lords who have spoken and for the support for the order. I note the concerns which have been expressed in relation to consultation processes and costs of consultation by the noble Lord, Lord Glentoran. I look forward to the noble Lord raising that issue probably on every occasion on which we discuss Northern Ireland.
I say seriously to the noble Lord that obviously in the current situation where we do not have devolved government, it is important that we are seen to consult. I take the point the noble Lord makes about the volume of paper, and perhaps we need to look at different ways in which we can consult and use different mechanisms to do so, because there is no point consulting if we do not get a response to that process. We do not want to consult just for the sake of it, so I take the point.
Of course there will be appeal processes. I repeat to the noble Lords, Lord Glentoran and Lord Smith of Clifton, what I said in opening this short debate: the rights of the public to object to a proposed road scheme will not in any way be diminished by this bringing together of processes.
The noble Lord, Lord Rogan, asked me specific questions about cost. I cannot give actual figures, but I can say to the noble Lord that we anticipate that there will be financial savings for both the department and objectors in terms of economies of scale.
The department expects to benefit from lower advertising, accommodation and administrative costs, and the need for fewer briefings or consultations with professional advisers. It is expected that objectors will benefit from having to prepare only one set of objections and attend one inquiry hearing, as well as having a need for fewer consultations with professional advisers.
In response to the point raised by the noble Lord, Lord Glentoran, about the motorway, the Roads Service is committed to best practice both in procurement and contract management. As part of that, the Roads Service

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engages in early discussions with successful contractors to minimise delays and disruptions on schemes. I know how irritating it can be when that happens. The proposed changes to the statutory procedures will have no impact on the works themselves. I hope that that addresses the questions raised by noble Lords.
On Question, Motion agreed to.

Financial Assistance for Young Farmers (Northern Ireland) Order 2004
8.15 p.m.
Baroness Amos Baroness Amos rose to move, That the draft order laid before the House on 16 September be approved.
The noble Baroness said: My Lords, the purpose of the order is to introduce enabling powers to permit the Department of Agriculture and Rural Development (DARD) to introduce a scheme in Northern Ireland in accordance with the Rural Development Regulation (EC 1257/99).
The regulation permits setting-up aid to facilitate the establishment of young farmers under 40 years of age in the form of a single premium payment or an interest subsidy on loans. As independent research commissioned by DARD concluded that the interest-rate subsidy option represents much better value for money, the scheme will be in that form. The scheme, which represents a substantial investment in the agrifood industry by government, will challenge young farmers to come forward with innovative projects that will deliver a positive impact on farming and the Northern Ireland rural economy. I beg to move.
Moved, That the draft order laid before the House on 16 September be approved.—(Baroness Amos.)
Lord Glentoran: My Lords, again, I thank the noble Baroness for bringing forward this order. I also thank the Northern Ireland officials for giving me time this morning to question some of the details of the orders.
This order is very much to be welcomed. Farming in Northern Ireland has always been a family business. It is quite different from other parts of the United Kingdom in that the scale and size of the farming process in Northern Ireland is much smaller, co-operations do not happen and a large percentage of farming is in family businesses. This assistance for young farmers, both those inheriting and, perhaps, younger brothers purchasing and moving into farming for the first time, must be a bonus. The farming industry in Northern Ireland has suffered dreadfully in the past 10 years with all the different things that have happened. I hope that this will be a boost.
In the paragraph in the Explanatory Notes on the financial effects of the order, I note that the scheme could lever an additional £17.9 million of investment into the sector at a net cost to the Exchequer of £4.7 million. That really is moving in the right direction and is to be welcomed. I support the order.
Lord Smith of Clifton: My Lords, I, too, thank the noble Baroness the Lord President for introducing the
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order. As the noble Lord, Lord Glentoran, said, agriculture remains an integral part of the Northern Ireland economy and will continue to be so for the foreseeable future. As in the rest of the United Kingdom, the children of farmers are becoming somewhat more reluctant to take over the family farm. It is important in that respect that young people who have a real desire to enter agriculture should be encouraged so to do. This is a welcome measure, designed to ensure a new generation of farmers. For that reason we support it.
Lord Rogan: My Lords, it gives me the greatest pleasure to see this draft order before the House. I, too, welcome it warmly. Judging from the comments made by the Agriculture Minister Ian Pearson at Committee stage yesterday in another place, the Government seem to have the right approach to the issue.
Northern Ireland's farming sector has long needed reconstructing. I must stress that the best place to start is by creating the incentive for young men and women in rural areas to once again view farming as an attractive business opportunity. What is more, this financial assistance scheme will be seen as a model for the rest of the United Kingdom, as many of the problems faced by Ulster's farming sector are replicated across the country.
If agriculture is to remain one of the staples of the Northern Ireland economy, confidence and financial support are prerequisites to any rejuvenation of the farming industry.
I wish to raise just a couple of points that the Government should be mindful of before bringing this order into force. First, I fear that the proposed repayment timeframe of five years will act as a deterrent and a disincentive to young people. It will give the impression that opening a farm will be viewed as a high-risk venture by the very people that the Government are seeking to attract to and maintain within the industry. Many in the field believe the scheme will have a small take up as this stands.
If the Government are not prepared to extend the five-year period, I fear they will send out all the wrong messages. Therefore, to ensure sustained growth, I suggest a period of ten or fifteen years would be more suitable. At the very least, any new farm's stage of economic development should be considered before the repayment date starts to come into effect.
Secondly, I would like to urge the Government to show flexibility regarding who is defined as the head of the farm holding. Young farmers should be allowed to apply for the scheme when or after they have taken over farms from their parents. It would be a mistake for the scheme to be open only to those who are setting up farms for the first time.
There is an urgent need to bring new blood into the farming sector. But, equally, it is absolutely imperative to maintain continuity within the industry. Furthermore, it would also be beneficial if the scheme was open to those wishing to take up farming on a part-time basis or even those people wishing to set up as a co-operative.

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This financial assistance order can provide the initiative to help reconstruct the farming industry and bring modern methods to the sector. In the Minister's response in another place, I was pleased to see in his rhetoric the sort of flexibility that is needed for this legislation to be sensibly applied.
But the Government must be careful in their definition of farming. It is young farmers that this legislation seeks to support and not every single business that could loosely be defined as agriculture. The purpose of the order is to breathe new life into traditional farming activities in Northern Ireland and secure them for the long-term future. The Government should hear that point in mind. Again, I welcome the order.
Lord Lyell: My Lords, I should like to take one minute of your Lordships' time to add my earnest and strong support for the order so ably presented by the noble Baroness. Indeed, my noble friend Lord Glentoran virtually made my speech. My noble friend and the noble Lords, Lord Smith and Lord Rogan, pointed out that agriculture is at the heart of the life of Northern Ireland.
I was lucky enough to spend five years as the Minister in charge of DANI, as it was then called—the Department of Agriculture for Northern Ireland. The new name is indeed covered by some of the remarks made by the noble Lord, Lord Rogan, in that the department is putting new life into what I call the rural life of Northern Ireland.
I was fascinated when the noble Baroness in her introduction gave us the indication of the European order, which I think she said was EC 1257/99. I was astonished that it has taken five years for the normally ever vigilant department to pounce on this. But I enjoyed my noble friend paying me an unintended compliment perhaps. The noble Lord, Lord Glentoran, said, "For the last 15 years". It is exactly 15 years since I ceased purportedly to be in charge of the department with responsibility for agriculture.
I am delighted to see Regulation 3(1)(a) refers to,
"for the purposes of, or in connection with … agriculture".
That is beautifully defined. I am just a bit curious about the age of 40, but I am sure that there will be flexibility in that. There might be some youngish man or even young lady who is just a little older than that when fitting the circumstances, as spelt out by the noble Lord, Lord Rogan.
I was a bit curious about the remarks made by the noble Lord, Lord Rogan, in respect of the timescale. I would have thought that five years was adequate. I hope that your Lordships will forgive me for recalling that in 1988 I was under very severe restriction and, indeed, reprimanded for quoting what had been repeated on downtown radio—"Act fast while grants last". The department was jammed with everything on wheels and without wheels.
Do not worry: the families of the farming industry will not be slow to take up these opportunities. They will be very grateful for them.
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I hope that the noble Baroness will be able to reassure me in due course, or during the course of her reply, that there might be some new money and that some of the old schemes that perhaps are falling into disuse will be replaced.
Certainly from my recollections of 1984 to 1989, this order will be greatly welcomed and be of enormous benefit to Northern Ireland. I am very grateful to the noble Baroness for bringing it forward today.
Baroness Amos: My Lords, I thank all noble Lords who have spoken and for the welcome that they have given to the order. Indeed, I sat on the Front Bench wishing that all our debates on Northern Ireland achieved the same degree of consensus. But perhaps then I would become too complacent.
The noble Lord, Lord Rogan, asked about the time-frame for the repayment of loans. The period of five years is the limit over which public money is committed. The Government believe that it will provide a much needed stimulus to investment. Scheme participants will be free to negotiate loans over a longer period of time, but they will then be responsible for the payment of all interest beyond five years. So it is possible to negotiate a longer loan.
Scheme beneficiaries must become either the sole owner or a partner in the farm business, but to conform to the EU regulations they must be setting up the business for the first time. As to the point of the noble Lord, Lord Rogan, about those who are already engaged in business, this order would not apply to them.
As regards widening the scope of the assistance, the scheme is essentially for agricultural purposes as defined under UK legislation. Diversification of schemes not related to agriculture would not be eligible. However, schemes which are innovative and firmly related to on-farm activities will be judged on their individual merits. So there is a degree of flexibility there.
As to the question of joint applications and farm cooperatives, applications will be considered from joint applicants as long as they are setting up in farming for the first time.
The noble Lord, Lord Lyell, asked about flexibility in terms of being aged 40 and being described as a young farmer. I realise that "young" is a relative term in your Lordships' House, but 40 is required by the EU regulation.
I think I have addressed all the points that have been made. I hope that the noble Lord, Lord Lyell, will allow me to get back to him on the point that he made about replacing old schemes. I do not have the answer at present.
On Question, Motion agreed to.
Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now adjourn during pleasure until 8.35 p.m.
Moved accordingly, and, on Question. Motion agreed to.
[The Sitting was suspended from 8.29 to 8.35 p.m.]

Housing Bill
Further consideration of amendments on Report resumed.
Baroness Darcy de Knayth Baroness Darcy de Knayth moved Amendment No. 184:
After Clause 186, insert the following new clause

DISCRIMINATION IN RELATION TO ASSOCIATED PREMISES
(1) The Disability Discrimination Act 1995 (c. 50) is amended as follows.
(2) After section 24 there is inserted—
"24A Discrimination in relation to associated premises
(1) 1t is unlawful for a controller of associated remises to discriminate against a disabled person—

(a) who is a person to whom premises associated with the associated premises are let; or

(b) who, although not a person to whom such premises are let, is lawfully under the letting an occupier of such premises.

(2) For the purposes of subsection (1), a controller of associated premises discriminates against a disabled person if—

(a) a duty under section 24C is imposed on him by reference to the disabled person; and

(b) he cannot show that failure to comply with the duty is justified (see section 24F).

(3) For the purposes of this section and sections 24B to 24D, a person is a controller of associated premises if he is—

(a) a person with a legal or equitable interest in the associated premises; or

(b) a person who manages the associated premises.

(4) For the purposes of this section and sections 24B to 24D—

(a) "let" includes sub-let; and

(b) premises shall be treated as let by a person to another where a person has granted another a contractual or other licence to occupy them.

(5) This section applies only in relation to associated premises in the United Kingdom.
24B ASSOCIATED PREMISES: EXCEPTIONS TO SECTION 24A(1)
(1) Section 24A(1) does not apply if—

(a) the associated premises are, or have at any time been, part of the only or principal home of an individual who is a person by whom they are controlled; and

(b) since entering into the letting to the disabled person—

(i) the individual has not, and

(ii) where he is not the sole person by whom the premises are let, no other person by whom they are let has,

used for the purpose of managing the associated premises the services of a person who, by profession or trade, manages such premises.

2) Section 24A(1) does not apply if the associated premises are of a prescribed description.
(3) Section 24A(1) does not make unlawful any discrimination which—

(a) is made unlawful by section 19 or any provision of Part 2; or

(b) would be so made but for any provision made by or under this Act.

(4) Where the conditions mentioned in section 23(2) are satisfied, section 24A(1) does not apply.
(5) For the purposes of section 23, the "relevant occupier", means, in a case falling within section 24A(1), a controller of the associated premises, or a near relative of his; and "near relative" has here the same meaning as in section 23.
24C ASSOCIATED PREMISES: DUTIES FOR PURPOSES OF SECTION 24A(2)
(1) Subsection (2) applies where—

(a) a controller of associated premises receives a request made by or on behalf of a person to whom premises associated with the associated premises are let;

(b) it is reasonable to regard the request as a request that the controller give or secure consent for the disabled person to install or affix an adaptation or improvement in or to the associated premises;

(c) the adaptation or improvement would—

(i) enable a relevant disabled person to enjoy the premises let or the associated premises, (or both)

(ii) enable a relevant disabled person to make use of any benefit, or facility, which by reason of the letting is one of which he is entitled to make use, or

(iii) facilitate a relevant disabled person's enjoyment of the let premises or the associated premises or his making use of any such benefit or facility;

but would be of little or no practical use to the relevant disabled person concerned if he were neither a person to whom the premises associated with the associated premises are let nor an occupier of them; and

(d) the adaptation or improvement is to be undertaken by or on behalf of the disabled person at his own expense and subject to such reasonable conditions as the controller may require.

(2) It is the duty of the controller to take such steps as it is reasonable, in all the circumstances of the case, for him to take in order to secure consent to the making of the adaptation or improvement or, where he is the person from whom consent must be obtained, it is his duty not to unreasonably refuse such consent (but see subsection (6)).
(3) Subsection (5) applies where—

(a) a controller of associated premises has a practice, policy or procedure which has the effect of making it impossible, or unreasonably difficult, for a relevant disabled person—

(i) to enjoy the let premises or the associated premises, or

(ii) to make use of any benefit, or facility, which by reason of the letting is one of which he is entitled to make use, or

(b) a term of the letting has that effect,

and (in either case) the conditions specified in subsection (4) are satisfied.
(4) Those conditions are—

(a) that the practice, policy, procedure or term would not have that effect if the relevant disabled person concerned did not have a disability;

(b) that the controller receives a request made by or on behalf of a person to whom the premises associated with the associated premises are let; and

(c) that it is reasonable to regard the request as a request that the controller take steps in order to change the practice, policy, procedure or term so as to stop it having that effect.

(5) It is the duty of the controller to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to change the practice, policy, procedure or term so as to stop it having that effect (but see subsection (6)).
(6) For the purposes of this section, it is never reasonable for a controller of associated premises to have to give, or to take steps to secure, consent to an adaptation or improvement which would involve the removal or alteration of a physical feature which could not subsequently be replaced or re-altered.
(7) In this section, relevant disabled person, in relation to associated premises, means a particular disabled person—

(a) who is a person to whom the premises associated with the associated premises arc let; or.

(b) who, although not a person to whom such premises are let, is lawfully under the letting an occupier of such premises.

(8) For the purposes of this section, the terms of a letting of premises include the terms of any agreement which relates to the letting of the premises.
(9) This section imposes duties only for the purpose of determining whether a person has, for the purposes of section 24A, discriminated against another; and accordingly a breach of any such duty is not actionable as such.
24D ASSOCIATED PREMISES: VICTIMISATION OF PERSONS TO WHOM PREMISES ASSOCIATED WITH ASSOCIATED PREMISES ARE LET
(1) Where a duty under section 24C is imposed on a controller of associated premises by reference to a person who, although not a person to whom premises associated with the associated premises are let, is lawfully under such letting an occupier of those premises, it is unlawful for a controller of the associated premises to discriminate against a person to whom the premises associated with the associated premises are let.
(2) For the purposes of subsection (1), a controller of associated premises discriminates against a person to whom premises associated with the associated premises are let if—

(a) the controller treats that person ("T") less favourably than he treats or would treat other persons whose circumstances are the same as T's; and

(b) he does so because of costs involved in connection with taking steps to avoid liability under section 24A(I) for failure to comply with the duty.

(3) In comparing T's circumstances with those of any other person for the purposes of subsection (2)(a), the following (as well as the costs mentioned in subsection (2)(b) above) shall be disregarded—

(a) the making of the request that gave rise to the imposition of the duty; and

(b) the disability of each person who—

(i) is a disabled person or a person who has had a disability, and

(ii) is a person to whom the premises associated with the associated premises are let or, although not a person to whom such premises are let, is lawfully under the letting an occupier of such premises.

24E DEFINITION OF "ASSOCIATED PREMISES" AND "PREMISES ASSOCIATED WITH ASSOCIATED PREMISES"
(1) For the purposes of sections 24A to 24D above, "associated premises" and "associated with associated premises" have the meanings given in the following paragraphs of this section.
(2) Where a dwelling house is let to, or occupied by, a disabled person and that dwelling house forms part only of a building, "associated premises" constitute all remaining parts of that building, other than those parts specifically demised to the tenants of other dwelling houses, and in respect of which—
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(a) the disabled person has the right to pass in order to secure entry to or egress from his dwelling house (including lifts, stairs, corridors, balconies, reception areas and passageways);

(b) the disabled person shares in common with others the right to use that part or parts for a particular purpose (including leisure amenities, laundry rooms, and underground car parks); or

(c) the disabled person has some other reasonable need to enter or enjoy access to;

and shall further include any other land, beyond the confines of the building, which the disabled occupier is entitled to use (including paths and steps, communal gardens, courtyards and car parking areas) and which adjoin the building or are designed or intended to be used by residents of the building.
(3) Where a dwelling house is let to or occupied by a disabled person and that dwelling house forms part of a single scheme or development of such dwelling houses, "associated premises" constitute all other land comprised within the scheme or development other than that in the sole ownership or control of another resident of the scheme.
(4) "Associated premises" shall not include any highway.
(5) A dwelling-house is "associated with associated premises" if use of any "associated premises" is required for access to, or for the reasonable use and enjoyment of, that dwelling house or for the reasonable use and enjoyment of facilities which the occupier is entitled to use and enjoy with the dwelling house.
24F Associated premises: justification
(1) For the purposes of sections 24A(2) a person's failure to comply with a duty is justified only if—

(a) in his opinion, a condition mentioned in subsection (2) is satisfied; and

(b) it is reasonable, in all the circumstances of the case, for him to hold that opinion.

(2) The conditions are—

(a) that it is necessary to refrain from complying with the duty in order not to endanger the health or safety of any person (which may include that of the disabled person concerned);

(b) that the disabled person concerned is incapable of entering into an enforceable agreement, or of giving informed consent, and for that reason the failure is reasonable.

(3) Regulations may—

(a) make provision, for purposes of this section, as to circumstances in which it is, or as to circumstances in which it is not, reasonable for a person to hold the opinion mentioned in subsection (1)(a);

(b) amend or omit a condition specified in subsection (2) or make provision for it not to apply in prescribed circumstances;

(c) make provision, for purposes of this section, as to circumstances (other than any for the time being mentioned in subsection (2)) in which a failure is to be taken to be justified.""

The noble Baroness said: My Lords, in moving this horrendously long amendment, I aim to be as brief as possible. It returns to the very important issue of enabling disabled people to make reasonable adaptations so they can get into their own home. I stress that this is a prodding amendment for the new disability Bill, not this Bill.
I moved a much shorter amendment in Committee, as recorded at col. 1416 on 16 September, which dealt solely with the disabled person's home, not the communal ground. I am glad that, following the agreement of the noble Lord, Lord Bassam, to my

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suggestion on this amendment, officers of the Disability Rights Commission are pursuing a meeting with ODPM and DWP officials.
I touched on the problem of the communal area in Committee at cols. 1417 to 1418, but the amendment did not address it. It is a complex issue to resolve—indeed, the DWP has said that it is too complex, although the issue itself is simple. At present, disabled people are totally without rights in respect of adaptations to communal areas. A key recommendation of the Joint Committee on the draft disability Bill was to create a specific provision preventing property managers unreasonably refusing consent for necessary adaptations to common parts. I believe that 80 per cent of calls to the DRC about problems of accessibility to dwellings are concerned with the communal areas. It can be as small as a handrail up some steps. There is no legal hook on which to hang a complaint.
I acknowledge that Amendment No. 184 represents a radical break with current land law, albeit limited to the area of disability access. It has been prepared by a leading QC and demonstrates that it is possible to devise a fair and workable way of addressing the legitimate rights of disabled people to get into their house while safeguarding the legitimate interests of property managers and others with an interest in the property. For instance, they could impose conditions such as all necessary work being at the disabled person's expense. Furthermore, all necessary work to reinstate the premises to its original form when the disabled person leaves could be at his or her expense as well. I stress that I am not asking the Government to accept the amendment; I am simply showing that this is one way of resolving the problem that is equitable.
The Minister in the other place whom we met yesterday was certainly understanding and sympathetic, while seeing this as a difficult area. I hope that the Minister here will be able to give an encouraging answer that the Government will seriously seek to resolve the problem. I beg to move.
Baroness Maddock: My Lords, my name is attached to the amendment, and I very much support the spirit in which it was moved. Given the good work that the noble Lords, Lord Rooker and Lord Bassam, have done in this area, I hope that they will be able to co-ordinate between departments to make sure that we try and address the issue. It is meaningless if we do all sorts of things to people's individual homes but they cannot get through the communal parts. I recognise that it is not easy, but I have every hope that the Minister will be able to pursue the matter across departments.
Baroness Wilkins: My Lords, I also strongly support this amendment and trust that the current cases I gave him from my own local authority of Hammersmith and Fulham have helped to convince him of the need for a change in the law.
Lord Rooker: My Lords, we certainly accept that there is a problem although I was pleased to hear the
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noble Baroness, Lady Darcy de Knayth, say that she did not want or expect the Government to accept the amendment.
It would be unfair to dissect the amendment. This is a complex area to deal with. If it was easy to deal with we would have dealt with it before—other governments would have done so in other housing legislation. What needs to be done in common parts of buildings for people with disabilities is difficult; there is no question about that. On the other hand, a solution has to be found.
This is a difficult area in which to legislate. One has to consider the rights of the person who owns the property, who may be different from the disabled person. Generally speaking it would be a different person, because we are talking about properties occupied by more than one household which have common parts. The views of other people who use the common parts may conflict and there would be a problem over the splitting of any necessary costs, which was referred to in the earlier debate by my noble friend Lord Bassam. There are practical issues, but I am not ruling out the amendment because of those. We accept the noble Baroness's point that common areas are not catered for by the provisions of the housing Acts and the landlord and tenant Acts we discussed in our Committee debate. But we do not think that this amendment would be an effective way of providing new rights.
As was concluded in the previous debate, this is a very complex area of law where the rights of different parties need to be balanced. We will give further thought to this matter—we are not walking away from it. While my noble friend Lord Bassam and I will take no credit for what happens, we will make sure that our words here are taken seriously in the Office of the Deputy Prime Minister and across other government departments. The matter is crucial and it is not down to just one department. These are commitments given by the Government to Parliament to see if we can get this matter right. It goes without saying that we will work with the Disability Rights Commission.
We are, of course, already putting significant new duties on landlords and managers of rented premises in the forthcoming disability discrimination Bill that will be introduced into your Lordships' House—changes that will make a real difference to disabled tenants and occupiers. Our priority undoubtedly must be to secure the passage of that Bill. At this point, we would not want consideration of new issues such as this one on common parts to deflect us from getting that quick passage. We want to ensure that those new duties are implemented properly and bedded down before imposing new duties. That is our priority. We do not expect consideration of the issues raised by this amendment to be completed in time either for this Bill or for the disability discrimination Bill. However, I make no bones about the fact that I would welcome further amendments on that Bill so that we can be tested on what the Government are doing across Whitehall. While we do not envisage dealing with this problem in that legislation, it would be barmy to say that these issues should not be raised during its passage

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because we could probably deal with them at a more civilised hour and have a little more time for contributions from all sides of the House.
I hope that that is classed as a positive response. It is certainly not in any way intended to be a bucket of cold water—far from it. That is accepted in the nature of the size of the amendment, let alone anything else. This is a complex problem which may require a complex solution. On the other hand, not every complex problem requires a complex solution. There may be a simple way out of this if we can find it.
Baroness Darcy de Knayth: My Lords, I would first like to thank the noble Baronesses, Lady Maddock and Lady Wilkins, for their strong support, and thank the Minister for his reply which was positive in parts—a curate's egg positive, perhaps. I appreciate what he has said. I would be interested at another time to hear him pick the amendment to pieces, but I realise that that is not appropriate at this hour. I think we dealt with the part about the landlord and other tenants. Anyway, I stress that if the provision were to be included in the Bill, it would be subject to the usual tests of reasonableness and practicality.
I am pleased that the Minister said that he would give the matter further thought and am very grateful that he will see that the departments work together over it with the DRC. I welcome his invitation to put down amendments to the new disability Bill. I am sure that there will be some, and hope that we shall be able to move forward on that matter in time. Thanking him very much for his reply, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.45 p.m.
Clause 188 [Local authority's right of first refusal]:
[Amendment No. 184A not moved.]
Clause 191 [Registered social landlord's right of first refusal]:
[Amendment No. 184B not moved.]
Clause 195 [Housing action trust's right of first refusal]:
[Amendment No. 184C not moved.]
Lord Rooker Lord Rooker moved Amendments Nos. 185 and 186:
Before Clause 200, insert the following new clause—

PROTECTED SITES TO INCLUDE SITES FOR GYPSIES
(1) Section 1 of the Caravan Sites Act 1968 (c. 52) (application of provisions for protection of residential occupiers of caravan sites) is amended as follows.
(2) In subsection (2) (under which "protected site" includes certain local authority sites) for "paragraph 11 of Schedule 1 to that Act (exemption of land occupied by local authorities)" substitute "paragraph 11 or 11A of Schedule 1 to that Act (exemption of gypsy and other local authority sites)".
(3) The amendment made by subsection (2) above does not affect the operation of—

(a) section 2 of the Act (minimum length of notice) in relation to any notice given before the day on which this section comes into force, or

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(b) section 3 of the Act (protection from eviction) in relation to any conduct occurring before that day, or

(c) section 4 of the Act (suspension of eviction orders) in relation to any proceedings begun before that day.

(4) In subsection (3)(b) the reference to section 3 of the Act is to that section whether as amended by section 200 of this Act or otherwise."
After Clause 200, insert the following new clause—

SUSPENSION OF EVICTION ORDERS
(1) In section 4(6) of the Caravan Sites Act 1968 (c. 52) (provision for suspension of eviction orders) for the words from "in the following cases" to the end of paragraph (b) substitute "if—

(a) no site licence under Part 1 of that Act is in force in respect of the site, and

(b) paragraph 11 or 11A of Schedule 1 to the Caravan Sites and Control of Development Act 1960 (c. 2) does not apply;".

(2) The amendment made by subsection (1) does not apply in relation to proceedings begun before the day on which this section comes into force."
On Question, amendments agreed to.
Baroness Hanham Baroness Hanham moved Amendment No. 186A:
After Clause 200, insert the following new clause—

PERMANENTLY MOORED SERVICED RESIDENTIAL HOUSEBOATS
Part 6, Chapter 3 of this Act shall apply equally to permanently moored serviced residential houseboats."
The noble Baroness said: My Lords, in Committee we introduced amendments to deal with the problems being faced by permanently moored serviced residential houseboat owners in relation to security of tenure and protection from harassment. We got some helpful answers from the Minister, but the clear indication was given that this Bill would not he an appropriate place to make those changes. However, I never give up, so I have come back to the matter. In saying that, I thank the Minister for the response that he gave me in annex 1 of the compendium.
I shall unpick a little more the problems that I want to deal with. The owners of park homes, who are effectively the owners of chattels, are covered by security of tenure and, I guess, under the housing Acts. The same protection is not extended to permanently moored houseboat owners. I keep on saying "permanently moored" because these are houseboats that never move. They are tied to the side of the river and do not move thereafter. The same provisions of the Housing Act on security of tenure do not apply to such owners. The area seems to be completely devoid of any legislative involvement.
There are a number of moored residential houseboats, and not only in London. The Minister knows that I speak from personal knowledge of the houseboats in Chelsea, as it is in my constituency, and I suppose that I should declare an interest. But there are other residential houseboats around the country. A number of discussions have taken place about the problem. Security of tenure and protection from harassment are the two specific areas which would, I believe, fit in to this Bill, as they are already covered under the park homes legislation.
The Minister kindly gave me a long, detailed reply about what was being done, including information on the discussions that were taking place with Defra and with his department and others. When we last discussed this, I indicated that the information I had received was that Defra did not think it was involved, that it was therefore not particularly engaged in the process and that the parcel had been passed to the Office of the Deputy Prime Minister to sort out.
The Minister has indicated that there is now an initial work plan for houseboats and that the scope of the discussions with other departments and stakeholders have been extended. Looking at it, I do not think that it is confined to residential, moored and serviced houseboats, but will include a much wider discussion on the nature of houseboats in this country. However, I am still anxious to try to get those two aspects included in the Bill if we can.
The Minister's response in annex A says that the question of security of tenure would be dealt with by about April 2005. However, the initial work plan for houseboats does not say that. It gives no indication on that. Nor does it give any indication of when legislation in which we might deal with these problems is likely to come before the House. The suggestion is that the issue could be dealt with in the Law Commission's tenure reform Bill. However, I am sure that the Minister has not the faintest idea when that legislation is likely to come forward, and I am not sure that Her Majesty the Queen is likely to be announcing it in the Gracious Speech. If she does, that will be encouragement; but I do not know whether she will. We have no idea when such a Bill might come forward.
There is a problem here that needs to be resolved on a shorter timescale than that envisaged in the work plan. I am sure that all sorts of houseboat issues need to be discussed. We have had useless discussions, not in this House but elsewhere, about navigation rights and related problems, but those are not applicable to the subject we are discussing now.
I have returned to the amendment, although I know that it is the wrong one. I say to the Minister that I will come back with yet another amendment at Third Reading because I need to plug away at the issue to ensure that it is taken seriously and dealt with at the earliest opportunity. If we can find a Trojan horse to get it into the Bill, we will.
Having laid out the case again, I look forward to seeing whether the Minister can give us any hope that we can deal with these two specific areas. His less than robust defence of the fact that houseboat owners are covered by legislative protection against eviction and harassment does not seem to have been followed up with enthusiasm in legal circles. I hope that I have given the two Ministers an opportunity to have a little chat and that we may be able to have a response today to my amendments. I beg to move.
Baroness Hamwee: My Lords, I support the noble Baroness in this. I have spoken about the issue before, and I am sure that Ministers are sympathetic. I entirely
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accept that what happened at the start of the Bill was an honest and straightforward accident and that it would not have happened had their sympathies not been with those who are affected. It is perhaps a little unfortunate that the useful action plan and notes which we received from the Minister said that it was "premature" to look at amendments. I suppose that it is in terms of the work plan but not in terms of the problems which need to be addressed.
On the previous occasion the Minister helpfully said—I hope that it is helpful and that someone can pray it in aid at some point if that is necessary—that it is the department's view that houseboat residents are already covered by the Protection from Eviction Act, as the noble Baroness said. I hope that the Minister will put on the record how that protection applies and confirm that it applies to moorings. As I reread the measure, I wondered whether we were talking about eviction from boats or from boats moored to a bank or pontoon.
I wanted to put that view on the public record to try to help people who are in this difficult position. Some of them are in a very difficult position indeed. While clearly the Government do not constitute a court of law, if the Minister is able to expand on the matter it would be very welcome. I am glad that the noble Baroness has raised the matter once more.
Lord Rooker: My Lords, I, too, am glad that the noble Baroness has raised the matter. However, at the moment, my answer is exactly the same as it was previously. The noble Baroness said that she would return to the issue at Third Reading.
Amendment No. 186A is identical to an amendment discussed in Committee. I am not saying that the issue is unimportant but it has not been accorded the importance that it perhaps should have been; otherwise, Parliament would have dealt with the matter some time ago.
As I said in Committee, the rights of a residential houseboat dweller will depend on the terms of any agreement with the landlord of the mooring. There is no statutory security of tenure, and the security of someone living in a houseboat is dependent entirely on the terms of their contractual agreement. To this extent they are protected by the law of contract, including the prohibition against unfair contract terms, which can be enforced by the Office of Fair Trading.
The amendment would not achieve the desired aim—I believe that I said this in Committee although I do not criticise the desire to discuss the issue again—because the clauses in the Bill dealing with mobile homes are amendments to existing legislation, which applies to mobile homes only. It would be meaningless to extend these clauses to houseboats because the legislation simply does not apply to houseboats.
One of the mobile home amendments to Clause 200 was to remedy an anomaly where mobile homes had been explicitly taken out of the protection afforded by the Protection from Eviction Act 1977 and given separate mirror protection. But when the 1977 Act was

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amended and updated, the protection for mobile homes was not similarly amended and updated. Clause 200 remedies that situation. Houseboat residents on the other hand are not excluded from the Protection from Eviction Act 1977, and it is the Government's view—for what it is worth as obviously these matters are for the courts to decide in the end—that they are therefore protected under that Act.
We are, of course, aware of the worries about the adequacy, or rather inadequacy, of houseboat legislation. As outlined in our letter to Peers of 11 October, we are in discussion with colleagues across government—this is not just an ODPM matter but involves also Defra and the Department for Transport—regarding gathering the necessary evidence base to ensure the correct solution is reached. Legislating on part of the matter would probably raise false expectations for houseboat dwellers. It is a complex issue. At the moment it is premature to believe that the amendment before us, or any other amendment, would solve the majority of problems. I believe that rather more legislation than that would be required.
The amendment would put ill considered legislation on houseboat owners, because the matter has not been properly considered in the processes of the machinery of government. However, we are currently undertaking that. I cannot promise to report on how far we have got or any further work by Third Reading, but if I can give any information on top of what we have already said in the letter of 11 October, I shall certainly seek to do so. We accept that the issue will not go away, so Parliament will have to find a solution to help such people.
9 p.m.
Baroness Hanham: My Lords. I am grateful to the Minister for his largely sympathetic reply and for being much firmer in what he said about people not being excluded from the protection from eviction and harassment. Perhaps we had it round the other way before—whether they were included—but to know that they are not excluded is far clearer.
My only caveat about the initial work plan for houseboats is that it is the whole question of houseboats that is being looked at, not the probably quite small number of permanently moored houseboats. I accept that there are two areas, but at the moment I am interested in the permanently moored houseboats. I need to consider whether I can try another Trojan horse at Third Reading. If I think that I can, I shall bring the matter back. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 201 [Tenancy deposit schemes]:
Baroness Hanham Baroness Hanham moved Amendment No. 187:
Page 158, line 41, at end insert—
"(2) If the appropriate national authority considers that a tenancy deposit scheme submitted to it is satisfactory for the purposes of this section, they may approve it for those purposes.
(3) Sections 164 (approval of redress schemes) and 165 (withdrawal of approval of redress schemes) shall apply for these purposes subject to the following modifications—
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(a) references to "a tenancy deposit scheme" replace references to "a redress scheme" wherever they appear;

(b) the word "tenants" is substituted for the words "of sellers and potential buyers of residential properties" in section 164(2); and

(c) omitting section 164(3)."

The noble Baroness said: My Lords, the amendment would allow landlords' associations and representatives of managing agents, as well as any others interested, to take the initiative and bring forward either a tenancy deposit scheme or a custodial scheme for approval. If the appropriate criteria were met, approval should be given. Landlords' associations, such as the Residential Landlords Association and the Association of Residential Letting Agents, have already indicated their interest in promoting such schemes. I appreciate that the Government have tabled amendments that would incorporate some of these matters.
Provided that they meet the criteria in Schedule 10, such developments should be welcomed. Many landlords are already members of landlords' associations, and the amendment would enable those associations to provide an important service to their members. At the same time, it would safeguard tenants' interests in accordance with the legislation. Such schemes would encourage membership of the associations, which would benefit the private rented sector. It would help to increase professionalism all round. Many trades and professional bodies already have insurance-backed schemes where money is handled, so that there is an established insurance market able to serve as a product of this kind. Such initiatives should be welcomed and encouraged, and the amendment would allow that.
I move on to Amendment No. 194. As drafted, Schedule 10 makes provision for only two situations. The first is where an agreement is reached at the end of the tenancy on the way in which a deposit is to be held. The other is where there is a county court decision. Other circumstances are not dealt with in the schedule, particularly those relating to custodial schemes. Those include cases where the tenant disappears and cannot be found. That poses a problem in the case of the custodial scheme, because there is then no mechanism for the deposit to be released to the landlord to offset arrears or make good damage to the property. There would be difficulties if a tenant could be found but simply failed to respond.
Again, the landlord may face rent arrears hut, if the tenant will not co-operate, the landlord is then put to the time, trouble and expense of bringing court proceedings. A mechanism could be put in place under which the scheme administrator, on being satisfied of the existence of the arrears or damage, could order the release of the deposit.
At the moment, Schedule 10 deals only with the situation at the end of the tenancy agreement. It is not unknown during the course of a tenancy for a tenant to agree with the landlord that the landlord can offset the deposit held against rent arrears. This regulation-making power allows regulations to be made to enable the scheme administrator to release moneys from a custodial scheme under such circumstances.
The final situation to be addressed is the most common of all; namely, where the landlord simply refunds the deposit at the end of the tenancy as no offset is claimed. The schedule currently seems to envisage some kind of formal agreement for this to happen and provision should be made that in such circumstances the scheme administrator simply refunds the money to the tenant. I beg to move.
Lord Best: My Lords, I welcome both amendments tabled by the noble Baroness, Lady Hanham. All the other amendments in the group stand in my name; Amendments Nos. 189, 190 to 192, 200 and 204. Perhaps I may swiftly speak about them, not doing justice, I fear, to the excellent briefings from the National Association of Citizens Advice Bureaux, Shelter and others. Perhaps I may also comment on government Amendments Nos. 191A to 191F.
Amendment No. 189 seeks to tighten the definition of a tenancy deposit by restricting the use of the deposit by the landlord to cover proven financial loss, not for the performance of any obligations of the tenant. Therefore, if a tenant ruins the carpet by spilling a bottle of wine, the landlord could deduct the cost of the new carpet. But if the tenant has a visitor to stay where that is forbidden, that would not be enough to allow the landlord to keep part of the deposit. It is a tightening up of the definition.
Amendments Nos. 190, 191 and 204 all relate to the custodial schemes in the tenancy deposit arrangements. These are the schemes where the deposit is meant to be held by an independent third party. The problem is that some landlords will fail to pay the deposit into the scheme as is required of them and as the Bill is currently drafted the only sanction the tenant has is to go to court about it. That is the same problem tenants have today when they are aggrieved about their deposit not being returned to them. Without some support for the tenant in this, I fear that despite the excellent intentions of this important addition to the Bill, the whole tenancy deposit scheme begins to look less likely to work on the ground.
If landlords are going to fail to comply, the way around this must surely be for the tenants to be allowed themselves to pay the deposit directly into the custodial scheme rather than give the deposit to the landlord, who may not then pass it on. If there are cases in which the tenant has given his deposit directly to the landlord but the landlord has done nothing with it except sit on it and allow interest to accumulate and the money to be used for some other purpose, the tenant should have the right to make a payment into that custodial scheme equivalent to the deposit in lieu of paying that amount in rent to the landlord. Those amendments would bypass the problem that landlords may simply not comply with the requirement to pay money into a custodial scheme. At the moment, that would merely leave the tenant to fight it out in the courts.
Amendment No. 192 deals with the other kind of tenancy deposit scheme—not the custodial one but the insurance-based one. Here the government Amendments
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Nos. 191A to 191F seek to address the key concern that my amendment tackles about the insurance-based schemes. The government amendment provides that at the end of a tenancy the landlord should pay over within clear time limits any disputed sum to the scheme administrator who will hold it until either there is agreement or a court decision has been reached on how the money should be allocated between landlord and tenant.
That meets the concern of Shelter, the National Association of Citizens Advice Bureaux and others that there should not be a perverse incentive for the landlord to delay reaching an agreement or to opt for the more lengthy court system to resolve a dispute so that he can hang on to the deposit, perhaps indefinitely. Therefore, I think that the government amendments very ably cover the point raised by my own Amendment No. 192. I am very grateful to both Ministers for accepting the case for these amendments, and I shall not move my Amendment No. 192.
That leaves Amendment No. 200, which, on the face of it, appears to deal with something bigger and rather different from the subject of the other amendments. It concerns the so-called administrative charges on tenants which landlords impose and which more landlords or indeed sometimes their agents—particularly those who have been used to keeping tenants' deposits when they should have been giving them back—may keep and make money from at the expense of tenants.
The kind of situation that we are talking about here, of which citizens advice bureaux up and down the country have a great deal of experience, is where landlords require, for example, a payment for credit checks. A firm called Experian—one of the three credit reference agencies operating in the UK—offers a full tenant verifier service for landlords and agents at a cost, which does not seem unreasonable, of £20.86. But citizens advice bureaux report that the amount charged by landlords, or sometimes by their agents without the landlords necessarily having part of it, is often far higher than they have paid to Experian or another firm. For example, in Greater Manchester, a student reports that he had to pay £75 plus VAT for a credit search before he could take over a property and, as he was a student, there was a further credit search against his father, incurring a further charge of £75 plus VAT. I declare an interest as having a son at Manchester University, but I was not the father in this case.
Then there are the renewal of tenancy charges, which are a real con. These occur where a landlord is going to continue with a tenancy. He can give the tenant a photocopy of the previous tenancy agreement or simply allow the tenancy to run but the agents or the landlord charge a fee. For example, in Kent, a young woman with a baby whose only income was income support, housing benefit and child benefit was charged a fee of £90 to renew her tenancy. Because that fee was not included in the rent, she did not have any way of paying it; she had to find the £90 from her very meagre resources. She would have been able to recoup, through housing benefit, money collected through the rent to cover all such charges. Then we come to leaving the tenancy and

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the required inventory on departure. As reported by a CAB in Sussex, it is quite common for a fee of £80 to be charged for that inventory.
Amendment No. 200 seeks to nail down those practices and to outlaw payments over and above what a tenant pays by way of rent or other properly prescribed service or occupation charges. Although it sounds like quite a wide extension to this part of the Bill, this is in fact a fairly logical consequence of looking at tenancy deposit schemes. In the consultation paper which the Government issued about tenancy deposit schemes, they suggested that these issues should be considered, and I am hoping for that consideration.
Baroness Gardner of Parkes: My Lords, it seems that we are speaking to two series of amendments—certainly the noble Lord, Lord Best, was doing that. I had demarcated them into the two lines in which they appear on the groupings list. However, as the noble Lord has spoken to them, perhaps I should do the same for reasons of speed. In the past, I have declared an interest in that for many years I have been, in a small way, a landlord.
Amendment No. 187, moved by my noble friend Lady Hanham, seems logical to me, and I have no comment on that.
9.15 p.m.
Amendment No. 188, tabled by the noble Lord, Lord Rooker, is clear and again presents no problem to me. I support Amendment No. 189, and in particular the comment by the noble Lord, Lord Best, that a visitor who damages a carpet in the circumstances he described should pay for such damage but not for some other non-financial loss to the landlord. That is perfectly reasonable. However, that raises a point I have mentioned before; that is, that it is essential for the landlord under those circumstances to be able to claim that amount for the carpet at the time the damage occurs, if they are notified at the time.
Many issues, particularly if the tenant is a long-term tenant, have to be dealt with at the time. If money has to be claimed from the deposit and the tenant has an obligation to top up the deposit, it should be dealt with at the time. Under the insurance scheme, one would not be able to claim, but under the custodial scheme one would be able to. I should like clarification on that point. If that is true, will the landlord be able to opt for the custodial scheme? Who will decide whether the scheme is custodial or insurance based? That is an interesting point.
Amendments Nos. 190 and 191 are a matter of language and tidying-up. I question Amendment No. 191A, tabled by the noble Lord, Lord Rooker. It seems terribly complicated. Again, would one be able to claim under an insurance-based scheme, or would the insurance money simply be tied up totally until the end? It is important to clarify that.
Lord Rooker: My Lords, if we are not careful, we shall have an enormous amount of repetition. For the avoidance of doubt, I shall respond to the group of
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amendments headed by Amendment No. 187. My noble friend Lord Bassam will move 20 government amendments and will explain them. He may well answer some of the noble Baroness's questions. If the noble Baroness starts to ask all those questions in this group, I shall not answer what she is asking.
Baroness Gardner of Parkes: My Lords, to save time I shall ask questions now. If the noble Lord, Lord Bassam, answers them, or if no one answers them, at least they are on record so that they can be considered by his department at a later stage.
As regards Amendment No. 191D, I presume that the amount to be paid would not exceed the original deposit. Amendment No. 192 concerns the point I made. I think that it is fair to hold money, but it may be important to be able to claim partially, and that is what I am unsure about. I support Amendment No. 194, which is a good amendment. However, it does not cover a situation which I think I have mentioned in these debates; that is, the death of a tenant. I think that something should be put in to clarify the position. Over the 40 or more years that I have been letting property, I have had two occasions where tenants have died. In one case it was an American civilian employed by the American forces, who stepped in and did everything. They found his next-of-kin and arranged everything. The other case was very much more difficult. Landlords can be faced with a slight difficulty about what to do with a tenancy if the tenant dies suddenly.
The amendment which worries me very much—I listened to the explanation by the noble Lord, Lord Best—is Amendment No. 200. At lunch today I sat next to the chairman of the Association of Residential Letting Agents (ARLA) who told me that that organisation is very concerned about this. Certainly, I would find it very unsatisfactory if all the charges that were mentioned have to be added to the rent. Obviously, one would have to ask a much higher rent. The ARLA believes that it would be fair to have a tariff set out quite clearly so that the whole matter is completely transparent.
It is right that one has to take up credit references. Experian are noted to be the good people for that. There has to be a legal agreement and the solicitor probably charges by time. I always say to tenants, "I would expect you to meet half the cost of the legal agreement, half the cost of the inventory check-in and half the cost of the inventory check-out". They can tell you how much that is. If you have let the same property for some years, you are pretty clear on that.
The only exception is if you get a tenant who wants to change tenancy agreements, in terms of company lets or something very complicated. Of course the solicitor will charge you much more to make a completely new tenancy agreement. I support the view of ARLA that these things should not be excluded. I think that they are an essential part of the letting.
A different issue arises. As the noble Lord explained, people on benefit might not be able to claim these charges. So perhaps landlords and agents

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between them should be able to devise some way whereby, for those people who are on benefit, these could be included as part of their letting agreement. That does not necessarily mean that other people should not have to pay them.
A point which I feel has not come out in this debate is that if the rental is more than £25,000 per year, as I understand it, shorthold tenancy does not apply. Therefore, presumably none of the Bill will apply at all. That is another interesting point.
The noble Lord, Lord Rooker, mentioned that you could not put in unfair contract terms. Clearly, it would give tenants a certain degree of cover. If you were suggesting all sorts of charges that were unreasonable you would not be able to put them into the contract. But I think it is very important, and every article you read in every newspaper emphasises that all these people who move into a place without any check would be far better off if they had had an independent inventory clerk check them in and check them out. The fact that some independent person has been able to assess the matter removes one of the greatest sources of contention between landlord and tenant.
Baroness Maddock: My Lords, my name is attached to Amendments Nos. 189, 190 and 191. Indeed, I am tempted to attach my name to rather more of the amendments tabled by the noble Lord, Lord Best. But, even at the second time of asking, I failed to do so.
I can add very little to the very eloquent way in which the noble Lord, Lord Best, moved these amendments. Suffice it to say that those of us concerned with this issue very much welcome the Government's amendments that deal with the issues addressed in Amendment No. 192, which apparently the noble Lord, Lord Bassam, will move in a moment.
The other amendments raise critical questions. If the Minister is not able tonight to give satisfaction on these points, it would be very helpful if there could be some discussion with interested parties before Third Reading. Many of us have waited a number of years for tenancy deposit schemes to get on the statute book. It would be very sad if we did not take notice of all those people, particularly bodies like Shelter and citizens advice bureaux which have been pressing for this over the years. We need to take notice of what they say. I hope that the Minister will find time to do that if he is not able to satisfy us this evening.
Lord Rooker: My Lords, I start off as the noble Baroness finished. There will be plenty of time for discussing this because it will not be a five-minute wonder in terms of implementation. So there will he plenty of time for discussion. On behalf of my right honourable friend Keith Hill, I shall be quite happy to offer good and constructive meetings.
I do not wish to be discourteous to the House in any way, shape or form, but as I said when I interrupted the noble Baroness, Lady Gardner of Parkes, I thought that it would be best to deal with the amendments this way, because it just so happens that that is the way we
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have divided things up. It is done on an ad hoc basis. Obviously if I responded to every single amendment in this group I would not save repetition. So what I thought I would do is to respond to Amendments Nos. 187, 194 and 200 in some detail. All the other amendments are virtually covered by what my noble friend Lord Bassam will say when he introduces the government amendments. Is that acceptable? As I say, I do not wish to be discourteous but it saves repetition. Clearly, the three particular amendments deserve a separate response because they are not covered by the government amendments.
Amendment No. 187 seeks to amend Clause 201 to allow for the appropriate national authority to give approval to any tenancy deposit scheme which is satisfactory, rather than procure it through a competitive tendering process as the Government intend. I understand that the amendment may be motivated by the desire to allow schemes run by industry bodies on behalf of landlords or agents for the benefit of their own members to be approved without the need to go through a tendering process. We want to ensure that any organisation chosen to run a tenancy deposit scheme is chosen on the basis of a fair selection process and that no particular organisation or its members are given unfair financial and competitive advantage. Our provisions allow for any private organisation to submit a bid to set up and manage a scheme as part of the tendering process. We recognise the specialist knowledge that existing industry bodies have and we obviously welcome their submitting bids for tender.
Whereas, up until now, industry organisations have considered only insurance-based schemes, under these provisions there is now potential for an industry body to set up and manage a custodial scheme. Indeed, there is nothing in the provisions to prevent one organisation managing more than one scheme. However, membership of or access to a tenancy deposit scheme should be entirely separate from membership of any other organisation.
The amendment suggests that that approval could be granted on similar terms to that of the approval to be granted to estate agent redress schemes under Clauses 164 and 165. However, the two cases are not comparable. Estate agent redress schemes will be independent organisations performing a regulatory function. The safeguarding of deposits is simply a service to be provided on behalf of the Government. We want to ensure that we can choose the best providers for the service.
We estimate that about £700 million-worth of deposits will be safeguarded by these schemes. We intend to specify the detail of how that money should be safeguarded and how the schemes should operate in practice in our contractual arrangements. That will ensure that such monies are kept safely and dealt with in accordance with our requirements. Therefore, I hope that the noble Baroness will not pursue her amendment.
I shall deal with Amendment No. 194, before I come to Amendment No. 192. Amendment No. 194 would introduce additional provision into Schedule 10 to

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allow the Secretary of State to introduce regulations on a number of specific issues. First, where, at the end of the tenancy, the tenant cannot be traced or will not respond when contacted by the landlord, I understand that, where tenants have vacated their property leaving damages, the landlord would wish to use the deposits to offset this.
Under our existing provisions, if the deposit has been retained by the landlord under an insurance scheme, in the circumstances described, unless the tenant requests repayment of the deposit, the landlord will keep it. If the deposit is held by a custodial scheme, the landlord will need to obtain a court order confirming that he is entitled to the money, in the same way that a tenant would be, if the landlord disappeared. That must be right; they are two sides of the same coin. I should be concerned about the implications of allowing the deposit to be released to one party based purely on their say-so.
The amendment also refers to circumstances where, during the tenancy, the tenant causes damage or is late with a rent payment and both parties agree that the landlord can take an equivalent amount of the deposit. If that amount consisted of the whole of the deposit amount, that would remove the landlord's guarantee of the tenant's good behaviour. That does not make sense. If, at the end of the tenancy, the tenant has not paid the arrears or repaired the damage, the landlord will be entitled to the deposit.
Finally, the amendment would allow for regulations to be made to set out what a scheme must do when there is no dispute and the deposit is to be returned to the tenant in full. Our provisions already deal with that circumstance. Under the insurance scheme provisions, the landlord would simply pay the tenant the deposit. That is set out in Schedule 10(6). Under the custodial scheme arrangements, the landlord and tenant would confirm their agreement to the custodial scheme, which would then pay the tenant. That is set out in Schedule 10(4). Those are matters of detail that I am grateful have been drawn to the attention of the House.
As the amendment acknowledges, there is already a power in paragraph 9 of the schedule that allows the appropriate national authority to amend any part of the schedule as appropriate. Therefore, there is no need for another provision allowing for regulations to be made on specific issues. Obviously, problems emerge once the provisions come into force. We will consider amending the schedule; I hope that I have properly explained why we would not do so at this stage.
My noble friend and I are grateful to the noble Lord, Lord Best, for Amendment No. 192. I am also extremely grateful for the co-operation of the Liberal Democrats and the Conservative Party in allowing the Government to bring forward their tranche of amendments. We were committed to no more big blocks of government amendments, so it was necessary to get the approval of the two Front Benches before ODPM got permission from the powers that be to introduce the amendments. It was a good package but it needed consent.
The existing provisions offer protection to any amount paid by a tenant to a landlord to act as security on an assured shorthold tenancy, irrespective of
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whether it is called a deposit. If a tenant pays money in the expectation that, if he does not breach his agreement, he will get it back at the end of his tenancy, this will be protected. Amendment No. 200 would prevent landlords or their agents charging any other unjustified fees in relation to tenancy agreements, in particular charging a fee instead of a deposit.
The issue of unjustifiable fees was touched on in the consultation paper that we issued in November 2002. However, the responses indicated that there was no consensus on the issue. Respondents were evenly split on whether those fees were reasonable. Of those who thought that it was reasonable, the majority qualified that by saying that it depended on the amount, the situation or the work actually done. Further thought is needed on the issue.
The ability to curb such fees goes beyond the scope of these provisions, which are concerned only with the protection of tenancy deposits. We hope that tenants' awareness of the new deposit protection provisions would lead them not to deal with agents or landlords who took an extortionate non-refundable fee instead of a deposit. Preventing landlords from charging unjustified additional fees would not be possible by way of a simple amendment to these provisions. Careful thought would be required on what would amount to "unjustified". If we were to legislate for the prevention of taking other fees, one undesirable effect would be that landlords who still wish to avoid safeguarding a deposit would simply add the value on to the rent they charge. It is a very complex issue; that is why I am sticking to the notes.
We will consider the issue again in the context of the Law Commission's review of housing tenure, following the publication of its draft Bill early next year. Earlier I asked my noble friend Lord Bassam whether we had seen that in our speaking notes because, although I had read it, it had passed me by and was therefore new to me. It is a positive development. I must make clear that that is not to say that Parliament will deal with the issue early next year. Once we get the Bill from the commission it will be useful.
As the noble Lord, Lord Best, said, some fees are a problem. In fact, some agents charge those fees and others, including charges for inventories, to landlords. That shows that the issue of unjustified fees charged by agents to landlords and tenants is wider than the issue of tenancy deposits. We recognise the tenancy deposit because we can see it, so we know what we are talking about; fees such as the charge for checking inventories or others referred to by the noble Lord, Lord Best, involve very complex legislation. They go way beyond the scope of the few clauses that the House inserted into the Bill a few sittings ago. We will return to the matter, particularly in view of the Law Commission's draft Bill, which will be available for everyone to see early next year.
I hope that that explanation is sufficiently satisfactory to enable this group of amendments to be withdrawn, so that my noble friend can move the package of 20 government amendments.
Lord Best: My Lords, I am not quite sure whether the Minister has covered Amendments Nos. 190 and 191, which are about the custodial scheme. We are worried that some landlords will simply ignore the whole thing, forcing tenants to go to court if they want any redress. Those amendments would allow the tenant to pay their deposit not to the landlord, but straight into the custodial scheme. The other comments—
Lord Rooker: My Lords, as I said, those amendments will be referred to when my noble friend moves the government tranche. Otherwise, I would be making the same speech as my noble friend.
Baroness Hanham: My Lords, I thank the Minister for his reply to my two amendments. I think I heard him say that the Residential Landlords Association or similar organisations could set themselves up a scheme, but that they would have to tender alongside other people on a competitive basis. That seems to be perfectly acceptable and clarifies the matter as far as I am concerned. It may not clarify it for others, but it seems to me to be a perfectly good answer. I am happy with that.
As regards the custodial schemes where the tenant disappears, the problem is simply having to take the time and trouble to go to the expense of bringing court proceedings. The issue of a tenant disappearing could probably be synonymous with one who dies. The situation is effectively the same. But I hear what the Minister has to say on that. I do not need to take the matter any further tonight. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 188:
Page 159, line 33, at end insert—
"money" means money in the form of cash or otherwise:"
The noble Lord said: My Lords, these amendments refine the clauses on tenancy deposits, to which my noble friend Lord Rooker has referred, which we introduced to the House in Committee. I shall quickly go through the amendments. In doing so, I trust that I shall answer points that emerged in the earlier debate.
Amendment No. 188 is a minor amendment to Clause 201(8) to clarify the meaning of "money" in these provisions as not just cash but also cheques, which seems quite important to me. Amendment No. 195 amends Clause 202, entitled,
"Requirements relating to tenancy deposits".
It requires a landlord to deal with a deposit in accordance with an authorised scheme to comply with the initial requirements of a scheme within 14 days and to give the tenant the appropriate information relating to the taking of the deposit within 14 days of receiving it. Amendments Nos. 196, 197 and 198 are minor and consequential amendments to Clause 202.
Amendment No. 199 seeks to ensure that assisted deposit schemes, which provide a valuable service offering an opportunity for the disadvantaged, such as the homeless or those on low incomes to enter into private rented housing, are not undermined by these provisions. Of course, some such schemes offer a letter of guarantee to the landlord of an amount up to the value of the deposit. The organisation promises to pay the landlord at the end of the tenancy if the tenant has been found to have caused any damage to or theft from the property. We have altered the definition of a deposit so that it consists of "movable property" in order that such guarantees fall outside the scope of the provisions and the organisations offering them can continue to operate effectively.
Instead of offering letters of guarantee, some local schemes pay the deposit direct to the landlord. In some instances the tenants are required to pay back the deposit amount to the local organisation in monthly instalments while the landlord then returns the deposit to the tenant at the end of the tenancy. In others, the tenant is bypassed completely and the landlord returns the deposit to the organisation which paid it in the first instance. Those types of deposit loan schemes will need to operate within the new tenancy deposit provisions as money is passed into the landlord's hands. However, we have amended the provisions so that they take account of situations where a third party has made arrangements for the tenant to pay the deposit on their behalf.
In responding to Amendments Nos. 190, 191 and 204 earlier, my noble friend touched briefly on Amendments Nos. 201, 203 and 205. These amendments streamline the proceedings for tenancy deposits to make it easier for tenants to enforce sanctions against non-compliant landlords, an issue raised by the noble Lord, Lord Best, and certainly one of his concerns. A landlord or a letting agent acting on his behalf now has 14 days from receiving the deposit to ensure that it is safeguarded by a scheme, that he has complied with the initial requirement of the scheme and to provide a tenant with information about that scheme and its operation. Until this is done, the landlord is unable to regain possession of the property using the usual "notice only" grounds for possession.
Additionally, we have cut down the number of court hearings required to enforce the provisions. If the landlord or his agent has not complied within 14 days, the tenant can now apply for a court order requiring the landlord to either return the deposit or pay it into a custodial scheme and an order requiring the landlord to pay the tenant an amount equivalent to three times the deposit. We believe that this provides a greater certainty for landlords that they will face a financial penalty if they do not comply with the provisions.
Finally, we have introduced Amendments Nos. 191A, 191B, 291C, 291D, 219E and 291F, which amend Schedule 10 to change the way in which deposits are dealt with at the end of a tenancy where that deposit is safeguarded by an insurance-based scheme. Under the existing provisions, if there is a dispute the landlord retains the deposit and the interest it generates until that dispute is resolved by agreement or a decision of the court. This provides no incentive for the landlord to

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return the deposit to the tenant until a court order has been granted, irrespective of whether there is any justifiable reason for the landlord to retain it. This is obviously not a desirable effect.
We have therefore amended the provisions so that where the tenant asks the landlord to repay the deposit amount to him and he does not do so within 10 days, the landlord can be required to transfer this amount to a designated account held by the scheme administrator. This will mean that both parties have an equal incentive to resolve any disagreement between them. When a decision has been reached as to what portion of the deposit is due to each party, the scheme administrator must pay any moneys due to each party.
I know that I have gone over this issue at some speed, but I think I have addressed many of the points that were raised in the earlier debate. I am extraordinarily grateful to the noble Lord, Lord Best, the noble Baroness, Lady Hanham, and noble Lords on the Liberal Democrat Benches for the constructive way in which they have approached the whole issue. We have put something in place in legislation which will not only stand the test of time but, more importantly, will match the very understandable concerns over tenancy deposits which have been expressed by tenants—and to a degree by landlords—over a considerable period of time.
The noble Baroness, Lady Gardner of Parkes, asked what it is about these provisions that applies to tenancies with rents of more than £25,000. It is true that if the rent is more than £2,000 per month these provisions will not apply. Most ordinary tenants are not paying rent at that level. We have introduced these amendments with the aim of dealing with the worst abuses in the private rented sector. Obviously those abuses have a disproportionate effect on the poorest members of our communities.
We will look more widely at some of the issues raised by the noble Baroness in the context of the Law Commission's review of tenure. I would not like the noble Baroness to think that the issue has been completely lost. Further work is being done and I hope that, as a product of that, there will be some resolution of the issue. I beg to move.
The Countess of Mar: My Lords, when the Minister referred to the amendments he kept quoting "219s"; I think he meant "191s".
Lord Bassam of Brighton: I did, my Lords.
Baroness Hanham: My Lords, the Minister may be glad to hear that, at this hour, I am going to be uncritical of the amendments moved by the Government. It makes a change. Certainly on our side of the House we have appreciated for a long time that a tenancy deposit scheme needed to be introduced. There have been all kinds of abuses. One of the first things that I did in this House was to deal with the initial phases of the tenancy deposit scheme when it was mooted. It is very desirable.
I am sure that there are small issues which other people may wish to deal with but, like my noble friend Lady Gardner, in terms we welcome the provisions
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that have been brought forward. Certainly they are a good step forward. Apart from the fact that the Minister does not believe that anyone paying a rent of more than £2,000 a month needs protection, we are broadly satisfied.
9.45 p.m.
Baroness Gardner of Parkes: My Lords, I mentioned the death of a tenant. If the Minister's department is looking at this, it should also look at the equally possible death of a landlord.
On Question, amendment agreed to.
[Amendment No. 189 not moved.]
Schedule 10 [Provisions relating to tenancy deposit schemes]:
[Amendments Nos. 190 and 191 not moved.]
Lord Rooker Lord Rooker moved Amendments Nos. 191A to 191F:
Page 255, line 38, leave out from "landlords" to end of line 6 on page 256 and insert "on the basis that, at the end of the tenancies—

(i) such amounts in respect of the deposits as are agreed between the tenants and the landlords will be repaid to the tenants, and

(ii) such amounts as the tenants request to be repaid to them and which are not so repaid will, in accordance with directions given by the scheme administrator, be paid into a designated account held by the scheme administrator,

(ba) amounts paid into that account are kept by the scheme administrator in the account until such time as, in accordance with the scheme, they fall to be paid (wholly or in part) to the landlords or tenants under the tenancies,

(bb) landlords undertake to reimburse the scheme administrator, in accordance with directions given by him, in respect of any amounts in respect of the deposits paid to the tenants by the scheme administrator (other than amounts paid to the tenants as mentioned in paragraph (ba)), and"

Page 256, line 14, leave out "and 6" and insert "to 6B"
Page 257, line 13, leave out "is to be paid" and insert "is payable"
Page 257, line 36, leave out from "if' to end of line 39 and insert "the scheme administrator directs the landlord to pay him any amount in respect of the deposit in accordance with paragraph 6(3) or (7), the landlord will comply with such a direction."
Page 258, line 8, after "this paragraph" insert "and paragraphs 6A and 6B"
Page 258, line 13, leave out sub-paragraphs (2) to (9) and insert—
"(2) Sub-paragraphs (3) to (9) apply where the tenant notifies the scheme administrator that—

(a) the tenant has requested the landlord to repay to him the whole or any part of the deposit, and

(b) the amount in question ("the outstanding amount") has not been repaid to him within the period of 10 days beginning with the date on which the request was made.

(3) On receiving a notification in accordance with subparagraph (2), the scheme administrator must direct the landlord—

(a) to pay an amount equal to the outstanding amount into a designated account held by the scheme administrator, and

(b) to do so within the period of 10 days beginning with the date on which the direction is received by the landlord.

(4) The following sub-paragraphs apply where the tenant or the landlord notifies the scheme administrator—

(a) that a court has decided that the outstanding amount is payable either wholly to one of them or partly to the one and partly to the other and the decision has become final (see paragraph 4(6) and (7)), or

(b) that the tenant and landlord have agreed that such an amount is to be paid either wholly to one of them or partly to the one and partly to the other.

(5) If the scheme administrator is satisfied as to the matters mentioned in sub-paragraph (4)(a) or (b) (as the case may be), he must—

(a) pay to the tenant any amount due to him in accordance with the decision or agreement (and, to the extent possible, pay that amount out of any amount held by him by virtue of sub-paragraph (3)), and

(b) comply with sub-paragraph (6) or (7), as the case may be.

(6) Where any amount held by the scheme administrator by virtue of sub-paragraph (3) is more than any amount due to the tenant in accordance with the decision or agreement, the scheme administrator must pay the balance to the landlord.
(7) Where any amount so held by the scheme administrator is less than any amount so due to the tenant, the scheme administrator must direct the landlord to pay him the difference within the period of 10 days beginning with the date on which the direction is received by the landlord.
(8) The scheme administrator must pay any amounts required to be paid to the tenant or the landlord as mentioned in subparagraph (5)(a) or (6) within 10 days beginning with the date on which the notification is received by the scheme administrator.
(9) The landlord must comply with any direction given in accordance with sub-paragraph (3) or (7).
6A (1) The designated account held by the scheme administrator must not contain anything other than amounts paid into it as mentioned in paragraph 6(3) and any interest accruing on such amounts.
(2) Subject to sub-paragraph (3), the scheme administrator may retain any interest accruing on such amounts.
(3) The relevant arrangements under section 201(1) may provide for any amount paid in accordance with paragraph 6(5)(a) or (6) to be paid with interest—

(a) in respect of the period during which the relevant amount has remained in the designated account, and

(b) at such rate as the appropriate national authority may specify for the purposes of paragraph 3(5)(b).

(4) With the exception of any interest retained in accordance with sub-paragraph (2), nothing contained in the designated account may be used to fund the administration of the scheme.
(5) In this paragraph "the relevant amount", in relation to a tenancy deposit, means the amount, in respect of the deposit, paid into the designated account by virtue of a direction given in accordance with paragraph 6(3).
6B (1) The scheme must make provision for preventing double recovery by a tenant in respect of the whole or part of the deposit, and may in that connection make provision—

(a) for excluding or modifying any requirement imposed by the scheme in accordance with paragraph 6 or 6A, and

(b) for requiring the repayment of amounts paid to the tenant by the scheme administrator.

(2) In this paragraph "double recovery", in relation to an amount of a tenancy deposit, means recovering that amount both from the scheme administrator and from the landlord."
On Question, amendments agreed to.
[Amendment No. 192 not moved.]
Lord Rooker Lord Rooker moved Amendment No. 193:
Page 259, line 19, at end insert—
Interpretation
In this Schedule references to tenants under shorthold tenancies include references to persons who, in accordance with arrangements made with such tenants, have paid tenancy deposits on behalf of the tenants."
On Question, amendment agreed to.
[Amendment No. 194 not moved.]
Clause 202 [Requirements relating to tenancy deposits]:
Lord Rooker Lord Rooker moved Amendments Nos. 195 to 199:
Page 160, line 7, at end insert—
"(2A) Where a landlord receives a tenancy deposit in connection with a shorthold tenancy, the initial requirements of an authorised scheme must be complied with by the landlord in relation to the deposit within the period of 14 days beginning with the date on which it is received.
(2B) For the purposes of this section "the initial requirements" of an authorised scheme are such requirements imposed by the scheme as fall to be complied with by a landlord on receiving such a tenancy deposit.
(2C) A landlord who has received such a tenancy deposit must give the tenant and any relevant person such information relating to—

(a) the authorised scheme applying to the deposit,

(b) compliance by the landlord with the initial requirements of the scheme in relation to the deposit, and

(c) the operation of provisions of this Chapter in relation to the deposit,

as may be prescribed.
(2D) The information required by subsection (2C) must be given to the tenant and any relevant person—

(a) in the prescribed form or in a form substantially to the same effect, and

(b) within the period of 14 days beginning with the date on which the deposit is received by the landlord."

Page 160, line 15, leave out "Subsections (1) to (4)" and insert "The provisions of this section"
Page 160, line 16, leave out subsection (6).
Page 160, line 24, leave out "subsection (6)" and insert "this section—"
Page 160, line 25, at end insert—
""property" means moveable property;
"relevant person" means any person who, in accordance with arrangements made with the tenant, paid the deposit on behalf of the tenant.""
On Question, amendments agreed to.
[Amendment No. 200 not moved.]
Clause 203 [Proceedings relating to tenancy deposits]:
Lord Rooker Lord Rooker moved Amendments Nos. 201 to 203:
Page 160, line 27, leave out subsections (1) to (3) and insert—
"(1) Where a tenancy deposit has been paid in connection with a shorthold tenancy, the tenant or any relevant person (as defined by section 202(7)) may make an application to a county court on the grounds

(a) that section 202(2A) or (2D) has not been complied with in relation to the deposit; or

(b) that he has been notified by the landlord that a particular authorised scheme applies to the deposit but has been unable to obtain confirmation from the scheme administrator that the deposit is being held in accordance with the scheme.

(1A) Subsections (4) and (4A) apply if on such an application the court—

(a) is satisfied that section 202(2A) or (2D) has not been complied with in relation to the deposit, or

(b) is not satisfied that the deposit is being held in accordance with an authorised scheme,

as the case may be."
Page 160, line 43, leave out "tenant" and insert "applicant"
Page 161, line 3, at end insert—
"(4A) The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order."
On Question, amendments agreed to.
[Amendment No. 204 not moved.]
Clause 204 [Sanctions for non-compliance]:
Lord Rooker Lord Rooker moved Amendments Nos. 205 to 208:
Page 161, line 11, leave out from "tenancy" to end of line 12 and insert "at a time when—

(a) the deposit is not being held in accordance with an authorised scheme, or

(b) the initial requirements of such a scheme (see section 202(2B)) have not been complied with in relation to the deposit."

Page 161, line 13, leave out "202(6)" and insert "202(2D)"
Page 161, line 15, leave out "that provision" and insert "202(2D)(a)"
Page 161, line 16, leave out subsections (3) and (4).
On Question, amendments agreed to.
Baroness Hanham Baroness Hanham moved Amendment No. 209:
After Clause 204, insert the following new clause—

DECENT HOMES STANDARD FOR SOCIAL HOUSING
(1) The Secretary of State shall ensure that by 2016 all social housing shall as far as is reasonably practicable have insulation, heating and ventilation standards that are at least equivalent to those required in newly built homes by the building regulations for the time being.
(2) For the avoidance of doubt the standards referred to above shall include the following provisions, namely that—

(a) there must be a heating system that is economical and efficient and which is capable of heating the whole dwelling to a comfortable level in normal weather conditions at a cost that is affordable to the occupant; and

(b) any property to which this section applies must achieve a SAP rating of no lower than 65.

(3) In this section "social housing" means housing let by a registered social landlord or a local housing authority.""
The noble Baroness said: My Lords, Amendment No. 209 would require a minimum SAP rating of 65 in social housing—now there is a lovely bit of jargon. This would enable the Government to meet their legal obligation to end fuel poverty and bring homes up to the standard that the Government accept is needed to do such a thing.
I was disappointed to note that the noble Lord, Lord Rooker, made few substantive points when we discussed these issues in Committee. I am afraid that he read out the Government's measures taken to improve energy efficiency, and that was all. Knowing the Minister's fondness for departing from his official script, this must have been a truly difficult task for him. No one disagreed with his comments, but the nub of the matter is contained in those which he made in Committee. The Minister told the House—I am sorry to repeat his words to him—of the Government's,
"goal of eradicating fuel poverty for all vulnerable households by 2010".—[Official Report, 16/9/04; col. 1449.]
Apart from the fact that it is not merely a goal but a legal duty under the Conservative Warm Homes and Energy Conservation Act 2000, there are two deficiencies in this statement. The decent homes standard will not do that. Secondly, the Minister failed to mention the other duty under the Warm Homes and Energy Conservation Act—to end all fuel poverty in all social housing by 2010. Again, the current decent homes standard will not do that.
Why do I say that? Noble Lords do not have to take my word for it but should listen to what the Government's official advisers have to say. As the minutes of a meeting held on 5 April between the Fuel Poverty Advisory Group, the Government's official expert advisers and the Minister, Keith Hill, stated, the Fuel Poverty Advisory Group went on to stress that,
"the thermal comfort standard of Decent Homes left householders remaining in fuel poverty".
How many people will be left in fuel poverty? The 2001 consultation on the decent homes standard stated:
"25 per cent of social sector tenants living in homes with these stock measures (i.e. insulation and heating measures that comply with the decent homes standard) are still fuel poor".
Twenty-five per cent is about 650,000 homes or more than 1,400,000 people, based on the national average of 2.2 persons per household.
That represents an enormous number of social housing tenants who live in properties that comply with the decent homes standard, but do not qualify for upgrade works under the standard and thus will still be left in fuel poverty. Therefore, the Government will be in breach of legal obligations.
What about the homes that do not comply even with the current standard? Latest figures show that there are well over 1 million non-decent homes that fail the current low standard on thermal insulation grounds. Current policy is to bring those homes up to the decent homes standard—the standard that will not guarantee that they will be removed from fuel poverty.
On 16 September, the Minister told the House that,
"the proposed clause would impose a burden that we do not think is cost effective"—[Official Report, 16/09/04; Col. 1451.]

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That may have been his department's decision. It is an important point but it is also not exact. The amendment would save public money and, since we are always keen on that, I will explain how that would happen. The Government have a legal duty to end fuel poverty in social housing. The decent homes standard does not do that, as I said. Therefore, improving homes to that standard will require a second set of measures later on. There would have to be two bites at the same cherry, which is certainly not the most efficient way of complying with the law. The most cost-effective way is to set the standard that ends fuel poverty for all at one time, which would save public money. The amendment does just that. It sets a SAP rating of 65—the rating that the Minister Elliot Morley in the House of Commons said was needed to end fuel poverty.
We have support for this measure from what might be considered to be an unexpected quarter. At a meeting of the All-Party Group on Warm Homes in Committee Room 17 last night, that very point was put to Defra Minister, the noble Lord, Lord Whitty. He replied, "I have some sympathy with this. I am not defending the Office of the Deputy Prime Minister". The noble Lord is not here and I apologise for quoting him when he is not on the Front Bench, but it seems to cover a point or two. I beg to move.
Baroness Maddock: My Lords, my name is attached to the amendment. I strongly support what the noble Baroness, Lady Hanham, said and will not repeat it at this late stage. The Minister will remember that, at the very first meeting we had on this Bill, I said that the Government had missed an opportunity to push energy efficiency in our homes in this Bill, and I have tried at all stages to do something about that. I regret that, however much the Prime Minister and others try to promote their love of the environment and say that they will sign up to all things to help mitigate climate change, the fact remains that Back-Benchers and others have had to push the Government on the issues.
The noble Baroness, Lady Hanham, said that the Warm Homes and Energy Conservation Act 2000 was a Conservative proposition. It may have been led by a Conservative, but all these issues are Back-Bench Bills that have cross-party support. In the end, they have to have Government support, but the Government are led kicking and screaming to get these matters onto the statute book. I have been involved with the subject all the time that I have been in both Houses of Parliament, and I regret that we always have to push so hard to get what seem to be sensible things that are in line with everything that all parties say we ought to have, especially in the realm of energy efficiency and looking after our environment.
I hope that the Minister understands how people feel about this. While it is far too late at night to go through why it is so important, I am sure that we shall return to it at Third Reading. Fuel Bills will be rising
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this winter and many of those whom the Government believed they had taken out of fuel poverty will go back into it. I strongly support the amendment.
Lord Bassam of Brighton: My Lords, it is a shame that we are at the hour we are and thus pushed for time, because there is much that we on the Government side could have said and done on this issue. I take issue politically with the noble Baroness, Lady Hanham, because in all the 18 years of Conservative government we did not have anything like a decent homes standard. If it was not for this Government, such a thing would not exist at all. I certainly do not recall Conservative administrations being in the least bit interested in fuel poverty; in fact, they were positively uninterested in it. My recollection is that money was taken out of the benefits system that had been put there at an earlier stage to alleviate a degree of fuel poverty.
That said, the amendment is important and interesting, being part of a broader and important debate which we are not immune to listening to. The new clause would require the Secretary of State to ensure that, by 2016, all existing social housing stock had the same levels of insulation, heating and ventilation as those required for new-build properties under the building regulations. It specifies that existing dwellings must achieve a SAP rating of no lower than 65, and must possess a heating system that is economical, efficient and able to heat a whole dwelling at a cost affordable to the occupant.
We certainly recognise the aspiration of the new clause to improve the heating, insulation and ventilation standards of the existing stock. As my noble friend Lord Rooker made clear when speaking to the amendment in Committee, we have no difficulty with that aspiration. But we believe that the amendment is unnecessary and impracticable, and we question its cost-effectiveness. It is easy in opposition to commit to objectives, as the noble Baroness has done, with little likelihood that those aspirations are ever going to be turned into effective action in government. We cannot share the noble Baroness's enthusiasm for this approach. We have already moved beyond aspiration: we have committed ourselves to a decent homes standard and reduced the number of non-decent homes by 1 million since 1997. We have a goal to eradicate fuel poverty for all vulnerable households by 2010. No previous administration has ever set out that objective in such a way, and we make no apology for it.
Improvements to heating and insulation are a major focus of the refurbishment works under way to deliver the decent homes standard. Roughly 80 per cent of the 1.6 million non-decent social homes failed on grounds of thermal comfort in 2001. This means that, in order to meet the 2010 target, we shall need to improve the heating or insulation, or both, in at least 1.3 million social homes. That is a tough order, but we do not shirk our responsibilities.
I turn to the issue of affordability. We cannot accept the linkage that the amendment attempts to establish between heating systems and affordability. The affordability of a heating system depends on an

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occupant's income. In cases of households with very low incomes, energy efficiency improvements alone will not be sufficient to allow a household to heat their home affordably. Income-related measures will also be required. That is where benefits, tax credits and winter fuel payments come in—and we have made our commitments very plain in that regard.
I am very proud to have been part of a Government who have underwritten winter fuel payments as we have. It has lifted millions out of fuel poverty and misery in the cold months of the year. On reflection, I wish it had been there when my mother was alive, as she would certainly have benefited from it with a vengeance. I think that this issue takes us beyond the territory of the Housing Bill.
I think that we can all agree that energy efficiency savings have to provide value for money. Very high levels of energy efficiency could be delivered from much of the existing stock, but at a very high cost. We need to balance expenditure on achieving energy efficiency against the need to carry out other work to improve living conditions. We also need to put homes into a reasonable state of repair, provide adequate ventilation for health, deal with any serious health or safely hazards and ensure safe means of escape in the event of a fire.
As I said, I think we have a very good story to tell on this. We are happy to be judged on our record. We see no virtue in turning the decent home standard into the kind of blunt instrument that we consider this amendment exemplifies.
So the aspiration is shared. I am glad that the noble Baroness and her party now have moved in the general direction of the Government in seeking to eradicate fuel poverty—a sentiment that was certainly absent in the Thatcher years. I urge the noble Baroness to withdraw the amendment.
10 p.m.
Baroness Hanham: My Lords, it was only because I mentioned the word "Conservatives" that the noble Lord, Lord Bassam, got so wound up and did not really concentrate on the amendment. I think the requirement to ensure that there is energy efficiency and that people should not be living in substandard properties has been common parlance for a number of years. I bow to no one in the fact that that has been a policy of governments for a considerably long time and certainly prior to this Government's efforts. However, I do not want to banter at this late stage; it was only that the noble Lord, Lord Bassam, wound me up a bit by getting wound up himself.
I think that the amendment is more important than the noble Lord, Lord Bassam, has given it credit for. The decent home standard is going to be complied with, but it is still going to leave the Government in breach of their duties. The amendment seeks to put that right.
I do not think that thermal insulation has anything to do with income. If I understood him correctly, the noble Lord said that part of the aspect of heating a home was economic. I accept that, but that is not what
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the amendment is about. The amendment is about ensuring that properties are physically in condition to withstand the seeping away of heat. Thermal insulation, as I say, is nothing to do with income.
The Minister has made a response. I do not agree with it. I will not test the opinion of the House tonight—it is too late—but I am absolutely certain that we will return to this at the next stage. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hanham Baroness Hanham moved Amendment No. 210:
After Clause 204, insert the following new clause—

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

(a) improving the energy efficiency of residential accommodation;

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

(c) alleviating fuel poverty;

the Secretary of State shall take reasonable steps to ensure an increase in residential energy efficiency of at least 20% by 2010 based upon 2000 levels.
(2) In this section—
"fuel poverty" has the same meaning as in the Warm Homes and Energy Conservation Act 2000 (c. 31);
"residential energy efficiency" means the energy efficiency of residential accommodation."
The noble Baroness said: My Lords, we are still more or less on the theme of fuel poverty. This new clause calls for a 20 per cent improvement in domestic energy efficiency by 2010. The target of a 20 per cent improvement was first set by the Conservative government in 1996 under the Home Energy Conservation Act 1995. I am sure that the Minister will not argue with me about that. The target was then increased to 30 per cent by 2010, but 30 per cent from 1996 is almost the same as 20 per cent based on 2000 levels. That target was for years accepted by the current Government. The 20 per cent improvement is just another way of saying that the target is the saving of five megatonnes of carbon from domestic energy efficiency by 2010.
We discussed the issue at some length in Committee. The noble Lord, Lord Rooker, made the point that the Government were, in effect, already doing this. I am afraid that we do not agree with that. In March 2003, Mr Michael Meacher told the House of Commons that a 20 per cent improvement was broadly equivalent to a saving of 5 million tonnes of carbon. Now, while some latitude might be reasonable, the 16 per cent difference cannot be said to be "broadly equivalent". So that is nonsense.
Let us apply the 16 per cent rule to another issue—the the ending of fuel poverty, about which we have been talking. There is a legal duty on the Government under the Warm Homes and Energy Conservation Act 2000. When that Act was passed, which was prior to this Government, there were 4.5 million households in fuel poverty. Applying the "16 per cent less is broadly equivalent" rule that the Minister sought to apply to the current amendment, if the Government ended fuel

895
poverty for 3.75 million households leaving 16 per cent still in fuel poverty, would that be broadly equivalent to discharging a statutory duty and ending fuel poverty?
CO2 savings of 4.2 million tonnes from household energy efficiency is not broadly equivalent to a 20 per cent improvement in energy efficiency. In short, the Government should keep their promises to save 5 million tonnes of carbon dioxide from the domestic sector and support this amendment. I beg to move.
Baroness Maddock: My Lords, I strongly support almost everything that the noble Baroness said on this issue. Indeed, as I have pointed out before, many of these issues have been contained in Private Member's Bills. In fact, the Home Energy Conservation Act 1995 was my own Private Member's Bill. Indeed, the previous Conservative government allowed it through, just as a Labour government allowed through the Warm Homes and Energy Conservation Act 2000. Although we push like mad on Private Member's Bills, in the end it is the government of the day who have to approve them.
However, as I said, we are always pushing the Government on these issues. They rarely come forward as a result of the Government's own initiative. That is very sad. The Home Energy Conservation Act was passed in 1995 and at that time we were calling for a 20 per cent improvement in domestic energy efficiency. It is particularly sad that over the years lobby groups and those of us who care about these issues pushed that matter time and time again. We have been given promise after promise after promise. However, as the noble Baroness said, suddenly last April the situation changed. Once again we are having to push the Government to tackle a matter that is very important at this time of discussion about climate change. Indeed, some people think that climate change is one of the most important issues facing us at the moment. Here we are trying in a Housing Bill to get the Government to reinstate commitments that they have given before. We should not have to do that if this is such an important issue. I hope that the Minister will discuss the matter with colleagues in other departments. This is a very serious matter and I hope that the Government will take it seriously.
Lord Bassam of Brighton: My Lords, this is a matter that we take seriously. We have had this debate before. We take the view that the Sustainable Energy Act 2003, and not this Bill, is the right vehicle for prescribing and reviewing energy efficiency targets of the kind that are proposed in this amendment. It also requires the Government—
Baroness Maddock: My Lords, I am not sure that the Minister heard what I said. The measure started off in the Home Energy Conservation Act and has been in every other relevant Bill since then. It was not until last April that the Government went back on it.
Lord Bassam of Brighton: My Lords, I understand that point but the Sustainable Energy Act 2003
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requires the Government to publish an annual progress report. I venture to suggest to noble Lords that, far from retreating on the issue, the Government are determined to make steady progress. Obviously I cannot speak for how colleagues have dealt with this matter in the past, but energy conservation is clearly a very important issue. I understand exactly the points about global warming and the commitments that we have made to conserve energy in relation to that issue.
The noble Baroness, Lady Hanham, has suggested that the UK target for carbon in the plan of action in some way marks a retreat from the aspirations in the energy White Paper. That figure is in fact the minimum that we expect to be achieved. We hope that we will be able to achieve more. Indeed, taking into account the increased commitment to energy efficiency from business, we expect total carbon savings from both sectors to be greater than the numbers set out in the White Paper. Far from lowering our expectations, we want to see an increase in activity and achievement across the board. The review mechanism in the Sustainable Energy Act 2003 will allow us to reflect those changes. This includes possible changes as a result of the forthcoming review of the UK Climate Change Programme, and any changes arising from the review of the Energy Efficiency Commitment, under which gas and electricity suppliers are required to promote energy-saving measures.
It is perhaps worth reminding ourselves that the Bill in itself makes a significant contribution to carbon savings from the domestic sector. We have already discussed in part the thermal comfort element of the decent home standard, and I will not go over that again. However, we should also recall that the housing health and safety rating system in Part 1 will enable local authorities to tackle cold, damp and mould hazards from poor heating and insulation, particularly in the private sector. Home information packs will include an energy efficiency assessment—the noble Baroness, Lady Maddock, congratulated us on that—which will set out how energy-efficient the property is and provide information on measures to improve energy efficiency.
In view of all that and the Government's overall commitment, I take it rather badly that we have been berated for not doing enough to stimulate domestic energy efficiency. I hope that the noble Baronesses will be able to focus a little before Third Reading on some of the inconsistencies in their position in that respect. There is a golden thread of commitment between us, and point scoring does not necessarily help us to take the policy forward in the most constructive way.
Baroness Hanham: My Lords, I thank the Minister for that reply; I hear what he says. However, a considerable proportion of the energy efficiency is meant to come about as a result of the use of renewable energy. The Bill is not the place to deal with wind farms and all the rest of it, but the Government would be lucky to achieve that goal. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 208 [Additional power to give grants for social housing]:
Lord Best Lord Best moved Amendment No. 211:
Page 163, line 16, at end insert ", to include measures to ensure—

(a) that tenants of homes built under subsection (2)(d) are afforded the same protection as tenants of registered social landlords in respect of—

(i) legal rights;

(ii) terms and conditions of occupancy;

(iii) rent levels;

(iv) bankruptcy of landlord or managing agent;

(v) recourse to the Independent Housing Ombudsman;

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

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

(ii) accountability for the use of grant;

(iii)requirements to repay or recycle grant."

The noble Lord said: My Lords, the clause gives grants for social housing to unregulated and unregistered bodies. I spoke at some length on the subject in Committee and shall not repeat anything that I said before. I am sorry to say that the Government's two amendments in relation to the clause do not dissuade me from continuing to press for the changes contained in my amendment.
In a nutshell, Clause 208 seeks to bring in a radically different approach to social housing. After 30 years of creating and refining the arrangements for housing associations—registered social landlords—to use public funds for providing low-cost accommodation, the intention is that grants will be given to profit-making house builders and developers who are not subject to the same registration and regulation. I know that the Treasury is keen to see more homes built to meet the acute shortages of housing; no one is more sympathetic to that requirement than I am, but it is most unwise to try to achieve that by jettisoning all the painstaking work in devising arrangements for giving funds only to bodies that are subject to regular monitoring and inspection.
The only competitive advantage that house builders are likely to have over housing associations lies in avoiding the extra duties and social responsibilities that come from being a registered social landlord. For example, house builders, unlike housing associations, will fall outside the EU procurement directives. When bidding for grants, they will not need to build into their costings all the social welfare services that housing associations are rightly expected to provide. Also, the requirement that housing associations must accept to upgrade their property in future to meet new and higher standards does not apply to them.
No one has argued that house builders are achieving high levels of satisfaction from their customers. The regular publication of the satisfaction surveys by the National House-Building Council makes astonishing reading, particularly for some of the largest house-building companies, with only 45 per cent of buyers expressing satisfaction with their new home. A very depressing publication came out only days ago from the
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Commission for Architecture and the Built Environment and the Civic Trust. It considered 100 developments by the major house builders in the south-east, concluding that only 17 per cent of the new homes were either good or very good, and that 83 per cent were poor or average.
Indeed, the chief executive of one of the major house-building companies—one of the most respected—recently told the annual conference of the National Housing Federation that he felt the proposals for paying social housing grant to developers and house builders were seriously flawed. He said that very few of these companies were equipped to take on the lifetime commitment of a contract to supply social rented housing and it was not sensible to suggest that a simple contract at the time of the development could avoid all the hazards implicit in this approach.
I have not heard the Minister claim that a contract with a developer or a house builder could possibly provide the same safeguards for the public funds, or for the occupiers of the affordable housing, stretching into the future, as those where the Housing Corporation is able to keep a constant eye on the performance of the registered social landlord, with powers even to replace the members of the board if need be. What on earth is the point of inspectors from the Audit Commission visiting housing associations to look at their standards of maintenance and repairs, consider their attention to tenant participation and involvement in management, check their ongoing adherence to good practice in relation to equality and diversity and the rest, if all those considerations are swept away when house builders or developers seek the same grants?
My housing association has been happy to see Housing Corporation officers visiting its premises and joining meetings of our board. There is no intention, once this part of the Bill is enacted, for such measures to apply when the grants are switched to profit-making bodies. Yet house-building companies are far more likely to go bust, merge, amalgamate, change their business and generally have more need to be trapped by close inspection than housing associations. Amendment No. 211 places an obligation on the Government to make sure that before any grants start going to unregulated, unregistered developers and house builders, arrangements should be put in hand to ensure that the tenants receive the same deal and taxpayers' money receives the same protection as when grants are paid to regulated registered social landlords.
I am not underestimating the difficulties of devising arrangements which produce this parity and maintain it over the 50, 60 or 100 years of the life of the property in question. Yet it is because these safeguards are in place for housing associations that institutional lenders—banks and building societies—have had the confidence to lend more than £45 billion for social housing on very good terms.
Unless the safeguards of this amendment are in place, it seems extremely unwise to ditch the years of work back to the Housing Act 1974, in which all the checks and balances, rights and responsibilities for the

899
parties concerned have been carefully put in place, just for the short-term gains of some cheaper homes today. I beg to move.
10.15 p.m.
Baroness Hanham: My Lords, Amendment No. 212A is in this group. The noble Lord, Lord Best, put forward the problems which we foresee as being associated with this quite unusual intervention in the social market by private builders, encouraged by this government amendment.
The noble Lord, Lord Best, clearly laid out the views which many of us hold, but I want to ask the Minister a couple of questions. I do not believe that they are addressed by the Minister's amendment. If the Government are going to give public money to companies, what protection is there for the taxpayer should the company in question go bust? We know that back gardens are being classified as brownfield sites already, so what is stopping this scheme from becoming a subsidised mechanism for the infill of suburban areas? Indeed, what would stop private developers from cherry picking the best sites in housing hot spots so that they could receive a greater return on their investments by having access to the social housing grant?
Once these properties have been built and they enter the social housing market, who will manage and run them? I think that we touched on this matter at the last stage, but it needs to be made clear whether the properties will be handed back to a local housing trust—if that is the case, what will happen to the grant?—or to another registered social landlord. On the other hand, will private companies—I think that the noble Lord, Lord Best, mentioned this—be set up with their own management bodies? If the latter is the case, all kinds of questions need to be asked about who should be on those bodies.
As it stands, this clause, and any explanation attached to it, is woefully inadequate in its detail. As I said, I do not think that the government amendments deal with the problems which we have all identified.
Baroness Maddock: My Lords, I strongly support everything that the noble Lord, Lord Best, said in moving Amendment No. 211 and much of what the noble Baroness, Lady Hanham, has just said. This provision will bring about a huge change in the way that we are to fund social housing, and I think that we deserve a little more detail from the Government.
We discussed this matter earlier. It is now very late at night, but this is a massive change. Various rumours are going around about what might happen. If the Government expect us to accept this measure, they owe it to us to explain a little about what is going on. For example, I have heard that if the scheme proves to be successful and good value for money, the Government's intention is that the whole of the Housing Corporation programme will be opened up to private developers. If that is so, I think that the least the Government can do is to say how they are going to assess it.
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The last time that we spoke about this matter, I was concerned because I did not know what it was based on or what evidence the Government had that it would work. I believe that they should tell us how they are going to assess it and, as other noble Lords have said, how they will ensure that taxpayers' money and public money is put to best use.
There is another area on which I hope the Minister can enlighten us and, again, it is a matter that we have been reading about in the housing press. Many builders are looking to set up housing associations because they will then be able to save on VAT payments. Ultimately, the builders are there to make profits, and I understand that. But, in providing social housing for years to come, we must ensure that the money is used properly and that the homes we build will last and be fit for purpose.
I remember local authorities, in bad times, buying off-the-peg housing, and I remember the problems that they had. This is a very serious issue. We do not really have enough time to discuss it at this hour of the night, but I hope that the Minister can enlighten us on the two problems that I have mentioned.
Lord Bassam of Brighton: My Lords, I certainly agree with the noble Baroness that this is the wrong time of day to discuss an issue which is clearly of great import to all those who have contributed to the debate. I shall deal with Amendment No. 211 at a little more length than I shall the government amendments because I recognise the seriousness of the issue.
In Committee, we made it clear that we wish to ensure equality of opportunity for tenants, prospective tenants and residents of registered social landlords and non-RSLs, to use the jargon. But we believe that this amendment would restrict the Housing Corporation's flexibility to shape competition to deal with these matters. And it does not properly take into account inevitable differences in approach that will be needed to achieve the same outcomes for one system controlled by regulation and another controlled through grant conditions.
We do not believe that the withdrawal of the amendment will mean poorer outcomes for tenants and local communities. The conditions of grant drawn up by the Housing Corporation will be expected to replicate for non-RSLs the design, construction and management standards that currently apply to RSLs receiving grant. I heard what the noble Lord, Lord Best, said about that and I certainly recognise the importance of the issue, but, in our view, this approach does not undermine the desire that we have, as a Government, to see improvements in the design, construction and quality of properties.
As a long-stop, the clause already contains a provision that should allay the noble Lord's concerns about the conditions of grant and how they will be applied. The Secretary of State will have an order-making power to ensure that any key risks, including financial risks, are addressed. We are very aware that the use of public funds is a crucial value-for-money issue. We shall ensure that the Housing Corporation puts conditions and, where required, charges in place

901
so that funds will not be unfairly lost for reinvestment in future social housing. The Housing Corporation is considering ways of recovering a proper share of equity growth, certainly in the event of disposal. In effect, the Government's order-making powers will provide an essential, important and effective safety net to ensure that these matters can be dealt with satisfactorily.
Amendment No. 211 deals with two scenarios concerning what might happen to property built by a non-RSL using a Section 27A grant. The first is where a non-RSL transfers the grant-funded property to an RSL. The second is where a non-RSL transfers the grant-funded property to another RSL. I can see that the purpose of the amendment is to ensure that tenants and residents continue to be protected. The effect will be that where a non-RSL transfers a grant-funded property to an RSL, the grant will be treated as if it were a traditional grant given under Section 18 of the Housing Act 1996 thereby attracting the grant conditions which would usually be imposed if it had been given under Section 18. At any time a property is transferred to another non-RSL the grant will be treated as if it were payable to the non-RSL and all rights and obligations will be transferred to that non-RSL.
Amendments Nos. 213, 238 and 242 have the purpose of extending to the tenants of non-RSL grant-funded property a right to acquire the equivalent of that right currently enjoyed by tenants of newly-built RSL grant-funded properties. The effect will be to ensure that non-RSL tenants have an equality of opportunity with RSL tenants.
Amendment No. 238 is essentially technical, but it does ensure that determinations made under the new Section 27B are treated in the same way as determinations under Sections 18 and Section 27 of the Housing Act 1996. I hope that that clearly explains the effects of our amendments.
The noble Lord, Lord Best, asked questions with regard to inspections. I can advise the noble Lord that the Audit Commission will in any case be concentrating inspection on organisations with more than 1,000 units. Non-RSL managers are likely to be smaller than that. The Housing Corporation plans to develop some form of external validation of standards just as it will require an independent audit of compliance with development funding conditions.
I know that my response to the issues has not been entirely adequate. I am conscious of the lateness of the hour. Certainly, I understand the force of the noble Lord's argument. I think that the issues of concern can properly be covered in the way in which the Housing Corporation will operate and the way in which we can provide orders which guarantee a system of regulation which is fair and effective. I beg to move.
Baroness Maddock: My Lords, before the noble Lord sits down, I wonder whether he can answer my question or at least undertake to write to us on how the
902
Government intend to assess how well that is going and how they will progress it later on, which is of concern to us.
Lord Bassam of Brighton: My Lords, of course we shall be concerned with that issue. I am happy to give the commitment that we shall conduct correspondence on this and describe how that assessment will be carried out.
Baroness Hanham: My Lords, briefly, I thank the Minister for not replying to any of the questions that I raised in my remarks on this amendment. I shall be grateful to receive a response in writing, as I appreciate the lateness of the hour. The only remark which I heard with dismay was that there are order-making powers which will deal with all of this satisfactorily. I think that we have all said today that we do not believe in that. We like to know what is going on and why. If it is not laid out at this stage it will be very difficult to track back what is meant. It is unusually unspecific of the Minister, but perhaps he will be kind enough to deal with that in correspondence also.
10.30 p.m.
Lord Best: My Lords, even this afternoon we have been able to see that there are all kinds of things that you can impose retrospectively on registered social landlords. We have talked today about choice-based letting systems, about registers for accessible housing for people with disabilities and upgrading energy efficiency—all kinds of measures which, if you have a bunch of social landlords, you can require them to get on with.
When you have signed a contract many years before with the private sector, you cannot go back and expect it to do the things that we would expect and hope for from social landlords. We are talking in completely different terms once we dissolve the structures we have built up since the 1974 Act in order to have a whole sector of regulated social landlords and say that that is no longer the way we work and, in our quest for more and cheaper homes today, we are prepared to sacrifice those arrangements. I think that measures of this kind will be deeply regretted later. Although of course I would not dream of dividing the House at this late hour, I would wish to return to this at Third Reading. At this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 212:
Page 164, line 16, at end insert—

27B TRANSFER OF PROPERTY FUNDED BY GRANTS UNDER SECTION 27A
(1) Where

(a) any grant is paid or payable to any person under section 27A, and

(b) at any time property to which the grant relates becomes vested in, or is leased for a term of years to, or reverts to, another person who is not a registered social landlord,

903
this Part shall have effect, in relation to times falling after that time, as if the grant, or such proportion of it as is determined or specified under subsection (4), had been paid or (as the case may be) were payable to that other person under section 27A.
(2) Where—

(a) any amount is paid or payable to any person by way of grant under section 27A, and

(b) at any time property to which the grant relates becomes vested in, or is leased for a term of years to, or reverts to, a registered social landlord,

this Part shall have effect, in relation to times falling after that time, as if the grant, or such proportion of it as is determined or specified under subsection (4), had been paid or (as the case may be) were payable to that other person under section 18.
(3) In such a case, the relevant section 18 conditions accordingly apply to that grant or proportion of it, in relation to times falling after that time, in place of those specified under section 27A(8).
"The relevant section 18 conditions" means such conditions specified under section 18(3) as would have applied at the time of the making of the grant if it had been made under section 18 to a registered social landlord.
(4) The proportion mentioned in subsection (1) or (2) is that which, in the circumstances of the particular case—

(a) the Relevant Authority, acting in accordance with such principles as it may from time to time determine, may specify as being appropriate, or

(b) the Relevant Authority may determine to be appropriate.—

On Question, amendment agreed to.
[Amendment No. 212A not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 213:
After Clause 208, insert the following new clause—

EXTENSION OF RIGHT TO ACQUIRE
After section 16 of the Housing Act 1996 (c. 52) insert—

16A EXTENSION OF SECTION 16 TO DWELLINGS FUNDED BY GRANTS UNDER SECTION 27A
(1) Section 16 applies in relation to a dwelling ("a funded dwelling") provided or acquired wholly or in part by means of a grant under section 27A (grants to bodies other than registered social landlords) with the following modifications.
(2) In section 16(1) the reference to a registered social landlord includes a reference to any person to whom a grant has been paid under section 27A.
(3) In section 16(2) and (4) any reference to section 18 includes a reference to section 27A.
(4) For the purposes of section 16 a funded dwelling is to be regarded as having remained within the social rented sector in relation to any relevant time if, since it was acquired or provided as mentioned in subsection (1) above, it was used—

(a) by the recipient of the grant mentioned in that subsection, or

(b) if section 27B applies in relation to the grant, by each person to whom the grant was, or is treated as having been, paid,

exclusively for the purposes for which the grant was made or any other purposes agreed to by the Relevant Authority.
(5) In subsection (4) "relevant time" means a time when the dwelling would not be treated as being within the social rented sector by virtue of section I6(3).""
On Question, amendment agreed to.
Lord Rooker Lord Rooker moved Amendment No. 214:
After Clause 208, insert the following new clause—
"Rights of pre-emption in connection with assured tenancies
(1) Section 5 of the Housing Act 1988 (security of tenure for assured tenants) is amended as follows.
(2) After subsection (5) (certain obligations etc. of tenant to be unenforceable) insert—
"(5A) Nothing in subsection (5) affects any right of pre-emption

(a) which is exercisable by the landlord under a tenancy in circumstances where the tenant indicates his intention to dispose of the whole of his interest under the tenancy, and

(b) in pursuance of which the landlord would be required to pay, in respect of the acquisition of that interest, an amount representing its market value.

"Dispose" means dispose by assignment or surrender, and "acquisition" has a corresponding meaning."
(3) The amendment made by subsection (2) does not apply in relation to any right of pre-emption granted before the clay on which this section comes into force."
The noble Lord said: My Lords, Amendment No. 214 prevents rights of first refusal in assured tenancies from being caught by Section 5 of the Housing Act 1988, which protects the security of tenure of assured tenants. The effect will be to enable landlords of shared ownership properties to include rights of first refusal in their shared ownership leases. It will help retain affordable housing that might otherwise move into the open market. It will also allow a registered social landlord to retain a sensible management role and provide new subsidy where an owner has "staircased up" to a significant level of ownership.
Amendment No. 241 in the group simply deals with the commencement of the new clause relating to the rights of pre-emption. I beg to move.
On Question, amendment agreed to.
Lord Rooker Lord Rooker moved Amendment No. 215:
After Clause 209, insert the following new clause—

DUTIES OF LOCAL HOUSING AUTHORITIES: ACCOMMODATION NEEDS OF GYPSIES AND TRAVELLERS
(1) Every local housing authority must, when undertaking a review of housing needs in their district under section 8 of the Housing Act 1985 (c. 68), carry out an assessment of the accommodation needs of gypsies and travellers residing in or resorting to their district.
(2) Subsection (3) applies where a local housing authority are required under section 87 of the Local Government Act 2003 (c. 26) to prepare a strategy in respect of the meeting of such accommodation needs.
(3) The local authority who are that local housing authority must take the strategy into account in exercising their functions.
"Functions" includes functions exercisable otherwise than as a local housing authority.
(4) A local housing authority must have regard to any guidance issued under section (Guidance in relation to section (Duties of local housing authorities: accommodation needs of gypsies and travelers)) in—

(a) carrying out such an assessment as mentioned in subsection (1), and

(b) preparing any strategy that they are required to prepare as mentioned in subsection (2).

(5) In this section—

(a) "gypsies and travellers" has the meaning given by regulations made by the appropriate national authority;

(b) "accommodation needs" includes needs with respect to the provision of sites on which caravans can be stationed; and

(c) "caravan" has the same meaning as in Part 1 of the Caravan Sites and Control of Development Act 1960.""

On Question, amendment agreed to.
Lord Rooker Lord Rooker moved Amendment No. 216:
After Clause 209, insert the following new clause—

GUIDANCE IN RELATION TO SECTION (DUTIES OF LOCAL HOUSING AUTHORITIES: ACCOMMODATION NEEDS OF GYPSIES AND TRAVELLERS)
(1) The appropriate national authority may issue guidance to local housing authorities regarding—

(a) the carrying out of assessments under section (Duties of local housing authorities: accommodation needs of gypsies and travelers)(1), and

(b) the preparation of any strategies that local housing authorities are required to prepare as mentioned in section (Duties of local housing authorities: accommodation needs of gypsies and travelers)(2).

(2) Before giving guidance under this section, or revising guidance already given, the Secretary of State must lay a draft of the proposed guidance or alterations before each House of Parliament.
(3) The Secretary of State must not give or revise the guidance before the end of the period of 40 days beginning with the day on which the draft is laid before each House of Parliament (or, if copies are laid before each House of Parliament on different days, the later of those days).
(4) The Secretary of State must not proceed with the proposed guidance or alterations if, within the period of 40 days mentioned in subsection (3), either House resolves that the guidance or alterations he withdrawn.
(5) Subsection (4) is without prejudice to the possibility of laying a further draft of the guidance or alterations before each House of Parliament.
(6) In calculating the period of 40 days mentioned in subsection (3), no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days."
On Question, amendment agreed to.
Clause 210 [Removal of duty on local housing authorities to send annual reports to tenants etc.]:
[Amendment No. 216A not moved.]
Baroness Maddock Baroness Maddock moved Amendment No. 216B:
After Clause 211, insert the following new clause—

GROUND 8: HOUSING ACT 1988 (C. 50)
(1) Section 7 of the Housing Act 1988 (c. 50) (orders for possession) is amended as follows.
(2) In subsection (3), for "subsections (5A) and (6)" substitute "subsections (5A), (6) and (6A)."
(3) In subsection (4), for "subsections (5A) and (6)" substitute "subsections (5A), (6) and (6A)."
(4) After subsection (6), insert—"
(6A) If the court is satisfied—

(a) that Ground 8 in Part I of Schedule 2 to this Act is established; and

906

(b) that rent is in arrears as mentioned in that Ground as a consequence of a delay or failure in the payment of relevant housing benefit, it shall not make an order for possession unless it considers it reasonable to do so."

(5) After subsection (7) insert—
"(7A) In this section "relevant housing benefit" means—

(a) any rent allowance or rent rebate to which the tenant was entitled in respect of the rent under the Housing Benefit (General) Regulations 1987 (S.I. 1987/1971); or

(b) any payment on account of any such entitlement awarded under Regulation 91 of those Regulations.

(7B) References to delay or failure in the payment of relevant housing benefit do not include such delay or failure so far as referable to any wilful act or omission of the tenant.—
The noble Baroness said: My Lords, the problem with housing Bills not coming along very often is that people take the opportunity to raise issues that are of the day and need dealing with. The clause amends Ground 8 of Schedule 2 to the Housing Act 1988. Private landlords and housing associations can use Ground 8 to seek possession of an assured tenancy where a tenant has arrears of more than two months' rent.
Unlike other rent arrears grounds for possession, Ground 8 is a mandatory ground. The court has no discretion to decide whether it is reasonable to make an order for possession. The proposed amendment to Ground 8 is designed to give courts discretion in cases where housing benefit issues are outstanding. For example, they can decide to adjourn a case or suspend an order for possession. That would help ensure that tenants are not evicted from their homes due to nonpayment or delay of housing benefit. I understand that the Scottish Executive has already made moves to do that. Originally, Ground 8 was included in the Housing Act 1988. It was aimed at stimulating the private rented sector and making it easier for private landlords to recover their property.
However, since 1993, private landlords have been able to gain possession quickly and without a hearing for assured shorthold tenancies under Section 21 of the Housing Act 1988. In practice, private landlords used that accelerated possession procedure, rather than Ground 8. More recently, various housing organisations, including those representing people who have been made homeless, such as Shelter, and the National Association of Citizens Advice Bureaux, have raised concerns about the increasing use of Ground 8 by housing associations against social tenants, especially where there are problems with housing benefit.
The hour is late; I could give a lot of examples; but I do not think that there is time to do that. Suffice it to say that the amendment is designed to be helpful. I do not think that the provision is needed as it was originally proposed. I beg to move.
Lord Rooker: My Lords, I will give a partially helpful reply. Registered social landlords do not grant full assured tenancies and are able to rely on Ground 8 on some occasions; a matter that is currently very much of interest to the Housing Corporation. The corporation is working actively with government,

907
local authorities and registered social landlords to identify best practice and draw up guidance on possession actions by social landlords.
The Government believe—this is true—that a fairer approach to dealing with rent arrears in the public sector should be addressed. The amendment raises issues that need to be addressed in a wider context, especially the Law Commission's review on tenure. It published an initial report in November 2003 and expects to publish a draft Bill early next year. Under the Law Commission's proposals, there would be no mandatory grounds for possession in type 1 tenancies. Registered social landlords would lose the right to use their current mandatory grounds for possession, including the use of Ground 8. Instead, they would fall in line with local authorities, because all type 1 agreements could be brought to an end only at the discretion of the courts.
There is obviously much to be considered in the context of the Law Commission's proposals, and I hope that the noble Baroness will ensure that they provide a more suitable context to address the issue in due course, when we receive that Bill.
Baroness Maddock: My Lords, I thank the Minister for that helpful reply. I would say only what I said earlier: these Bills do not come along very often. I recognise that the Law Commission will produce its report, but, oh golly, how long will we have to wait to get it on the statute book? Nevertheless, I thank the Minister for that helpful reply, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 213 [Powers and procedure of residential property tribunals]:
Lord Rooker Lord Rooker moved Amendment No. 217:
Page 168, line 42, at end insert—
"( ) directions requiring the payment of money by one party to the proceedings to another by way of compensation, damages or otherwise."
The noble Lord said: My Lords, Clause 213 sets out the powers and procedures of a residential property tribunal in considering appeals or applications before it. Amendment No. 217 clarifies that directions under subsection (5) can include those for payment of money by one party to another for damages or compensation in appropriate cases. I beg to move.
On Question, amendment agreed to.
Clause 215 [Register of licences and management orders]:
Lord Rooker Lord Rooker moved Amendment No. 218:
Page 169, line 32, leave out "interim and final management orders made by them under" and insert "management orders made by them under Chapter 1 or 2 or'.
On Question, amendment agreed to.
Clause 216 [Approval of codes of practice with regard to the management of HMOs]:
Lord Rooker Lord Rooker moved Amendment No. 219:
Page 170, line 12, at end insert "or of excepted accommodation"
The noble Lord said: My Lords, Amendments Nos. 219, 220, 221 and 222 commit the appropriate national authority to approve codes of practice for buildings that fall within the exemption of the house-in-multiple-occupation definition in Schedule 14. As we said during the debates on student accommodation in Committee, the Government do not want to extend regulation to this sector, as we do not think that it is needed for the reasons given. Nevertheless, we are concerned to ensure that universities manage their residential property properly. That is why we announced that Universities UK was looking into a code of practice for the management of university accommodation. That was welcomed. The amendments will enable the appropriate national authority to approve such a code.
Amendment No. 232 provides that, in deciding whether to exclude university-managed accommodation from the definition of a house in multiple occupation, the appropriate national authority can have regard to the degree to which the university or universities are managing their accommodation in accordance with the code of practice. Unless an establishment is specified in the regulations, its residential stock will come within the definition of a house in multiple occupation and will be subject to statutory controls under Parts 2, 4 and 7. Nevertheless, we anticipate that universities will continue to manage their properties properly, in accordance with the code. I beg to move.
On Question, amendment agreed to.
Baroness Maddock Baroness Maddock moved Amendment No. 219A:
Page 170, line 14, at end insert—
"( ) The appropriate national authority may by order—

(a) approve a code of practice (whether prepared by that authority or another person) laying down standards of conduct and practice to be followed with regard to the management of houses other than HMOs;

(b) approve a modification of such a code; or

(c) withdraw the authority's approval of such a code or modification."

The noble Baroness said: My Lords, I thank the Minister for the previous amendments, because they go some way towards meeting the purpose of my own amendments. My group of amendments would provide for a proportionate regulatory framework for all private renting, based on a statutory code of practice for private rented housing other than houses in multiple occupation and an expectation that all private landlords should be fit and proper persons. Provision is made for the code of practice to be enforced by a residential property tribunal. The concept of a "fit and proper landlord" is extended as a positive status with benefits, which can be withdrawn if the landlord acts in breach of the code or other relevant statutory requirements.
The amendments would underpin local landlord accreditation schemes by setting out national, consistent, minimum management requirements to which local accreditation schemes could attach their own additional requirements to reflect the property type—for example, university accommodation—or its location—for example, an area blighted by absentee landlordism.
The amendments would address the deficit in management standards for the private rented sector as a whole. The proposals for mandatory licensing of' houses in multiple occupation will cover only approximately 5 per cent of the private rented sector. Currently, poor management in the wider sector means that much of the stock is in bad condition and tenants can be treated poorly. That damages its reputation and investment potential.
The regulation that these provisions introduce would be significantly less onerous than that required by the proposals for houses in multiple occupation and selective licensing. They would be proportionate to the scale of the problem of poor management in the sector and would support the Government's proposals for increasing investment in the sector through the introduction of property investment funds.
The key features of the provisions are: a new statutory code of practice providing basic minimum management standards for the sector as a whole; provision for management disputes and breaches of the code to be dealt with by residential property tribunals; and the extension of the concept of "fit and proper landlords" to apply to all private landlords, not just those with licensable properties.
Shelter, the National Union of Students and the British Property Federation support my attempt to ensure a good standard across the whole private rented sector. As I said, I appreciate the Government's amendments and the fact that they have a backstop if universities do not look after their properties properly. I recognise that the Government will not accept my amendments today, but I will be interested to know whether they have in mind a way to ensure that we eventually get proper standards across the private rented sector. I beg to move.
10.45 p.m.
Lord Bassam of Brighton: My Lords, in general, of course we have a strategy to deal with the issue to which the noble Baroness refers. That is why we have the legislation in place and why we have taken measures and steps to strengthen and modernise the regulation of the private rented sector, but recognising its essential and central place in providing flexible and good quality accommodation.
Dealing with the amendments in turn, Amendment No. 219A provides that the appropriate national authority may by order approve codes of practice in respect of non-HMO accommodation. It seeks to extend the provisions in Clause 216 which apply to HMO accommodation.
910
The amendment is unnecessary. Section 87 of the Leasehold Reform, Housing and Urban Development Act 1993 already provides that the Secretary of State and, for that matter, the National Assembly for Wales may approve by order any code of practice which is designed to promote desirable practices in the management of residential property and may also approve modifications or withdraw approval for such codes. It is already there: it is not required. There is a power and a facility that will enable us to do that. The procedure has been used in recent months to approve a code of practice submitted by the Royal Institution of Chartered Surveyors.
Amendment No. 223A would provide that where there is a dispute about the management of a dwelling by a residential landlord, that dispute can be referred to the Residential Property Tribunal. The amendment simply does not work. There is no legal requirement to comply with any code of practice. For reasons that we have given on many occasions, the Government do not support the idea of imposing licensing on the whole of the private rented sector. That would be disproportionate and an excessive regulation of a sector which, for the main part, works extremely well. Obviously, we accept that there are deficiencies in quality in some sectors.
If we were to go along that route, we would have to invest far more in regulating the sector. We would also have to expand the way in which the sector is monitored and the work of local authorities in that area in a way that is probably disproportionate to the scope of the problems of which we are all very well aware.
Amendment No. 223B provides that the appropriate national authority may award to a residential property landlord or manager the status of "fit and proper landlord". The noble Baroness explained the scheme very well. It would allow the appropriate national authority to prescribe the procedure for awarding and revoking such status, how it could be used in publicity and how such status may attract tax allowances.
As we have said in speaking to earlier amendments, we consider that this amendment is neither necessary nor desirable in terms of licensing all residential property landlords and managers through the "fit and proper landlord" requirement. I am afraid that the same argument really works for this amendment as works for Amendment No. 223A. We think that it would be excessive in relation to the degree of difficulty and the problem.
Certainly, we understand the problem, which is why we have a private rented sector strategy. That is why we have put in place many of the measures that are included in the Bill on which we have been congratulated, and on which the noble Baroness has congratulated us in moving some of our earlier amendments. Having said that, I hope that the noble Baroness will feel more content in withdrawing her amendment.
Baroness Maddock: My Lords, I am not quite sure that I am more than content, but I am grateful for the

911
Government outlining their position. It is not quite as I would have wished, but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rooker Lord Rooker moved Amendments Nos. 220 to 222:
Page 170, line 18, at end insert "or (as the case may be) excepted accommodation of the kind in question"
Page 170, line 19, after "houses" insert "or accommodation"
Page 170, line 35, at end insert—
"( ) In this section "excepted accommodation" means such description of living accommodation falling within any provision of Schedule 14 (buildings which are not HMOs for purposes of provisions other than Part 1) as is specified in an order under subsection (1)."
On Question, amendments agreed to.
Clause 217 [Management regulations in respect of HMOs]:
Lord Rooker Lord Rooker moved Amendment No. 223:
Page 171, line 1, after "particular" insert—

"(a) impose duties on the person managing a house in respect of the repair, maintenance, cleanliness and good order of the house and facilities and equipment in it;

(b)"

On Question, amendment agreed to.
[Amendments Nos. 223A and 223B not moved.]
Clause 222 [Powers of entry]:
Lord Rooker Lord Rooker moved Amendment No. 224:
Page 173, line 24, leave out "an interim or final management order is in force under" and insert "a management order is in force under Chapter 1 or 2 of".
On Question, amendment agreed to.
Baroness Hanham Baroness Hanham moved Amendment No. 224A:
Page 173, line 34, at end insert "only after the issuing of a warrant in relation to the premises issued by a justice of the peace"
The noble Baroness said: My Lords, I shall move this briefly because it returns to a matter that we dealt with last time. We are concerned about the provisions under Clause 222, entitled, "Powers of entry". Under the provisions, an authority could authorise someone to enter a property that it owns or that is owned by someone else who is licensed. With either 24 hours' notice or under subsection (7) with no notice at all, they would have the right to enter the property for the purposes of seeing whether an offence was being committed. We understand that there may be occasions when there is a requirement to go and see what is going on, but we believe that that should be authorised by at least a JP and/or a warrant. I beg to move.
Lord Bassam of Brighton: My Lords, we believe that these amendments are too restrictive. Clause 222 does not enable an authority to simply force its way into a property. To do so, it would need a warrant under Clause 223. There would seem to be little point in adding to the burdens on authorities and justices when the owner or the landlord of a property is, in any event, happy to co-operate with an authority's request for entry.
912
We set out our view on the amendments in our letter of 11 October. We believe that we have sufficiently assured the Joint Committee on Human Rights that powers of entry will not be used lightly or foolishly. I do not think that most local authorities would ever consider using them lightly or frivolously; I am sure the noble Baroness's local authority would not.
Clause 226 now requires that where an authority wishes to exercise its powers of entry under Clause 222, entry must be authorised by an officer at the level of deputy chief officer or above—that is a very high level of seniority in any local authority. I hope that that will satisfy the noble Baroness. It is not our intention that these powers should be used lightly or frivolously.
Baroness Hanham: My Lords, Clause 226, to which the noble Lord referred, states:
"Any such authorisation must be given by the appropriate officer of the local housing authority".
Is the Minister clarifying that as being someone of the level of town clerk, chief executive or deputy chief executive?
Lord Bassam of Brighton: My Lords, I thought I had made clear that it would be a deputy chief officer or above. So, yes, it would include town clerks, borough solicitors, solicitors to the council, chief executives and so on. It has to be at the level of deputy chief officer or above.
Baroness Hanham: My Lords, that clarifies the point. The only other issue I wish to raise with the Minister is that subsection (7) is more draconian than he makes out. You do not have to give any prior notice, although I now understand that the entry would have to be authorised by someone senior on the council. However, I still think that going into someone's premises without any notice whatever—whether or not you have the authority of the chief executive—is probably insufficient and that there should be a warrant.
Nevertheless, I hear what the Minister says. I thank him for that extra explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rooker Lord Rooker moved Amendment No. 225:
Page 173, line 36, after "under" insert "Chapter 1 of".
On Question, amendment agreed to.
[Amendment No. 225A not moved.]
Clause 223 [Warrant to authorise entry]:
Lord Rooker Lord Rooker moved Amendment No. 226:
Page 175, line 4, leave out "an interim or final management order is in force under" and insert "a management order is in force under Chapter 1 or 2 of".
On Question, amendment agreed to.
Clause 227 [Power to prescribe forms]:
[Amendment No. 226A not moved.]
Clause 229 [Service of documents]:
Lord Rooker Lord Rooker moved Amendments Nos. 227 and 228:
Page 177, line 21, after "under" insert "Chapter 1 of".
Page 177, line 35, after "under" insert "Chapter 1 of".
On Question, amendments agreed to.
Clause 231 [Timing and location of things done electronically]:
[Amendment No. 228A not moved.]
Clause 234 [Offences by bodies corporate]:
Baroness Hanham Baroness Hanham moved Amendment No. 228B:
Page 181, line 1, at end insert—
"(c) the appropriate national authority,"
The noble Baroness said: My Lords, I want to elicit from the Government when a body corporate would be liable to prosecution. The phrase "body corporate" is beginning to sneak into legislation all over the place and is getting itself a fine reputation.
This is a very vague clause. What would be the offence and what would be the punishment for such a body corporate in this terribly difficult position? Can the Minister say what constitutes a body corporate under this clause? It is probably something like a local authority but we need to be clear about it. Is it the senior elected officials on a local authority? Is it the chief executive of a residential social landlord or housing association? Would such provision extend to private individuals? Can a private individual be a body corporate? I doubt it, but perhaps it is possible. Would such provision also extend to companies that would, under the Bill, play a major role in, for instance, the licensing regime or the development of housing via the use of social housing grants, which we have just discussed?
We need a little more explanation about this. I beg to move.
Lord Rooker: My Lords, I think that I can say—if I am wrong, I will be told—that the body corporate in this clause is exactly the same as was inserted in umpteen other pieces of legislation by the previous government. In other words, this is a standard clause used in legislation today. There is nothing special about it at all. It simply makes provision for offences by a body corporate. It provides that an officer of the body corporate, or a person purporting to be such an officer, may be jointly liable with the body corporate if an offence is committed with the consent or connivance of such an officer or person, or where the offence is proved to be attributable to any neglect of such an officer or person.
This is a standard clause used in legislation today. I could go into a lot more detail about the effect of the amendment, but I do not think that that was the purpose.
Baroness Hanham: My Lords, I thank the Minister for that reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 235 [Power to up-rate level of fines for certain offences]:
[Amendment No. 228C not moved.]
Clause 237 [Meaning of "house in multiple occupation"]:
Lord Rooker Lord Rooker moved Amendment No. 229:
Page 181, line 36, leave out "a declaration notice" and insert "an HMO declaration"
On Question, amendment agreed to.
Baroness Maddock Baroness Maddock moved Amendment No. 230:
Page 182, line 10, after "accommodation" insert "or such accommodation is accommodation contracted by the National Asylum Support Services under Part VI of the Immigration and Asylum Act 1999 (c. 33);"
The noble Baroness said: My Lords, this is a probing amendment, but it is designed to ensure that houses in multiple occupation that have been contracted out by the National Asylum Support Service are covered by the definition of a house in multiple occupation and therefore could be brought within the scope of the licensing regime.
Clause 237(2)(e) states that a building is to be considered as a house in multiple occupation if,
"rents are payable or other consideration is to be provided by at least one of those persons in respect of their occupation of the living accommodation".
Asylum seekers placed in accommodation by the National Asylum Support Service do not pay rent. The service leases the property from a private landlord and simply places asylum seekers in the accommodation. We are therefore very concerned that dwellings contracted by NASS will not be covered by either the licensing scheme or the management regulations in Clause 217.
Responding to similar concerns when the Bill was in Standing Committee in the House of Commons, the Housing Minister, Keith Hill, said:
"Let me begin by reassuring the hon. Member for Ludlow that there is no hidden agenda. There is no intention to introduce larger swathes of exemption beyond those identified in the Bill.
The hon. Gentleman asked about asylum seekers in private rented accommodation and whether the type of accommodation organised by NASS is likely to be exempted. The exemptions would apply only if such people were housed in accommodation owned by a registered social landlord or a local authority".—[Official Report, Commons Standing Committee E, 27/1/04; col. 174.]
I hope that the Minister will use this opportunity to confirm that NASS-contracted houses in multiple occupation are covered by the definition. If they are not, I hope that he will give a commitment to bring forward an amendment on Third Reading that will deal with the problem. I beg to move.
Lord Rooker: My Lords, I shall come back to this on Third Reading.
Government Amendment No. 233 is a technical amendment to correct an anomaly. Government Amendment No. 234 corrects an omission in the definition of a single household.
Baroness Maddock: My Lords, I thank the Minister for his reply. I forgot to speak to Amendment No. 231 and may return to it at a later stage. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 231 not moved.]
Lord Rooker Lord Rooker moved Amendment No. 232:
Page 278, line 19, at end insert—
"(3) Sub-paragraph (4) applies in connection with any decision by the appropriate national authority as to whether to make, or revoke, any regulations specifying—

(a) a particular educational establishment, or

(b) a particular description of educational establishments.

(4) The appropriate national authority may have regard to the extent to which, in its opinion—

(a) the management by or on behalf of the establishment in question of any building or buildings occupied for connected educational purposes is in conformity with any code of practice for the time being approved under section 216 which appears to the authority to be relevant, or

(b) the management of such buildings by or on behalf of establishments of the description in question is in general in conformity with any such code of practice,

as the case may be.
(5) In sub-paragraph (4) "occupied for connected educational purposes", in relation to a building managed by or on behalf of an educational establishment, means occupied solely or principally by persons who occupy it for the purpose of undertaking a full-time course of further or higher education at the establishment."
On Question, motion agreed to.
Clause 241 [HMOs: persons not forming a single household]:
Lord Rooker Lord Rooker moved Amendments Nos. 233 and 234:
Page 186, line 15, leave out first "a relative or' and insert ", or is a relative of,"
Page 186, line 21, leave out "or niece" and insert ", niece or cousin"
On Question, amendments agreed to.
[Amendment No. 234A not moved.]
Clause 246 [Meaning of "person having control" and "person managing" etc]:
Baroness Hanham Baroness Hanham moved Amendment No. 235:
Page 189, line 40, at end insert—
"(6) "Person having control" shall not include a person—

(a) who lets premises as agent for another person,

(b) whose only function is to introduce a tenant or licensee for those premises,

916

(c) who only receives the rack rent from a tenant or licensee introduced no later than the time when any tenancy or licence agreement is entered into in respect of the letting or licence granted to the tenant or licensee introduced by him."

The noble Baroness said: My Lords, many estate agents offer a letting-only service. Management of a property is then left to the landlord or another agent. A letting agent will normally receive the first payment of rent, so they are caught by the current definition of "person having control". That means that they will be caught in the provisions of the Act if the property is unlicensed when a licence is required even though they have no involvement with the management of the property. The purpose of the amendment is to exempt someone who simply lets a property and receives an initial payment of rent, but then ceases to be involved in the management of the property. I beg to move.
Lord Rooker: My Lords, the amendment would change the definition of "person in control" to exclude a letting agent from that definition. I hope to assure the noble Baroness that bona fide letting agents are excluded from the definition. I shall briefly explain why. The "person in control" is the person who receives the rack rent, not a person who had received it. The use of the present tense in Clause 246(1) is the key to the conundrum. A letting agent who collects the rent in advance of the tenancy being granted has received it. Provided that the rent is transferred on the grant of the tenancy, the transferee is the "person having control" because he or she receives it. With that assurance—it says here—I hope that the noble Baroness will withdraw the amendment.
Baroness Hanham: My Lords, with that assurance, as it says here, the noble Baroness does. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 15 [Minor and consequential amendments]:
Lord Rooker Lord Rooker moved Amendments Nos. 236 to 239:
Page 280, line 39, after "carrying" insert "out"
Page 284, line 10, leave out "an interim or final management order under" and insert "a management order under Chapter 1 or 2 of
Page 292, line 3, at end insert—
"In section 54 (determinations requiring approval), at the end of paragraph (b) insert "or
(c) any determination under section 27B (transfer of property funded by grants under section 27A),","
Page 292, line 29, at end insert—
"Local Government Act 2003 (c. 26)
In section 87 of the Local Government Act 2003 (c. 26) (housing strategies and statements) for subsection (4) substitute—
"(4) In this section—
"housing" includes accommodation needs for gypsies and travellers within the meaning of section (Duties of local housing authorities: accommodation needs of gypsies and travellers) of the Housing Act 2004;
"local housing authority" has the same meaning as in the Housing Act 1985 (c. 68).""
On Question, amendments agreed to.
[Amendments Nos. 239A and 239B not moved.]
Clause 253 [Short title, commencement and extent]:
Lord Rooker Lord Rooker moved Amendments Nos. 240 to 243:
Page 191, line 18, leave out "200" and insert "(Protected sites to include sites for gypsies) to (Suspension of eviction orders)".
Page 191, line 18, after "207," insert "(Rights of pre-emption in connection with assured tenancies),".
Page 191, line 30, after "208," insert "(Extension of right to acquire),"
Page 191, line 30, after "208," insert "(Duties of local housing authorities: accommodation needs of gypsies and travellers), (Guidance in relation to section (Duties of local housing authorities: accommodation needs of gypsies and travellers)),".
On Question, amendments agreed to.
[Amendment No. 243A not moved.]
In the Title:
Lord Rooker Lord Rooker moved Amendment No. 244:
Line 5, after "homes" insert "and the accommodation needs of gypsies and travellers"
On Question, amendment agreed to.
House adjourned at four minutes past eleven o'clock.

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