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House of Lords

Tuesday, 26 March 2013.

2.30 pm

Prayers—read by the Lord Bishop of Coventry.

Introduction: Baroness Lane-Fox of Soho

2.38 pm

Martha Lane-Fox CBE, having been created Baroness Lane-Fox of Soho, of Soho in the City of Westminster, was introduced and made the solemn affirmation, supported by Lord Chadlington and Baroness King of Bow, and signed an undertaking to abide by the Code of Conduct.

Introduction: Lord Berkeley of Knighton

2.45 pm

Michael Fitzhardinge Berkeley CBE, having been created Baron Berkeley of Knighton, of Knighton in the County of Powys, was introduced and took the oath, supported by Lord Williams of Elvel and Lord Burns, and signed an undertaking to abide by the Code of Conduct.

Royal Assent

2.50 pm

The following Acts and Measures were given Royal Assent:

Supply and Appropriation (Anticipation and Adjustments) Act,

Presumption of Death Act,

Mobile Homes Act,

Antarctic Act,

Welfare Benefits Up-rating Act,

Jobseekers (Back to Work Schemes) Act,

Diocese in Europe Measure,

Clergy Discipline (Amendment) Measure.

Syria: Refugees


2.51 pm

Asked by Lord Selkirk of Douglas

To ask Her Majesty’s Government whether they will make representations to the European Union and the Government of the United States about the long-term humanitarian implications of the increasing number of refugees escaping from Syria into neighbouring countries.

Baroness Northover: My Lords, this month marks the second anniversary of the crisis in Syria. Recognising the significant challenges that this protracted humanitarian

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crisis presents, the UK remains in contact with the United States, the European Union and other international partners regarding how best to support Syrian refugees in the short and longer term.

Lord Selkirk of Douglas: Does my noble friend accept that while Britain, the United States and Germany have given generously to aid agencies to help alleviate the plight of more than 1 million Syrian refugees who have fled to neighbouring nations, according to the United Nations a very large part of the more than $1 billion pledged by 32 countries has not yet been delivered? Does she agree that it is time for those who have promised funding to act and that, as the Secretary of State for International Development has so wisely said, warm words are not enough?

Baroness Northover: My noble friend is right. States made very generous pledges in Kuwait earlier this year to the UN appeals for Syria and the region. However, not all pledges have yet been translated into actual contributions. Given the scale of the challenge— 4 million people are in need, of whom 2 million have been forced to leave their homes—that is extremely worrying. We call on donors to expedite the transfer of funds without delay and are actively encouraging that.

Lord Wright of Richmond: My Lords, does the Minister accept that providing lethal weapons, as the Government appear to want, to the deeply divided Syrian opposition can only exacerbate the civil war in Syria and lead to a further deterioration of the appalling humanitarian crisis which is affecting both Syria and her neighbours?

Baroness Northover: The noble Lord speaks with great wisdom. He will know that there are already huge dangers of instability in the region and that any action, or inaction, can promote further instability. We have no current plans to send arms to any groups in Syria, but, as again he will know well, others are arming groups in Syria. As the noble Lord will also know, nothing is off the table, but we are doing our very best to try to bring about a diplomatic resolution to that, which I am sure everybody would welcome. In the mean time, DfID’s key aim is to assist in relieving the humanitarian disaster that has come into existence there.

Lord Collins of Highbury: My Lords, not only is the issue one of current spending but the situation is deteriorating speedily. Funding so far has been allocated up to 30 June. Obviously aid agencies need to plan for the future as well. It is important that the Government not only deal with current need but look at future need. Another issue is that the clear majority of refugees in Jordan are women, children and the elderly. In representations to the European Union and the United States, will the Minister highlight the plight of female refugees and the support they will be given to cover basic living costs?

Baroness Northover: The noble Lord is right on both counts. The $1.5 billion that was pledged in Kuwait will last only until June and only about 20% of that so far has been forthcoming. There is a major

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challenge there. We welcome the Disasters Emergency Committee appeal that was launched in the United Kingdom on 20 March. The United Kingdom is third at the moment in its contribution in this regard and we are keenly aware of the situation with women and girls. We are supporting them in particular in the countries around Syria. We are well aware that they are very vulnerable in this situation and have targeted support at them.

The Lord Bishop of Exeter: My Lords, on a previous occasion I asked the Government for an assurance that our humanitarian response to the situation on Syria’s borders would ensure that adequate provision was still given to the survivors of sexual and gender-based violence. In being given that assurance, I was also assured that more would be done to document these abuses so that the perpetrators might be brought to justice in due course. Can the Minister say what is being done to carry that commitment forward?

Baroness Northover: The right reverend Prelate is right. My right honourable friend the Foreign Secretary has promoted the Preventing Sexual Violence in Conflict initiative, which supports women particularly in Syria but also in Jordan. Local health professionals are being trained in how to respond to reports of sexual violence with the objective of improving the prospect for future investigation and potential prosecution, which the right reverend Prelate rightly identifies as very important.

Lord Alderdice: My Lords, on previous occasions I have sought assurances from Her Majesty’s Government that we would concentrate our attention on humanitarian aid, particularly to Turkey and Jordan, which have huge burdens of Syrian refugees, and also to Lebanon and Iraq. Given the recent remarks of our Prime Minister and President Hollande of France, can I press my noble friend to assure us that whatever others do we will not be engaged in military support, other than giving proper support to our front-line ally Turkey, but that we will concentrate on humanitarian aid?

Baroness Northover: Following on from the question asked by the noble Lord, Lord Wright, I reiterate to my noble friend the risks of action and inaction. We take very seriously the points that he makes. I would point out that the United Kingdom has already pledged almost £140 million in humanitarian relief. It has committed £22 million in terms of non-lethal equipment and practical support for the Syrian opposition and civil society. That is separate from our humanitarian support, but the noble Lord will note the difference in the sizes of those figures.

Lord Eden of Winton: My Lords, should we not be looking to some of the oil-rich nations, such as Saudi Arabia, to do much more to help in this tragic situation?

Baroness Northover: At the conference in Kuwait, a number of the Gulf States made very generous pledges. For example, the UAE pledged $300 million, as did

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Kuwait, and Saudi Arabia $78 million. We are concerned that they now deliver on those pledges. We were encouraged that they made them and now hope to see them implemented.

Armed Forces: Autonomous Weapon Systems


3 pm

Asked by Lord Harris of Haringey

To ask Her Majesty’s Government what is their policy on the deployment of autonomous weapon systems by United Kingdom Armed Forces.

Lord Harris of Haringey: My Lords, I declare an interest as an adviser to Lockheed Martin, although not on its defence business. I beg leave to ask the Question standing in my name on the Order Paper.

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever): My Lords, the United Kingdom does not have fully autonomous weapon systems. Such systems are not yet in existence and are not likely to be for many years, if at all. There are currently a limited number of naval defensive systems that could operate in automatic mode, although there would always be naval personnel involved in setting the parameters of any such operation. I must emphasise that any type of weapon system would be used only in strict adherence with international humanitarian law.

Lord Harris of Haringey: My Lords, I am grateful to the Minister for that reply. Is it the view of Her Majesty’s Government that there is a world of difference between a drone operated remotely from several hundred or thousands of miles away and one that is automatic and involves no human intervention before it discharges? In that context, will he tell us a bit more about the Mantis development by BAE Systems, which I understand is supported and funded by the UK’s Ministry of Defence, which the BAE Systems website describes as,

“Able to fly by itself, able to think for itself”?

Lord Astor of Hever: My Lords, I agree with the noble Lord. As I said in the original Answer, the UK complies fully with its obligations under national and international law, and that applies to autonomous weapon systems. However, although technological advances are likely to increase the level of automation in some systems, just as in non-military equipment, such as cars, the MoD currently has no intention of developing systems that operate without human intervention.

As for Mantis, the MoD initiated a jointly funded advanced concept technology demonstrator in 2008, which led to flight trials in 2009. The MoD has no current involvement in BAE Systems’ Mantis advanced concept technology demonstrator.

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Lord Lee of Trafford: Does my noble friend agree with the comments of a senior RAF officer who said very recently that come 2020 the Royal Air Force would be something like 50% manned aircraft and 50% VAV or drones?

Lord Astor of Hever: My Lords, remotely piloted aircraft systems are likely to form part of the future force mix, as they may offer advantages in endurance and range. However, the dynamic complexity of fighter-versus-fighter-type missions does not favour remote control. Therefore, a wholly unmanned force is unlikely to be achievable or desirable in future. Studies suggest a likely combat air force mix of two-thirds manned and one-third remotely piloted in around the 2030 timeframe.

Lord Rosser: There is a perception that unmanned technology is shrouded in secrecy. Although the rules of engagement for unmanned aerial vehicles are the same as those for manned aircraft, there is surely a case for the United Kingdom taking the lead by considering having a code on the context and limitations of usage of UAVs to clarify the rules, given the significance and spread of this technology. Is this a point that the Government are considering or will consider?

Lord Astor of Hever: My Lords, I shall certainly take that question back to my department and get back to the noble Lord. We always make sure that equipment is used appropriately. Even after a weapon system is declared lawful, its use will still be subject to stringent rules of engagement governing its employment in the context and specific circumstances of the operation in question. Those rules of engagement as well as addressing legal issues can, as a matter of policy, be more restrictive than the applicable law.

Lord Hylton: Are unmanned aircraft and weapon systems included in the arms trade treaty now under negotiation? Is there not a great danger of proliferation?

Lord Astor of Hever: My Lords, I cannot answer the first part of the noble Lord’s question, but I will write to him about that. As I said in my original Answer, these issues are very carefully considered, and what the noble Lord suggested is unlikely to happen.

Lord West of Spithead: My Lords, the Minister slightly confused me with one of his answers. Will he confirm that for anti-missile, close range anti-aircraft, and anti-torpedo reaction systems, there is considerable merit in going for an autonomous system, even if it has a manual override? From what he said it sounds as though we are not continuing to develop that capability. Is that correct?

Lord Astor of Hever: My Lords, in essence, an automatic system reacts to a limited number of external stimuli in the same way each time, just as automatic transmission changes gears when a car gets to a certain speed. Fully autonomous systems rely on a certain level of artificial intelligence for making high-level decisions from a very complex environmental input,

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the result of which might not be fully predictable at a very detailed level. However, let us be absolutely clear that the operation of weapons systems will always—always—be under human control.

Lord Tanlaw: Can the Minister say whether these machines contradict the first law of robotics in the sense that they identify and kill human beings? They are open to malfunctions, like any other machine, so is there not a great danger of this occurring at some future time?

Lord Astor of Hever: My Lords, as I said in my response to the noble Lord, Lord Harris, the United Kingdom complies fully with its obligations under both national and international law.

Lord Hughes of Woodside: My Lords, in responding to my noble friend and to other noble Lords who have raised this Question, because it is so important will the Minister place copies of his answers in the Library?

Lord Astor of Hever: My Lords, yes, I will certainly do that.

Scotland: Referendum


3.07 pm

Asked by Lord Foulkes of Cumnock

To ask Her Majesty’s Government what discussions they have had with the Scottish Government regarding the arrangements for the referendum on independence.

The Advocate-General for Scotland (Lord Wallace of Tankerness): The United Kingdom Government had a number of discussions during 2012 regarding the arrangements for the referendum on independence. These discussions led to the details set out in the referendum agreement on 15 October. As with the agreement, we continue to work constructively with the Scottish Government to ensure that there is a legal, fair and decisive referendum on Thursday 18 September 2014.

Lord Foulkes of Cumnock: I am grateful to the Minister for that reply. Have the Minister and his colleagues had time to consider the request from the First Minister of Scotland for the Prime Minister to appear in face-to-face debates on television in the run-up to the referendum? Will he confirm that this request will be completely rejected and that the United Kingdom Government will make it clear that if anyone from the UK Government takes part it should be the Secretary of State for Scotland, his deputy or the Advocate-General?

Lord Wallace of Tankerness: My Lords, I have indeed heard the First Minister’s call for a head-to-head debate with the Prime Minister. I also recall the First Minister warning London-based politicians such as

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the Prime Minister to keep out of the referendum campaign, so he cannot have it both ways. While I accept the challenge and would be delighted to take part, one might also ask whether the First Minister will go head-to-head with the leader of the Better Together campaign, Mr Alistair Darling, who at least has a vote in the referendum, unlike the Prime Minister. However, let me make this clear: the Prime Minister will argue very vigorously for Scotland’s continuing place in the United Kingdom.

Lord Forsyth of Drumlean: My Lords, will my noble and learned friend acknowledge that the Prime Minister is not a London-based politician? He is Prime Minister of the whole of the United Kingdom. Will he not agree that the referendum on independence for Scotland is clearly a matter for Scotland? However, if we were to move to devo-max or some form of federalism, that would be a matter for the whole of the United Kingdom, which would need to be settled by a referendum that involved everyone in the United Kingdom.

Lord Wallace of Tankerness: I certainly agree with my noble friend, and I think I made it clear that the Prime Minister believes in the integrity of the United Kingdom. I believe it was others who suggested that he was a London-based politician. I also hear what he says about so-called devo-max, which is a brand without a product at the moment. I also recognise that that has implications for the other parts of the United Kingdom and that, were we to go down such a road, it would be very important to secure buy-in from those other parts of the United Kingdom.

Lord Wigley: My Lords, will the Minister please confirm that the conduct of the referendum in Scotland is now entirely a matter for the Scottish Parliament, and one for which this place has no responsibility?

Lord Wallace of Tankerness: My Lords, as noble Lords will recall, we agreed to a Section 30 order under the Scotland Act in January of this year, which transferred powers to the Scottish Parliament to determine the nature of the referendum. A Bill has been brought in for a referendum; indeed, another Bill has been brought in to determine the franchise for that referendum.

Lord Martin of Springburn: My Lords, it is not the first time that ballot papers have not been made available in good time for those entitled to a postal vote. Could the Minister, when he next meets the First Minister, ensure that the printer gets the ballot papers to the returning officers so that those who are entitled to postal votes get them?

Lord Wallace of Tankerness: The noble Lord makes an important point. That would be overseen by the Electoral Commission and the Electoral Management Board for Scotland. Unlike elections, where candidates are often not nominated until the last minute, we now know what the question is, so there is no reason why these ballot papers should not be prepared well ahead of time.

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Lord Maclennan of Rogart: Will my noble and learned friend indicate how the Scotland analysis programme is progressing, particularly with respect to monetary arrangements and the employment of citizens from either country, to enable the facts to be assimilated by the whole country and to inform the pre-referendum debate?

Lord Wallace of Tankerness: My Lords, the Government have made it clear that they wish the referendum debate to be well informed. That is why we have embarked on the Scotland analysis programme. The first paper on the legal implications and the legal basis of independence was published last month. There will be future papers, including one on currency and financial regulation, which we hope will be published in the near future. It is important that we have a well informed debate, and certainly the United Kingdom Government, through these papers, are determined that we should have just that.

Lord McAvoy: My Lords, the SNP Government have claimed that there will be an increase in oil tax revenues post-independence. However, today we hear from the Centre for Public Policy for Regions that, contrary to what the Scottish SNP Government claim,

“to suggest some sort of new oil-tax revenue boom is about to emerge is not readily supported by the evidence”.

Does the Minister agree that the Scottish SNP Government need to be straight with the people of Scotland about the facts of the decision that they have been asked to make in 2014, so that we can get on with making the case for why Scotland is “better together”?

Lord Wallace of Tankerness: My Lords, I entirely endorse what the noble Lord has said about the importance of getting clear facts. He is right. I have seen the report published today by the Centre for Public Policy for Regions, which makes the point about the uncertainty of the oil revenue. That uncertainty was underlined by the Office for Budget Responsibility in its report last week. We hear representatives of the Scottish Government telling us that we are on the cusp of another oil boom, but in the Cabinet paper that the Finance Secretary presented to the Scottish Government last year, he said that there is a,

“high degree of uncertainty around future North Sea revenues, reflecting considerable volatility in production and oil prices”.

It would be useful if they said in public what they say in private.

Baroness Liddell of Coatdyke: My Lords—

The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford): My Lords, it is this side.

Baroness Knight of Collingtree: On the question of eligibility to vote, can my noble and learned friend the Minister inform this House whether the millions of Scottish-born and Scottish people who presently live in England will be permitted to vote?

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Lord Wallace of Tankerness: My Lords, as I indicated, the franchise is being determined by the Scottish Parliament. However, there was agreement that it should be based on the local government franchise, which means that it would include those registered for local elections in Scotland. Therefore, it would exclude people of Scottish origin living in other parts of the United Kingdom. The Scottish Government’s legislation would also seek to extend it to 16 and 17 year-olds residing in Scotland.

Baroness Liddell of Coatdyke: My Lords, is the Minister aware that the date of the referendum coincides with the centenary of the Battle of Loos, where many brave Scottish soldiers gave their lives—my great-uncle, Matthew Lawrie, included—for every part of the United Kingdom? What reassurance can the noble and learned Lord give this House that Scottish men and women currently serving in the British Armed Forces will have the ability to vote in the referendum?

Lord Wallace of Tankerness: My Lords, that is an important issue, which we considered and reflected on during our debates on the Section 30 order. There are a number of ways in which service personnel can register to vote; many Scottish servicemen and servicewomen who are posted outside Scotland will remain entitled to be registered at an address in Scotland, either because they are resident there or because they have a service declaration for such an address. I understand that the Ministry of Defence does an annual advertisement of the service declaration, but I can assure your Lordships’ House that we will encourage the ministry to redouble its efforts in that advertisement in the run-up to, and for registration for, the referendum.

NHS: Out of Hours Service


3.15 pm

Asked by Lord Kennedy of Southwark

To ask Her Majesty’s Government what steps they are taking to ensure high-quality out of hours GP medical care is in place.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, people are entitled to expect high-quality health services at any time of day or night. All out-of-hours services must be delivered according to national quality requirements, and local providers have a legal requirement to make sure that high-quality out-of-hours care is in place. If this is not happening, we expect action to be taken immediately to improve services.

Lord Kennedy of Southwark: The publication of the Patients Association survey and the comments from the BMA highlight that many GP practices are struggling to cope with a rising workload as resources are falling. Does the Minister agree that, with many other changes taking place across government on 1 April, we are in a dangerous and worrying period for people who find themselves in need of health and related services?

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Earl Howe: My Lords, of course, the results from the Patients Association report are a matter for concern. We are absolutely committed to improving access to GPs and, from 1 April, responsibility for making sure that that happens will pass to the NHS Commissioning Board. We have outlined a clear set of objectives around patients’ experience of local primary care services in the mandate to the board; we have launched marketing campaigns in each of the new NHS 111 areas, which we are confident will facilitate better access to out-of-hours care; and we will publish information regularly, so that patients can see how their practice is performing and feed back to their practice when it is not performing.

Lord Ribeiro: My Lords, at a time when nurses are being urged to wash their patients, is it not time that the GP contract was renegotiated so that GPs can be responsible for the out-of-hours care of their patients and, in doing so, perhaps relieve the pressure on our A&E departments?

Earl Howe: Increasingly, this is likely to happen, because our changes to the GP contract this year are bound to make sure that GPs think more about long-term integrated care for their patients. The recommendations from NICE underpinned the new arrangements in the GP contract, and my noble friend is absolutely right that that has to remain very squarely in the sights of all GPs.

Lord Hunt of Kings Heath: My Lords, I refer noble Lords to my health interests in the register. The Minister mentioned the NHS 111 service. Is he aware of reports up and down the country of a shortage of staff and long waiting times to get through to the service? Is he also aware that the system is increasing pressure to close walk-in centres? Combined with a poor-quality out-of-hours service, is it any wonder that acute hospitals are under such pressure? Will the Government look at this again?

Earl Howe: I am aware of teething problems in two particular areas of the country, but we know from the pilots of NHS 111 that there is a high rate of patient satisfaction with the service. As noble Lords will know, NHS 111 is designed to put the caller through to the right service first time around, whether it is a nurse, a doctor or an ambulance, if that is required. There are bound to be teething problems, and rolling out a service like this across the country is, of course, a major task. But the concept of increased flexible access to healthcare and advice is absolutely right, and we are determined to see the service work very well for everybody.

Baroness Emerton: My Lords, in his Answer to the original Question, the Minister said that action would be taken if the service failed. Who will actually take the action under the new system once the Act becomes actionable next weekend?

Earl Howe: Clinical commissioning groups are responsible for commissioning out-of-hours care and, of course, the CQC will be responsible for the first time for registering GP practices.

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Baroness Jolly: My Lords, in some parts of the country confidence has been lost in out-of-hours services. The NHS Commissioning Board takes over next week, so what can it do in terms of commissioning smartly to regain the public’s confidence in these services?

Earl Howe: We have known that out-of-hours care has been in need of reform for some considerable time. The much strengthened commissioning arrangements that we have put in place, including the national quality requirements that I mentioned earlier, will enable that to happen.

Baroness Wall of New Barnet: The noble Earl will, I am sure, recall the discussion we had just a few days ago about the inspection of patients at home. That discussion was about ensuring that patients at home who were poorly in the evening did not end up in hospital. My noble friend has just indicated the tremendous pressure that all hospitals are under in terms of length of stay because of older people arriving and staying in hospital. If this GP out-of-hours service worked well, we would prevent that. We need to ensure that the accuracy and rigour of that service permeate throughout the whole country.

Earl Howe: The noble Baroness is quite right; this is an integral part of good primary care and we are determined to see it joined up with GP practices and the other services on which patients rely.

Rights of the Sovereign and the Duchy of Cornwall Bill [HL]

First Reading

3.21 pm

A Bill to amend the Sovereign Grant Act 2011, amend the succession to the title of the Duke of Cornwall, redistribute the Duchy of Cornwall estate and remove the requirement for Parliament to obtain the consent of the Queen or Prince to consideration of Bills passing through Parliament.

The Bill was introduced by Lord Berkeley, read a first time and ordered to be printed.

Mid Staffordshire Foundation Trust Inquiry


3.22 pm

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, I shall now repeat a Statement made earlier today in another place by my right honourable friend the Secretary of State for Health on the Government’s response to the Francis report. The Statement is as follows:

“With permission, Mr Speaker, I would like to make a Statement on the Government’s response to the Mid Staffordshire NHS Foundation Trust Public Inquiry. I congratulate my right honourable friend

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and predecessor on setting up the public inquiry, and on the many changes that he made foreseeing its likely recommendations. I would also like to pay tribute to Robert Francis QC for his work in producing a seminal report which I believe will mark a turning point in the history of the NHS.

Many terrible things happened at Mid Staffs in what has rightly been described as the NHS’s darkest hour. Both the current and former Prime Minister have apologised, but when people have suffered on this scale, and died unnecessarily, our greatest responsibility lies not in our words but in our actions—actions that must ensure the NHS is what every health professional and patient wants: a service that is true to the NHS values, that puts patients first and treats people with dignity, respect and compassion.

The Government accept the essence of the inquiry’s recommendations and we shall respond to them in full in due course. However, given the urgency of the need for change, I am today announcing the key elements of our response so that we can proceed to implementation as quickly as possible. I have divided our response into five areas: preventing problems arising by putting the needs of patients first; detecting problems early; taking action promptly; ensuring robust accountability; and leadership. Let me take each in turn.

To prevent problems arising in the first place, we need to embed a culture of zero harm and compassionate care throughout our NHS, a culture in which the needs of patients are central, whatever the pressures of a busy, modern health service. As Robert Francis said, ‘The system as a whole failed in its most essential duty: to protect patients from unacceptable risks of harm and from unacceptable, and in some cases inhumane, treatment that should never be tolerated in any hospital’.

At the heart of this problem, the current definitions of success for hospitals fail to prioritise the needs of patients. Too often, the focus has been on compliance with regulation rather than on what those regulations aim to achieve. Furthermore, the way that hospitals are inspected is fundamentally flawed, with the same generalist inspectors looking at slimming clinics, care homes and major teaching hospitals—sometimes in the same month. So we will set up a new regulatory model under a strong, independent chief inspector of hospitals, working for the CQC. Inspections will move to a new specialist model based on rigorous and challenging peer review. Assessments will include judgments about hospitals’ overall performance, including whether patients are listened to and treated with dignity and respect, the safety of services, responsiveness, clinical standards and governance.

The Nuffield Trust has reported on the feasibility of assessments and Ofsted-style ratings, and I am very grateful for its thorough work. I agree with its conclusion that there is a serious gap in the provision of clear, comprehensive and trusted information on the quality of care. So in order to expose failure, recognise excellence and incentivise improvement, the chief inspector will produce a single aggregated rating for every NHS trust. Because the patient experience will be central to the inspection, it will not be possible for hospitals to get a good inspection result without the highest standards of patient care.

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However, the Nuffield rightly says that in organisations as large and complex as hospitals, a single rating on its own would be misleading, so the chief inspector will also assess hospital performance at speciality or department level. This will mean that cancer patients will be told of the quality of cancer services, and prospective mothers the quality of maternity services. We will also introduce a chief inspector of social care and look into the merits of a chief inspector of primary care in order to ensure that the same rigour is applied across the health and care system.

We must also build a culture of zero harm throughout the NHS. This does not mean that there will never be mistakes, just as a safety-first culture in the airline industry does not mean that there are no plane crashes, but it does mean an attitude to harm which treats it as totally unacceptable and takes enormous trouble to learn from mistakes. We await the report on how to achieve this in the NHS from Professor Don Berwick.

Zero harm means listening to and acting on complaints, so I will ask the chief inspector to assess hospital complaints procedures, drawing on the work being done by the Member for Cynon Valley and Professor Tricia Hart to look at best practice.

Given that one of the central complaints of nurses is that they are required to do too much paperwork and thus spend less time with patients, I have asked the NHS Confederation to review how we can reduce the bureaucratic burden on front-line staff and NHS providers by a third. I will also be requiring the new Health and Social Care Information Centre to use its statutory powers to eliminate duplication and reduce bureaucratic burdens.

Secondly, we must have a clear picture of what is happening within the NHS and social care system so that, where problems exist, they are detected more quickly. As Francis recognised, the disjointed system of regulation and inspection smothered the NHS, collecting too much information but producing too little intelligence. We will therefore introduce a new statutory duty of candour for providers to ensure that honesty and transparency are the norm in every organisation, and the new chief inspector of hospitals will be the nation’s whistleblower in chief.

To ensure that there is no conflict in that role, the CQC will no longer be responsible for putting right any problems identified in hospitals. Its enforcement powers will be delegated to Monitor and the NHS Trust Development Authority, which it will be able to ask to act when necessary.

We know that publishing survival results improves standards, as has been shown in heart surgery. So, I am very pleased that we will be doing the same for a further 10 disciplines: cardiology, vascular, upper gastro-intestinal, colorectal, orthopaedic, bariatric, urological, head and neck, thyroid and endocrine surgery.

The third part of our response is to ensure that any concerns are followed by swift action. The problem with Mid Staffs was not that the problems were unknown; it was that nothing was done. The Francis report sets out a timeline of around 50 warning signs between 2001 and 2009. Ministers and managers in the wider system failed to act on these warnings. Some were not aware of them; others dodged responsibility. This

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must change. No hospital will be rated as good or outstanding if fundamental standards are breached. Trusts will be given a strictly limited period of time to rectify any such breaches. If they fail to do this, they will be put into a failure regime which could ultimately lead to special administration and the automatic suspension of the board.

The fourth part of our response concerns accountability for wrongdoers. It is important to say that what went wrong at Mid Staffs was not typical of our NHS and that the vast majority of doctors and nurses give excellent care day in, day out. We must make sure that the system does not crush the innate sense of decency and compassion that drives people to give their lives to the NHS. Francis said that primary responsibility for what went wrong at Mid Staffs lies with the board. So, we will look at new legal sanctions at a corporate level for organisations that wilfully generate misleading information or withhold information that they are required to provide. We will also consult on a barring scheme to prevent managers found guilty of gross misconduct finding a job in another part of the system. In addition, we intend to change the practices around severance payments, which have caused great public disquiet. In addition, the General Medical Council, the Nursing and Midwifery Council and the other professional regulators have been asked to tighten their procedures for breaches of professional standards. I will wait to hear how they intend to do this, and for Don Berwick’s conclusions on zero harm before deciding whether it is necessary to take further action. The chief inspector will also ensure that hospitals are meeting their existing legal obligations to ensure that unsuitable healthcare support workers are barred.

The final part of our response will be to ensure that NHS staff are properly led and motivated. As Francis said:

“All who work in the system, regardless of their qualifications or role, must recognise that they are part of a very large team who all have but one objective, the proper care and treatment of their patients”.

Today I am announcing some important changes in training for nurses. I want NHS-funded student nurses to spend up to a year working on the front line as support workers or healthcare assistants, as a prerequisite for receiving funding for their degree. This will ensure that people who become nurses have the right values and understand their role. Healthcare support workers and adult social care workers will now have a code of conduct and minimum training standards, both of which are being published today. I will also ask the chief inspector to ensure that hospitals are properly recruiting, training and supporting healthcare assistants, drawing on the recommendations being produced by Camilla Cavendish. The Department of Health will learn from the criticisms of its own role by becoming the first department where every civil servant will have real and extensive experience of the front line.

The events at Stafford Hospital were a betrayal of the worst kind—a betrayal of the patients, the families, and of the vast majority of NHS staff who do everything in their power to give their patients the high-quality, compassionate care that they deserve. However, I want Mid Staffs to be not a byword for failure but a catalyst for change: to create an NHS where everyone can be

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confident of safe, high quality, compassionate care; where best practice becomes common practice; and where the way in which a person is made to feel as a human being is every bit as important as the treatment they receive. That must be our mission and I commend this Statement to the House”.

My Lords, that concludes the Statement.

3.35 pm

Lord Hunt of Kings Heath: My Lords, I am sure that the House will wish to thank the noble Earl for repeating the Statement.

The NHS is now 65 years old and if it is to be ready for the challenges of the future it has to learn from what happened at Mid Staffordshire. The NHS was founded on compassion; Mid Staffordshire was a betrayal of all it stands for and, rightly, apologies have been made. Now, however, it is time to act and to make this a moment of change. Robert Francis delivered 290 careful recommendations after a three-year public inquiry. The Prime Minister promised a detailed response to each by the end of this month. Although we welcome much of what the noble Earl has said today, it falls short of that promised full response. I ask him to be a little more precise about when we can expect the full response to be made.

There are serious omissions from the Statement on four flagship recommendations and I would like to press the noble Earl on those today. First, I should like to deal with the proposed duty of candour. We from the Opposition welcome the move to place a duty of candour responsibility on healthcare providers and believe that it could help bring the culture change that the NHS needs. However, the noble Earl will know that the Francis report goes further in recommending a duty of candour on individual members of staff. Will the Secretary of State say more about why he has only accepted this recommendation in part and not applied it to staff? Has the noble Earl ruled this out, or is he prepared to give further consideration to it?

On providers, will the noble Earl assure the House that that duty will apply equally to all providers of NHS services, including private providers? The Statement was rather vague on that point. The logic of a fair playing field, which I think has been the subject of a report published today, must suggest that anyone providing services to the NHS must come within the same regulation. I refer the noble Earl to the experience in Cornwall where there is a private sector provider and a weak primary care trust which the National Audit Office has commented on. Would that provider come within the terms of what the noble Earl has said?

I was interested in the Statement referring to new legal sanctions in general at a corporate level for organisations that wilfully generate misleading information or withhold information they are required to provide. Can the noble Earl confirm that that sanction will apply to Ministers, the Department of Health, the NHS Commissioning Board, Monitor, the CQC and all the other public regulators and those who have authority over the NHS? It would be grossly unfair if this was simply to apply to parts of the National

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Health Service and not to those organisations that have so much power over the NHS. I would be grateful for a response on that.

I turn to the other issue in relation to private providers. Is it not the case that we will not get full transparency unless provisions of freedom of information apply to all holders of NHS contracts and the information cannot be withheld under commercial confidentiality? I remind the noble Earl of the regulations in relation to Section 75, which are absolutely apposite to this question of a level playing field.

I turn to the question of a patient voice. The Government have announced new chief inspectors of hospitals and social care, which was not a Francis recommendation. Is there not a risk of top-down regulatory structures reinforcing the wrong culture, looking up to Whitehall and not out to patients and the community? Surely the noble Earl will accept that regulation alone will definitely not prevent another Mid Staffs. What might prevent it is a powerful patient voice in every community that is able to sound the alarm if things go wrong. In that context, I have a question about local Healthwatch? We know that one-third of local authorities have said that their local Healthwatch will not be up and running by 1 April. We also know that there are wide variations in structure and membership. I wonder whether the noble Earl will accept Robert Francis’s recommendation of a consistent basic structure for Healthwatch throughout the country, before it is too late and before they go their separate ways. The importance of the proposal is that these bodies can give a very powerful voice to patient concerns about the quality of care in their locality.

My third area of concern is regulation and training. Mr Francis has made a very clear case for a new system of regulation of healthcare assistants to improve basic standards. The noble Earl does not need reminding that many noble Lords are concerned on this point. Unfortunately, I did not hear in his reading of the Statement any reference to the statutory regulation of healthcare assistants, and it is disappointing that the terms of reference for the Cavendish review do not include consideration of that matter. Have the Government now rejected that recommendation; are they still considering the regulation of healthcare assistants; or have they decided after all to support the principle?

We support the move to rebalance nurse training to include more hands-on experience. Does the noble Earl accept that hospitals need to be given much more authority in the training of nurses and the balance between what happens in hospitals and what actually happens within universities? Does he acknowledge that student nurses already spend 50% of their time in clinical practice and also face significant financial barriers when completing training? In the light of the announcement, can he assure the House that the requirement for a year on the ward will not increase the financial barriers to young people entering nursing? If more trainees are to be on the ward, will he ensure that there are enough staff with the time to train the extra students? In that light, will the Government encourage the appointment of supervisory ward sisters to allow more time for leadership, training and support

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of those student nurses? I should have declared an interest in making this response to the Statement. The noble Earl will be interested that my own trust, Heart of England, has announced this week a £1.4 million investment in the introduction of supervisory ward sisters to do just that. Will he encourage other hospitals to do likewise?

I listened with care to the Statement when it referred to the creation of a culture of zero harm throughout the NHS. Such an objective must be right. We know from previous statements that the Secretary of State is keen to follow the example of the airline industry and note that Professor Don Berwick will report to the Secretary of State on those matters. However, does the noble Earl not think it rather ironic that the Government abolished the National Patient Safety Agency, which was set up to mirror what has happened in the airline industry and encourage staff to raise concerns about patient experiences? Does he not see that although the national reporting and learning system has been retained, placing it under the control of the NHS Commissioning Board is completely at variance with the philosophy in the airline industry of giving people absolute safety in reporting incidents to the system? Will the noble Earl reconsider this matter?

I have real concerns about the decision that the CQC will no longer be responsible for putting right any problems with quality identified in hospitals. I do not think that that is the right decision. How on earth can the decision be taken to give Monitor and the NHS Trust Development Authority—which, as far as I know, has no clinical expertise whatever—the power to deal with issues which the CQC has raised? Other than the thought that they are relying on health and competition economists—which Monitor is stuffed full of—to do this, does it mean that Monitor will now have to employ lots of clinicians on its staff? Can the noble Earl explain why this rather puzzling decision has been made?

The fourth major issue concerns staffing, which is the most glaring omission from the Statement. The culture will never be right on our wards if they are understaffed and overstretched. The CQC has recently reported that one in 10 hospitals does not have adequate staffing levels. Indeed, last week, workforce figures showed that there had been a reduction of 843 nurses between November and December. Does this not sound the clearest of alarm bells that some parts of the NHS are in danger of forgetting the lessons of its recent past by cutting the front line? Do we not need objective benchmarks so that staffing levels can be challenged on wards?

Last week, we learnt that the Department of Health has handed £2.2 billion from last year’s NHS budget back to the Treasury. Would not that money be better used to bring nursing staffing levels up to standard? I wonder whether the noble Earl and his ministerial colleagues are in denial about the pressures on the health service at the moment. The system is under horrendous pressure. Primary care is faltering. We heard earlier about the appalling standards in many out-of-hours services at the moment. The 111 service is problematic in some parts of the country. There have been huge cuts in local government adult social

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care spending. Yet the system—Monitor and the NHS Commissioning Board—carry on oblivious to this, obsessed by their target culture. I ask the noble Earl whether Ministers really understand what is happening, and whether they are now prepared to look again at the way the system will be managed in the future.

Finally, I return to Mid Staffordshire hospital itself. Monitor has recommended that this hospital is placed in administration. We should not forget that the future of the hospital will cause real concern to the people of Stafford. After all they have been through, surely we can all agree that they deserve a safe and sustainable hospital. I hope that the noble Earl will soon be able to set out a plan to achieve it.

3.46 pm

Earl Howe: My Lords, I am grateful to the noble Lord, Lord Hunt, for his comments, and for the support that he was able to give to a number of the proposals that the Government have made. I will attempt to answer as many of his questions as possible. First, he asked why the Government’s response does not address all 290 of Francis’s recommendations. This report, which comes seven weeks on, is not and I think could not be a full response to each and every one of those recommendations. Francis himself notes in his report that:

“Some recommendations are of necessity high level and will require considerable further detailed work to enable them to be implemented”.

That work we will most certainly do. We accept most of the recommendations in Robert Francis’s report, either in principle or in their entirety, but I emphasise that there is much more to do. To rush ahead would mean that we would not give the full and collective consideration to the report that is clearly needed. It would also limit the clinical engagement and the patient and public involvement that is so important. Our response today is designed to be an overarching one, setting out our key early priorities.

The noble Lord asked me about the duty of candour. We recognise that attaching criminal sanctions to key areas of public service delivery can send an important message to the public about the expected standards of care and duty. That is why we will consider the introduction of additional legal sanctions at a corporate level where organisations wilfully generate misleading information, or withhold information that they are required to provide. I cannot be more specific about the extent and scope of that, but we do think there is an issue to be addressed there. I will take the noble Lord’s points on board as to how widely that should go.

However, we are concerned that the introduction of criminal sanctions on individual staff who provide NHS services could run counter to the creation of an open and transparent culture. It could instead create a culture of fear that could lead to the cover-up of mistakes, which is the very opposite of what we seek to achieve. That of course could in turn prevent lessons being learnt and could make services less safe. However, we agree that where staff are obstructively dishonest action will need to be taken to ensure that the quality of patient care is not jeopardised. We are asking the NMC and the GMC to look at how they might be able

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to strengthen professional standards and disciplinary measures to address those kinds of case. Registered clinical staff are, of course, already placed under a duty to be open through their professional regulators, but we will consider whether is a need to add to that duty in the light of the Berwick review on safety.

Turning to healthcare support workers, as I have frequently said in your Lordships’ House, the Government’s mind is not closed to statutory regulation, but regulation as such is no substitute for a culture of compassion and effective supervision. Putting people on a national register does not guarantee protection for patients, as was sadly seen at Mid Staffs. Instead, we have decided to tackle this issue at its root, focusing on making sure that healthcare support workers have the right training and values and, most importantly, support and leadership to provide high-quality care.

As I repeated in the Statement, we are today publishing minimum training standards and a code of conduct for healthcare and care assistants. In addition, all healthcare support workers work under registered professionals who are responsible for the care provided to their patients. Camilla Cavendish has been asked to conduct an independent study of healthcare and care assistants to ensure that they have not just the right training but the right support to provide services to the highest of standards. She is due to report in May. We will consider further action following that review. Health Education England is working with employers to improve the capability and training standards of the care assistant workforce. Its strategy will feed into the Camilla Cavendish review.

As regards nurse training and the idea that every prospective nurse should have bedside experience before undertaking formal training, we believe that that idea should be piloted. The charge that we have heard for so many years that some nurses are too posh to wash must be got rid of. We must ensure that we are training nurses who have an aptitude for the role and who know what it is like to have hands-on experience as a healthcare assistant before committing themselves to training. Starting with pilots, every student seeking NHS funding for nursing degrees should, we believe, first serve for up to a year as a healthcare assistant to promote front-line caring experience and values, as well as academic strength. The current first-year dropout rate for nurses alone is 25%. For that reason also, it is important to ensure that we have the right sort of man and woman as a nurse trainee. We recognise that the scheme will need to be tested and implemented carefully to ensure that it is cost-neutral. Of course that is a consideration and the noble Lord was right to raise it. We will explore whether there is merit in extending the principle to other NHS trainees.

The noble Lord asked me a number of questions about the chief inspector. We think that having a chief inspector as part of the senior team of the CQC will provide us all with an expert judgment on the part of those who have walked the wards, spoken to patients and staff, looked the board of directors in the eye and made a rounded judgment of an organisation’s health, and thereby give true quality assurance, as opposed to what I fear that we have seen all too frequently, which is a tick-box approach. It will be a powerful role and it

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is very important that the data on which the chief inspector relies are representative of quality. That is a job of work that needs to be done.

The noble Lord also asked me about the National Patient Safety Agency. We continue to believe that it is absolutely right to place the national reporting and learning service within the Commissioning Board if we are to learn from safety incidents and near misses and to enable that information to be fed directly into commissioning behaviour. It is obviously important that we do not lose the expertise that the NPSA has built up. I hope and believe that we will not and that this is the right model. Nevertheless, the noble Lord is right to flag up that we need to learn from experience and we will do that.

As regards the CQC’s responsibilities, the noble Lord may be aware that the Health Select Committee of another place recently reported on the role of Monitor. One of the key criticisms that it levelled against the current system was that it is, in many senses, ambiguous. Sometime the roles of Monitor and the CQC appear to overlap and sometimes there appears to be a gap as to exactly who is responsible for what. Having thought very carefully about this issue, our judgment is that it is important to be crystal clear about who is responsible for what. The CQC’s powers, in terms of warning notices and improvement notices, will remain, but should the CQC find that there is an intractable case of quality failure in a provider organisation, it should not be the CQC’s job to sort that out. There should be a single failure regime triggered by Monitor, which is the body currently responsible for triggering the financial failure regime. The details are yet to be worked out, but clarity of roles is vital in this area.

I am aware that there are one or two questions that I have not covered, but I undertake to write to the noble Lord on those.

3.58 pm

Baroness Jolly: My Lords, I thank my noble friend the Minister for repeating the Statement. I am sure that many noble Lords will welcome, in due course, a full and spirited debate on this issue. Will my noble friend clarify which of the recommendations that are being adopted will require primary legislation, what the timescale might be and what the mechanism might be for that?

We welcome my noble friend’s remarks on the duty of candour but, as with all these things, the devil is in the detail. My question is about the chief inspector regime in general. We are going to have a chief inspector of hospitals so it would seem sensible to have a chief inspector of social care. Will we then need a chief inspector for public health and another one for mental health? Is that the way to have all the bases covered?

Earl Howe: My Lords, it is a little early to say what legislation we will need, but I can tell my noble friend that we can deal with the duty of candour by secondary legislation. It may be that many of the follow-up actions to Francis can be done without any legislation at all. However, primary legislation would appear to be the obvious route when statutory roles are to be changed.

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With regard to the chief inspectors, the only firm decisions we have taken so far are to appoint a chief inspector of hospitals and a chief inspector of social care. We are looking at the merits of a chief inspector of primary care but we need to make sure that there is a genuine issue that needs to be addressed by way of a chief inspector role rather than leaving the CQC to perform its role in the normal way. Further details will be forthcoming at an appropriate time.

Baroness Emerton: My Lords, I would like to mention nurse education. The suggestion of having some front-line experience before entering university is, philosophically and practically, very good if it can be worked, but it raises all sorts of questions. I spoke to a healthcare support worker a few weeks ago who said that all the students who come on to her ward tell her, “I wish we had had this experience that you are getting before going into training”, so there is evidence that many of them would like to have that kind of experience. However, this raises the question of their supervision during that time. Will there be adequate numbers of trained staff to supervise the continuing support workers as well as those who are pre-nursing apprentices, or whatever?

The logistics of this are going to be important to work on. We need to know whether the Government will look at minimum staffing levels. Where there are enough registered nurses and the minimum is stated, there should be means whereby registered nurses will be available whenever demands on patient care escalate, such as during a time of winter problems, rather than abusing and misusing the support workers. There is a tremendous amount of work to be done on that.

There is also the role of the Nursing and Midwifery Council, which has responsibility for regulating the pre-nursing standards. I hope the Government will ensure that the council takes an active part in this pre-nursing experience, because that will be important. I urge Ministers to have this minimum staffing looked at, if that is possible. I am extremely disappointed that the Government are not prepared to take on the regulation of these support workers because I fear that we may find ourselves having similar problems as in the past, unless we have some regulatory system.

Baroness Northover: My Lords, I remind noble Lords that brief questions only are called for after Statements, and that the briefer they are, the more colleagues will be able to get in.

Earl Howe: I reassure the noble Baroness that all the concerns that she rightly raised are very much in our sights, not least the need for proper supervision of nurse trainees and the practical aspects of having the right level of support on the ward. This is why we believe that this idea should be piloted first, so that lessons can be learnt. Yes, we will involve the NMC, and indeed the Royal College of Nursing,in these plans. As regards ratios, having the right staffing in terms of numbers and skills is clearly vital for good care, but minimum staffing numbers and ratios, if laid down in a rigid way, risk leading to a lack of flexibility or organisations seeking to achieve staffing levels only

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at the minimum level. Neither of those is good for patients. However, I do not dismiss the general concept. It is ultimately up to local organisations to have the freedom to decide the skill mix of their workforce, based on the health needs of those on the wards.

Baroness Pitkeathley: My Lords, the principle of putting the needs of patients first will be welcomed by every Member of this House. However, does the Minister agree that this means looking at care in an integrated way, since the patient experience is very rarely one of either hospital or social care but a mixture—sometimes a very haphazard mixture—of the two? Can the Minister therefore give the House more detail about how the government proposals will facilitate the integration of care services across health and social care, particularly as there will be two separate inspectors and as the ability of the CQC to put the shortcomings right is apparently going to be passed to Monitor?

Earl Howe: My Lords, the main drivers and levers for increased integration will come from other directions, such as: the systems we are putting in place at local authority level and health and well-being board level; more sophisticated tariffs; better commissioning arrangements between the NHS and social care; and the financial imperative that all commissioners and providers now face. That will mean an imperative to ensure that resources are not wasted and are deployed to the best effect of patients.

We must also remember that the NHS outcomes framework will be the benchmark by which the success of the service is judged, just as the social care outcomes framework will act in that sphere in an equivalent way. The major domain in both areas is the patient experience. If we believe that integration is above all to be defined by reference to the patient’s experience, we can expect commissioners across the piece to address commissioning in a way that avoids disjointed care.

Lord Cormack: My Lords, is my noble friend aware that many people in Staffordshire will welcome this report but will wonder whether the present chief executive is the best person to oversee the implementation of the many recommendations to which my noble friend has referred?

Earl Howe: My Lords, it was a signal feature of the Francis report that he consciously avoided pointing the finger at individuals. The chief executive of the NHS did not have the finger of blame pointed at him. The House may be interested to know that I regard Sir David Nicholson as a truly outstanding public servant who has done an enormous amount of good for the NHS since becoming chief executive.

The benefit of hindsight is wonderful but we must remember that in the years in which these dreadful events took place the National Health Service was held to account by reference to two main indicators: access to care and waiting times, and finance. Above all, it was the arrival of the noble Lord, Lord Darzi, as a Minister and the Secretaries of State whom he served that saw the transformation of the NHS from an organisation that was concerned just about numbers

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into one that really appreciated that quality matters. Therefore, to accuse those with positions of responsibility with regard to Mid Staffs of overlooking the fact that quality was poor is to place a wholly unfair retrospective expectation on them.

Lord Patel: My Lords, a great deal of importance and emphasis is being placed on introducing zero harm with regard to patient safety. I am delighted that the Government have asked Don Berwick to advise them how to do this. Do the Government intend to have zero harm in the NHS as a concept or as a requirement? If it is the latter, what legal framework will make that happen?

Earl Howe: It is much more a question of culture than anything else. However, the noble Lord will be aware that Robert Francis recommended that we look at the concept of fundamental standards below which care should never fall. We are determined to do that. Defining a fundamental standard is something for wide discussion. However, we take this recommendation very seriously. Robert Francis was clear that if individuals or an organisation were found guilty of breaching fundamental standards, serious consequences should ensue.

On a more general level, it is impossible to expect human beings never to make a mistake or never to fall down on the job. The point here is to create an attitude of mind in all those who work for and with the NHS that puts the patient’s well-being at the centre of their daily lives and thinking. That is where we want to be.

Lord Bilston: The recent pronouncements of Monitor seem to ignore the vast majority of the people of Stafford, who, as my noble friend Lord Hunt indicated, require a range of safe, sustainable and comprehensive health services rather than the delegation of a range of services, including elective surgery, to other hospitals such as New Cross in Wolverhampton. That hospital is already under considerable pressure and has inadequate facilities in many areas, including a very restricted site with inadequate car parking. Will my noble friend comment on that, because there is great concern and anxiety in Wolverhampton that many thousands of people will be allocated to New Cross and that it will be unable to respond that heavy need? As always in these cases, the balloon will burst and we will quickly find that New Cross Hospital itself sinks into the abyss and then has difficulty responding to the health needs of the people of Wolverhampton.

Earl Howe: I understand the noble Lord’s concerns and those of the people of Stafford. Unfortunately, this trust is losing a substantial amount of money. That is not a situation that anybody can be relaxed about, which is why Monitor has taken the action that it has. One of the tests by which any trust administrator’s report will be judged will be whether the solution offered delivers high-quality care and the prospect of good health outcomes to the patients of the area. This is not just a pounds, shillings and pence exercise; it is an exercise that is necessarily looking at services

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across the piece to see how they can be better and more cost-effectively configured to ensure that high-quality care is maintained.

Baroness Browning: My noble friend will be aware that the Mental Capacity Act was not mentioned or used at Winterbourne View and that we have seen one too many reports from Mencap about the deaths on hospital wards of young people who have a learning disability or autism. In the next 12 months, this House will carry out post-legislative scrutiny of the Mental Capacity Act. Will my noble friend ensure that his department is not just a passive observer of that process but communicates with those on that committee to ensure that people on hospital wards who lack capacity, albeit a fluctuating or temporary lack of capacity, are not only spoken to but treated like any other patient?

Earl Howe: My noble friend is right to raise this issue, and I pay tribute to the work that she has so consistently done to improve the lot of those with autism. I undertake to write to her about this, but I can give her the general reassurance that the Department of Health will certainly be involved in the scrutiny of these measures, as will the NHS Commissioning Board. I want to ensure that we learn the right lessons from the actions already taken.

Baroness Masham of Ilton: My Lords, does the Minister not think that, with the duty of candour, those who make mistakes should take responsibility and be accountable for them? Otherwise people will not learn from those mistakes and they will continue. I also want to ask about the 10 disciplines. I was very surprised that respiratory conditions are not included as nearly all death certificates have pneumonia on them.

Earl Howe: I undertake to look at the latter point made by the noble Baroness. The 10 disciplines were selected as ones that could reasonably and readily be subject to the kind of assessment process that we are looking to achieve. I will come back to her on that.

As regards the duty of candour, individuals should certainly take responsibility for their actions and be encouraged to do so. We fear, however, that criminalising individuals’ behaviour within an NHS organisation could risk doing the opposite of what we all want to see: a much more open culture, one that has made the NPSA and its work so successful; a no-blame culture, where people take responsibility for when things go wrong but do not feel that the heavy hand of authority is going to descend upon them at the merest mistake. However, it is important that people are held to account if they are dishonest or deliberately withhold information, and that is a different set of issues.

Lord Walton of Detchant: The appalling failings highlighted in the Francis report clearly demonstrated that the managerial virus—an obsession with meeting targets—infected many of the medical and nursing staff in Mid Staffs and diverted them from their primary standards of providing a high quality of patient care. Many of the proposals set out in the Statement are essentially welcome.

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I learnt only last week of the new assessment method, PLACE, and I would love to hear where that fits in to the programme. Having said that, will the Government take note of the fact that there is a danger in creating a superfluity of regulatory authorities that would divert doctors and nurses from their primary bedside responsibilities? Is it not better to make certain that regulatory authorities function much more efficiently and effectively in controlling standards?

Earl Howe: I wholeheartedly agree with the noble Lord. One of the concerns at the back of our minds as we have considered Robert Francis’s report is the need to ensure that we do not create oppressive additional regulation to cure the problems that Francis has identified. Indeed, we need to look at doing the opposite: how can we lift regulatory burdens and ensure that the culture Francis spoke about can thrive? The NHS Confederation is advising us on this. It is looking specifically at burdens placed on NHS providers and organisations, and we shall take its recommendations to heart.

Growth and Infrastructure Bill

Growth and Infrastructure Bill

Third Reading

4.18 pm

Baroness Anelay of St Johns: My Lords, this is another occasion on which it is my duty with regard to some Bills to signify the Queen’s consent in the normal manner.

I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Growth and Infrastructure Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Amendment 1

Moved by Lord True

1: After Clause 4, insert the following new Clause—

“Development orders: development within the curtilage of a dwelling house

(1) Section 61 of the Town and Country Planning Act 1990 (development orders: supplementary provisions) is amended as follows.

(2) After subsection (3) insert—

“(4) Any development order or amendment to an existing development order made after 1 January 2013 that grants planning permission for development within the curtilage of a dwelling house shall not apply within the jurisdiction of a local planning authority if that authority has resolved that it shall not.””

Lord True: My Lords, I declare an interest as leader of a suburban local authority that is also a planning authority. I thank the leaders of many other local authorities, along with the Local Government Association, who have given this amendment strong support.

This is Third Reading, so I will not go over all the arguments heard before on this issue, but I hope the House will allow me some indulgence, as this is the first time after nearly 40 years of service to my

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party and 20 years as an elected representative that I find myself contemplating dividing against my party. Your Lordships’ debate on Report in which Peers from all sides spoke was a devastating rejection of the Government’s wish to impose this idea, and I agreed with all that was said.

I had great sympathy for my noble friend Lady Hanham that day. I respect her hugely, as she knows, for the way she has handled this Bill. We all know that she did not cook up this idea. Indeed, I am pretty sure that if, when she was leader of Kensington and Chelsea, some bright young councillor had come to her and said, “Hey Joan, I’ve got a great modernising idea. Why don’t we take away the rights of neighbours to object to big extensions?”, that clever young man would have been sent away with a flea in his ear by his leader, yet that is the extraordinary proposition that I draw to your Lordships’ attention today.

Before the dust had settled on our debates on localism and the NPPF with the sensible liberalisation of planning therein, out popped a big new idea to sweep aside the newly entrenched localism and use Whitehall diktat to double the amount of back gardens that could be built over without planning permission and take away the rights of immediate neighbours to have a say or to object. That was not in any manifesto or in the coalition agreement. All those documents pledged to protect back gardens, and I, and perhaps others in this Chamber, looked people in the eye in 2010 and made that pledge on doorsteps. For my part, as an elected representative, I propose to stand by it.

My amendment is modest. It is a compromise. I think the Government are wrong to want to take away a neighbour’s right to comment on an extension that could be 50%, or technically in some cases a little more of a small neighbouring garden in a terrace. Back gardens are an important reinforcement of mutual value and of the character of an area. My amendment does not block the Government’s wish to do that. I say to my noble friends on coalition Benches that no one who votes for my amendment today, if I press it, will be preventing the Government from making such an order, nor would they be stopping anyone applying for an extension. It merely moderates a one-size-fits-all approach and allows local decision: localism. It states that if a local authority thinks that extending permitted development in gardens to this extent is not appropriate for its area, it may opt out. What is it about this small thing on which this great Government will not compromise? Do they not understand how people live cheek by jowl in the suburbs? I am beginning to wonder whether someone who had an extension refused got stroppy with some Minister or a top civil servant over dinner.

I did not press a similar amendment on Report for two reasons. The first was because I still hoped that the Government might listen, but late yesterday I received a letter from my noble friend making clear that they would not. Secondly, our debate on Report left open a number of questions about what in the jargon is called an Article 4 direction. My noble friend very kindly provided material on this in her letter. Having read it, I remain unconvinced that it provides a sensible answer to an unnecessary question.

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I also remain puzzled by the logic of the Government’s position. My noble friend implies in her letter that Article 4 directions are quite easy and normal and can readily be used if councils do not want to extend permitted development. That might be read to imply, although crucially she does not say so and did not say so when asked directly on Report, that all such local directions to opt out would be supported by the Government. Then her bosses handed a file to my noble friend marked “resist” on an amendment that allows a faster, simpler route to the same opt-out point as Article 4 would offer. It simply does not add up. I fear that the truth is that someone deep in Whitehall, while singing the song of localism, wants to keep a hold over local authorities to modify or cancel an Article 4 direction at any time, in which case on this matter Article 4 would be mere fool’s gold.

I do not wish to detain noble Lords with detailed debate on Article 4, because the small print is a diversion from the main principles of localism and householder rights that are engaged here. I must point out that my noble friend’s letter did not mention the complication arising from rights to compensation that may come with Article 4 directions when planning approval is approved. Leeds City Council alone has calculated that its potential exposure in relation to one aspect of policy is between £1.5 million and £3 million. Nor did it mention the lost planning fees—perhaps £250,000 a year in my authority alone, according to my officers—and there will be no less work to be done, for you can be sure that time saved on planning control will be time increased on building control, as neighbours who have not had opportunities to comment on proposed extensions will ask the building inspectors to look at whether the work is being done properly. Of course, even on my noble friend’s best-case presentation of Article 4 directions, it is a process that takes many months.

When the Government commend Article 4 against the faster, simpler approach to local choice that I and my noble friends propose in this amendment, it is as though a man had stopped his car and asked for directions to a town. Instead of saying “Oh, it’s just there, over that hill—it’s about half a mile away”, a bystander deliberately points him around 10 miles of byways, consuming quantities of petrol on the way, with a possibly impassable ford lurking on the route. It seems wasteful and pointless. Every argument the Government make that Article 4 is a good way to opt out is an argument for the simpler, faster route proposed in this amendment.

I return to the fundamental arguments. The Government have suggested a world where in close suburban neighbourhoods people can put up a six or eight-metre back garden extension, and people living in the house to which they may be attached have no right to a say in this or to object. It is not hard to imagine the shock and dismay that some people will feel if they ever find out that it is happening to them. They will feel powerless and angry.

This proposal is not about growth; it is ludicrous to argue that a few back garden extensions would kick-start the economy. It is not about localism and community; it denies localism and avowedly reduces community rights—Ministers say that it does. It is not about new

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housing; not a single new upstairs bedroom will be built in Britain as a result of this proposal. It is not about making it easier for people to improve their homes; they have every right to do so now and still would if my amendment were passed. It is not even about property rights, for it transfers power and rights from those who lose most directly from any development and adds to the gain of the richer and more assertive, who would gain anyway.

This proposal takes away a neighbour’s right to have a say on a big and potentially overbearing extension shoved up outside their back door. What is more, it removes that vital process of moderation and conciliation that the local planning system provides in these matters. How often do those who have been upset by a planning proposal next door go away finally satisfied if a small condition is added, a modification made, or just by the simple expedient of being able to have their say before the local planning committee? Paradoxically, at this micro-level, a planning hearing can be an enabling process that allows arbitration and reconciliation, without which, in those small, precious, suburban communities, neighbour would be set against neighbour in perhaps lasting resentment.

For those who have worked hard and striven to buy and maintain a home, it is the most precious possession they have. Restricting their right to have a say in what so directly affects it will strike at their most basic instincts of what ought to be secure and what they see as fair. Good policy should surely have a sense of how things work at the human scale, and it is at that level that this proposal so conspicuously fails. To me, there is a principle of equity here, and it is on just such matters that your Lordships’ House has always been a voice of wisdom and held out a hand of protection for the rights of a citizen to come before a tribunal, as a planning committee is, and be heard. I ask your Lordships, in so close an interest for every homeowner, to consider that civilising and reconciling right.

4.30 pm

I conclude with the Government’s final argument, the tired old one that we have all heard from Whitehall—I think I have probably made it myself—that it is not necessary because the Government do not want to bring forward this proposal in this Bill. I am sure your Lordships will be told that you can have another say another day. However, Ministers trumpeted this plan months ago. When there were protests, it was put out to a hurried six-week consultation. Three months after that consultation closed, we have not been allowed to see the results. Now we are told by my noble friend that they will eventually be published at the time of the regulations—yes, the regulations. Well, regulations are unamendable in this place or in the other place, which has had no chance to consider this proposal. Of course, any Government would like to push through controversial ideas in an unamendable form at a time of their convenience, but Parliament, I submit, has a right to say “think again” whenever it chooses. I submit that we should think again. The time to think again would be before we go further down this unnecessary and socially divisive road.

I close by reminding your Lordships that if the Government are still so minded, they would still be able to propose an order, even if my amendment is

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passed, and it would apply in every area of the country where the local authority supported it. Your Lordships, by passing this amendment, would secure the chance for the other place to consider this matter and to require that local councils should be able to determine whether this plan is appropriate in the quiet suburban roads that they represent. I beg to move.

Lord Tope: My Lords, I have added my name to this amendment proposed by the noble Lord, Lord True, feeling as strongly as he does and with as much sadness as he has expressed. Like him, I am a councillor in an outer London, suburban authority. Indeed, I am a former leader of that council. Like him, I have campaigned and been elected many times on the commitment to preserve back gardens, which is a crucial issue in most suburban authorities and no doubt elsewhere.

The noble Lord, Lord True, spoke very eloquently and very fully on the issues here. I shall try not to take so much time or to repeat too much of what he has said. He referred to the origins of this proposal last summer. It seemed a good idea when government circles were scratching around trying to find anything that would stimulate growth and this proverbial young Kensington councillor to whom he referred came up with this jolly wheeze. Frankly, it would have been much better had they listened at that time to the strong and unanimous reaction right across all parties, across local government and, indeed, across the country pointing out what a silly idea it was. Sadly, that did not happen. People somewhere in government dug in on it. As the noble Lord, Lord True, said, we went to a hastily contrived consultation lasting six weeks, ending on Christmas Eve. At Report, the Minister told us that there had been 1,000 responses. It has been 13 weeks since that six-week consultation ended. We have no idea today, and I suspect that we will have no better idea by the end of today, what those 1,000 replies said. Surely somebody somewhere could simply have divided them into for, against and not quite sure. We could at least get some indication of what that response is, unless we have no indication. If we get no indication in the reply to this debate, we are forced to conclude that a very substantial number of those 1,000 replies have been put in the against pile. For what other reason have we had no indication in the 13 weeks since the consultation closed?

I share the affection of the noble Lord, Lord True, for the Minister. We were London borough council leaders together for many years, and I know very well what her views are, even if she is not allowed to tell us from her present position. At Report, she said that the proposals were to,

“extend the localism rights”.—[

Official Report

, 12/3/13; col. 197.]

The only rights that are being extended here are to home owners—the right to do as they wish. It may well have sounded good when it was first suggested, but the rights being taken away are the rights of the neighbours to those home owners to have their say on those proposals—and usually there are rather more neighbours than there are home owners. So, in fact, more people are losing rights in this alleged extension to localism than are gaining them.

Among the rights being taken away is the right to have a say. The Minister expressed a hope, which we

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would all have, that neighbours would talk to each other. Of course that happens, and we would all want it to happen. Quite often, those discussions take place and can be resolved in an amicable way between neighbours; that is what we would all desire. But we all know that, outside that ideal world, it does not always happen that way. The rights being taken away are the rights of the neighbours to be able to appeal for arbitration from a local planning authority, and to ask the house owner who wishes to extend the property properly to take into consideration the interests, wishes and concerns of their neighbours. If they know that they do not have to apply for planning consent, there is no incentive to do so other than to wish to be a good neighbour. If they think that their neighbour is reasonably or unreasonably going to object to their plans for the extension, it is unlikely that they will voluntarily submit to such consultation.

The Local Government Association and the Minister have commented, I am sure correctly, that 90% of such planning applications are currently approved. That is a very good record, which suggests that there is not too much wrong with the present system. But why is there such a high approval rate? It is simply because of the need to have planning consent, and the opportunity that is given to neighbours to have their say and for the applicant to know that the neighbours will have their say, as well as for the role of the local planning authority not just to be able to arbitrate but to be able to mitigate, negotiate and, one hopes, to resolve any outstanding concerns.

This proposal comes as part of a Growth and Infrastructure Bill, and is supposed to incentivise growth—and I think that, to be fair, everyone would agree that it does so in a relatively small way. Presumably, it would do so not for the major developers of the land but for the small builders. I have the good fortune quite often to talk to or, more usually, to be talked at, by quite a number of small builders in my role as a councillor. When I ask them—although I do not usually need to ask them—what they wish the Government would do to make their business more successful, or indeed to keep them in business, not once have any of them said, anywhere in the list, that they wished that the Government would remove the requirement for planning consent. It simply does not happen. If you ask any small builder what they want, there is a whole range of things they would want—VAT is usually mentioned—that would come long before the need to remove the requirement for planning consent.

Are the Government seriously suggesting that somebody considering an extension to their property refrains from doing so simply because of the added cost of a planning application? I do not think that anybody is suggesting that; it would be ludicrous to suggest that the planning application fee is a serious inhibitor to going ahead with the extension to a home.

Article 4 is then pleaded in aid by the Government, who say that it can be used as a way to get around this. My noble friend Lord True has dealt with that very well and very fully, and I am not going to repeat those arguments. But I, too, had the letter from the Minister yesterday, for which I am very grateful, which dealt at some length with unanswered questions from Report

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about Article 4. As I said, the noble Lord, Lord True, has dealt with many of those, but it also gives us the figures for the use of Article 4, which some of us had said was little used. Well, these terms are relative. I will interpret the figures in the letter in a different way from what was intended. They show that barely one-third of local planning authorities have used Article 4 directives at all in the past three years, and that those that have done so have used them less than once in each of those three years. I would suggest that Article 4, by common consent, is not heavily used. Why? Because it is slow, bureaucratic, ineffective and inefficient, and again using the illustration of the noble Lord, Lord True, it can prove very costly in terms of compensation.

If an increasing number of local planning authorities start to use Article 4 directives when these proposals come in, will the Secretary of State continue to refrain from intervening, as he has up until now? Will he actually be content to see local authorities using Article 4 in effect to get around the proposals that the Government have just introduced? I would suggest that is highly unlikely.

As the noble Lord, Lord True, has said, today’s amendment provides a truly localist way of allowing the Government to introduce these proposals, if they are determined to do so, but also allowing local planning authorities to recognise that one circumstance does not fit all. Of course, different areas have different circumstances; the situation in rural Lincolnshire may well be very different from that in suburban Richmond or Sutton. It gives the local authority the right to choose what they do in terms of their local circumstances.

The Government proposals will set neighbour against neighbour, they will take away people’s rights to object and get a hearing, they take away the local authority’s power to arbitrate and mitigate, and they do absolutely nothing for growth. This amendment enables local authorities to decide how best to deal with these issues in accordance with their local circumstances. I am very pleased to support it.

The Earl of Lytton: My Lords, I, too, willingly added my name to the amendment tabled by the noble Lord, Lord True. I stand before your Lordships as a technician, not a politician. As a practising chartered surveyor with a specialised involvement with boundary matters, and as chair of my professional body’s panel on this matter, I can speak with some knowledge of what happens in practice. The professional panel I chair deals with boundaries, party walls, land registration and rights to light. I, too, thank the Minister for a very useful explanatory letter and a copy of the Article 4 procedural guidance. She referred to a condensed version, if I may put it that way, which the Government are intending to bring out. I have not seen that, but no matter because I shall stick with what the Minister has sent me.

The first point is that the desire to deregulate, however objectively beneficial it might seem, should not equate with no oversight whatever. That is the risk the noble Lords, Lord True and Lord Tope, have identified. It may be populist, but it is not good government.

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The second point is that back garden space is an important mutual asset that underpins value and market appeal. We cannot get away from that. Of course, the situation varies according to location, as the noble Lord, Lord True, has said, so a one-size-fits-all approach does not really work. Rural village properties are totally different animals from those in London boroughs in terms of the built and human-scale environment.

The policy of deregulation does not guarantee a positive net present value, if I may use a piece of valuer’s jargon. One poor extension can blight neighbouring properties, as we have heard from the noble Lord, Lord True. Moreover, poor design and poor positioning are potent sources of neighbour disputes, and that is where people like me get drawn in. They produce serious stress not only between neighbouring householders but within families. I have seen families almost taken apart by the stress that has been occasioned. Such disputes often lead to expensive legal battles, in which I have to say the only gainer is the legal profession.

4.45 pm

There is no equivalent to the off-the-shelf, non-judicial process of dispute resolution that occurs in relation to Section 10 of the Party Wall etc. Act 1996, for which, in a previous incarnation in your Lordships’ House, I claim some credit, having taken it through all its stages in this House. There might have been one had the Property Boundaries (Resolution of Disputes) Bill, introduced by the honourable Member for Dover and Deal, been taken further, but I appreciate that he did not feel able to continue with it for all sorts of technical and other reasons, and it was withdrawn. Therefore, there is no fallback other than legal proceedings if a proprietorial interest is infringed by the general belief that you can do what you like because the Government have said that you can build in your back garden.

Intensifying development in back gardens would unravel a lot of what local planning authorities have sought to protect on behalf of the community over decades since the Second World War. Their fundamental role has been to broker the deal between the interests of the community and private individuals in crowded environments. That has been a bedrock function of what local planning authorities have done.

I am very doubtful whether the Government’s proposals to deregulate will, as the Minister suggested in her letter, benefit construction to any great degree, as in any event 90% of applications go through. It may take longer for them to get through but apparently they do get through, so I cannot quite understand the argument about the economic benefits. We seem to be talking about only the 10% that might be refused.

Repairs and maintenance are a different issue from new construction, although I grant that new construction can often bring in an element of repair and maintenance with it, so I do not see that the Minister is entirely wrong in that. However, we come to the question that I and the noble Lord, Lord Tope, mentioned earlier of the moral hazard of giving out the idea that you can do more or less whatever you like in back gardens. I know that the Minister’s letter sets out some criteria for that and that may be helpful, but the community’s and individual’s rights of representation would be

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removed without something along the lines of this amendment. The effects are very often a hotchpotch of poorly designed and incoherent additions, and I come across evidence of that all over the place in our townscapes.

I need to correct something in the Minister’s letter. There is no such thing as a statutory right to light. There is a common-law right to light by virtue of something called prescription, which is long enjoyment as of right over an extended period—usually more than 20 years. However, the actual effect of the common-law right to light is to maintain only a minimum standard, which most people would consider a pretty miserable standard of lighting coming in through a window or other prescribed opening. What really protects the situation is the Building Research Establishment guidance on daylighting, which tends to be implemented through local authorities’ development control policies. However, if you remove the need for development control, you remove the scrutiny and oversight of the BRE guidance. That is why development control is the only effective way of assessing, on a technical basis, the spatial considerations and daylighting between buildings.

Other noble Lords have referred to the fallback of Article 4, which is rather a poor safety net in this situation, although I am not an expert on Article 4 directions. There seems to be considerable time and energy to implement these. There is no defence for a local planning authority where there are proposals to carry out works between the point at which the Secretary of State deregulates and allows development in back gardens to take place, and the subsequent implementation of an Article 4 direction. In other words, there is a gap which is a significant danger area. Unless local planning authorities were able to prove, as of now, that in prospect of the deregulation that the Secretary of State may have in mind they were able to pursue an Article 4 direction, there would be a gap between the deregulation and the implementation of the Article 4 direction. That would be a very serious situation because of the compensation provisions referred to by the noble Lord, Lord Tope, who adroitly suggested that 270 Article 4 directions over the past three years hardly represent a torrent of Article 4 directions. The Minister might say, “That’s because it’s unnecessary”, but I suspect that it is much more likely because of some killer provisions in paragraphs 6.2 and 6.3 of the guidance. Paragraph 6.2 states:

“Local planning authorities may be liable to pay compensation to those whose permitted development rights have been withdrawn if they … refuse planning permission for development which would have been permitted development it were not for an article 4 direction … grant planning permission subject to more limiting conditions than”,

would otherwise have been the case, but for,

“an article 4 direction being in place”.

Paragraph 6.3 of the guidance states:

“Compensation may be claimed for abortive expenditure or other loss or damage directly attributable to the withdrawal of permitted development rights”.

We will need a very brave local authority to allow itself the privilege of the prospect of development in back gardens taking place, with the intention that it will use Article 4 to then close the gap—long after the horse has bolted, I suggest.

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Those are the technical reasons why I support this amendment. I do so in the knowledge that this is very much in line with what the Government are trying to do in terms of deregulation. I respect that and well understand that there has been a general tide of tittle-tattle about the length of time planning decisions take and the somewhat petty conditions that are sometimes attached. However, we must not lose sight of the big picture, which is how local planning authorities have managed to protect our townscapes and built environment in a way that people in other countries would die for. As I said at the previous stage, they come over here to see how we do it. It is important to protect that, and that is why I support the amendment.

Lord Cormack: My Lords, you have only to go the Republic of Ireland to see that what the noble Earl, Lord Lytton, has just said is absolutely right. I believe we are well served by our planning laws in this country. I do not want to detain the House for more than a few moments but I remember so often, as a constituency Member of Parliament, finding constituents particularly aggrieved by specific applications. However, there was a way of sorting them out. I also remember the great leylandii problem, when we had to bring in legislation to protect people from these overpowering hedges.

My noble friend Lord True and those who have supported him have laid out an extremely powerful case, backed by technical competence and knowledge from the noble Earl, Lord Lytton. If ever there was a case for your Lordships’ House saying to another place, “Think again on this one; you have got it wrong”, this is it.

Lord Deben: My Lords, my great difficulty with the amendment is that, in the terms in which it has been proposed, what I believe to be a heresy has been expounded, which is there is an equality of rights between ownership and the right to have a say. The fundamental right is that of ownership and the protection of property; that is essential. That is why, when the Quality of Life report looked at this issue, we came up with a way out of the problem with which your Lordships’ House is faced. We said that this kind of issue was a matter not of planning but of neighbourly relations. Why not take it out of the planning system and have a situation in which people could normally do what they wanted, but if neighbours objected the local authority had the right to decide that such an objection was important enough to appoint an arbitrator? It is not a matter of planning most of the time; it is a matter of arbitration between the interests of the owner and those of his neighbours. The arbitrator should work within a context in which the owner would normally be judged as having the right to do what he wanted with his own property, but that if the neighbour’s rights were so intruded upon the arbitrator could make the decision that in this case it could not be done.

My problem with this situation is that the amendment reinforces the concept that through the blooming local authority is the only way in which the locality can have its say. I am not sure I believe that about local authorities; indeed it seems to me to be one of the issues. Localism is not “local authorityism”—it is localism. I note that

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very often those who speak about these issues talk as though the only way in which the locality can express itself is through the local authority. Frankly, I have seen far too much of local authorities’ fiddling powers, as they try to tell people the best way to do their developments. I remember having an argument with a charming lady on the subject of what sort of window Teulon would have put in a house that Teulon had built. The difficulty was that she was from the authority and I knew about Teulon, which is a difficult situation to be in. I recognise that there are problems of this kind.

I say to the Minister that it is not possible to support this amendment because we are still in this difficult area. I share the assessment of my noble friend Lord True of the Minister’s ability and her heart in these circumstances, so I say this delicately. She has not been enabled to give the House the kind of way through that exists—a balanced way, given by the recommendations of the Quality of Life report. Can she explain why the Government seem not to have taken that moderate path but have moved to this one? On balance, this one is better than the amendment but it has the great difficulty that if there are many cases of the sort feared by my noble friend Lord True, we will be back here legislating to put the thing back. It is a worry. Can she explain why, on this occasion and, I am afraid, all too regularly, the Government have not sought to find a way that might ameliorate the problem and lead more of us more happily through their Lobby?

5 pm

Lord Marlesford: I support my noble friend Lord True. I speak from the grass-roots point of view, which will, I hope, answer the point made by my noble friend Lord Deben.

The role of the parish council is crucial in these issues. It is the grass roots of democracy and government. My noble friend Lord True is right about the need to have proper arbitration and consideration in the way his amendment will allow in the council areas that wish to take that route. My noble friend Lord Deben talks about having an arbitrator appointed by the local authority in due course. That seems a little circular, because frankly we are talking about making these matters subject to local arbitration.

My own parish council in the small village in Suffolk in which I live, which I chair, at the moment has two cases of people who wish to extend their houses. They will be considered at the grass-roots level by people who know everyone and they will both be settled very amicably. This is known. However, if you get people who are not prepared to take account of local considerations, preferences and feelings, you will soon run into frictions that could so easily be avoided.

It is for that reason that I will support my noble friend Lord True if he decides to test the opinion of the House.

Lord McKenzie of Luton: My Lords, the noble Lord, Lord True, has been clear and consistent on this matter, and he has our support. I am delighted that he also has: the support of the noble Lord, Lord Tope, who said that, given the statistics, there cannot be

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much wrong with the current system; the authoritative support of the noble Earl, Lord Lytton, as a distinguished technician; and the support of the noble Lord, Lord Marlesford. I should say to the noble Lord, Lord Deben, that we are not in the place that he describes. Is it not better that a local authority engages with communities and tries to get the balance that these kinds of issues throw up rather than the Secretary of State? Local authorities might not be the fount of all knowledge, but I would rather have local authorities involved in local decisions than the Secretary of State. I think that is also the view of the noble Lord, Lord Cormack.

The noble Lord, Lord True, has argued his case on the basis of localism, the lack of proper consultation, the insignificant effect on growth, the riding roughshod over neighbourhood engagement, the unpicking of the hitherto planning balance and the inadequacy of the Article 4 remedy. However, we should be grateful to the noble Baroness, Lady Hanham, as others have said, for the further information that she has provided, particularly on the Article 4 direction.

The Government, of course, have a wider agenda around permitted development rights, and like other noble Lords who have spoken we deprecate the fact that the Government have not yet felt able to publish their response to the consultation, which closed in December last year.

The amendment of the noble Lord, Lord True, is very specific and modest. It applies only to permitted development within the curtilage of a dwelling house, and it disapplies those rights only when a local planning authority resolves that they do not apply. Unless and until that happens, the permitted development rights endure. If the permitted development rights do not apply, any proposed development has to go through the normal planning process. It is, as the noble Lord said, about equity.

Of course we acknowledge the role that the construction sector can play in generating employment and growth, but that is not to say that it should be gained by tearing up sections of the planning system. We can tell from the noble Baroness’s letter that the Government will cling to the Article 4 defence. The Minister’s recent letter suggests that the process of getting an Article 4 direction is straightforward. It records that the Secretary of State has not exercised any powers of intervention since the change in 2010, which only required directions to be notified.

If in practice the Secretary of State is hands-off, why not, as the noble Lord’s amendment suggests, just leave it to the local planning authorities in the first place? Let them decide whether permitted development rights of the type described should run. However, on reading the guidance it is clear that matters are not quite as straightforward as the Government argue. We have all read the LGA briefing, which spells out why Article 4 directions are ineffective, particularly on compensation issues and loss of planning fees, as has been mentioned.

It is to be hoped that the Government will find themselves able to accept this amendment, and we look forward to the Minister’s reply. But if the noble Lord, Lord True, does not get satisfaction, we will join him in the Lobby. I believe it is right that we should seek to settle the matter today.

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The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham): My Lords, I thank the noble Lords who contributed to this debate, and for the measured way in which they have considered the amendment. I know very well that my noble friends, who I have called noble friends for a long time, are very committed to what the noble Lord has put forward.

I will not be able to accept the amendment. I say that at the outset so that it is quite clear. It has been generated by the Government’s proposals, on which consultation has taken place, on the changes to permitted development rights in respect of single-storey extensions. This was never meant to be part of the Bill. Noble Lords have asked why the consultation has not been published. We normally publish the results of consultation when we are about to take the matter further, and I have already made it clear that the consultation will be available as the regulations come forward. As I say, that aspect is not part of the Bill.

Our proposals, which are not part of the Bill, will make it easier for thousands of families to undertake improvements to their homes. In bringing forward these changes, we have looked across England and recognised that many people want to enlarge their homes, not by much but sufficiently to create more living space and to provide the best possible home for their family without the cost of having to relocate.

We also consulted on changes for commercial premises. Noble Lords have not really referred to this, and I say only that the proposal is that businesses will also be able to improve their premises and expand without having to relocate. This means that they can quickly respond to and capitalise on market conditions. We believe that the proposed changes will help promote economic growth and generate new business for local construction companies and small traders. That is not the full rationale behind this, but it is an important matter that we keep local businesses going. It is fair to say that approximately 30 jobs are supported for every additional £1 million spent on housing repairs and maintenance.

Permitted development is the recognition by the Secretary of State that certain types of development and their impacts are generally acceptable across the country. It accepts that a requirement to make a planning application is not always proportionate to the impacts of development. This is an important principle. We have consulted, as I have said, on the changes that would apply across England. We did not consult on a proposal whereby a local authority could just choose whether or not to adopt what has been promised to all householders across the country. That is what the noble Lords who support this amendment suggest.

We have not consulted on anything like that. We have been clear in working out the proposed changes that the planning system for permitted development rights needs to strike a balance, to which noble Lords have referred, between the rights of the homeowner and the rights of their neighbours. We consider that that is what our proposals do.

We have had reference to the National Planning Policy Framework. To be clear, there is no weakening of it. It is aimed at preventing what I believe from

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discussion on the Localism Bill is technically called garden-grabbing for new development. We do not believe that the proposals that we have put out to consultation will affect that. No more than 50% of the curtilage of a dwelling can be built on, providing substantial protection for rear gardens, particularly in terraced properties. Also, the building regulations and the Party Wall etc. Act, to which my noble friend Lord Lytton referred, must be complied with in the usual way, and the right to light is unaffected.

My noble friend Lord Lytton took me up on my point about the right to light being statutory. I will be pedantic, if I may. The operation or prescription of the right to light is set out in statute, although the right arises under common law, as he suggests. Between us, we have probably come to the right conclusion, which is always helpful.

To give a local authority the power to opt out of the national permitted development, as the amendment does, would establish an unwelcome precedent. It removes the certainty that the Secretary of State promises in bringing forward a new right, and makes what is intended to be a national deregulatory measure apply only on an optional basis. That is particularly so when a mechanism for responding to concerns in individual areas exists.

My noble friend Lord Deben suggested that some of the problems could be solved by setting up a local arbitration arrangement. He and other noble Lords will know that many councils already provide a mediation service, and of course they would be perfectly entitled to do so under the regulations proposed. I agree that those issues can be appropriately resolved without the formal intervention of the planning system. It just requires a bit of good will.

There are already arrangements in place to deal with some of the circumstances raised in respect of some individual local authorities, where the new rights might impact adversely on a local amenity. Many have commented on the Article 4 directions, on which I have relied as an alternative to what my noble friend suggests. Boringly, I shall make some of those comments again. There has been difference of view about how the Article 4 directions work. It has been suggested that the Article 4 direction process is very difficult to pursue. The Local Government Association briefing contends that. As has been cited and as I said in my fairly long letter, which may have been helpful in some ways, more than 270 Article 4 directions have been notified to the Secretary of State from 122 local planning authorities over the past three years. This does not suggest to me that local authorities will not introduce Article 4 directions if they think they are appropriate. A number of local authorities will.

In its briefing, the Local Government Association set out three core reasons why it believes that Article 4 directions are ineffective. Some of those reasons have been raised by noble Lords. The first focuses on the need for councils to give 12 months’ notice of an Article 4 direction proposal. Local authorities have powers in respect of householder-permitted development to make immediate directions to withdraw the permitted development rights with immediate effect. Article 4 directions that have been put on at once must then be

26 Mar 2013 : Column 993

confirmed by the local planning authority following local consultation within six months. It in effect lays down what an Article 4 would do but in a very short timescale, so you could really halt a development or the extension of a development.

5.15 pm

The second issue raised in the Local Government Association briefing is that the council must pay compensation costs if less than 12 months’ notice is given. This point was raised by my noble friend Lord Lytton. Compensation is payable only where a planning application is subsequently refused, or conditions imposed, and a claim for compensation is made relating to the householder’s abortive expenditure. Where a local authority decides to give 12 months’ notice, it will have considered whether it wishes to limit the possibility of compensation requests. This is reasonable, but so is the ability to seek compensation for a time-limited period if one has been adversely affected by a proposal.

The third issue raised by the Local Government Association is that Article 4 directions have to be used across an entire use class. I have to say that this is not relevant to the matters that we are discussing this afternoon: householder permitted development rights. Importantly, Article 4 directions have been, and can continue to be, made in respect of individual elements within the householder permitted development rights. This is not a blunt tool and can be fine-tuned to local circumstances.

In respect of the concerns about complexity, the Article 4 process was streamlined in 2010 and, as I made clear, the Secretary of State no longer has to approve each direction. Instead, he is notified of them and has the power to intervene if its use is not justified. No Secretary of State has intervened since 2010.

The guidance to which I drew noble Lords’ attention sets out the Secretary of State’s expectation that local planning authorities will consider making an Article 4 direction only where there is evidence to suggest harm to local amenity or the proper planning of the area. Many of the matters raised by noble Lords would fall into that category.

The Article 4 process is not as difficult as has been suggested. As soon as the notice is drafted, it is served locally for 21 days and the Secretary of State is notified at the same time. Our guidance provides a draft direction that is less than a single page in length. I will make sure the noble Earl, Lord Lytton, has a copy. Having considered the local consultation responses, the local authority then considers whether to confirm the direction. That is done by serving a notice locally and notifying the Secretary of State.

Consultation requirements are straightforward: a local advertisement, site display and service of the notice on local owners and occupiers, provided that this is not impractical. Because of the way in which the Local Government Association has put forward its objections, I have asked officials to work closely with it, and I understand that they will do so, in updating the Article 4 guidance as part of the review led by the noble Lord, Lord Taylor of Goss Moor, so that the process is as clear and straightforward as possible.

26 Mar 2013 : Column 994

On the basis on which I have laid my case—that the noble Lord’s amendment is not necessary—I ask noble Lords to reflect on the fairness of withholding a national permitted development right that has been promised to a householder. It brings great benefits to individuals and helps drive economic growth. I can assure noble Lords, as I have already tried to do, that sufficient provisions are already in place to ensure that, where appropriate, there can be local changes to national permitted development rights. I cannot accept my noble friend’s contention that local authorities should be able to take unilateral decisions as to whether they take up the national provisions, which, as I have already said, are not part of this Bill but which we will deal with at a later stage.

On this basis, I ask noble Lords not to press their amendments. If they do, I hope the House will support me in resisting these unnecessary provisions being added to the Bill.

Lord True: My Lords, I thank my noble friend on the Front Bench for the characteristically courteous and thoughtful way in which she has responded. My difficulty is that the response has been a response in style and that she has, unfortunately, not been permitted to respond on the substance of the matter. I did not create this situation. A pronouncement came from the Government that they intended to withdraw the rights of neighbours to object to extensions on this scale and thus oust their right to go to a tribunal, which is the planning committee. The planning committee process acts as a mode of reconciliation in itself. Compromises are made and often the matter never goes to a formal hearing. It is a way in which neighbours are reconciled in these situations.

Of course, I hear what my noble friend Lord Deben said. Arbitration is used. I certainly do not claim that a local authority is the beginning and end of all wisdom. I spend half my time as a local authority leader trying to involve local people and local communities in taking decisions for themselves. I am absolutely convinced that a local authority will have rather more knowledge of what is acceptable and appropriate in its local area than a Minister sitting in Whitehall pronouncing an order of this kind. That is my difficulty with what my noble friend said.

I am extremely grateful for all the speeches that were made so very supportively. I thought that they made a compelling case, taken together, for the Government to listen to the arguments we are putting forward. With some modesty, as a policy-maker in the past, I think that at some point Governments gain in authority when they show that they have the grace and wisdom to listen sometimes on small things.

I will not detain the House further. The Minister said that it was worrying that local authorities might wish to opt out of a pronunciamiento about planning—to have a different view. How recently it was that we debated at such length the principle of localism. While I do not contend that local authorities have the whole answer, I do not think that Whitehall having the answer is necessarily right. The House can decide only on what it has before it. I have had the temerity to raise this issue because it is clear that we have not seen the results of the consultation and it has been confirmed

26 Mar 2013 : Column 995

that the Government intend to plough forward to regulations, which are unamendable. I have had the temerity to put this before the House partly because it is a matter of great importance to people who live in small properties, cheek by jowl in the suburbs of this country, partly because Members of Parliament, who are elected and responsible to those people, as I myself am, might have a view on this matter and partly because I do not think that the Government have the full answer, any more than local authorities do.

I repeat what I said at the start. It is with the greatest reluctance, sadness, difficulty and regret, after 40 years working for my party, representing it in elected chambers and now having the great honour to be here, that I say I cannot accept the advice of my noble friend. I would like to test the opinion of the House on this matter.

5.24 pm

Division on Amendment 1

Contents 217; Not-Contents 211.

Amendment 1 agreed.

Division No.  1


Aberdare, L.

Adonis, L.

Afshar, B.

Allenby of Megiddo, V.

Alli, L.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

Avebury, L.

Bach, L.

Bakewell, B.

Barnett, L.

Bassam of Brighton, L.

Beecham, L.

Berkeley, L.

Best, L.

Bichard, L.

Bilston, L.

Blackstone, B.

Blackwell, L.

Blood, B.

Boateng, L.

Borrie, L.

Bradley, L.

Bradshaw, L.

Bragg, L.

Brennan, L.

Brookman, L.

Brooks of Tremorfa, L.

Browne of Ladyton, L.

Carter of Coles, L.

Chandos, V.

Christopher, L.

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clinton-Davis, L.

Cobbold, L.

Collins of Highbury, L.

Colville of Culross, V.

Condon, L.

Cormack, L.

Corston, B.

Coussins, B.

Crawley, B.

Davies of Coity, L.

Davies of Oldham, L.

Dean of Thornton-le-Fylde, B.

Donaghy, B.

Donoughue, L.

Drake, B.

Dubs, L.

Elder, L.

Elystan-Morgan, L.

Erroll, E.

Evans of Parkside, L.

Evans of Temple Guiting, L.

Evans of Watford, L.

Falconer of Thoroton, L.

Falkland, V.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

Gibson of Market Rasen, B.

Giddens, L.

Gilbert, L.

Golding, B.

Goldsmith, L.

Gordon of Strathblane, L.

Grantchester, L.

Greaves, L.

Grenfell, L.

Grey-Thompson, B.

Griffiths of Burry Port, L.

Grocott, L.

Hamwee, B.

Hannay of Chiswick, L.

Hanworth, V.

Harries of Pentregarth, L.

Harris of Haringey, L.

Harrison, L.

Hart of Chilton, L.

Haskel, L.

26 Mar 2013 : Column 996

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hilton of Eggardon, B.

Hollick, L.

Hollis of Heigham, B.

Howarth of Newport, L.

Howells of St Davids, B.

Howie of Troon, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Chesterton, L.

Hunt of Kings Heath, L.

Hylton, L.

Irvine of Lairg, L.

Jay of Paddington, B.

Joffe, L.

Jones of Whitchurch, B.

Jones, L.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

Kerr of Kinlochard, L.

Kidron, B.

Kilclooney, L.

King of Bow, B.

Kinnock, L.

Kirkhill, L.

Knight of Weymouth, L.

Laming, L.

Layard, L.

Lea of Crondall, L.

Leitch, L.

Liddell of Coatdyke, B.

Liddle, L.

Lipsey, L.

Lister of Burtersett, B.

Lytton, E.

McAvoy, L.

McDonagh, B.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

Mackenzie of Framwellgate, L.

McKenzie of Luton, L.

Maclennan of Rogart, L.

Maginnis of Drumglass, L.

Mallalieu, B.

Marlesford, L.

Martin of Springburn, L.

Masham of Ilton, B.

Mawson, L.

Maxton, L.

Meacher, B.

Miller of Chilthorne Domer, B.

Mitchell, L.

Morgan of Huyton, B.

Morgan, L.

Morris of Aberavon, L.

Morris of Handsworth, L.

Noon, L.

Norwich, Bp.

Nye, B.

O'Neill of Clackmannan, L.

Palmer, L.

Parekh, L.

Patel of Blackburn, L.

Patel of Bradford, L.

Patel, L.

Pendry, L.

Pitkeathley, B.

Ponsonby of Shulbrede, L.

Prashar, B.

Prescott, L.

Prosser, B.

Quin, B.

Radice, L.

Ramsay of Cartvale, B.

Rendell of Babergh, B.

Rogers of Riverside, L.

Rooker, L.

Rosser, L.

Rowlands, L.

Royall of Blaisdon, B.

Sandwich, E.

Sawyer, L.

Scotland of Asthal, B.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Snape, L.

Soley, L.

Stern, B.

Stoddart of Swindon, L.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Taylor of Warwick, L.

Temple-Morris, L.

Tenby, V.

Teverson, L.

Thomas of Winchester, B.

Thornton, B.

Tomlinson, L.

Tope, L.

Touhig, L.

Triesman, L.

True, L. [Teller]

Tunnicliffe, L. [Teller]

Turner of Camden, B.

Tyler, L.

Uddin, B.

Wall of New Barnet, B.

Walpole, L.

Warner, L.

Warnock, B.

Warwick of Undercliffe, B.

Watson of Invergowrie, L.

West of Spithead, L.

Wheeler, B.

Whitaker, B.

Wigley, L.

Wilkins, B.

Williams of Elvel, L.

Williamson of Horton, L.

Wills, L.

Wood of Anfield, L.

Worthington, B.

Young of Hornsey, B.

Young of Norwood Green, L.


Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Anelay of St Johns, B. [Teller]

Armstrong of Ilminster, L.

Arran, E.

Astor of Hever, L.

Attlee, E.

Baker of Dorking, L.

Barker, B.

Bates, L.

Berridge, B.

Black of Brentwood, L.

Bonham-Carter of Yarnbury, B.

Bottomley of Nettlestone, B.

26 Mar 2013 : Column 997

Brabazon of Tara, L.

Bridgeman, V.

Brinton, B.

Brittan of Spennithorne, L.

Brooke of Sutton Mandeville, L.

Brookeborough, V.

Brougham and Vaux, L.

Brown of Eaton-under-Heywood, L.

Browne of Belmont, L.

Burnett, L.

Buscombe, B.

Butler-Sloss, B.

Byford, B.

Caithness, E.

Cameron of Dillington, L.

Campbell of Alloway, L.

Chadlington, L.

Chalker of Wallasey, B.

Chidgey, L.

Colwyn, L.

Cotter, L.

Courtown, E.

Craigavon, V.

Crathorne, L.

Crickhowell, L.

Cumberlege, B.

De Mauley, L.

Deben, L.

Deech, B.

Deighton, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dundee, E.

Eccles of Moulton, B.

Eccles, V.

Eden of Winton, L.

Empey, L.

Falkner of Margravine, B.

Faulks, L.

Fearn, L.

Fellowes of West Stafford, L.

Fellowes, L.

Fink, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Framlingham, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

German, L.

Glasgow, E.

Glenarthur, L.

Goodhart, L.

Goodlad, L.

Grade of Yarmouth, L.

Green of Hurstpierpoint, L.

Greenway, L.

Hamilton of Epsom, L.

Hanham, B.

Harris of Richmond, B.

Henley, L.

Heyhoe Flint, B.

Higgins, L.

Hill of Oareford, L.

Home, E.

Howe of Aberavon, L.

Howe of Idlicote, B.

Howe, E.

Howell of Guildford, L.

Hunt of Wirral, L.

Hurd of Westwell, L.

Hussain, L.

Hussein-Ece, B.

Inglewood, L.

Jay of Ewelme, L.

Jenkin of Kennington, B.

Jolly, B.

Jones of Cheltenham, L.

Jopling, L.

Kalms, L.

Kirkham, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Kramer, B.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lawson of Blaby, L.

Lee of Trafford, L.

Lester of Herne Hill, L.

Lindsay, E.

Lingfield, L.

Linklater of Butterstone, B.

Liverpool, E.

Loomba, L.

Lothian, M.

Luke, L.

McColl of Dulwich, L.

Macdonald of River Glaven, L.

Mackay of Clashfern, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Mar, C.

Marks of Henley-on-Thames, L.

Marland, L.

Mayhew of Twysden, L.

Methuen, L.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Naseby, L.

Nash, L.

Neville-Jones, B.

Newby, L. [Teller]

Northover, B.

Norton of Louth, L.

Oakeshott of Seagrove Bay, L.

O'Cathain, B.

Parminter, B.

Patten, L.

Pearson of Rannoch, L.

Phillips of Sudbury, L.

Popat, L.

Quirk, L.

Rana, L.

Randerson, B.

Rawlings, B.

Redesdale, L.

Renfrew of Kaimsthorn, L.

Renwick of Clifton, L.

Ribeiro, L.

Ridley, V.

Roberts of Llandudno, L.

Rodgers of Quarry Bank, L.

Rogan, L.

Roper, L.

Ryder of Wensum, L.

Saatchi, L.

St John of Bletso, L.

Sanderson of Bowden, L.

Scott of Needham Market, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

26 Mar 2013 : Column 998

Sharkey, L.

Sharples, B.

Shaw of Northstead, L.

Sheikh, L.

Shephard of Northwold, B.

Shrewsbury, E.

Shutt of Greetland, L.

Skelmersdale, L.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Stephen, L.

Stewartby, L.

Stirrup, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strathclyde, L.

Sutherland of Houndwood, L.

Swinfen, L.

Taverne, L.

Taylor of Holbeach, L.

Thomas of Gresford, L.

Thomas of Swynnerton, L.

Tordoff, L.

Trenchard, V.

Trimble, L.

Tugendhat, L.

Ullswater, V.

Vallance of Tummel, L.

Verma, B.

Vinson, L.

Waddington, L.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Warsi, B.

Watson of Richmond, L.

Wei, L.

Wheatcroft, B.

Wilcox, B.

Wright of Richmond, L.

Younger of Leckie, V.

5.36 pm

Clause 7 : Modification or discharge of affordable housing requirements

The Deputy Speaker (Baroness Pitkeathley): If Amendment 2 is agreed to, I cannot call Amendment 3 for reasons of pre-emption.

Amendment 2

Moved by Lord Tope

2: Clause 7, page 12, line 26, leave out subsections (4) and (5) and insert—

“(4) Sections 106BA, 106BAA and 106BB of the Town and Country Planning Act 1990, and subsection (5) of this section, are repealed at the end of April 2016.

(5) The Secretary of State may by order amend subsection (4) so as to extend the time being specified in that subsection by up to 24 months.”

Lord Tope: My Lords, the amendment stands also in the name of my noble friend Lord Shipley. We have debated this clause extensively, under its former guise of Clause 6, at every stage of consideration of this Bill so far and it is certainly not my intention today to reopen debates on the many issues that the clause raises. They have been fully debated; I think that views still differ but, as I have said so often, we are where we are.

On Report, the Government, having listened to at least some of the concerns that were expressed, introduced a sunset clause to bring the clause to an end on 30 April 2016. I welcomed that sunset clause and the evidence that the Government had at least listened to those concerns. However, the government amendment on Report also gave the Secretary of State power to extend the provisions, if judged necessary, for in effect an unlimited period. My amendment today therefore seeks to limit any such extension, should it be deemed necessary, to no more than 24 months.

I am sure that the Minister will say that the clause was introduced in recognition of the current economic circumstances and in the expectation that they would not continue for ever. Indeed, in introducing the sunset

26 Mar 2013 : Column 999

clause for April 2016, the Minister was at pains to express that that date had been chosen not arbitrarily but because that was when it was suggested and expected that—I hesitate to say the boom would begin—circumstances would recover.

I am sure that it is the Government’s intention that these provisions should cease to exist on 30 April 2016, but concern is rightly felt that there could be circumstances—after a general election, there will be a new Government of whichever hue—in which the provisions could carry on indefinitely, which many of us feel to be wrong. Our attempt, therefore, is to limit the clause to two years. By that time, under the National Planning Policy Framework, all local authorities should have drawn up their local plan—70% have already published one—and those up-to-date plans will ensure that every planning requirement is viability-tested, which should in turn render this clause redundant.

I should like to think that the Government are able to accept the amendment. If they are not, I hope that the Minister will express her sympathy and support for its intentions and put that on record. While that is not as good as its being in the Bill, it is at least some reassurance for now and for the future. I hope that, in doing so, she will also indicate that any future Government, if they are minded to extend the provisions of this clause, will come forward with robust evidence that proves that affordable housing obligations are routinely stalling developments. I am not sure that we are convinced of that now, but, if there is to be any extension, it will certainly be incumbent on the Minister of the time to provide the evidence to convince both Houses of Parliament that it is necessary, and both Houses of Parliament should have the opportunity to decide on those matters.

I do not think that I need to detain the House any longer. The purpose of the amendment is quite clear. I beg to move.

Lord McKenzie of Luton: My Lords, I shall speak to Amendment 3, which is intended to have the same effect as Amendment 2. If it is pre-empted by Amendment 2, I would be more than happy with that outcome.

At the moment we have a sunset clause that is in rather an unsatisfactory situation. Effectively we have the right for developers to renegotiate affordable housing obligations on which the sun indeed may never set. As the noble Lord, Lord Tope, said, now is not the time to revisit our broader concerns about these provisions. On Report the Minister justified the three-year primary period of the sunset clause by quoting evidence from the OBR that showed that investment in housing is expected to stabilise in 2016, yet she argued the need for a pragmatic power to extend this if prevailing market conditions justified it.

This is a hard argument to maintain unless the Minister is anticipating a further deterioration in the housing market. By 2016, developers will have been negotiating affordable housing obligations in circumstances of recession, or of zero or little growth, for about eight years. The amendment allows for a possible further two years, so it would then have been for a full decade. Perhaps the Minister can be more specific about the

26 Mar 2013 : Column 1000

nature of the catastrophe that she considers might beset the housing market that would justify retaining residual powers beyond 2018.

The March 2013 OBR report does not seem to help, as it comments on the variety of housing measures that the Government have promulgated, noting that overall, together with the Funding for Lending scheme, the measures should support significant growth in property transactions and residential investment at levels that we forecast for the next two years. The Government may have got something right; is the Minister saying that the OBR has got it wrong?

The justification for a possible two-year extension of the sunset clause is pretty thin. The opportunity to keep Clause 7 in being beyond this is not justified, unless it is intended to be held up as some sword of Damocles to ensure that future affordable housing obligations are depressed. We agree with the noble Lords, Lord Shipley and Lord Tope, that a maximum of two further years of the sunset clause is okay but not more than that. Like the noble Lord, Lord Tope, we hope that the Minister can reassure us on that so that we do not need to test the opinion of the House.

5.45 pm

Baroness Hanham: My Lords, we have discussed this extensively at all stages of the Bill and I hear the arguments that have been made again today. Since Report, I have also had the opportunity of discussing this with representatives of the National Housing Federation and that has been helpful.

I am pleased and always have been that the principle of a sunset clause to repeal the clause in April 2016 is generally supported. However, these amendments focus on the power given to the Secretary of State to extend the provision by order beyond 2016. The noble Lord, Lord McKenzie, has referred to the date of April 2016 in the Office for Budget Responsibility’s market forecasts as a sensible and justified sunset date. We do not know whether things will have improved by then and I am sure that the noble Lord does not either. One can only hope that they will have. If they have not, we would want to retain an option to extend the measure if market uncertainty remains. We have hoped that we would dig ourselves out of the economic crisis over the past couple of years but it has not been possible. One cannot say with total confidence that 2016 will see us out of the doldrums but we expect and hope that it will.

The issue at stake is not the sunset clause, which has already been agreed, but how any future extension should be constrained. I sympathise with the wish for certainty and I hope it is reasonable to expect that there will be economic stability by 2018, and that consequently there will be little need for extension of the provision. However, while I agree that 2018, as proposed by my noble friend, seems a reasonable limit for this clause, it is as arbitrary a date as any and would limit future flexibility.

To retain flexibility is prudent. With flexibility by order the matter could be taken forward. If it had to be, the Government would have to come to both Houses, because it would be an affirmative order. My noble friend asked what evidence they would have to

26 Mar 2013 : Column 1001

bring: I suggest that it would have to be the best evidence that they could find, which would presumably at least refer to the amount of affordable housing that still needed negotiation. Both Houses would have to consider this in the light of any evidence that the Government had at that stage.

I am also wary of having a fixed date of 2018, or a fixed extension period, because the clause introduces a new application and appeal process. Viability alone and not policy requirements or scheme merits is the subject of the application and appeal. The on-the-ground impact will not be known until the clause has been in operation for a little while and we have seen how the viability process works. It is essential, therefore, that we maintain flexibility to understand the impact of the measure over a little time. Along with more certainty in market conditions, this would give better ground for assessing the merits of any extension during 2015 when consideration would have to begin as to whether the extension to 2016 should be made.

The clause is drafted so that the order must insert “a later date”. It does not allow for a permanent provision. This wording reflects our intention that this clause will operate only for as long as it is required. Its intent is to be temporary. A permanent provision would require new primary legislation. Finally, it could be argued that the real future of this clause is in the hands of local authorities. If local planning authorities take account of their local economic realities and negotiate viable and flexible agreements with developers, there will be little scope for challenge.

Since we debated these provisions on Report, I have arranged a meeting for interested Peers—those who have spoken—on the draft viability guidance that will accompany this clause. I am grateful that the noble Lords, Lord Tope, Lord Shipley and Lord Best, responded to that invitation and were able to give us some thoughts on the matter. It was perhaps a little unfortunate that we did not have a bigger turnout but I am sure that everybody was busy.

Lord McKenzie of Luton: For the record, I think I was engaged on other legislation at the time.

Baroness Hanham: That would have made four.

I hope these discussions have assured noble Lords that we intend this to be a strictly dated clause, but the flexibility is needed. It will allow for adjustment of affordable housing requirements only where it is justified and clearly evidenced. In this way, we expect to deliver more housing, both private and affordable, than would otherwise come forward. I think everybody in this House agrees that that is essential.

This is not intended to be a permanent measure. We are happy with the sunset clause but think that we might need a little extra time. This is the easiest way of doing it without having to bring in primary legislation. We can extend this on an affirmative order. I hope that the noble Lord will feel satisfied and will withdraw his amendment.