I should stress from the outset that the Government are committed to tackling issues such as climate change and the mitigation of, and adaptation to, the impacts of such change, as well as good design for new developments. Where I suspect we will differ is on the extent to which this amendment would bring any discernible change if an infrastructure project was brought forward for consent under the Planning Act.

Part 2 of the Planning Act sets out the legislative requirements where a Secretary of State brings forward a national policy statement. National policy statements form the prime basis for deciding whether a project should be granted development consent. Given this very important role, such statements, as noble Lords will know, are scrutinised by Parliament and subject to public consultation before being finalised. This process of scrutiny provides the most appropriate means of ensuring that matters such as design and climate change are appropriately covered in a national policy statement.

All national policy statements that have been prepared to date have taken into account the issues set out in Section 10 of the Planning Act. Parliament has been

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given the opportunity to help shape these before they were finalised. That process of scrutiny will continue when new policy statements come forward and existing ones are reviewed. The final version of the policy statement on national networks will be designated soon and the next policy frameworks to be produced will be after the Davies commission has reported in 2015. I therefore suggest to the noble Baroness that the best place in which to seek the changes and improvements that she proposes is in the wording of national policy statements when they are subject to parliamentary scrutiny before they are designated. With those assurances and the clarity that I have provided, I trust that the noble Baroness will be minded to withdraw her amendment.

Baroness Whitaker: My Lords, I am extremely grateful to all noble Lords who have supported this amendment and indeed adding the concept of culture, which was implicit in our amendment but ought to have been explicit. I am grateful for the kind words of the noble Lord, Lord Jenkin, and his encouragement. I am half reassured by the words of the Minister. I can see that the close-woven tapestry of the structure that he has outlined could indeed offer opportunities to push the importance of design. I think that that is not as good as having it on the face of the Bill, but let us suspend judgment until we see the next version of the national networks statement. In the mean time, I beg leave to withdraw the amendment.

Amendment 87 withdrawn.

6 pm

Clause 21: Property etc transfers to the HCA

Amendment 88

Moved by Lord Ahmad of Wimbledon

88: Clause 21, page 22, line 35, at end insert—

“(A1) The Housing and Regeneration Act 2008 is amended in accordance with subsections (1) and (2).”

Lord Ahmad of Wimbledon: I beg to move Amendment 88 and shall speak also to Amendments 89 to 95 and Amendment 121. Maximising the release of surplus public sector land is critical to supporting the Government’s ambitions to reduce the deficit, increase the number of houses being built and help to drive economic growth. The new public sector land programme from 2015-16 will mean transferring a significant amount of surplus and developable land from government bodies to the Homes and Communities Agency for onward disposal.

Clause 21 is intended to speed up the transfer of land from arm’s-length bodies to the Homes and Communities Agency by allowing sites to transfer directly using a single transfer scheme, rather than transferring first to the parent department in a separate scheme. However, the Homes and Communities Agency no longer has a remit to operate in London without mayoral delegation. The Greater London Authority therefore has a pivotal role in delivering housing and

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economic growth in the capital, and we have been working with it to consider how its expertise can best be utilised in the disposal of surplus government land. The GLA has been clear that it wishes to carry out the Homes and Communities Agency’s former functions in London with regard to the disposal of developable land. The Greater London Authority Act 1999 allows for the transfer of central government land to the authority but, as with the Homes and Communities Agency, land from arm’s-length bodies can transfer only via the parent department and not directly in a single scheme.

In Committee, my noble friend Lady Kramer agreed to consider an opposition amendment to enable direct transfers of land from arm’s-length bodies to the GLA. Following our constructive dialogue with the GLA over the past few months, we are now satisfied that there is strong potential for the GLA to have a role in disposing of surplus government land in London. This amendment, which will allow land to be transferred directly to the GLA and its subsidiaries, will help to reduce bureaucracy in the longer term. We are therefore tabling a government amendment to effect this change. Our amendment adds three new sections to the Greater London Authority Act 1999 to allow schemes to be made transferring land to the GLA and for regulations to be made naming the bodies which will be able to transfer land and setting out the tax position for transfers.

We introduced Clause 22 to ensure that appropriate development may happen quickly by bringing the powers of purchasers of land from the Homes and Communities Agency, the Greater London Authority and mayoral development corporations into line with those presently enjoyed by the purchasers of land from local authorities and other public bodies involved in regeneration and development. We have tabled this amendment to ensure that the powers will be fully available in relation to the GLA.

The bulk of GLA land is held and managed by GLA Land and Property Limited, a wholly owned subsidiary of the authority. We need to make sure that the amended powers will apply to land which the subsidiary holds or disposes of in the same way as they will apply to land which the HCA, GLA or an MDC hold or dispose of. These amendments clarify that the powers will be available in relation to land which the subsidiary owns or disposes of, provided that it has been carrying out housing and regeneration functions for the GLA in relation to that land.

Amendment 121 refers to new subsection (12) of Clause 22. Clause 40 is concerned with the territorial extent of provisions. Although Clause 22 is effective in England only, there is only one legal system covering England and Wales, and that system will operate in relation to Clause 22. The legal systems in Scotland and Northern Ireland will not operate in relation to the clause. I beg to move.

Lord Tope (LD): My Lords, Amendment 93A is in my name. In speaking to his amendments, the Minister referred to an opposition amendment in Committee. The amendment was in my name and, while I understand that the Minister may occasionally feel that I am in opposition, I mostly support the Government in this House and therefore perhaps we could correct that.

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It was not an opposition amendment; it was an amendment on behalf of the Greater London Authority, moved by a Liberal Democrat Member on the government side of the House.

Lord Ahmad of Wimbledon: My Lords, for the record, I fully acknowledge my noble friend’s contribution in that regard.

Lord Tope: My Lords, I am grateful and my pride is restored. When I received the open-door response from my noble friend Lady Kramer on that occasion, I think I predicted that the two-word amendment which I moved in Committee would come back at this stage of the Bill as a two-page amendment. I did not anticipate that it would run to eight or nine amendments over five pages, but I am grateful to the Minister and his officials for their work to try to correct what we all recognise was an anomaly.

The Greater London Authority is happy with the amendments to Clause 21 and with Clause 21 when amended, but there are still concerns about Clause 22. The Government’s proposals are welcome, but they do not go quite as far as they need to in order to correct what the Government intend. That is because the protection afforded by the new clause does not completely cover historic disposals. We are trying to correct an omission from the Housing and Regeneration Act 2008. It is the view of the GLA that to be legally robust and clear to prevent unnecessary blocking of planned strategically important developments, the legal operation of the changes made by Clause 22 needs to be retrospective and to cover historic disposals. My Amendment 93A to Clause 22(11) would ensure that the changes in the clause cover relevant developments in London from the time that Section 11 of and Schedule 3 to the Housing and Regeneration Act 2008 came into force, which was 1 December 2008. That would mean that all relevant land left unprotected by the defective provisions of that Schedule 3 would be covered by the corrections made by this amended Clause 22. It would also cover the appropriate corresponding provision that applied to the London Development Agency prior to its abolition.

That is entirely consistent with the Government’s intentions. I hope that the Minister will be in a position today to accept Amendment 93A. If he is not in a position to do so today, I hope that he will give a commitment to look at this point, which the Greater London Authority rightly feels to be important, and to correct it at a later stage, preferably at Third Reading in this House so that I can tie up the loose ends, but if that is too quick, then at a further stage of the Bill.

Lord McKenzie of Luton: My Lords, we are grateful for the explanation provided by the Minister today and in the letter of 30 October. It follows a commitment made by the Minister when we discussed an amendment from the noble Lord, Lord Tope, which called for the GLA to perform the role of disposal agency in London. This parallels the role designated for the HCA outside London, whereby land from arm’s-length bodies can be transferred directly rather than via the parent department. We support these amendments.

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We also support the amendment just spoken to by the noble Lord, Lord Tope, about the cut-off point and the date from which these provisions apply. That anomaly was pointed out in Committee. I hope that the Minister is able to give a positive response.

In Committee, we also probed the prospect of one or more local authorities adopting a similar role, particularly given the prospect of releasing substantial sums of publicly owned land to support housing development. This appeared to find some approval from the Minister, who undertook to explore further. Given that we do not have an amendment from the Government on this point, is this issue still under active consideration?

Lord Ahmad of Wimbledon: My Lords, first, I thank my noble friend for his amendment and I thank the noble Lord, Lord McKenzie. After the various bilaterals that we have had in advance of Report, I also put on record my thanks for their attendance and for the discussions that we have had across a variety of issues. We may not agree in some cases but it has always been done in a spirit of having constructive ways of moving forward on various elements of the Bill.

I turn to the two non-government amendments. Amendment 92A would make provision in Clause 21 to allow land to be transferred directly from the ALBs of central government to the HCA, reducing bureaucracy and accelerating development. Amendment 93A is in the name of my noble friend Lord Tope. I do not believe that it is necessary to amend Clause 22(11) to allow powers to override easements to transfer to sites that have already been disposed of. Our clause aims to accelerate development; the proposed amendment from my noble friend would not help to facilitate this any further. Developers have bought land and entered into agreements clearly aware of what powers were available to them. The conditions that the land was sold with and the price paid will have reflected this. We are satisfied that where the land has been leased but the GLA, HCA and MDCs retain the freehold, the existing powers to override easements already apply and will continue to do so. That is sufficient to support development on most of the sites disposed of. Changing the law now to apply to sites that have previously been sold would be an unusual approach and may have unintended consequences.

I accept that in a small number of cases which I am aware of the freehold may have been disposed of, meaning that the power does not apply. However, there are alternative mechanisms available to address this such as taking out insurance, negotiating with easement owners and making references to the Upper Tribunal Lands Chamber. Given the mechanism already available and the small number of sites that would be affected, we do not believe that this is sufficient to warrant a legislative amendment which may well cause unintended consequences elsewhere.

The noble Lord, Lord McKenzie, talked about local authorities. In our meetings, we said that the situation with local authorities was somewhat different. Beyond the discussions that we have had, the Government are certainly not in a position to provide any further detail or to accept any amendments in that regard.

Amendment 88 agreed.

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Amendments 89 and 90

Moved by Lord Ahmad of Wimbledon

89: Clause 21, page 22, line 36, leave out “of the Housing and Regeneration Act 2008”

90: Clause 21, page 22, line 37, leave out “of that Act”

Amendments 89 and 90 agreed.

Amendment 90A

Moved by Baroness Royall of Blaisdon

90A: Clause 21, page 23, line 18, at end insert—

“(8) This section and section 53B do not have effect in relation to property, rights or liabilities comprising the whole or any part of the Public Forest Estate.

(9) The Public Forest Estate comprises all the land, property, rights and liabilities acquired by the Minister under section 39 of the Forestry Act 1967, including all such land not needed, or not used, for the purpose of afforestation or any purpose connected with forestry.”

Baroness Royall of Blaisdon (Lab): My Lords, in moving Amendment 90A, I must thank the right reverend prelate the Bishop of St Albans for his support. He is following in the footsteps of Bishop James, the former Bishop of Liverpool, who did so much to safeguard the future of our woods and forests.

We now turn to concerns that powers within Clause 21 would allow the transfer of land from public bodies to the Homes and Communities Agency and could therefore allow the Government to transfer parts of the Public Forest Estate to the HCA for development. The Public Forest Estate is a precious asset providing us with beauty, space for recreation, space in which to walk and breathe, an environment for flora, fauna and wildlife to flourish and a means of preventing floods and slowing the effects of climate change. For those of us whose home is in a forest, they are part of our culture and heritage. They sustain livelihoods and support our local economy; they are the lifeblood of our communities. That is why I am passionate about protecting the Public Forest Estate.

6.15 pm

At Second Reading and in Committee, the response to concerns that many people have about the Bill and the Public Forest Estate was confused. Ministers said that the Government had no intention of transferring land from the new body to the Homes and Communities Agency as the Public Forest Estate is currently in use and not declared surplus. I imagine that the Minister will say that it cannot be used because the land that makes up the Public Forest Estate does not constitute an arm’s-length body. However, if your Lordships were to go to the Government’s website, the Forestry Commission sits in the same section as HMRC and other arm’s-length bodies which will, I imagine, be covered by the Bill in the list that will be brought forward and covered in secondary legislation. Can the Minister commit to bringing forward between now and Third Reading a list of bodies that will be covered by the Bill?

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We have the thrust of what the Minister is going to say from a Written Ministerial Statement. It is the second time on this topic that the Government have sought to ensure that their views are set out ahead of debate. I am grateful to the Minister for providing me with an advance copy, but my fears have not been assuaged. I hold this Minister in very high regard and do not doubt his intentions but, because of the recent history with respect to this Government’s cavalier attitude to our forests, words are not enough if they are not in a Bill. Indeed, to repeat the words of Viscount Bledisloe in a debate on the Forestry Bill in 1981:

“It is not what you say; it is what is in the Bill itself”.—[Official Report, 11/5/81; col. 370.]

I regret that the two commitments in the Written Ministerial Statement are simply not enough. Indeed, the second commitment on:

“Not including the new Public Forest Estate management body in any future regulations specifying which bodies can transfer land to the Homes and Communities Agency”,

is particularly strange. It depends for compliance upon an institution which does not exist—the new Public Forest Estate management body. Much of the difficulty that the Government find themselves in here rests with the fact that there is some confusion about the legal definition of the Public Forest Estate, but there need not be.

The Government committed to bringing forward a Bill to implement the recommendations of the Independent Panel on Forestry, an important and detailed piece of work led by the former Bishop of Liverpool. The Government have argued in earlier debates that there is not enough legislative time to follow through on their promises. The Written Ministerial Statement repeats the canard that,

“it was not in the end possible to accommodate the necessary legislation within the current parliamentary programme”.—[

Official Report

, 4/11/14; col.

WS 144


What a hoot, especially when your Lordships consider the paucity of legislation before us in this Session. I know that officials have been working on proposals, for which I am grateful, so why have the Government not at the very least brought forward a draft Bill for pre-legislative scrutiny? The principal recommendation from the panel was that the Public Forest Estate should be held in trust for the nation; without a Bill, I regret that the legal ambiguity around it will continue.

The noble Lord, Lord Ahmad, will no doubt claim that my amendment, which would put his own assurances into the Bill, is otiose yet a recent example from the Forest of Dean clearly demonstrates that words spoken by a Minister do not provide protection. In 2011, Bircham Wood was sold despite the fact that when the Forest of Dean was exempted from the disposals part of the Forestry Act 1981, Hansard recorded the intention also to exempt the associated woodlands. When the Forestry Commission land agent was challenged about the sale, he said that as Bircham Wood was not named in the 1981 Act, the Act did not apply to it. On such small omissions, confusions and accidents do these matters rest.

That is why it is my very firm view and the view of thousands of our citizens that the Government need to accept this amendment. These people were devastated by the Public Bodies Bill; they were delighted by the

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establishment and report of the independent panel; they were heartened by the Government’s response. Now, they feel totally let down by lack of action and are deeply concerned once more about the future of the Public Forest Estate. A few words in the Bill would alleviate those concerns. I beg to move.

The Lord Bishop of St Albans: My Lords, I am glad to speak in support of this amendment proposed by the noble Baroness, Lady Royall. I am also glad to pay tribute to her persistence on this matter which I, too, believe is crucial. When the discussions about the future of the forestry estate have come before the public they have made their views absolutely clear that trees, woods and forests are a vital part of the make-up of the English countryside. Although they now cover only 9% of the land area of England, trees have an iconic place in our relationship with the landscape. Whether living in towns, cities, villages or hamlets, many people express affection and deep regard for the well-being of trees in the locality. Protecting the Public Forest Estate will bring many benefits to the public and the environment. I will mention three of them briefly.

First, exempting the Public Forest Estate from development and making that clear in the Bill will help secure some of the timber needs of the UK. We need our woods. They are practical things. Secondly, it would help to ensure continual public access and amenity uses. Forests and woodlands are not just places of access and recreation to be consumed but are places of relaxation and renewal, offering an opportunity to reconnect to the natural world in all its diversity. For Christians, this is part of God’s gracious provision for the well-being of humans and wildlife and should be respected as such. For many individuals, whether Christians or not, trees, woodlands and forests play a deep part in their spirituality, offering a sense of peace or well-being. They form a background to the tapestry of everyday life, from creating meeting points or landmarks for navigation to providing shade and improving the view. Whether in a cityscape or landscape, they contribute significantly to the improvement of life. Thirdly, this protection would also contribute to climate change. Trees are vital for the future of the planet in carbon sequestration—one of the things we are going to come to in Amendment 108.

I believe this is not just a peripheral thing. It is fundamental to the thriving of our communities and the environment in which we live. I shall press the Minister further to honour the commitment made following the report from the Independent Panel on Forestry. Will the Minister agree to consult with interested parties prior to Third Reading and consider including an amendment to bring forward legislation to establish that new public body to hold the Public Forest Estate to account?

Lord Clark of Windermere (Lab): My Lords, I apologise to the House that I have not participated in the debate on this Bill so far but I have been indisposed. I am now back healthy and prepared to enter the fray once again. I support this amendment from the noble Baroness and the right reverend Prelate because I think it is critical. It also brings back memories. Although

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I understand that the Minister is very committed to this Bill and to forestry, the coalition does not have the best of records in this respect. I remember this issue being debated during the Public Bodies Bill and the concern that was expressed. I remember the campaigns when thousands of people expressed their views. I do not know what has happened to the signatures that 38 Degrees collected. There is deep concern about forests for the very correct reasons the right reverend Prelate mentioned. I want to pay tribute—like virtually everyone in the House—to James, the former Bishop of Liverpool. He did a tremendous job of re-engaging politicians with the people out there and their love of forests.

I understand that there is a need for the transfer of land, especially for big infrastructure and housing. It would be foolish to deny that. I support this amendment because having read the Bill I am convinced of the intention of the Ministers and have no doubt about their sincerity, but I am not convinced completely that this Bill backs up their intentions. They may not be prepared to transfer land from the Forestry Commission to the HCA, but the Bill, I believe, gives other Ministers, future Ministers and future Governments the powers so to do. It may be a point of dispute or of interpretation. If it is, the amendment from my noble friend Lady Royall makes that quite clear.

As I understand it, one of the assurances that Ministers are giving us is that the forest land is not surplus land, but there is some difficulty with the issue of surplus. When I was chair of the Forestry Commission, I sold quite an amount of forest land, but I did so because I was reshaping the forest estate. In my mind, some of the forest in deep rural areas could be disposed of quite happily to the private sector, which would manage it just as well. On the other hand, we could use the money received to create new forests near the centre of population for reasons such as health, recreation and conservation, as well as for timber. I was very proud that in the time I was there we planted more than 1 million trees in Wigan, more than 1 million trees in St Helens and more than 2 million tress in Warrington because we were reshaping the estate. The argument about surplus is very difficult to define. If we rely on that to safeguard our forests, we could run into difficulties. For that reason, I am very keen to support the amendment proposed by my noble friend this evening.

Lord Phillips of Sudbury (LD): My Lords, I, too, support the amendment moved so clearly and effectively by the noble Baroness, Lady Royall of Blaisdon, and supported so strongly by the right reverend Prelate. I declare an interest as a patron of a charity in Coggeshall, Essex which runs a large forestry estate. Indeed, I am lucky enough to have a piece of ancient woodland. What has been said about public concern regarding this aspect of this Bill cannot be overestimated. I dare say many Members of the House have had a huge amount of correspondence from people really anxious to get the public forestry estate and, I believe, forestry charities excluded from the Bill as was successfully done during the passage of the Public Bodies Act 2011. They want to do that not because they view the Homes and Communities Agency as a malignant body

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but because they know only too well that large bureaucracies can lose touch with public feeling and opinion. Indeed there is a march going on at this very moment down in the West Country in the Forest of Dean about this Bill and the potential people think it brings for despoliation. People are deeply anxious in our wonderful country, which seems little by little to be being concreted over, developed and exploited, that we preserve and give special status to what forestry and woodland is left. I think that is at the root of this.

As a talisman of so many people who have written in, I will read a sentence from a letter written by Brian and Michelle Jones, who run an animal charity in the Forest of Dean. They say a good deal, including:

“For your average Brit, the freedom to roam on the beaches, by the lakes and, especially, in the forests, is sacred. It is what being British is all about”.

That would be a pretty universal sentiment.

6.30 pm

Specifically in relation to the language of the Bill, the wording in Clause 21 to introduce into the Housing and Regeneration Act 2008 new Clause 53A, entitled:

“Other property etc transfers to the HCA”—

that is, the Home and Communities Agency—is far too wide. It is absolutely right for the noble Baroness who tabled the amendment to make clear beyond peradventure that public forests are not to be subject to that clause’s provisions. It states:

“The Secretary of State may at any time make one or more schemes for the transfer to the HCA of designated property, rights or liabilities of a specified public body”.

That is typical legalese and I am a lawyer, but one wants to know what “designated property” and “a specified public body” are. On those two phrases hang the potential, or lack thereof, of the Bill to wound the public weal.

Further into Clause 21, “designated property” is defined extremely widely. It states that,

“in relation to a scheme”,

it is to be,

“determined in accordance with the scheme”.

It is extraordinarily wide. The scheme that the Secretary of State can make is to transfer property—any property—to the HCA for the purposes of housing. This whole piece of the Bill harks back to the Homes and Regeneration Act 2008, Section 2 of which states that the purpose of the Homes and Communities Agency is,

“to improve the supply and quality of housing in England”.

Very fine, too, but it is a question of how you do it. I am saying that the language in this clause is too wide.

The noble Baroness referred to “specified public body”, because there exists the contemplation that the Minister may say that the public forestry body is not caught within the new addition to the 2008 Act. However, “specified public body” is itself widely defined. It simply says that it shall be defined in accordance with,

“a description specified, by regulations made by the Secretary of State”.

Well, that is good, is it not? We all know the force of regulations in preserving our cherished rights and advantages. We know very well that you cannot amend

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regulation; you have to reject it in its entirety or it goes through, and the chances of rejecting a regulation in its entirety are slim. We are therefore left with a definition of “specified public body” as wide as the Atlantic Ocean.

“Public body” is defined in subsection (5) of new Section 53A as,

“a person or body with functions of a public nature”.

Well, that is jolly helpful, is it not? You could get 10 lawyers arguing for 10 years about that. I asked a well known Law Lord about this. He is not here this afternoon, or he would confirm that he believes that that definition includes, for example, all woodland charities. Every county of England has a woodland trust. He believes that they are brought within the provisions of this clause. Can you imagine the potential consequences? The charity of which I am a patron is one of thousands of woodland charities.

I anticipate that the Minister will say, “Oh, that is rubbish. ‘Public body’ does not extend that far”, and so on. I will read to your Lordships from the Local Government Act 1972; that is not some little measure, after all, but a measure central to our national life and government. Section 270 of that Act defines “public body”, inter alia, in these terms,

“any trustees … who, for public purposes and not for their own profit, act under any … instrument for the improvement of any place”—

which is also a very wide definition. Then it mentions a number of things, such as the supply of water, providing cemeteries and markets, and so on. It boils down to the fact that the definition of “public bodies” includes, of course, local authorities, parish councils and all the rest of it, but also,

“trustees … who, for public purposes and not for their own profit, act under any … instrument”.

That includes every charity in the land. The definition, the central core of charity, is that it exists exclusively for public benefit. What could be more of a public body than that? Of course, trustees cannot run charities, to use the language of the 1972 Act, “for their own profit”. They cannot charge a penny for their services.

My contention—and I shall be fascinated to know whether the noble Lord disagrees with this—is that Clause 21, introducing new Section 53A into the Housing and Regeneration Act 2008, is far too wide for comfort.

Lord Judd (Lab): My Lords, the right reverend Prelate referred to the importance attached to this issue and the strength of feeling within the church. That is significant. What was so impressive the last time this issue was being discussed, while the church played a critical part in the deliberations, was not only the size of the response to the Government’s proposal but the spontaneity and strength across the community as a whole. This was something about which people cared passionately in our society. It is hardly surprising that, in a country that is so increasingly pressurised in material terms, people take very seriously the balance that is needed for creativity, thought, reflection, and spiritual and physical regeneration.

My point is quite simple. My noble friend has said that the Minister has given assurances and that she respects him. I may also respect the Minister—and

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I do. However, I never understand this point. The Minister and his Government will not be there for ever. If the assurances on something which is crucial, and on which the Minister feels able to give assurances, mount, why on earth should we not put it in the Bill so that it is there as the clear expression of Parliament for future Governments as well as the present one?

Lord Jenkin of Roding: My Lords, I will be brief because I sense that the House wants to reach a decision. In my former constituency of Wanstead and Woodford was quite a large part of Epping Forest. I entirely share the views that have been expressed around the House, by the right reverend Prelate and others, about the extent to which this forms an enormously valuable part of people’s lives and, indeed, is part of their being.

When Winston Churchill fell ill, went into hospital and lost his job—of course, he had a job and therefore had to give up his seat—he ended that chapter of his biography:

“And so I found myself without an office, without a seat … and without an appendix. I came to rest amid the cool glades of Epping Forest”.

Of course, he became the Member for Epping; I inherited part of that constituency.

I listened to the noble Baroness with great interest because I, too, had read the Statement made by my noble friend and published in Hansard on 4 November, and I took comfort from it. However, I have to say to my noble friend that this is what worries me: a Statement, however formally issued, is not the same as an Act of Parliament. The example quoted by the noble Baroness about the particular part of the Forest of Dean, which I had not heard before, has raised doubts in my mind. Whether this or another amendment is necessary to place the intention of the Statement firmly on the statute book, it seems to me that this amendment has a good deal to say for it. I shall listen to my noble friend’s response to this debate with considerable interest.

Lord Berkeley of Knighton (CB): My Lords, I missed the opening of this debate because I was upstairs at a meeting of the APPG on arts and health, at which a series of experts in mental health said how important people’s surroundings—whether they were in the East End or the countryside—were to their good health and the well oiled working of society. As someone who has the privilege of living a lot of the time in the country and working with foresters, I feel that the transcending quality that people feel the countryside, and forestry in particular, affords them is not something with which we should play fast and loose.

The noble Lord, Lord Clark of Windermere, made some very fair points in recognising what the Government probably want to do here, but I do not think that this is an area where we can take any risks. From what many Members of the House have said, it seems that there is a huge risk attached to the Bill as presently framed, and therefore I would like to support the amendment.

Lord Greaves (LD): My Lords, I apologise for not having spoken previously on the Bill; at the time, I was out of action as far as the House of Lords is concerned

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for various reasons. I should remind the House of my registered interests in the areas of local government and countryside recreation.

I was involved in what became the Public Bodies Act, to which I will refer in a minute because there is something about it that is important here. I was very pleased that I tabled the amendments that removed on the forestry commissioners’ clauses from the then Bill. Since then, the Independent Panel on Forestry—to which the noble Baroness, Lady Royall, referred—has made its recommendations and the Government have accepted the recommendation for a new body to look after the forestry estate. That was taken forward within Defra. In particular, my honourable friend David Heath, when he was a Minister there, played an important role in ensuring that happened. It has not been taken forward in legislation in this Parliament, and I think people can come to their own conclusions about why that is the case and the priorities of one of the parties—the Conservative Party—within the coalition. All I can say is that the Liberal Democrat manifesto at the coming election will include a commitment to such a body. I am not saying that is a 100% guarantee that it will happen but if other parties did the same, it would be very helpful.

At Second Reading my noble friend Lady Kramer said that these powers,

“will not be used by bodies such as the Forestry Commission”.—[

Official Report

, 18/06/2014; col. 840.]

The question is whether it is “will” or “can”? If it is “can”, someone else perhaps could in the future, and people out there certainly think that is a problem. I want to refer to the forestry commissioners. In the then Public Bodies Bill, the forestry commissioners were treated very differently from all the other public bodies mentioned. Those who remember with pleasure debating that Bill three or four years ago will remember that there were pages and pages of schedules that were lists of organisations. The forestry commissioners were not there. They had to have their three separate clauses and be treated differently. If you look at the Forestry Commission website, it says:

“The Forestry Commission is both a Government Department and a statutory body with a board of Commissioners”.

So that sounds as though it is the same. It goes on:

“The board consists of a Chair and up to 10 other Forestry Commissioners”—

I think there are about half a dozen—

“who are appointed by the Queen on the recommendation of Ministers”.

It was very clear that the commissioners were there by some kind of royal appointment or charter, and were different from other public bodies. My question, which I ask the Minister in all honesty and seriousness, is: does this Bill apply to the forestry commissioners or not? When we dealt with the Public Bodies Bill, we were told that they were different and they had to have these separate clauses, so does this apply to them or not? If the Government can say that it does not apply to them, we can all go home.

Finally, why have the Government got themselves into this silly political mess? We, the Government and the Opposition are all saying that we do not want the

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land that comes under the forestry commissioners—the forestry estate—to be dealt with in this way as a means of transferring it to the Homes and Communities Agency. Everyone is saying that they do not want to do it, so why have the Government got into this? All Governments get into this silly political mess where they write something in legislation and then cannot make simple compromises in the face of opposition when it comes. I think it is institutional stupidity on the part of this Government. It affects all Governments in this way, in that they cannot back down and say they have got something wrong or that they have to clarify it. We all actually agree, so we should put something in the legislation that says what we all agree on and then we can all go home happy.

6.45 pm

Baroness Parminter (LD): My Lords, I thank the noble Baroness for tabling the amendment and for the opportunity to discuss this issue. There is a clear consensus around the House in opposition to the sale of our public forestry estate. I say that as someone who lives in the most wooded county in our country, which I suspect is somewhat surprising to some noble Lords—the county of Surrey.

It is a great disappointment that the promised draft legislation for a new body for the public forestry estate has not yet been provided. That is contributing to the genuine concern, to which my noble friend Lord Phillips referred, that is being articulated by the hundreds of constituents around the country who feel unsure about the Government’s intentions. In the early days of the coalition Government, when there was no Liberal Democrat Minister in Defra, it was a great shame that the possibility of selling off the public forestry estate was proposed. It was a great credit to the campaign in which many noble Lords participated that that was overturned. I should be grateful if the Minister could state what the Government’s position is now because in 2013 we had the Government’s forestry and woodlands policy statement.

In Committee, the Minister clearly set out the settled position of the coalition Government that the forestry estate is not for sale and that we will not transfer the public forestry estate to the HCA. That is the clear intention of this Government. However, future Governments could bring in new pieces of legislation and no one can speak for future Governments. Like my noble friend Lord Greaves, I know that so far the Liberal Democrat party is the only party that has committed to make developments in this area in the future.

In conclusion, I am not entirely persuaded of the need for the amendment. I can see why a belt and braces argument works in one sense, but my worry is that if we accept the amendment there will be a perception among the general public out there that this House does not believe the Government’s intentions for the public forestry estate. Although I am very happy not to agree with my Government and not to accept their position on many, many issues, I feel that on this issue they are acting in good faith. I would therefore be unhappy if the House sent out that message to the general public. Like my noble friend Lord Jenkin, I will listen very carefully to the remarks of my noble

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friend the Minister and hope that he can reassure us about the intentions of the Government and reassure us that this amendment is not necessary.

Lord Ahmad of Wimbledon: My Lords, first, I thank all noble Lords who have participated in this important debate and thank the noble Baroness, Lady Royall, for tabling the amendment.

The public sector land programme is about bringing disused land currently owned by central government back into productive economic use, supporting homes and jobs, an objective to which I am sure all noble Lords adhere. Where land is no longer needed by government, it will be transferred to the Homes and Communities Agency, which will prepare the land for release to the market and work with local planning authorities to ensure that the land is used in a way that best benefits the community—for example, by supporting local housing needs. We have had many debates, and I am sure that we will continue to have them, about the importance of housing and housebuilding to boost economic growth.

Better reuse of disused land will in turn support our desire—I make it clear that it is the Government’s desire—to protect the green belt and amenity land, such as forests, woodlands and open spaces. Disused government land can and does already transfer to the HCA, but the process is often more bureaucratic than is necessary. This clause is simply about increasing the rate of delivery and efficiency by streamlining internal government procedures.

Let me be clear. The intention behind Clause 21 is not to sell off the nation’s forests. You know what—I have been to a forest or two and I enjoyed a woodland or two as a child, and I want my children to continue to enjoy those very things, as I did. I have made this clear repeatedly, in my meetings with noble Lords—with the noble Baroness in particular—and most recently in a Written Ministerial Statement, published yesterday. I assure all noble Lords that the Government have no plans to dispose of the public forest estate and the powers contained in Clause 21 of the Infrastructure Bill do not present a threat to the future of the estate in public hands. The estate is not surplus, and it is not owned by an arm’s-length body. The Homes and Communities Agency’s objectives are to work with the Government and other public bodies to unlock and accelerate the release of surplus public land for the creation of new homes and employment opportunities, in line with designated government policy. The aim is to make best use of previously used and brownfield land, protecting green belt and amenity land that create and support great places to live.

Lord Greaves: I have been listening very carefully to what the Minister said, but did he say that the estate was not owned by an arm’s-length body? I wonder whether, at some stage, he will answer the question that I asked. Does Clause 21 apply to the forestry commissioners and the forestry estate, or does it not?

Lord Ahmad of Wimbledon: Several questions were raised, and I know that the noble Lord, Lord Greaves, although he has tabled some other amendments, said

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that we could all go home once I had answered that question. Perhaps that means that he will not move his other amendments. However, he has asked the question again, and let me put the matter to rest. The Bill applies to public bodies. He asked whether it applied to forestry commissioners. The forestry commissioners do not own any land and the PFE is owned by the Government. I trust that that point is clear.

Lord Greaves: This is extremely important. The public forest estate is owned by the Government, but the question I am asking is whether Clause 21 applies to the public forest estate.

Lord Ahmad of Wimbledon: I would ask my noble friend to allow me to finish. Once I have concluded my remarks, his question and other questions may have been answered.

Much of the public forest estate is already protected. Many of the sites are, for example, in national parks and the estate contains almost 200 sites of special scientific interest as well as more than 800 scheduled ancient monuments. However, the Government recognise the strength of people’s concerns about the future security of the public forest estate. Indeed, I know that my honourable friend Mark Harper and the noble Baroness, Lady Royall, hosted an event recently about the Forest of Dean. That is why we have made the following commitments, which I shall reiterate. The Government will not transfer any part of the public forest estate to the Homes and Communities Agency. We are amending our guidance to departments on the transfer of public land to make it clear that the public forest estate is exempted from transfer to the Homes and Communities Agency. We will not include the new public forest estate management body in any future regulations specifying which bodies can transfer land to the Homes and Communities Agency.

I hope that that clear public commitment by the Government provides a degree of certainty and reassurance to noble Lords. Having made these commitments, I must also be clear that the intention of Clause 21 of the Infrastructure Bill was simply to allow the direct transfer of land from central government arm’s-length bodies to the HCA. The noble Baroness asked about the list of arm’s-length bodies. I would be happy to share that with her and the rest of your Lordships’ House. The public forest estate is not owned by any arm’s-length body and, as such, is not covered by the aims or purpose of this policy.

Various questions were asked and my noble friend Lord Phillips raised some specific questions. If I may, in the interests of brevity and to move issues on, I shall write to him specifically on the issues that he raised.

I have listened very carefully to what has been said in the Chamber today and listened attentively to the sentiments expressed by your Lordships’ House. It has become increasingly clear to me during the course of the debate that there is still strong feeling in the House that this is an important issue on which the Government need to reflect further. Therefore, I shall seek to bring an amendment back to the House at Third Reading that will seek to exempt the public forest estate from transfer to the Homes and Communities Agency. I hope

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that, with that assurance, and the faith that the noble Baroness has in me, for which I am grateful, she will be minded to withdraw her amendment.

Lord Phillips of Sudbury: I thank the Minister for that very conciliatory answer. Will he be as good as to confirm that if, on reflection, he comes to the view that it is not clear that charitable woodland and forests are excluded from the Bill, that too will be covered by the Third Reading amendment?

Lord Ahmad of Wimbledon: My Lords, I feel that I have charity in abundance myself, personally. I gave an assurance to my noble friend about a detailed answer and perhaps we can take that up in the letter. If he has any concerns after that letter, I shall be happy to speak to him.

Baroness Royall of Blaisdon: My Lords, I am extremely grateful to the Minister for listening. As he knows, words are simply not enough. I hold him in good faith, and I know what he wants to do. I look forward to him coming back to put an amendment in the Bill that ensures the protection of the public forests. I am extremely grateful to the Minister.

Amendment 90A withdrawn.

Amendment 91

Moved by Lord Ahmad of Wimbledon

91: Clause 21, page 24, line 19, leave out “of that Act”

Amendment 91 agreed.

Amendment 92

Moved by Lord Ahmad of Wimbledon

92: Clause 21, page 24, line 26, at end insert—

“(3) The Greater London Authority Act 1999 is amended in accordance with subsections (4) and (5).

(4) After section 333D insert—

“333DA Transfer schemes

(1) The Secretary of State may at any time make one or more schemes for the transfer of designated property, rights or liabilities of a specified public body to—

(a) the Authority, or

(b) a company or body through which the Authority exercises functions in relation to housing or regeneration.

(2) In subsection (1) “specified public body” means a public body which is for the time being specified, or of a description specified, by regulations made by the Secretary of State.

(3) On the date specified by a scheme as the date on which the scheme is to have effect, the designated property, rights or liabilities are transferred and vest in accordance with the scheme.

(4) In this section—

“designated”, in relation to a scheme, means specified in or determined in accordance with the scheme;

“public body” means a person or body with functions of a public nature.

(5) This section and sections 333DB and 333DC bind the Crown, but do not have effect in relation to property, rights or liabilities belonging to—

(a) Her Majesty in right of the Crown,

(b) Her Majesty in right of Her private estates,

(c) Her Majesty in right of the Duchy of Lancaster, or

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(d) the Duchy of Cornwall.

(6) The reference in subsection (5) to Her Majesty’s private estates is to be construed in accordance with section 1 of the Crown Private Estates Act 1862.

333DB Further provisions about transfer schemes

(1) A transfer scheme may—

(a) create for the transferor interests in, or rights over, property transferred by virtue of the scheme,

(b) create for a transferee interests in, or rights over, property retained by the transferor or transferred to another transferee,

(c) create rights or liabilities between the transferor and a transferee or between transferees.

(2) A transfer scheme may provide for the transfer of property, rights or liabilities that would not otherwise be capable of being transferred or assigned.

(3) In particular, a transfer scheme may provide for the transfer to take effect regardless of a contravention, liability or interference with an interest or right that would otherwise exist by reason of a provision having effect in relation to the terms on which the transferor is entitled to the property or right, or subject to the liability, in question.

(4) It does not matter whether the provision referred to in subsection (3) has effect under an enactment or an agreement or in any other way.

(5) A certificate by the Secretary of State that anything specified in the certificate has vested in any person by virtue of a transfer scheme is conclusive evidence for all purposes of that fact.

(6) A transfer scheme may contain provision for the payment of compensation by the Secretary of State to any person whose interests are adversely affected by it.

(7) A transfer by virtue of a transfer scheme does not affect the validity of anything done by or in relation to the transferor before the transfer takes effect.

(8) Anything which—

(a) is done by the transferor for the purposes of, or otherwise in connection with, anything transferred by virtue of a transfer scheme, and

(b) is in effect immediately before the transfer date,

is to be treated as done by the transferee.

(9) There may be continued by or in relation to the transferee anything (including legal proceedings)—

(a) which relates to anything transferred by virtue of a transfer scheme, and

(b) which is in the process of being done by or in relation to the transferor immediately before the transfer date.

(10) Subsection (11) applies to any document—

(a) which relates to anything transferred by virtue of a transfer scheme, and

(b) which is in effect immediately before the transfer date.

(11) Any references in the document to the transferor are to be read as references to the transferee.

(12) A transfer scheme may include supplementary, incidental, transitional and consequential provision.

(13) In this section—

“enactment” includes subordinate legislation within the meaning of the Interpretation Act 1978;

“transfer scheme” means a transfer scheme under section 333DA;

“transfer date” means a date specified by a transfer scheme as the date on which the scheme is to have effect.

333DC Tax consequences of transfers under section 333DA

(1) The Treasury may by regulations make provision for varying the way in which a relevant tax has effect from time to time in relation to—

(a) any property, rights or liabilities transferred in accordance with a transfer scheme, or

(b) anything done for the purposes of, or in relation to, or in consequence of, the transfer of any property, rights or liabilities in accordance with such a transfer scheme.

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(2) The provision that may be made under subsection (1)(a) includes, in particular, provision for—

(a) a tax provision not to apply, or to apply with modifications, in relation to any property, rights or liabilities transferred;

(b) any property, rights or liabilities transferred to be treated in a specified way for the purposes of a tax provision;

(c) the Secretary of State to be required or permitted, with the consent of the Treasury, to determine, or to specify the method for determining, anything which needs to be determined for the purposes of any tax provision so far as relating to any property, rights or liabilities transferred.

(3) The provision that may be made under subsection (1)(b) includes, in particular, provision for—

(a) a tax provision not to apply, or to apply with modifications, in relation to anything done for the purposes of, or in relation to, or in consequence of, the transfer;

(b) anything done for the purposes of, or in relation to, or in consequence of, the transfer to have or not have a specified consequence or be treated in a specified way;

(c) the Secretary of State to be required or permitted, with the consent of the Treasury, to determine, or to specify the method for determining, anything which needs to be determined for the purposes of any tax provision so far as relating to anything done for the purposes of, or in relation to, or in consequence of, the transfer.

(4) In this section—

“enactment” includes subordinate legislation within the meaning of the Interpretation Act 1978;

“relevant tax” means income tax, corporation tax, capital gains tax, stamp duty, stamp duty land tax or stamp duty reserve tax;

“tax provision” means a provision of an enactment about a relevant tax;

“transfer scheme” means a transfer scheme under section 333DA.

(5) References in this section to the transfer of property, rights or liabilities in accordance with a transfer scheme include references to—

(a) the creation of interests, rights or liabilities under the scheme, and

(b) the modification of interests, rights or liabilities under the scheme,

(and “transferred”, in relation to property, rights or liabilities, is to be read accordingly).”

(5) In section 420 (regulations and orders)—

(a) in subsection (7) (instruments subject to annulment in pursuance of a resolution of either House of Parliament) after the entry for section 243(7) insert—

“section 333DA(2);”, and

(b) after subsection (8) insert—

“(8A) A statutory instrument which contains regulations under section 333DC shall be subject to annulment in pursuance of a resolution of the House of Commons.””

Amendment 92A (to Amendment 92) not moved.

Amendment 92 agreed.

Clause 22: Easements etc affecting land

Amendment 93

Moved by Lord Ahmad of Wimbledon

93: Clause 22, page 25, line 15, leave out from “Authority” to end of line 17 and insert “exercises functions in relation to housing or regeneration.”

Amendment 93 agreed.

Amendment 93A not moved.

5 Nov 2014 : Column 1676

Amendments 94 and 95

Moved by Lord Ahmad of Wimbledon

94: Clause 22, page 25, line 36, after “Authority” insert “, a company or body through which the Authority exercises functions in relation to housing or regeneration”

95: Clause 22, page 25, line 37, at end insert—

“(12) The reference in subsection (11) to land disposed of by the Greater London Authority does not include land disposed of to a company or body through which the Authority exercises functions in relation to housing or regeneration.”

Amendments 94 and 95 agreed.

7 pm

Clause 23: Transfer of responsibility for local land charges to Land Registry

Amendment 95A

Moved by Lord McKenzie of Luton

95A: Clause 23, page 26, line 2, at end insert—

“(3) This section shall not come into force until the Secretary of State has laid a report before both Houses of Parliament on the effects of the transferral of responsibility for local land charges to the Land Registry, and the report shall include—

(a) an implementation plan;

(b) an assessment of the impact it will have on local authorities.”

Lord McKenzie of Luton: My Lords, Amendment 95 would preclude Clause 23 coming into effect until a report had been prepared and submitted to both Houses of Parliament on the effects of the proposed transfer of responsibilities to the Land Registry. In doing so, I shall say more widely why we consider the proposals for the local land charges register to be misguided. We do not object to government Amendments 97, 98 and 99, which are yet to be moved, and we support Amendment 95B tabled by the noble Lord, Lord Greaves.

When we debated the issues of local land charges in Committee, it was very much in the shadow of a parallel proposition concerning a new delivery company for the Land Registry which was widely believed to be a step along the way to the privatisation of the service. The proposals for local land charges were seen as part of a strategy to fatten up the Land Registry to make it a much more attractive commercial proposition. However, just before our Committee deliberations, the Government announced that the Land Registry model would not be changed “at this time”. In the words of the Minister, there would be no change,

“for the rest of this Parliament”.—[

Official Report

, 15/7/14; col. GC 242.]

We accept this assurance, but it does not go very far; it takes us until only next May.

While our analysis of why the Government are misguided in their proposals for local land charges stands separate from this thread, we would be foolish to disregard the revival of that privatisation risk, should the coalition get its chance. We note that the departure of the current Chief Land Registrar has

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been announced. What can the Minister tell us about successor arrangements: does a change of leadership signal a different approach? Will the Minister share with us the terms of the job advert and whether it will be part of the role of the appointee to lead a privatised service? Is the aspiration to appoint someone with a background in the Land Registry or, like the departing chief, with privatisation experience? When is the new appointment expected to be made?

That aside, what the Minister has proposed is that, as part of acquiring wider powers, the Land Registry should take over statutory responsibility for holding and maintaining a composite local land charges register. It would be the sole registering authority for local land charges in England and Wales and the sole provider of local land charge official search results. Unofficial searches would continue as now to be provided by personal search companies. The Government’s rationale for the change includes the supposed benefits of standardisation of fees and format of results, improving processing times and our international rating for registering properties and supporting the Government’s Digital by Default agenda.

The Government have consulted on these proposals and have drawn significant opposition. This has come from the Law Society, the Chartered Institute of Legal Executives, the Local Government Association, the District Councils’ Network and the Local Land Charges Institute, as well as from private search companies from the SME sector. An important consideration is that the Government are arguing the benefits of a centralised approach, but they are actually creating further fragmentation.

Local authorities currently have responsibility in respect of two local searches— the local land charges searches and what is known as CON29. The former is divided into 12 parts and includes registering charges or encumbrances to property arising from such matters as planning conditions, Section 106 agreements, tree preservation orders, listed buildings and the like. The information on these charges is included on the register as and when the documentation which creates the charge arises. Such charges might originate in a range of council departments and it is the job of local land charges staff to update the register as soon as notified. Staff also help resolve queries where, for example, property descriptions are imprecise.

CON29 searches have been in operation for about 50 years. They are a non-statutory list of questions agreed between Government, local authorities and the Law Society. They cover a wide range of matters which may affect a potential purchaser of property, such as any pending planning applications, whether the area is about to be declared a conservation area, or if the access road is adopted. These are prospective matters which might affect somebody’s enjoyment of a property. There is no register as such but responses are provided when requests are made. Information may be held in a number of different council departments or, in the case of two-tier authorities, in different authorities.

The task of the local land charges staff is typically to peruse local information sources, including council reports, to keep abreast of developments. Local knowledge

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is vital and the District Councils’ Network has expressed particular concern that insufficient weight has been given to this. At present, there are 20 million entries on the local land charges register, with 65,000 changes being made each month. We also know that, for some 92% of searches, the inquiry is in respect of local land charges and CON29 searches together. The proposition is for the local Land Registry to receive updates from some 350 local authorities for incorporation on to their sole register—covering only local land charges. CON29 searches would be left as now, with local authorities. It was the intention that the Land Registry would take over both elements but, as the Local Land Charges Institute pointed out, years of trying to work out how this could be accomplished have apparently proved fruitless—unless the Minister could tell us by when these proposals could proceed. It is expected that CON29 searches will be undertaken by the Land Registry. What work is currently being undertaken to this effect?

As far as local land charges are concerned, we have no knowledge as to how often the information received from local authorities will be incorporated on to the register, the process for doing so and the format in which the information is to be supplied. What consideration has been given to data cleansing? When will there be a delivery plan for what the Government propose? What are the expected transitional arrangements in respect of local land charges? In arguing for centralisation, the Government have made much of the varying state of digitalisation of the land charges provision of local authorities. A range of different systems is apparently used by local authorities. Have all these to be standardised—presumably to a new system—before there is any transfer of the local land charges register to the Land Registry? Who is to bear the cost of this? Will it be a new burden on local authorities? Will local authorities be recompensed for investment made to date? Should they put on hold any planned new investment to digitalise their system? How is the Land Registry to cope with all this when they are in the throes of instigating complex online applications and automated processes in respect of their existing business?

The Government have also made much of the variable response times and charging arrangements of local authorities. Responding to the Government’s consultation, the Law Society stated that solicitors were broadly satisfied with the process of obtaining local land charges and other search information. They suggested that there were other issues—for example, consistent processes for discharging charges—which might be more beneficial to conveyancing arrangements.

As for lawyers’ irritation with turnaround times, they point out that the research related to the entire conveyancing process, not just the local land charge information. They say that variation in turnaround times will obviously be affected by the number and the nature of queries in each case. Of course, there will be no overall impact on turnaround times in circumstances where the later piece of the jigsaw is the CON29 process. A recent survey indicated that turnaround times for 96% of local land charge-only searches is less than 10 days, with three-quarters being returned in five days. There may be those outside this range, but

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surely the focus should be to help the minority of councils improve rather than turn all existing arrangements upside down. As for the variation in the level of charging, it is difficult to believe that it is the most important issue in the conveyancing process, but in any event there was a standard charge until the mid-2000s and there is no inherent reason why that could not be reconsidered for the future.

Where does this leave local authorities? The LGA expressed its opposition to this because it will leave councils with the expense of adjusting systems, breaking existing contracts and paying redundancy costs. The LGA is concerned that the longer-term cost to councils of compiling, checking and verifying data has not been properly accounted for. Of course, some local land charge staff have other duties as well, such as electoral registration, and the knock-on costs of staffing issues need to be considered. As part of this, it is planned to uplift all the existing local authority land charges register to the Land Registry for free, at a time when the Land Registry is seeking wider powers to market services. Has any value been placed on the local authority databases?

Unless there are clear plans to encompass the CON29 process into the arrangement, and there seems to be no prospect of that, all that is on offer from this proposition is a worse service and disruption to the existing arrangements. While there is always room for improvement—and the service has improved, on the testimony of those who use it and know best—why on earth fix something that is not broken and for which there is no support?

Despite the engagement of some local authorities in pilots to see the how this might work—seemingly Merton has not volunteered for this—it is obvious that there is no clear implementation plan and no comprehension of what this will mean for local authorities. These proposed changes to a vital service—vital to the health of the property market—should not proceed unless and until these matters are sorted out. I beg to move.

Lord Greaves: My Lords, I tabled amendments in this group on Monday. Had the noble Lord, Lord McKenzie of Luton, put down his amendment a day earlier, I would simply have added my name to that because it covers the issues.

My interest in local land registers is very recent—a matter of days. This part of the Bill was drawn to my attention by my council officers and particularly by Richard Townson, the democratic and legal services manager, who gave me a quick tutorial. I am not terribly upset that I did not become an expert in the subject a lot earlier, but needs must. I have a number of questions that the Minister may not be able to answer today, but if he cannot, I would be grateful for a reply in writing. I am aware that I should have made this speech in Grand Committee, but as I said earlier today, I was not available for House of Lords duties at the time.

The national Land Registry deals with the register of title—ownership issues—and does not go beyond that. We are told that it is run extremely efficiently and that is certainly my experience of using it. There are then local land registers that tell you that charges on a

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particular parcel of land exist. Those charges may be a requirement to pay money to someone, but most of them nowadays are constraints on the use of the land due to planning decisions or highways decisions.

7.15 pm

The LLC1 search is a simple search to know what is on the local land register. I have a copy of the form—it is a simple one-sided form. That will produce, for example, information that the house in which I live is situated in the Winewall and Cotton Tree conservation area, which is something that you would want to know if you were buying my house, which is not for sale. Then there is a search to which noble Lords have referred that is known—this is a Law Society form—as CON29, and I have a copy of that form. I am tempted to read the whole thing out to prove a point, but that would test the patience of the House even by my standards. The points that the noble Lord, Lord McKenzie, made are good examples of what is on the form.

The form starts with planning and building regulation involvement with that property and ends with argon gas, and there is a whole series of things in between. This is a complicated form that requires quite a lot of research. I understand that all the information required for that form is not on the local land register, which is why the second search has to take place. We are told by the LGA that in more than 90% of cases the two requests are made together. In my authority the figure is around 99%, so it is a joint job, but not simple or straightforward.

Schedule 4 provides for local land registers to be replaced by a single national register of local land charges on the grounds of centralisation, efficiency and economies of scale. Those are arguments that we hear many times—sometimes they are true and sometimes they are very untrue. But for each area this will consist of the information already in the local register for that area plus each local land charge that is subsequently registered. The originating authority for a new or amended local land charge or cancellation will in future have a duty to apply to the Chief Land Registrar—the National Land Registry—for its registration on that central register. It seems to a lot of us that that process has not been properly thought out, has not been costed properly and will lead to a lot of difficulties.

As far as the transitional period is concerned, will local authorities be able to continue to set their own charges for this service during the transitional period? What assessment has been made of the additional costs to local authorities for the transfer of records to the national register, because all the records on the existing local registers will have to be transferred to the national register? Some councils still have manual systems, believe it or not. I am told that there are 40 or 50 out of the 350-odd. What assessment has been made of the costs and the process of digitalising these manual records for the authorities that still keep them in dusty files down in the cellar? What is the timescale for the complete transfer to the national system? Has a proper timescale been worked out or is it back-of-the-fag-packet stuff?

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As far as the future system is concerned, will the originating local authorities send the new amended or cancelled registrations—all the CON29 stuff and the ordinary registrations—to the Chief Land Registrar to be entered on to the system or will the local authorities have to do it themselves through their computers? Will they put it on directly or will they send it off nationally so that it is put on nationally? I am asking these questions because people are going round from the Land Registry and/or the department talking to local authorities. The local authorities I know about are no wiser when these people have gone round about what they are saying, because they do not really know.

What assessment has been made of the cost to local authorities of having to provide the updated information to the national system or put it on themselves? How will it be different from the present position? If a local authority is simply putting it on its own computer system and in future it has to put it on the national system, what is new?

What will be the future system for CON29 searches? As I have already said, at the moment most are combined with the LLC1 searches. What will be the future system for this? Will the request for CON29 searches be sent to the national system—to the Chief Land Registrar—who will then have to contact each local authority separately or each originating authority separately? If so, who will be responsible for dealing with it? Will it be dealt with nationally or locally? It seems impossible that the system will work unless it is dealt with locally; in that case, what is different from the present system and where is the saving?

Has an assessment been made of the cost to local authorities in the future? Will it be the same? Will it be less than now? Will it perhaps be even more than now because of the additional bureaucratic complications? How will local knowledge be catered for in the new system? One of the very important things about Land Registry searches at the moment is that the people dealing with them are dealing with them every day and they keep in touch with what is happening in planning, in highways and everything else in their local area. They will often say to applicants for a search, “You ought to know about this. You haven’t asked about this, but it’s important and you should know about it”. How will that sort of local knowledge and local information be provided for in a national system?

How will personal search companies fit into the new system? At the moment they go in and relate directly to local authorities. This applies to routine searches and, as I understand it, it applies to searches under the environmental information register system. Has any assessment been made of potential delays due to the fact that national and local bodies will both be involved in the CON29 searches? If there is to be a substantial transfer of work from local to national, will the TUPE regulations apply to the staff who are at the moment involved in the local work? Finally, where the existing service is outsourced, have any of the potential costs involved in ending the contract with the outsourced companies been taken into account? Will the Government compensate local authorities which have to end contracts prematurely if they have to pay compensation?

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I know that I have asked a lot of complicated questions. I do not expect the Minister to answer them all today, but I would be very grateful if I could have answers within the next week.

Lord Ahmad of Wimbledon: My Lords, I thank the noble Lord, Lord McKenzie, for his support for the government amendments. I turn specifically to Amendments 95A, 95B and 99A, which impact on Clause 23 and Schedule 4, and the questions raised. Clause 23 and Schedule 4 provide for Her Majesty’s Land Registry to maintain a single digital local land charges register for England and Wales. There has been a good deal of discussion on the merits of the government proposals and the perceived drawbacks. I will come to those in a moment, but first we should be clear that maintaining the status quo is not an option.

Many of those noble Lords who have—as I have—served in local government know that some local councils provide a very good local land charges service today. I pay tribute to their staff’s efforts and, as my noble friend Lord Greaves said, to the local expertise that they possess. However, many local authorities continue to operate a system that is wholly, or in part, reliant on paper records. Over time, those records will decay and we need to ensure that these are replaced or the information they contain will be lost. What is the solution? The question is not, “Should the current system change?”; it must do so. The question is whether there should be 348 different changes to develop 348 different digital systems that perpetuate the current inconsistencies in levels of service and cost for the public.

In some authorities a digital service is already available. Bolton Council holds a fully digital register and returns searches within one day. Its aim is to provide an,

“end to end process where every customer has the same experience and that is what we now offer”.

The Land Registry ran a successful year-long prototype with seven local authorities. There is no need to rely on the Government’s word that the prototype was a success. Liverpool City Council has been clear that:

“Together we demonstrated that this could work and that if Land Registry were to roll this out then there could be benefits to the conveyancing process in the UK”.

One need only look at the data currently published by local authorities themselves—for example, Bath and North East Somerset and Castle Point currently quote up to a 20-day turnaround time on their websites for a full search—to see that there is scope for improvement. Customers expect to be able to access government information online without delay or complication. Therefore, the Government are committed to meeting those expectations, and creating a single, digital local land register would be another step towards doing so.

Various questions were raised. I fully understand noble Lords’ interest in how the Government’s proposal would affect local authorities and what the implementation plan would be. I am happy to provide some details this evening.

We have recognised the need to ensure that the new system takes account of local authorities from the start. That is why we have been working with a small

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number of local authorities, as I have already illustrated, throughout the programme, including prototyping the service with seven of them last year. While I can set out the steps the Government are taking to phase implementation and help local authorities to manage the impact, I reassure your Lordships’ House that those local authorities we have been working with are content with the steps we have taken, as can be seen from the comments by Bolton Council and Liverpool Council, which I quoted a few moments ago.

Turning to the steps we are taking to help local authorities manage the impact, it is important to understand the service they offer at present. Local authorities, we know, will remain best placed to be aware of any changes to charges on land within their area. That is why, under the Government proposals, they will continue to be responsible, as my noble friend Lord Greaves asked, for entering information into the single register and keeping it up to date. They will no longer need to provide the searches, however. There will be no loss of local knowledge under our proposals, simply a more modern, efficient process to help members of the public access that local knowledge. None the less we recognise that there may be some costs that arise because of these proposals, and—to answer a question asked by the noble Lord, Lord McKenzie—the DCLG is in conversation with local authorities on how these are best met.

Turning to the implementation plan—again the noble Lord, Lord McKenzie, asked what the Government’s intention is here—implementation will be phased. For each local authority, the first step will be collating the data it holds and checking that they are accurate. The checked data sets will then need to be transformed into a digital format before being transferred into the central land registry that will be created. The local land charges service will transfer from individual local authorities to the Land Registry only once this process has been completed and is functioning.

7.30 pm

On Amendment 99B, which seeks to amend Clause 24, the other proposal we are discussing today is in Clause 24 of the Bill, which gives wider powers to the Land Registry to enable it to play a greater role in the property sector. Our aim is simple: to make the conveyancing process quicker, cheaper, more transparent and easier to complete. For reasons that I shall explain, the Land Registry is well placed to achieve that goal, but at present it is limited in the services it can offer, not by what is in the public interest or by what its customers want, but by its limited powers under the Land Registration Act 2002. This clause corrects that. At present, the Land Registry can undertake functions and provide services relating only to land registration. But while it can provide services in relation to register of title information, it is not permitted to in relation to other property information. And while it maintains an electronic register of title, it would not have the power to maintain a register of other property interests. These limitations are not in either the Land Registry’s or the wider public’s interests.

What more could the Land Registry do? The Land Registry is already the single largest source of property information. Where it already has the power to do so,

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the Land Registry has used this information and experience to develop new services, including the release of free price paid data. Giving wider powers to the Land Registry will enable it to utilise its expertise to provide a broader range of property information services for businesses and citizens, where that is what they want.

I turn to some of the questions that have been asked. The noble Lord, Lord McKenzie, talked about successor arrangements and the individual being recruited. The advert is available online. I believe that it also features in the Sunday Times. Our intent is quite clear—I am sure the noble Lord shares this intent—namely, to appoint the best candidate, whether that is an internal or external candidate. The appointment is expected to be made early next year.

The noble Lord, Lord McKenzie, and, I believe, my noble friend Lord Greaves, asked about local land charges and CON29. Modernising the local land charges service will provide benefits to both the conveyancing process and the wider economy, as I said. In the long term, the Land Registry may well look at the potential for providing a CON29 service. Currently, it is examining the policy and feasibility of providing the service, albeit this may to limited to arranging a single point of electronic access as a first stage. No significant change will take place in the near future. The ultimate objective of modernising the local land charges service is a step worth taking towards improving the conveyancing process.

My noble friend Lord Greaves asked whether there was sufficient knowledge to provide a local land charges service. I believe that I have already alluded to how the local expertise would be retained. The Land Registry will play a central role in the conveyancing process and is already familiar with the types of interest protected by local land charges. As my noble friend will know, it already administers a large and complex register of title and handles large volumes of applications and searches on a daily basis.

The noble Lord, Lord McKenzie, asked about a project plan. As I said, the Land Registry will share its project plan with local authorities and the LGA once it has completed its profiles of each local authority. I believe that I have already answered the question about data entry which my noble friend Lord Greaves raised.

The noble Lord, Lord McKenzie, asked about the Law Society and local land charges and about the pressing concern with regard to the conveyancing process. I think we all accept that the Land Registry cannot improve all areas of conveyancing and so is concentrating on local land charges—an area where we believe it can offer considerable benefits to the conveyancing industry. Data will be more easily accessible. There will be reductions in cost and ongoing improvements in delivery times. Access will be through one central point in one format and the quality and integrity of data will be maintained. This policy supports wider government priorities to facilitate easier property transactions by bringing efficiencies to the property sector and making public data more easily accessible to the benefit of the wider economy.

The noble Lord, Lord McKenzie, asked about the value being placed on local authorities’ land charges databases. I shall write to him on that, if I may. On the

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issue of assistance to local authorities, as I said, we believe that the cost of 348 platforms does not provide an efficient way of providing data records for that service.

We believe that the Land Registry will be able to combine data presently held by different bodies in a readily accessible form and will be able to enhance data or process it—for example, by using existing Land Registry data to identify or provide further information on properties. That will produce an information infrastructure on which businesses, including SMEs, can build to offer new commercial services. In short, this will allow the Land Registry to meet the changing needs of its customers and stakeholders and benefit the property sector and economy overall.

I have already talked about CON29 searches. We will not consider the issues around CON29 searches provided by local authorities. However, if consideration is given to them, we will, of course, report back to the House on it.

I reiterate that these powers are enabling only; they cannot be used to take on services from other bodies against their will. The noble Lord, Lord McKenzie, alluded to privatisation. This is another misconception. I would like to address the question: is this a step towards privatisation of the Land Registry or should it wait until a future Government look at the Land Registry’s structure? First, the Government have made it clear, including in the remarks of my noble friend Lady Kramer at Second Reading, and in Committee, that we will not change the Land Registry’s commercial model. Secondly, regardless of the structure of the Land Registry, it makes sense that, where people want it to provide a service, it has the capability to do so. The legislation should permit it to do just that. These powers are a sensible step to let the Land Registry provide the services its customers ultimately want.

In short, the provisions of Clause 23 and Schedule 4 will enable the Land Registry to create a single digital service that eliminates the current regional variations, a standard digital service that reduces delays for those buying and investing in property. This will modernise the local land charges service. Clause 24 is about building on the excellent service that the Land Registry already provides. Where its customers want the Land Registry to provide a service, and where its expertise in digitisation and the management and reuse of land and property data mean that it is well placed to do so, these provisions will enable the Land Registry to act. That, in turn, will benefit the property sector and the wider economy overall, and these are things I am sure the whole House welcomes.

I hope that I have been clear, if somewhat detailed, in my response. I will read Hansard and, if there are questions that I have not answered, I will write to noble Lords. Based on the clarity which I hope I have provided on some, if not, all the questions that were asked, I hope that the noble Lord, Lord McKenzie, will be minded to withdraw the amendment.

Lord McKenzie of Luton: My Lords, I thank the Minister for his reply and the noble Lord, Lord Greaves, for his contribution. I say to the noble Lord, Lord Greaves, “Welcome to the world of local land charges”. He has

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mastered his brief on that subject, as he normally does, and asked an entirely pertinent series of questions. We have had answers to some, but not all, those questions. The noble Lord stressed local knowledge, which is absolutely key to this.

I do not think that the Minister dealt with the key point that what is proposed to happen will be a fragmentation of a service. We know that currently most people undertake searches of CON29 and local land charges together. It is proposed to peel part of this off to the Land Registry, while the rest stays with local authorities. That seems to me to be the makings of a worse service, not a better one. We await very important information, certainly around the value of the database that local authorities have, which is to be taken over. The noble Lord reiterated the point about privatisation but did not deal with the point about the remit of the successor to the current chief of the Land Registry, the process for which is now under way. Clearly, if it is intended that the service be privatised, the service will be looking for someone with different qualifications from someone who will just administer the register as it is.

There is a beguiling issue about it all being digitised and all on one platform. That looks aside from the complexities of how it will be done and whether it is possible to get there with 348 authorities undertaking their daily work with some 60,000 entries each day. That really has not been addressed. We know that the process is struggling and has effectively given up on trying to take in CON29 as part of it. There are many unanswered questions. I am sure that the Minister will, as usual, be very diligent and look at the record and follow up where we have not had answers tonight. In the mean time, I beg leave to withdraw the amendment.

Amendment 95A withdrawn.

Amendment 95B not moved.

Amendment 96 not moved.

Schedule 4: Transfer of responsibility for local land charges to Land Registry

Amendments 97 to 99

Moved by Baroness Kramer

97: Schedule 4, page 83, line 39, leave out sub-paragraph (4) and insert—

“(4) Sub-paragraphs (5) and (6) apply to the function of the Lord Chancellor under section 14(1) of the Local Land Charges Act 1975 as amended by this paragraph so far as it relates to the power to make rules for prescribing fees and the manner of payment of fees (“the new function”).

(5) The new function is to be treated as having been transferred to the Welsh Ministers by—

(a) the National Assembly for Wales (Transfer of Functions) Order 2004 (S.I. 2004/3044), and

(b) Schedule 11 to the Government of Wales Act 2006,

in the same way as the equivalent function of the Lord Chancellor under that section as it had effect apart from this paragraph (“the old function”).

(6) A provision made by that Order or that Act in respect of the old function continues to apply to the new function.”

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98: Schedule 4, page 87, line 17, after “Schedule” insert “—

(a) ”

99: Schedule 4, page 87, line 18, after “Part;” insert “or

(b) in relation to the operation of any other statutory provision by virtue of which any matter is registrable in the local land charges register,”

Amendments 97 to 99 agreed.

Amendment 99A not moved.

Clause 24: Conferral of additional powers on Land Registry

Amendment 99B not moved.

Consideration on Report adjourned until not before 8.30 pm.

Health and Social Care Act 2008 (Regulated Activities) Regulations 2014

Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 6th Report from the Joint Committee on Statutory Instruments 8th Report from the Secondary Legislation Scrutiny Committee.

Motion to Approve

7.43 pm

Moved by Earl Howe

That the draft Regulations laid before the House on 7 July be approved.

Relevant documents: 6th Report from the Joint Committee on Statutory Instruments and 8th Report from the Secondary Legislation Scrutiny Committee

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, I am glad, but not surprised, that the noble Lord, Lord Hunt of Kings Heath, has shown such a keen interest in the importance of providing protection for users of health and care services. I thank him for bringing this issue to the Floor of the House. Naturally I am disappointed to understand from his amendment that he feels that the new fundamental standards are not satisfactory and undermine protection of care home residents. I seek to reassure him that that absolutely is not the case.

I begin by emphasising that the Government are serious about improving the protections offered to health and adult social care service users, both through the legislation that we have before us and through the system of regulation of health and adult social care carried out by the Care Quality Commission, of which these regulations form a part. I am sure that noble Lords will agree that the CQC has made enormous strides forward over the past two years, supported by many of the changes that we debated in this Chamber a year ago during the passage of the Care Act. Under the leadership of the three chief inspectors, the CQC’s specialist teams of inspectors are holding providers to account more thoroughly than ever before. The CQC’s inspections now look beyond mere compliance with registration requirements to provide ratings for each provider against five key questions. Are services safe? Are they caring? Are they effective? Are they responsive? Are they well led?

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The first of these ratings is now being published. I am sure that noble Lords will agree that the new system provides much valuable information to patients and service users and commissioners, as well as to providers themselves. However, it is axiomatic to say that the key purpose of a regulator is to regulate—to take action where standards of care fall below acceptable levels. The regulations that we are discussing are central to this. They set the requirements for registration with the CQC, the fundamental standards that all registered providers must meet and against which the CQC can use its enforcement powers to protect patients and service users from the risks of poor care.

I will outline briefly how the new fundamental standards are an improvement on the existing registration requirements, before moving on to the detail. We are changing the regulations in order to address the issues raised by Sir Robert Francis, in his inquiry into Mid Staffordshire NHS Foundation Trust. He highlighted that the legislative basis on which the CQC was operating was undermining the effectiveness of the regulator. He criticised current regulations for being “overly bureaucratic” and said that they failed to separate the “essential” from “the merely desirable”. He recommended the introduction of fundamental standards which set the line below which care must never fall. He recommended that there be regulatory consequences for providers who fail to meet these standards, including the possibility of prosecution where breaches result in serious harm.

The new regulations set the following fundamental standards. Patients must receive safe care that meets their needs and reflects their preferences. Patients must be treated with dignity and respect, be properly fed, their views listened to, and be protected from abuse. The environment in which they are cared for must be clean, safe and secure. Care organisations must be well run, properly staffed, and be open with people about their treatment.

In my response to the noble Lord, I seek to reassure him that the fundamental standards do not dilute the current regulations, remove protections or leave people at greater risk of abuse or harm. In fact, they provide much stronger protection for service users from abuse, neglect and unsafe care than the current regulations. They explicitly state that care must be provided in a safe way, that people must be protected from abuse and improper treatment, that care must not be degrading and that is it unacceptable to disregard someone’s need for care and treatment. The requirements covering degrading care and significant disregard of needs are completely new and not covered by current regulations. It will be an offence to breach these standards in a way that causes avoidable harm or presents a significant risk of such harm occurring, and the CQC will be able to bring prosecutions against providers for such breaches without issuing an advance notice, something that is not possible at the moment. This is a major improvement that provides extra protection for patients and service users.

I want to discuss one of the key fundamental standards recommended by Sir Robert Francis: the statutory duty of candour on providers. It is a little over a year since I brought forward an amendment to the then Care Bill that placed an obligation on the

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Secretary of State to include in the requirements of registration a duty on providers to inform patients and service users where there were failings in care that resulted in harm—the duty of candour. These regulations fulfil that obligation in respect of the NHS by placing a duty of candour on NHS bodies.

In the debate on the duty of candour a year ago, noble Lords made two key challenges: first, that we should give serious consideration to the threshold for the duty of candour; and secondly, notwithstanding any such threshold, that the regulation should enshrine the general principle of being open in all cases. I hope noble Lords will agree that we have met both these challenges. I shall take the second challenge—openness —first. Regulation 20 sets out the duty of candour, its first line setting out the general requirement of candour:

“A health service body must act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying on a regulated activity”.

This is a general duty to be open in all dealings with patients, service users and their representatives. Where a provider does not meet this duty, the CQC will have the power to use its civil enforcement powers. However, a failure to meet this general requirement will not be an offence.

The remainder of the regulation sets out the steps that providers will have to take when a “notifiable safety incident” occurs. Noble Lords were quite right in saying that the key issue here is defining the harm threshold for such an incident that would engage the duty of candour formal notification procedures. The Government took expert advice and gathered a wide range of views before setting this threshold. We asked Sir David Dalton and Professor Norman Williams to lead this work. They published their findings in March, and the department subsequently consulted on draft regulations based on their recommended harm threshold.

In the regulations, a notifiable safety incident is defined as any unintended or unexpected incident that has, appears to have or could still result in death or severe harm, moderate harm or prolonged psychological harm. By following the recommendations of the Dalton-Williams review, I believe we have struck a sensible balance between the need to respond formally to patients when significant things go wrong and the need to keep reporting burdens within manageable proportions.

Building on this work, the regulation sets a series of specific steps that an NHS body will have to take where a notifiable safety incident occurs. These are: to notify the relevant person that the incident has occurred, to advise them what further inquiries will be made, and to apologise. A failure to take these steps will be an offence. This verbal notification then has to be followed up in writing.

This new duty of candour will support and underpin the Government’s ambition to transform culture across the NHS and support openness and learning, both between staff and organisations and to patients and service users. We will extend the duty to all health and adult social care providers from next April. Over time, the duty of candour will contribute to safer care. Noble Lords will also be pleased to learn that this

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week the General Medical Council and the Nursing and Midwifery Council have published for consultation draft guidance on the professional duty of candour, a measure that complements the statutory duty of candour on providers.

I finish by touching on the other new registration requirement that we are introducing—the fit and proper persons test, a requirement for directors of organisations registered with the CQC. The responsibility for providing safe and acceptable care will always rest with providers themselves. The tone and culture of an organisation is set by those people at its head. No matter how effective, regulation cannot be a substitute for good leadership at a provider level. All too often, individuals at the head of an organisation have been out of reach, even where they have overseen the most shocking standards of care. These regulations put an end to this, giving the CQC new powers to remove directors who are responsible for poor care. For the first time, the regulations place a legal requirement on NHS bodies registered with the CQC to ensure that their directors are fit and proper to fulfil their role. By next April, we plan to extend this requirement to all providers of health and adult social care registered with the CQC. This new measure, alongside the ability to bring prosecutions where failures in care harm patients and service users, will greatly increase the ability of the CQC to hold corporate bodies and their senior officers to account.

Effective regulation of health and adult social care is essential to protect patients and service users from the risks of poor care. The fundamental standards will support the Care Quality Commission in holding providers to account for the quality of care that they provide. Taken as a whole, these regulations improve the legal protections offered to service users, underpin and support a more effective regulatory regime, and champion openness and transparency across the NHS. I beg to move.

Amendment to the Motion

Moved by Lord Hunt of Kings Heath

At end insert “but that this House regrets that they undermine the protection of care home residents by removing current requirements in respect of complaints procedures, emergency procedures and choice of food”.

Lord Hunt of Kings Heath (Lab): My Lords, I should say right away that, overall, I welcome the thrust of these regulations. I am going to raise a number of points covered by my amendment to the Motion. I do so on the basis of broadly accepting the point raised by the Minister in relation to the CQC’s role and the way in which it is performing. However, there is particular concern about residents in care homes and the impact of the regulations which I would like to put to the Minister. My real concern is in respect of the three areas mentioned in my amendment in that, far from enhancing quality and public safety, the regulations actually reduce current protections in relation to complaint systems, food and emergency procedures.

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I listened with great care to the Minister. He prayed in aid the remarks of Sir Robert Francis, and I will come back to them in a moment, but can the Minister also confirm that, in a sense, the regulations are a victim of the Government’s desire for lighter-touch regulation? The CQC clearly has a critical role in protecting some of the most vulnerable citizens in our country. This is not the moment for lighter-touch regulation. On any count, knowledge of the complaints system is important, particularly in view of concerns about standards of care in the health service and in many care homes. The current regulation states that the registered person must,

“bring the complaints system to the attention of service users and persons acting on their behalf in a suitable manner and format”.

The regulation goes on to require that,

“service users and those acting on their behalf,

are provided,

“with support to bring a complaint or make a comment, where such assistance is necessary”.

My understanding is that the Minister’s department is briefing that the new regulations are more outcome-focused and less specific about processes. However, if being less specific about processes means not telling people about them, it meets that test, I suppose. I also understand that his department is briefing that having an accessible and open culture is the same as having a specific duty to inform people about the complaints procedure.

However, the point I should like to put to your Lordships is that most residents and relatives have little idea of what to expect from a care home. Surely it is a relief to relatives and advocates when they are informed about these rights. It makes it easy for them to raise questions about care, knowing that that the regulations have the force of law and the matter cannot simply be left to local discretion. Few people comparing the two sets of regulations on rigour about complaints could argue that the proposed replacement is an improvement.

If one considers the tragic case of Winterbourne View—which I suspect a number of noble Lords will refer to—and other reports and the reports of the Health Service Commissioner, they continually emphasise that many providers’ stances on complaints are not fit for purpose. We know in relation to NHS complaints that there are continuous problems about people wondering whether they really can use them effectively. Almost all recent major care scandals have had their roots in people not being listened to or not knowing that they can complain. That is the basis of my major concern about these regulations.

Having emergency procedures in place seems pretty important, too. I do not understand the logic of deleting this important regulation. It may be that the Minister will say that it is covered by the new Regulation 17, but that states merely that, as part of good governance, the provider must establish systems or processes which enable the registered person to,

“assess, monitor and mitigate the risks relating to the health, safety and welfare of service users and others who may be at risk which arise from the carrying on of the regulated activity”.

That could easily be interpreted by providers to mean the normal, day-to-day risk assessments that they are required to carry out. I remind the Minister that care

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homes are pretty fragile organisations, often with very few qualified staff, and a significant proportion are without managers in place. That is why it would be much better to be absolutely explicit that emergency procedures should be in place.

8 pm

On the choice of food, I would have thought that it is pretty integral to the quality of life. I understand that the Department of Health is stressing that the new regulations have to be read in conjunction with proposed CQC guidance, which may in many respects be stronger in stating that care home residents must have their needs and preferences taken into account. That is better than the simple provision of two alternative meals, neither of which the resident likes. Frankly, if the food is neither desired nor suitable, it breaches other regulations. The way it is being described shows a limited concept of the importance of food and of having a choice in care, when many people forget to eat and may need sensitive encouragement and real choices to tempt them into nutritious and sufficient eating habits.

I refer the Minister to the evidence I have received from Action on Elder Abuse. It is not unsympathetic to where the broad thrust of the regulations is going, but it is concerned that the regulations are now very top-line, leaving the detail to be fleshed out in guidance, and that some requirements have been weakened as a result, particularly those relating to complaints procedures, food and emergency planning, which I have referred to.

The Minister says that the fundamental standards do not undermine the overall quality. He mentioned that services should not be degrading, nor should they significantly disregard needs. Of course, I very much understand that. However, there is a real concern that the department’s approach is based on the assumption that there will always be well informed inspectors who will be on the spot to sort things out on a regular basis. The Minister will know that there are many examples of homes that have not been inspected for some considerable time. The new CQC guidelines also give inspectors far more leeway about what they choose to inspect. He will also know—given that we debate this so many times—that when it comes to issues to do with being signposted to complaints systems or food choices, if they are not in the regulations they may well be seen by inspectors as optional, rather than mandatory. The Minister made a telling comment when he referred to what Sir Robert Francis said about trying to divorce the essential from the desirable. My argument is that being signposted to complaints procedures and food choice are elements of essential need.

I agree with the Minister about the CQC and its approach. I like the approach that the new board and the chief inspectors are taking. They are starting to build up confidence. However, I want to ask the Minister about CQC capacity. I noted with interest an interview a few weeks ago with David Behan, the CQC chief executive, in which he reported that the CQC has scaled back its inspection ambitions for 2014-15 in order to ease pressure on CQC staff. Is the Minister in a position to update the House on this issue of capacity and whether it is affecting the programme of

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inspections? I am particularly interested in the issue of care homes and the regular nature of inspections of those homes.

On the duty of candour, the Minister has answered the first question I was going to ask about the criteria, and I fully accept his answer. He will know that the Secondary Legislation Scrutiny Committee rather took his department to task on the issue of having to bring forward two regulations, one in relation to the NHS and the duty of candour, which we are seeing tonight. I guess that another SI will be brought forward in the next few months. Given the different definitions there are likely to be, particularly in relation to safety incidents, the Secondary Legislation Scrutiny Committee has asked the department to ensure that the Explanatory Memorandum in relation to the second statutory instrument provides a very full explanation of the different definitions of a safety incident. Will the Minister confirm whether the department intends to do that?

Overall, I am sure that these regulations are going in the right direction, but there is concern in the care home sector around complaints, food choice and emergency procedures. I am particularly appreciative of the Relatives & Residents Association, which brought that to my attention. I hope very much that the department will be able to respond positively on those points. I beg to move.

Baroness Barker (LD): My Lords, the Minister, the noble Baroness, Lady Greengross, and I have a fair degree of form on this subject, going back over a number of years. Indeed, as I listened to the Minister introducing this matter to the House tonight, my mind wandered back to the dreaded days of the NHS Redress Bill, when the noble Lord, Lord Warner, sought to assure those of us who, in those days, sat on the other side of the Chamber that all would be well in the NHS and there was no need for a duty of candour because a new culture of openness was going to work its way through the NHS.

I have to say that things have changed because back then the professional bodies representing the staff of the NHS fought that duty of candour tooth and nail, so it is rather pleasing to have the news this week that they now have changed their minds and are willing to accept that they should uphold the duty of candour. They are moving to a point of discussing with their members not whether, but how, they do that.

I agree with the Minister that the CQC in its present form is a long way from CSCI and its predecessors in their various guises. It is properly constituted, far better resourced and has a focus to its work. Albeit that it works across a far bigger canvas than it ever did in the past, it is already performing to a much higher degree than before.

However, I return to the point the noble Baroness, Lady Greengross, and I made during the passage of the Care Bill. In that legislation, in relation to care homes and incidents where vulnerable adults may be thought to be at risk of abuse, this House fell short in its legislative function in that it did not give a power of entry to people or bodies who suspected that there might be abuse taking place. It is with that deficiency

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in the law sitting in place that we have to judge all the regulations and guidance such as this that come before us and ask ourselves whether, if a person was being abused or maltreated in a care home, it would be detected.

Therefore, the noble Lord, Lord Hunt, is right to focus, as he has done, on the issues of complaints procedures and emergency planning. I accept that within the overall framework service providers are now required not only to provide their services but to report on outcomes for individuals and standard of care, but nonetheless, there is something slightly amiss. For me, it goes back to the issue of power of entry. It goes back to the point at which a concerned relative has the power to override things.

I would also like to ask the Minister for a point of clarification. It seems that Ministers are quite clear that the introduction of new basic standards rectifies what was clearly an unsatisfactory position whereby one could not prosecute a provider unless and until an improvement notice had been issued. That was clearly wrong, and a number of providers got off the hook on that technicality. Will the Minister clarify, if he can, that under these regulations a breach of fundamental standards is still not in and of itself a reason to trigger a prosecution and that a reason to trigger a prosecution is a breach of the regulations? I would like to know how the department sees that working in practice to cover the deficiency to which I alluded a moment ago.

Finally, I welcome the fit and proper person test. It is long overdue. It is a good job that it is coming to the statute book as quickly as it is.

Viscount Hanworth (Lab): My Lords, the quality of the provision in old people’s care homes varies widely. In the best of them, the residents are treated with respect and solicitude. In the worst of them, as we have witnessed recently, they are treated callously and brutally by underpaid and badly trained staff.

The increasing longevity of our population is leading to a rising demand for the provision of care for the elderly. Until recently, the implications of these developments have been ignored by all but a few concerned parties. The matter was brought forcefully to the attention of the public at large by the financial collapse of the Southern Cross enterprise, which was responsible for at least 20% of the national provision of residential places in care homes. It was running 752 homes when it collapsed in 2011 with losses of £300 million.

Southern Cross had been acquired by the private equity firm Blackstone Capital Partners for £162 million in 2004. Thereafter, it expanded rapidly. Through acquisitions, it tripled the number of homes that it was managing. The directors became multimillionaires. Inspections that were conducted during the period of its expansion raised grave concerns over the provision of care by homes within the Southern Cross portfolio. Indeed, the enterprise was warned about failing standards in its homes as it prepared to float on the stock market.

A more dramatic instance of the failure of care was provided by the scandal of Winterbourne View, a public-funded private hospital. A “Panorama” investigation broadcast in 2011 exposed the physical

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and psychological abuse suffered at the hospital by people with learning disabilities and with challenging behaviour.

The problems besetting care homes have been due, in part, to the inadequacy of their regulatory oversight. They have also been due, in large measure, to the increasing financial stringency under which they are operating. The income received by the homes from fees has been falling. Those fees have been paid on behalf of the great majority of residents by local authorities. Their income has been driven down by the Government’s austerity measures. At the same time, their costs have increased through factors outside their control, such as rising energy prices.

Another adverse condition is that the borrowing of the care home sector averages 75% of its net assets. This abnormally high level of indebtedness has been a result of the borrowings that were linked to the spate of acquisitions that preceded the general financial crisis of the sector. It has been pushed even higher by trading losses. This will expose the sector greatly to the widely anticipated rise in interest rates in the not too distant future.

The Government have reacted to these problems in a manner that many people regard as inadequate. They have not sought to improve the financial circumstances of the care homes. Instead, they have sought to improve the regulatory framework affecting the care homes via amendments to the secondary legislation associated with the Health and Social Care Act 2008, which will come into force in April 2015.

According to the testimony of the Minister of State for the Department of Health in the Commons on 16 October, the new regulations will,

“bolster the power of the regulator to take enforcement action, including bringing prosecutions against providers of poor care”,

and issuing penalty notices.

He remarked that, under the existing regulations,

“a notice had to be served first before moving to prosecution. If the provider complied with the notice, nothing could be done”.—[

Official Report

, Commons, Sixth Delegated Legislation Committee, 16/10/14; col. 4.]

The essential purpose of the new regulations is, therefore, to encourage improvements in the quality of care by strengthening the sanctions for failures.

8.15 pm

Some additional provisions in the new regulations should also be mentioned. One much vaunted provision introduces a duty of candour, as we have heard, which is intended to facilitate the inspection regime. Another provision is a fitness test for directors of NHS bodies. That the test does not apply to the directors of other bodies concerned with the provision of care to the elderly appears to be a major lacuna. Finally, there is an allowance for the Care Quality Commission to publish ratings of care providers, which would be analogous to the league tables of schools.

The new regulations have been influenced by the Government’s overarching philosophy of deregulation. Certain duties that were imposed by the previous regulations have been omitted. It has been claimed that these omissions have been in pursuit of simplification, that existing regulations are overbureaucratic, and

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that they do not separate what is essential from what is merely desirable. Guidance will be offered in place of what have been deemed to be inessential regulations. Standards that were previously mandated by the regulations will now have the status merely of advice.

The claim that this will lead to simplification is belied by the nature of the voluminous and ill crafted advice of the Care Quality Commission. The inevitable result will be confusion and partial compliance. Moreover, it is doubtful whether, in such circumstances, the added threat of prosecution will be effective in raising standards.

We have been alerted, as we have heard, to some major lacunae in the revised regulations. Care homes will no longer be required to tell their residents about the existence of a complaint procedure. They will not be required to plan for and to have in place an emergency procedure. They will no longer be required to give residents a choice of food. A careful deconstruction of the revised regulations will doubtless expose many other omissions.

The new regulations reflect a very different philosophy on the part of the Government from the philosophy of our party. The Conservatives tend to characterise rules governing social provision as impediments to enterprise and initiative. Many on our side hold an opposite view. Such regulatory provisions as the ones we are now considering are seen as reflections of our social aspirations. They serve to define the civilised standards to which we feel bound to adhere.

The removal of a regulatory framework is liable to inflict significant damage on our society. A good example of this, on a practical level, has been provided by the Government’s National Planning Policy Framework. This replaced more than 1,000 pages of guidance and regulations with 50 pages, written simply and clearly, that were aimed, so it was claimed, at allowing people and communities to participate in the business of planning. In reality, a set of sophisticated and carefully crafted documents, which had provided policy guidance in many specific circumstances and which had been developed and refined over the past 25 years, has been tossed into the rubbish bin, to be replaced by 50 pages of vacuous pieties. The same damage is being inflicted on the regulatory framework governing the provisions for our care homes. We believe that it is not too late for the Government to think again.

Baroness Howarth of Breckland (CB): My Lords, I will be brief, as I always am. I do not want to repeat what has been said before, much as I would love to be led down the path of talking abut the problems faced by care homes in the present financial climate. I must first declare an interest as a trustee of Livability, which provides a large number of care homes for disabled people and for other groups. I am therefore, as a trustee, in the role of a provider. I also want to speak very briefly on behalf of families and carers.

First, I say to the Minister that I welcome the regulations. I was interested in his spirited defence of them, and I know his great belief in them. There are aspects of the new regulations that strengthen the potential to hold care providers—such as my organisation—properly to account. That is all positive, but I simply want to address myself to the issues

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around the amendment on the Order Paper, because there is an issue and I would very much like the noble Earl to think about it.

We have been approached by a number of organisations which said that families and residents are very concerned about these three aspects of the regulations. I have looked at the old wording and at the new wording, and I found that the new wording is more elegant but much more obscure for ordinary people to relate to. It is terribly important that ordinary folk in a care home—both the providers and those receiving the service—understand that they have a right to be told about complaints procedures.

Clearly, that is there already. I disagree with those who say it is not. All of it is to be found within the regulations and the follow-up documents by those who actually dig through them. I believe that the noble Earl hoped—as he listened to all the hours of discussion of these issues—that this would be absolutely crystal clear. If these issues are clear, they also help leadership and management. It is much easier for providers to tell their staff how to take things forward if the words are absolutely clear, and if there is some sense of being given flexibility or whatever the expectation is.

When it comes to proper planning for emergencies, providers have an absolute responsibility to ensure not only that they have those plans, but that in the interests of health and safety everybody understands them throughout. Not only the providers but the residents themselves must understand. It is possible to have a great discussion about these issues among those who are receiving care. It is possible to discuss complaint procedures, choice of food and what happens if there is a fire and people can only be got out of certain areas by particular routes.

What I am saying is much simpler than the rest of the discussion. I would like the Minister to look at the wording, because in my opinion this is about language rather than intent. We have excellent regulations but, if families and users are concerned about these three areas, the Government have a responsibility to listen. I know we have a listening Minister.

Earl Howe: My Lords, I am grateful for the questions and comments raised by noble Lords. I will do my best to answer them in the time available. Perhaps I may begin with the issues raised by the noble Lord, Lord Hunt. The noble Lord expressed his regret that certain phrases no longer appear in the regulations, and those concerns were echoed by the noble Viscount and the noble Baroness, Lady Howarth. I should like to reassure the House that, although the regulations do not include express references to the three things highlighted in the amendment tabled by the noble Lord, Lord Hunt—informing service users about complaints procedures, having emergency procedures in place, and offering choice of food—nevertheless providers must still demonstrate to CQC that they are doing those things.

This is possible because the fundamental standards work in a different manner from the current regulations. They set the outcomes about quality and safety that must be met, rather than just the processes that must be in place. They set out the ends, rather than merely

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the means. Because we describe these outcomes in regulation, we no longer need to spell out a long list of processes in regulation as well. However, all the areas highlighted by the noble Lord nevertheless fall within the scope of the new regulations. For example, planning for emergency procedures is covered by the new safe care regulation, which requires providers to ensure that care is provided in a safe way, and that they do all that is reasonably practicable to mitigate the risks of unsafe care. A provider that had no plans in place to deal with emergencies such as floods or staff shortages could not claim to be meeting the regulation, because they would not be doing all that is practicable to mitigate the risks to the health and safety of service users from emergency situations. In practice, not having a plan in place for emergencies will therefore be a breach of the regulations.

The obligation to offer a choice of food and drink falls within the new person-centred care regulation, and the newly drafted nutrition regulation. We have introduced a new person-centred care regulation which requires that a person’s needs must be met, and that their preferences must be taken into account and, where possible, met. I emphasise that this applies not only to food preferences, but to all other aspects of care as well. This is a significant step towards greater person-centred care, advocated by many over recent years.

In addition, the nutrition regulation states that a person’s nutritional needs must be met, and it will be a criminal offence to fail to meet this regulation in a way that causes avoidable harm or significant risk of such harm. These two regulations work in tandem to require that a person’s individual nutritional needs are met and their individual preferences are reflected wherever possible. This is a stronger position than merely requiring that people be offered a choice. Such a requirement could be met by offering a person a choice of two things that are neither desired nor suitable. On the issue of complaints, the new complaints regulation states:

“The registered person must establish and operate effectively a system for identifying, receiving, recording, handling and responding appropriately to complaints, and requests for action to be taken, by service users and other persons”.

A provider who does not make patients and service users aware of their complaints system could not claim to be making it accessible, or claim they had an effective means of identifying complaints. Therefore, they would be breaching the regulation. CQC’s draft guidance about compliance with the regulations, which is currently subject to consultation, includes more information about all of these areas. It is this guidance that sets out in more detail what CQC will look for when checking whether providers are meeting the regulations. If noble Lords are in any doubt or have anxiety after this debate and after what I have said, I assure them that I would be happy to feed in the concerns which have been raised this evening in the context of the guidance that is now in preparation.

The noble Lord, Lord Hunt, described the regulations as light-touch, and the noble Viscount, Lord Hanworth, suggested that the Government were somehow pursuing a deregulation agenda by introducing these regulations. I must say to the noble Viscount in particular that that

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is a complete misreading of these regulations. Indeed, his speech indicated to me that he is labouring under a number of serious misapprehensions. Past experience has shown that there are limitations to prescriptive regulation. It is very difficult to make regulation exhaustive. The list might come to be the upper limit of what is provided, rather than the floor below which care should never fall. For example, the old national minimum standards for care homes included very specific requirements that set out the minimum bedroom sizes in square metres. In practice, this minimum became the default normal size for rooms.

The guiding principle behind the fundamental standards is that they set an overall outcome that must be met. The responses to our consultation showed that the vast majority of respondents agreed with this, and thought that the regulations were clearer as a result. I hope that that reassures the noble Baroness, Lady Howarth, in particular. Importantly, this approach allows the CQC to take a more rounded look at quality and safety as it inspects, rather than taking a tick-box approach to inspecting done solely against prescriptive regulations.

8.30 pm

The noble Lord, Lord Hunt, expressed the worry that care residents might not be aware of their ability to improve services. Regulation 17(2)(e) states that providers must,

“seek and act on feedback”,

from service users,

“for the purposes of improving … services”.

Providers who do not do this will be in breach of the regulations.

The noble Lord also asked whether the Explanatory Memorandum in the second set of regulations will cover clear definitions of a notifiable safety incident. The answer to that is yes. The harm thresholds for NHS bodies and other providers will be as closely aligned as possible. Our approach has been to use the same definitions as are already used in each existing sector to report harm to make the implementation of the duty of candour as straightforward as possible.

The noble Lord asked about CQC capacity. The CQC has been proactive in increasing its capacity. Its new inspections will take longer and more inspectors are needed. While the CQC is recruiting, it will ensure that the quality of inspections is not compromised. The CQC has taken significant steps in the past year to change the way in which it inspects and regulates providers. Since the appointment of the three chief inspectors, it has worked hard with providers to develop new models of inspection, as I know the noble Lord appreciates. It has successfully begun to use these new-style inspections in hospitals, in adult social care and in general practice, and I am confident in the progress that it is making.

My noble friend Lady Barker suggested that the CQC would be able to prosecute only breaches of the regulations rather than breaches of the fundamental standards. It is correct that the CQC will prosecute breaches of the regulations, but the regulations lay down the standards. A breach of the fundamental standards will therefore be a breach of the regulations.

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I hope that I have been able to reassure the noble Lord, Lord Hunt, and all other noble Lords who have spoken sufficiently to make them feel confident that these regulations are the right way forward. I hope that the noble Lord will see fit to withdraw his amendment.

Lord Hunt of Kings Heath: My Lords, I am grateful to all noble Lords who have taken part in this short but very interesting debate. I say to the noble Baroness, Lady Barker, that I agree with her on the importance of the duty of candour. We do not really have time to discuss this in detail, but alongside a statutory responsibility on duty of candour there is a need to address culture, particularly within the National Health Service. I am not convinced that the current regulators are helping the duty of candour. I think that we have a blame/risk-averse culture currently operating in the health service which is often driven from the centre. Alongside a duty of candour, we have to look at the need to change the culture to one which is far more collaborative in support of organisations dealing with very difficult issues.

I agree with the noble Baroness, too, on power of entry. Her point on prosecutions being based on breach of regulations was important, which is why the language is so important.

The Minister said that this was not a deregulatory measure. I presume that he is saying that the Department of Health is not chalking it up to the Cabinet Office as an example of deregulatory action. However, we have all had experience of deregulatory approaches taken by Governments and I have to say that some aspects of these regulations seem to have been influenced by a deregulatory approach—I know that the Minister rather chided my noble friend on this point. In the end, some regulations are essential and sometimes advice and guidance alone are simply not sufficient. The noble Baroness, Lady Howarth, acknowledged that there are strengths in the regulations, and I do not disagree with her about that. Sometimes there is a need to use regulations to be absolutely clear to those who are providing services and those receiving them. That is the case when it comes particularly to issues around food choice, emergency procedures and complaints.

The Minister explained why the Government have gone for what they describe as an outcome-based approach—I understand that—and he then quoted to us Regulation 17(2)(e), which states that the providers must,

“seek and act on feedback from relevant persons and other persons on the services provided in the carrying on of the regulated activity, for the purposes of continually evaluating and improving such services”.

That is elegantly written, as one would expect from his department, but it does not say to me that residents are going to be told how to make complaints. Let us think not about the chains but about the individually owned care home. I really doubt whether that would be very clear to the people in charge. It would have been better if it were explicit in the regulations.

I was going to ask the Minister if he would ensure that the CQC read the debate, but I am grateful to him for already giving us that assurance. I hope that when CQC inspectors go into care homes, they are clear that

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the regulations mean that there should be a proper choice of food, people should have complaints systems signposted to them, and there should be an emergency procedure in place.

This has been a very useful debate. I will withdraw my amendment. I wish the regulations godspeed. I support the CQC in its approach, but, when it comes to care homes, the CQC needs to be explicit both to the homes and the inspectors about the basic standards that need to be provided.

Amendment to the Motion withdrawn.

Motion agreed.

Infrastructure Bill [HL]

Infrastruture Bill

Report (2nd Day) (Continued)

8.38 pm

Clause 26: Provision in building regulations for off-site carbon abatement measures

Amendment 100

Moved by Lord Ahmad of Wimbledon

100: Clause 26, page 26, line 27, leave out “in relation to a building in England,”

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Lord Ahmad of Wimbledon) (Con): My Lords, I will also speak to Amendments 101 to 107, 122, 126, 127 and 132, which provide for the off-site abatement of carbon to apply to Wales.

Welsh Ministers share this Government’s desire to reduce carbon dioxide emissions from buildings and have requested that we table amendments to extend the application of Clause 26 to new buildings in Wales. Noble Lords will no doubt be aware that the powers to make building regulations under the Building Act 1984 in Wales are transferred to Welsh Ministers. Clause 26 confers new powers to make building regulations for England on the Secretary of State, but these powers for Wales would not be conferred on Welsh Ministers in the absence of these amendments.

In its 2012 consultation on changes to the energy performance requirements of the building regulations, the Welsh Government recognised the technical and economic limits to reducing carbon emissions through on-site measures only in new buildings. The Welsh Government recognise the potential for off-site carbon abatement as a useful tool in the armoury for tackling emissions in the existing building stock and for supporting investment in renewable energy. Any proposals to use this power would be subject to public consultation in Wales and the Welsh Government have committed to a review of the current energy performance requirements of the building regulations in Wales in 2016. The Government have therefore tabled an amendment allowing for the Secretary of State to make separate commencement of the changes to the Building Act in England and

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Wales. This recognises that the two Administrations could adopt different timelines for implementation depending on the outcome of the review in Wales in 2016 and allows each to introduce the policy at the appropriate times.

Reducing carbon emissions from the built environment is a challenge that all Administrations must face if the UK is to meet its overall climate change targets. Applying the provisions to Wales will enable the Welsh Government to also introduce cost-effective, flexible legislation to meet their objectives. I beg to move.

Amendment 100 agreed.

Amendment 101

Moved by Lord Ahmad of Wimbledon

101: Clause 26, page 26, line 28, leave out “the” and insert “a”

Amendment 101 agreed.

Amendment 101A

Moved by Lord McKenzie of Luton

101A: Clause 26, page 26, line 29, at end insert—

“( ) The provisions in section 1(1A)(d) of the Building Act 1984 regarding action to be taken as a result of the building’s contribution to or effect on emissions of carbon dioxide shall apply to—

(a) all buildings and developments consisting of ten or more properties, or

(b) from 2018 all buildings or developments of any size.”

Lord McKenzie of Luton (Lab): My Lords, this amendment seeks to limit the small sites exemption to two years from 2016 and to abolish it thereafter and to require the threshold in the interim to be sites with fewer than 10 properties. The Government have sprung their small sites exemption on us with little or no consultation, although they are now consulting on the matter. In the mean time, it remains unclear what is meant by small sites or by the exemption. We were hoping to have some clarity on these issues in time for today, but, alas, no. I thank the Minister for his letter of 3 November, where he said that the Government had endeavoured to publish the consultation document and the government responses on the zero-carbon consultation for the House of Lords Report stage, but were, however, still working on the document. It would be helpful if the Minister could say more about when we will be able to see that.

As we debated in Committee, the rationale for any exemption from the zero-carbon homes standards is a bit thin. The Government have already lowered these standards. If there is any justification for a time-limited exemption for some sites, it is that, having announced it, it might be argued that some time is needed to move back to the single standard. However, the longer the uncertainty about the detail of the exemption continues, the less valid that point is. The Government have argued that the exemption will be of help to small builders who have more difficulty in responding to new regulations. While I am sure that we all wish to encourage small builders, this is not the best way to do that.

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We have recently had the benefit of the report from Michael Lyons, covering a whole raft of interesting stuff on housing. Within the package of support for SMEs that he recommends, for example, are these points:

“Legislative change to permit ‘redline’ outline planning applications on smaller sites of fewer than 10 homes. Local authorities should identify small sites in public ownership in local plans, and work with … public landowners to make them available for purchase and development by SMEs. Local authorities and their New Homes Corporations, working with lead developers should offer more packaged … opportunities for serviced sites to help SMEs access the market, including in Housing Growth Areas”.

Therefore, there are other ways in which to help small builders. In any event, it was pointed out in contributions to our debate that it is assumed that only small builders build on smaller sites and that larger builders would not seek to parcel sites to take advantage of the small sites exemption. It is also the case that a significant number of homes are provided on smaller sites.

8.45 pm

Having two-tier arrangements is anyway a potential recipe for confusion, while having what are perceived as relaxations for housebuilders means lower standards for those who buy and occupy those homes and at macro level, of course, it does nothing to address our climate change obligations. We urge the Government now to complete their consultation process as expeditiously as possible and seriously consider drawing back from this approach.

We are shortly to hear from the right reverend Prelate the Bishop of St Albans, who is to be congratulated on taking forward his amendment and on keeping faith with the zero-carbon policy for new homes in 2016. The zero-carbon compliance test set out in the amendment is for carbon savings to be delivered on-site and it is recommended by the Zero Carbon Hub. This standard was the culmination of three years of rigorous scientific analysis and work to build consensus about a workable zero-carbon homes standard. As we know, there are three elements to these carbon savings: energy efficiency in the fabric of the building; low-carbon heat and power technologies; and off-site schemes or allowable solutions, as we now recognise them.

Things looked encouraging, at least in 2010, when the coalition Government confirmed that all homes would be zero-carbon by 2016 and set out the path to achieving this through staged improvements to the building regulations. However, things then started to slide. The 2013 building regulations fell short of the improvement required to stay on track for 2016 and although a consultation on allowable solutions was published no government response has yet been forthcoming, despite that consultation closing more than a year ago. As we have just discussed, the Government also announced small sites exemptions, the details and extent of which are as yet unknown.