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House of Lords

Tuesday, 3 February 2015.

2.30 pm

Prayers—read by the Lord Bishop of Carlisle.

Philippines: Typhoon Haiyan

Question

2.38 pm

Asked by Lord McConnell of Glenscorrodale

To ask Her Majesty’s Government what assessment they have made of the international recovery effort following Typhoon Haiyan in the Philippines and the United Kingdom’s contribution to that effort.

Lord Bourne of Aberystwyth (Con): My Lords, the United Kingdom was the largest bilateral donor, contributing £77 million in response to Typhoon Haiyan. The Independent Commission for Aid Impact found the United Kingdom’s response to the crisis to be exemplary. While some longer-term needs remain, the Government of the Philippines are of course leading the recovery effort with international support, including more than £8 million from the United Kingdom. That support is helping to increase communities’ capacity to manage extreme weather events.

Lord McConnell of Glenscorrodale (Lab): I thank the Minister for his answer and the Government for their strong support for the Philippines. I look forward to seeing the results of some of that support when I return there as a parliamentary volunteer during the February Recess. The sustainable development goals drafted by the United Nations for post-2015 include goal 11, on the important issue of resilience to natural disasters and extreme weather events. Will the UK Government be arguing strongly for natural disasters and resilience to extreme weather events to feature prominently in the final goals agreed in September?

Lord Bourne of Aberystwyth: I pay tribute, first of all, to what the noble Lord has already been doing in the Philippines; as he has just said, he is going there again, and he has made a significant difference. On the sustainable efforts that he mentioned in relation to millennium goals and continuing development, the United Kingdom is committed to ensuring that climate is fully referenced post-2015 and that natural resource management is up front. Everything that we have been doing with our assistance has been towards supporting continual, sustainable development.

Lord Avebury (LD): My Lords, I understand that less than a third of the $788 million needed by the Office for the Coordination of Humanitarian Affairs programme for the recovery of the Philippines has been received. Has the Disasters Emergency Committee

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in the UK yet activated the pledge it made of £88 million, and will we encourage other rich states to come up to the plate and contribute, too?

Lord Bourne of Aberystwyth: As I said, the United Kingdom has been the largest single donor, eclipsing even the United States—which, of course, is a far richer country and has far stronger ties with the Philippines. We are committed to ensuring that all the aid that we have contributed is spent on ensuring that this dreadful disaster is met and on trying to provide resilience against future disasters.

Baroness Hayman (CB): My Lords, I declare an interest as a trustee of the Disasters Emergency Committee. Following on from the point of the noble Lord, Lord Avebury, does the Minister agree that, in addition to the Government’s response, the British public responded to the appeal with enormous generosity and that the independent assessment of the results of that generosity has shown that UK aid and humanitarian agencies have provided highly effective and timely help on the ground?

Lord Bourne of Aberystwyth: I join the noble Baroness in paying tribute to what the charitable sector has done. It always responds magnificently in the United Kingdom, and it certainly did in relation to this disaster. Of course, the United Kingdom has also given through the EU, so we have actually given in addition to the sums that we have given as the single largest donor.

Lord Collins of Highbury (Lab): My Lords, it is a sad fact that the vulnerable poor cluster in areas where climate change has a disproportionate effect. Last March, DfID declared that investment in the Philippines would be focused on building back better and longer-term climate resilience. Has the aid focused on protecting the poorest and most vulnerable?

Lord Bourne of Aberystwyth: Clearly, the area affected has been extremely poor, even by Philippine standards—the Philippines being a relatively poor country. We have sought to use the aid to meet the immediate need but also to provide resilience against future events of this nature. Indeed, all the housing that was put up in response to Haiyan withstood the more recent, dreadful typhoon, Hagupit, at the end of last year. In addition, money is being spent on ensuring that there is insurance and on getting better advice on meteorological events. As I said, we are very keen that climate change features in the 2015 millennium development goals.

Lord Hylton (CB): My Lords, there have been reports of moneys that had been made available standing idle in bank accounts. Will the Government ensure that what is available is spent promptly and effectively and that there are proper safeguards against corruption?

Lord Bourne of Aberystwyth: It remains very much at the forefront of the thinking of the Secretary of State and the department to ensure that the money is got out and used very quickly, and that is happening. I come back to the independent assessment of ICAI,

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which gave us green lights on all but one factor—which was in relation to medium-term goals, and we have sought to assess that—so our response has been exemplary, not least in making sure that the money is usefully spent.

Baroness Manzoor (LD): My Lords, what is being done regarding the immunisation programme for children? Are we giving aid to that area?

Lord Bourne of Aberystwyth: Yes, that is also happening. We recognise the danger of water-borne disease, so immunisation and healthcare are very much at the forefront of ensuring that money is well spent, as is being done on shelter as well. These are priority areas.

The Earl of Sandwich (CB): Does the noble Lord agree that these additional priorities in the Philippines, the Middle East and so on have brought the United Kingdom’s share up to and past the 0.7% figure? This must be enshrined in law and noble Lords must support that.

Lord Bourne of Aberystwyth: I personally strongly support the party-political broadcast that the noble Earl has just given. This is important. We have a very good record on international aid and I hope very much that the figure is enshrined in law.

Lord West of Spithead (Lab): My Lords, does the Minister agree that the new aircraft carriers are amazingly well configured for disaster relief, and that if they are used for that in future there ought to be a better mechanism for transferring money across from DfID funding to defence when they are used in that way?

Lord Bourne of Aberystwyth: Talking of party-political broadcasts, I very much congratulate the noble Lord on his contribution. He will be aware that both the RAF and the Royal Navy were part of the response to Typhoon Haiyan. The Ministry of Defence was accredited with the spending that they both incurred.

Smoking: E-Cigarettes

Question

2.45 pm

Asked by Viscount Ridley

To ask Her Majesty’s Government whether they will consider encouraging rather than discouraging the spread of vaping, in the light of the Cochrane review of e-cigarettes published on 17 December 2014 which found that e-cigarettes were more effective as an aid to quitting smoking than any other method.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, we recognise that e-cigarettes are being used by some smokers to help them cut down, or quit, tobacco. That is why the Government are already working towards a regulatory

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framework that ensures that they meet basic quality standards and are accompanied by sufficient information to enable informed choices. However, we would not wish to see children taking up vaping, as nicotine is a highly addictive substance. That is why we are also introducing a minimum age of sale for these products.

Viscount Ridley (Con): I thank my noble friend for that encouraging Answer, but I hope that I can lure him into going just a little bit further. Given that 2 million people are vaping in this country, including a number of Members of your Lordships’ House, that 99% of them are smokers or ex-smokers and that the NHS says that vaping is 1,000 times safer than smoking and probably no more dangerous or addictive than coffee, does he therefore agree with me that it might be worth asking the Chief Medical Officer to look into how we can encourage this technology, given that it has a chance to do what patches, bans, health warnings and taxes have failed to do over decades, which is at last to consign the cigarette to the ashtray of history?

Earl Howe: My Lords, e-cigarettes are undoubtedly helpful to some people in enabling them to cut down on, or quit, smoking. The evidence is encouraging and we would not want to stop smokers trying out e-cigarettes as an alternative, particularly if other remedies have failed. Equally, we need to be cautious as regards the long-term health effects of using e-cigarettes. That is why the Chief Medical Officer is currently not able to recommend their use.

Lord Hunt of Kings Heath (Lab): My Lords, does the noble Earl agree that the noble Viscount is perhaps guilty of a little bit of journalistic licence on this issue? The Cochrane review undoubtedly produces encouraging results, but its research contains a big “but”, in that it cautions that only two studies, covering just over 600 smokers, were reflected in the review. The Cochrane review says that we should await the outcome of further studies. Does the noble Earl agree, and can he inform the House when we are likely to see the outcome of those further studies?

Earl Howe: My Lords, the noble Lord is correct. The Cochrane review concluded that the quality of the evidence overall is low because it is based on only a small number of studies. The National Institute for Health Research has recently commissioned a large randomised control trial to examine the efficacy of e-cigarettes compared with nicotine replacement therapy when used within the UK’s stop smoking services. That project is due to end in 2018 and will certainly improve our current understanding.

Lord Rennard (LD): My Lords, does my noble friend agree that we need a public health education campaign to persuade people that there are absolutely no health benefits whatever, or indeed any merit, in becoming addicted to nicotine, and that the promotion of devices such as e-cigarettes should be purely for the purposes of encouraging people to be weaned off their addiction to tobacco with nicotine, as tobacco is still killing nearly 300 people every day in this country?

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Earl Howe: My noble friend is absolutely right. I hope that message will come through loud and clear from the measures the Government are taking to ban smoking in private cars when children are present, to introduce standardised tobacco packaging and to prohibit proxy purchasing of tobacco.

Lord Cunningham of Felling (Lab): My Lords, is the noble Earl satisfied that e-cigarettes are tamper-proof and that what they contain cannot be substituted for other more dangerous substances?

Earl Howe: The noble Lord makes an extremely important point. It is one that is addressed in the tobacco products directive, which is due to come into force next year. The EU Commission is clear that any e-cigarettes sold need to be tamper-proof, particularly as regards children interfering with the contents.

Lord Patel (CB): My Lords, it is good to know that the National Institute for Health Research would support a larger randomised study, but what the noble Viscount, Lord Ridley, said is true. The current evidence from the Cochrane analysis—the most robust method we know of analysing whether a product, device or a drug is effective against the desired outcome—is that, although the studies were small, 14 observational studies and two randomised trials show that e-cigarettes are more effective than nicotine patches or a placebo. Would the Minister agree that the industry should now also address a standard dosage of nicotine and ensure that the quality of the nicotine used in e-cigarettes is standardised across the industry to avoid subsequent risks?

Earl Howe: The noble Lord makes some important ports. He has highlighted the fact that many products on sale are of, shall we say, variable quality. There are risks around the extent to which the dose of nicotine delivered varies; the quality of the ingredients can be suspect; and there is a question mark over the electrical safety of some products. We cannot make a general statement about products that are currently on sale. Nevertheless, it is right that the European Union has taken this matter in hand. From May 2016, only licensed e-cigarettes will be able to contain nicotine in strengths greater than 20 milligrams per millilitre. That will introduce some standardisation.

Earl Cathcart (Con): My Lords, I started smoking before I was a teenager and in recent years smoked up to 50 cigarettes a day—not good for me. I started vaping in July and I have not had or wanted a puff of tobacco since. In spite of trying to give up on countless occasions, only these vaping e-cigarettes have actually helped me kick the habit. Surely that has to be a good thing. Should we not encourage it to help not just me, but the hundreds of thousands or millions of people who want to give up smoking?

Earl Howe: May I congratulate my noble friend on his achievement? As I have indicated, the advice given by the NHS is that, particularly where other remedies have failed, e-cigarettes may have a place where the

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person wants to quit. It is true that, while levels of toxicants are present in electronic cigarette liquids and vapour, they are very much lower than those found in conventional cigarette smoke. They are not considered to pose any significant passive inhalation risk.

Credit Unions

Question

2.53 pm

Asked by Lord Kennedy of Southwark

To ask Her Majesty’s Government when they plan further reform of the law regarding Credit Unions.

Lord Kennedy of Southwark (Lab): My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as director of London Mutual Credit Union.

Lord Newby (LD): My Lords, on 31 December 2014 the Government published a response to the call for evidence on credit unions. In this response, the Government committed to consider, in the next Parliament, potential changes to credit union legislation.

Lord Kennedy of Southwark: My Lords, it is important for credit unions to be able to grow on a solid base to deliver for their members. Whichever party or parties are in government after the general election, would the noble Lord agree that two of the most important areas for reform are reform of the 2 million cap on potential members—maybe change that to actual members—and removal of the legal barriers to enable credit unions to give other financial products to their members?

Lord Newby: Yes, I agree with the noble Lord that those are both important issues. In the response to the call for evidence, the Government have committed to considering changes to the common bond legislation. The noble Lord will be aware that credit unions maintain their exemption from the consumer credit directive only if they have a restricted potential market. It is important that we do not expand the definition of the common bond in ways that could jeopardise that exemption.

Lord Hunt of Wirral (Con): In declaring my interest as chair of the Credit Union Expansion Project, I point out to my noble friend the Minister how much I welcome the measures that this Government have taken to reform credit union legislation and the recent commitment made to produce proposals for further reforms in the next Parliament. I join the noble Lord, Lord Kennedy of Southwark, in welcoming that. I hope that it will receive support from all sides of the House. Will the Minister agree that legislation is only part of the answer? Helping credit unions to co-operate and to become more competitive and attractive will be key to growing this sector sustainably.

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Lord Newby: Absolutely, my Lords, and I commend the noble Lord for his work in this area. Increased collaboration is vital if the sector is to become more competitive and grow. The Credit Union Expansion Project, to which the noble Lord referred and which the DWP is funding to the tune of £38 million, is aimed at doing exactly that—for example, by providing shared back-office services to cut costs. However, the sector would also be strengthened if it were able to speak with one voice, which requires a reduction in the number of trade associations currently operating in the sector.

Lord McFall of Alcluith (Lab): My Lords, our ambitions for the growth of credit unions on a national scale have a long way to go. Given that banks and building societies have extensive networks and operational systems, is there now a case for the Government to consider establishing a community reinvestment Act, as in the United States, as a solution to the problem of providing affordable finance for all individuals?

Lord Newby: My Lords, there is scope to look at a whole raft of new initiatives, to make sure that there is access to finance for people on more modest incomes. One development in recent weeks has been agreement with the banks on fee-free basic bank accounts, which will be a good improvement for many people who are currently denied even the most basic bank accounts.

Lord German (LD): My Lords, the Credit Union Expansion Project was designed to enable people on lower incomes to have access to modern banking methods. One of the problems for people in this category is that they have not been able to get cheaper electricity and gas bills because they have been unable to pay by direct debit. Can my noble friend say what progress has been made by both credit unions and the Post Office card account to enable people to access those cheaper bills through the direct debit mechanism?

Lord Newby: As my noble friend says, this is a very important issue for people on low incomes. A number of the largest credit unions already offer current accounts that have a direct debit facility. However, they are still a small minority. This is an area where the Credit Union Expansion Project is very important, as it will allow more of them to offer such services.

More generally, the Government’s announcement in December about basic bank accounts means that people who open such accounts will have access to a range of normal personal current account facilities, including direct debits.

The Lord Bishop of St Albans: My Lords, I imagine many of us are concerned about the culture of debt that seems to be normative in many parts of our society. In the light of this, can the Minister tell us whether the Government have any plans, first, to encourage all schools to consider working closely with credit unions, as in the case of the credit union in St. Albans, where I come from and, secondly, to further roll out and encourage payroll savings schemes as part of a wider initiative to encourage saving and financial responsibility across society?

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Lord Newby: My Lords, the Government support both those concepts. The right reverend Prelate will be aware that the Government have been working with the Archbishop of Canterbury’s task force on affordable credit and savings to institute the LifeSavers project, under which primary schools are working with credit unions to encourage young children into good savings habits and raise awareness of credit unions.

Lord Davies of Oldham (Lab): My Lords, the House will have noticed just how vague the Government’s commitment is when they say that after the election—yet another commitment for “after the election”—they will introduce additional legislation. Does the Minister recognise that what the next Labour Government will do is to increase the levy on payday lenders in order to help the development of credit unions?

Lord Newby: My Lords, the Government have legislated several times to modernise the law in respect of credit unions. The proposals of the Labour Party are based on an assumption that payday lenders represent a large stock of cash. The way in which the payday lending industry is going suggests that there simply will not be that amount of resource available from the sector.

Lord Clarke of Hampstead (Lab): My Lords, when this subject was discussed on a previous occasion, I asked the Minister if he would liaise with the Department for Education to see if some sort of campaign could be set up to get children at school learning about the benefits of credit unions. St Albans credit union, of which I am a member, has links with a number of schools. This helps children get into the habit of understanding the need to save before they borrow. Did any talks ever take place between the two departments, and if not, will they go ahead and do so now?

Lord Newby: My Lords, as I have said, the Government are working with the Archbishop of Canterbury’s task force to get credit unions into schools, initially in Lewisham, Bradford and Nottingham, but with a view to rolling the project out in the near future to 100 schools and involving 30,000 children. Also, for the first time last autumn, we instituted financial literacy as a compulsory part of the national curriculum.

Greece: New Government

Question

3.01 pm

Asked by Lord Clinton-Davis

To ask Her Majesty’s Government what are their priorities in establishing a relationship with the new government of Greece.

The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con): My Lords, the Government’s first priority is to establish a strong working relationship with Greece’s new Government. Last week, the Prime Minister called Prime Minister

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Alexis Tsipras on the telephone to congratulate him, and yesterday the Chancellor met the new Finance Minister, Yanis Varoufakis. The UK remains committed to working closely with the new Government on the full range of bilateral, EU, NATO and wider international issues.

Lord Clinton-Davis (Lab): My Lords, are not the poor and many middle-class people in Greece enduring unbelievable hardship? What are the United Kingdom Government able to do to mitigate this disaster? Are the people of Greece able to look forward in any way? It is hardly surprising that they are resorting to radical measures. What can the Government do, given that Britain is a member of the European Union, to alleviate their plight?

Baroness Anelay of St Johns: My Lords, we are indeed a member of the EU, but we are not a member of the eurozone; so I would gently say to the noble Lord that we are not directly involved in Greece’s debt repayment negotiations, and nor indeed should we be. Of course, we are open to the discussions with the Greek Government, as I explained in my first Answer. The discussions yesterday were cordial and constructive, and that was the interpretation of both the Greek Finance Minister and the Chancellor of the Exchequer. As I say, we are open to discussions, but since we are not a member of the eurozone we are not the country that will take the decision about how the Greek Government may decide to present their plans—which possibly will be next week. I know that they are working hard to achieve that.

Lord Pearson of Rannoch (UKIP): My Lords, given the euro’s catastrophic effect on jobs and prosperity, should not our top priority be to encourage Greece, and indeed the other euro member states, to abandon it? If that led to the collapse of the whole project of European integration, would that not be hugely beneficial to us all? Just in case the Minister does not agree with me, can she tell noble Lords what is now the point of the European Union and its wretched euro?

Baroness Anelay of St Johns: My Lords, it is clear that the stand-off between Greece and the eurozone is fast becoming the biggest risk to the global economy and is a rising threat to our economy at home. I say that, and indeed the Chancellor of the Exchequer said it yesterday after his meeting with the Greek Finance Minister. It is up to Europe to come to a conclusion which means that Greece can remain part of the euro, that the European Union can prosper, and that jobs and growth can continue. That is the way forward for success in Europe and for the success of this country in Europe.

Baroness Ludford (LD): Does my noble friend agree that if, as we all hope, the eurozone is to get more jobs and growth, then in communicating with the Greek Government, we must urge structural reforms, including eliminating cronyism and corruption; that those are essential if we are to get, in the words of the new

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Finance Minister, a reformed, not a deformed, Greece; that fiscal responsibility and sustainability are essential; that spending more money without knowing where it is coming from—a fault not unknown in some parties in this country—is inadvisable; and that the UK can also offer the Greek Government the benefits of the progress that has been made in this country in tackling tax evasion in the last five years?

Baroness Anelay of St Johns: My Lords, I agree with every word that my noble friend said.

Baroness Hooper (Con): My Lords, can my noble friend reassure us and confirm that the relationship between Greece and the UK has been greatly reinforced by the educational exchanges that have taken place over the years, especially in the field of medicine? Will she therefore reassure us that the existing educational initiatives will be reinforced?

Baroness Anelay of St Johns: My Lords, I entirely agree with my noble friend on the importance of those educational exchanges. Work is done throughout various government departments and the FCO always looks very carefully at how we can give advice on such matters, too.

Lord Tomlinson (Lab): Does the Minister agree that it is a little bit too simplistic just to say, “We are not members of the eurozone”, and therefore almost wash her hands of it? There are loans from the International Monetary Fund and we have an interest in those loans being properly managed. Can she tell us what the Government’s intention in that regard is?

Baroness Anelay of St Johns: My Lords, we would never wash our hands of discussions with our colleagues within the European Union. I think that I have made it clear that both the Prime Minister and the Chancellor of the Exchequer have already had discussions. Indeed, my right honourable friend the Prime Minister telephoned Mr Tsipras on the very day that the Greek Prime Minister took his position. Discussions are ongoing and there will, of course, be meetings next week at the European summit. As regards the IMF, we are indeed part of the system that backs it up. The IMF’s status as preferred creditor means that it is repaid first. What is important is that we do not get to the point of a Greek default. The new Greek Government are working on that and it is important for them to be able to discuss what kind of package they can put together, as they work around their colleagues in the eurozone this week.

Lord Hamilton of Epsom (Con): My Lords—

Lord Taverne (LD): My Lords—

Lord Kilclooney (CB): My Lords—

Noble Lords: Cross Bench!

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The Lord Privy Seal (Baroness Stowell of Beeston) (Con): My Lords, as the noble Lord rose before we had got to half an hour, we will take a final question; and as we have not heard from the Cross Benches on this Question, it will be for them to ask it.

Lord Kilclooney: My Lords, when the Chancellor of the Exchequer met the Greek Minister yesterday, did he point out to him the advantages the United Kingdom had by not being a member of the eurozone?

Baroness Anelay of St Johns: My Lords, he pointed out the advantages of having a Government who put competence over chaos.

Hereditary Peers By-Election

Announcement

3.09 pm

The Clerk of the Parliaments announced the result of the Cross-Bench by-election to elect two hereditary Peers in place of Lord Chorley and Lady Saltoun of Abernethy in accordance with Standing Order 10.

Twenty-six Lords completed valid ballot papers. A paper setting out the complete results is available in the Printed Paper Office and online. That paper gives the number of votes cast for each candidate. In the first count, the successful candidate was Lord Thurlow. In the second count, the successful candidate was the Earl of Kinnoull.

Renewable Heat Incentive Scheme (Amendment) Regulations 2015

Justification Decision (Generation of Electricity by the UK ABWR Nuclear Reactor) Regulations 2015

Domestic Renewable Heat Incentive Scheme (Amendment) Regulations 2015

Renewable Heat Incentive Scheme and Domestic Renewable Heat Incentive Scheme (Amendment) Regulations 2015

Motions to Approve

3.09 pm

Moved by Baroness Verma

That the draft regulations laid before the House on 10 and 15 December 2014 be approved.

Relevant document: 17th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 27 January.

Motions agreed.

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National Employment Savings Trust (Amendment) Order 2015

Social Security (Penalty as Alternative to Prosecution) (Maximum Amount) Order 2015

Motions to Approve

3.10 pm

Moved by Lord Bourne of Aberystwyth

That the draft orders laid before the House on 8 and 16 December 2014 be approved.

Relevant document: 17th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 29 January.

Motions agreed.

Misuse of Drugs Act 1971 (Amendment) Order 2015

Motion to Approve

3.10 pm

Moved by Baroness Williams of Trafford

That the draft order laid before the House on 17 December 2014 be approved.

Relevant document: 17th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 29 January.

Motion agreed.

Deregulation Bill

Report (1st Day)

3.11 pm

Clause 1: Health and safety at work: general duty of self-employed persons

Amendment 1

Moved by Lord McKenzie of Luton

1: Clause 1, page 1, line 6, leave out subsection (2) and insert—

“(2) After subsection (2) (which imposes a general duty with respect to health and safety on self-employed persons) insert—

“(2A) Nothing in subsection (2) shall preclude the Secretary of State from making regulations exempting self-employed persons carrying out certain activities from the provisions of subsection (2) or from specified regulations thereunder where it can be shown that their work activities pose no potential risk of harm to others.””

Lord McKenzie of Luton (Lab): My Lords, in moving Amendment 1, I shall speak also to Amendment 2. The purpose of these amendments is to ensure that any changes to health and safety legislation affecting the self-employed do not stray more widely than those

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recommended by Professor Löfstedt and that the prescribed description approach currently in the Bill is removed. They further seek to ensure that the process for constructing and implementing regulations is fit for purpose and require them to meet certain criteria, something which has eluded government attempts so far.

In his report, Reclaiming Health and Safety for All, Professor Löfstedt recommended that those self-employed whose activities posed no potential risk of harm to others should be exempt from the general duties of the Health and Safety at Work etc. Act 1974. This is notwithstanding that it is generally acknowledged, including by the professor himself, that the current duties do not overburden the self-employed and that any requirements in such situations would be minimal in terms of time, cost and enforcement effort by the HSE and local authorities. But the Government accepted this recommendation, asserting that Europe adopted a more proportionate response on such matters and that it would remove unnecessary concerns over the perception of heavy-handed enforcement. Given the minimal benefits which would flow from implementing the recommendation, and the risk of confusion which any legislative change could engender, we and many others have argued for making no change—for the status quo—and this remains our preferred position. Nevertheless, we have to accept for the time being at least that this is not the position adopted by noble Lords in Committee.

The task as we see it now is to constrain the primary legislation and require a robust process for secondary legislation to see that the professor’s recommendation can be accommodated without the prospect of wider exemptions from health and safety legislation being adopted by default, mistake or otherwise—in other words, as the CBI recommends, going back to square one.

3.15 pm

There have been two attempts to implement a Löfstedt approach so far, each falling short. The HSE’s original formulation was consulted on in August 2012 and, despite receiving support from only a minority of consultees, was included in the draft Deregulation Bill. It proposed exempting from general duties those who did not put others at risk at any point in the normal course of their work but specifically did not exempt those in high-risk industries. The Joint Committee reported on the large amount of evidence presented to it on this proposal and the scope for confusion that it would cause. The Government determined on a different approach, which was to bring forward a prescribed list of high-risk work activities where that group of the self-employed would not be exempt from health and safety legislation but all other self-employed people would be. This was said to make matters clear, robust and easy to understand, although that has proved to be far from the case. This approach basically turned Löfstedt on its head and although it was argued by some in Committee that he was accepting this, that is not so. I have circulated his letter on this matter to those who spoke in that debate. He said:

“The proposed Government list of dangerous jobs that would not be exempt from health and safety law is the opposite to what I proposed and it is something that I do not support. The danger

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with the proposed list is that self-employed individuals who are not on it will be exempt even if the jobs that these individuals do are in actual fact rather dangerous and unsafe”.

Moreover, this changed approach also runs counter to the original advice of the HSE sector experts that relying wholly on a prescriptive approach to determine exemptions would lead to unacceptable consequences. On the HSE’s own admission, the draft regulations which list the proposed inclusions would leave many excluded although involved in activities with injury rates statistically higher than the average. The suggestion that this does matter because they would carry on as at present is frankly not tenable.

The HSE consulted on the second draft regulations between 7 July and 31 August 2014 but the responses have only just been placed in the public domain, a couple of days before Report. Why so long and when will we get the Government’s response to that consultation? While consultees agree that there was some clarity in the use of definitions of work activities, most considered that overall it would be difficult for the self-employed to determine whether they were exempt. The range of criticisms and adverse comments is extensive and significant. Will the Minister tell us whether the HSE considers it safe to proceed with these proposals?

Comments on the general principles of the proposed exemption reiterated many of the earlier and familiar criticisms: the proposals are based on a misconception that health and safety regulation is unnecessary and burdensome; the proposals go well beyond Professor Löfstedt’s recommendations; a list of prescribed activities will never be fully inclusive; the self-employed will need assistance to understand the regulations and are unlikely to research complex, cross-referenced regulations to determine whether they are exempt; there is a risk that the self-employed will assume that they are exempt from the legislation; and confusion will abound when the self-employed might have duties for some activities but not others.

There were many very specific comments which illustrate the lack of precision in the descriptions of some of the 32 prescribed categories. These include, for instance, whether the inclusion for working with asbestos was sufficiently broad, clarity on the definition of diving, the complexity and detail around work activity involving chemicals, the application of the carriage of dangerous goods provisions, and whether the provision of health and social care included activities such as tattooing and skin piercing.

Overall the TUC says that the definitions are too general, too complex and simply do not reflect the nature of the work that self-employed people do. Responses from trade associations point out that the definitions are complex and will fail to achieve the simplification required. There will be additional burdens on business to communicate the requirements and educate their contractors. The CBI says:

“In short, the new exemption will be costly to implement without bringing the intended benefits. The potential business burden associated with introducing this new exemption—originally intended to reduce a burden—will be substantial”.

It calls for the Government to return to square one and do a thorough review into what the legislation should look like to achieve the Löfstedt aims. The EEF holds to its view that a prescribed list of activities

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can never be fully inclusive or the definitions sufficiently precise. It says that the legislation is not fit for purpose. Local authorities have pointed out that self-employed persons in low-risk activities are already not inspected because of the national local authority code. A raft of professional organisations concerned with occupational health and safety, including IOSH, RoSPA, IIRSM, Safety Groups UK, the Royal Society for Public Health and others, have all criticised the approach, saying that it will cause dangerous confusion, increasing the risk of work-related injury, illness and death.

Faced with the scale of the concerns reflected in those consultation responses, it would be foolhardy for the Government to proceed as planned. Will the Minister tell us now what the Government propose to do? If they want time to consider and need a pause, then, frankly, our amendments give them the opportunity to do so. They keep alive the Löfstedt concept but set down the rigorous tests required for it to be implemented. Having said that, we have no doubt that the right thing to do is to give it up. But if we do not amend the Bill today, we are giving the Government the green light to implement what has been exposed as deeply flawed and deeply dangerous. They must not be allowed to play fast and loose with our health and safety system. I beg to move.

Baroness Donaghy (Lab): My Lords, it is important to place on the record and clarify some of the misunderstandings that took place in Committee. At the beginning of the discussions on the Bill, the Government prayed in aid, with a great deal of enthusiasm, the recommendations of Professor Löfstedt, who is professor of risk management at King’s College London. That enthusiasm became less and less as Members of the Committee challenged some of the statements contained in the proposals. Certainly, my noble friend Lord McKenzie challenged them on a number of occasions.

In Committee on 21 October, the noble Lord, Lord Curry of Kirkharle, said:

“I was in contact with Professor Löfstedt in the past week. He has seen the wording of the Bill and appears to be very content with it”.—[Official Report, 21/10/14; col. 568.]

It is important that we set the record straight: Professor Löfstedt is not in the least bit happy. My noble friend has already quoted from his letter. To save time, I will quote a small additional bit. He says that,

“the proposed Government list may increase injury and death in the workplace something that I never intended with my original recommendation”.

It is very serious that there has been a misunderstanding about the authoritative recommendations that were claimed to be behind this proposal. I agree with my noble friend: it will increase confusion; it will add complexity to the Health and Safety at Work etc. Act; it will add burdens to the conscientious self-employed who want clarification about their obligations; and it is a charter for cowboys. I urge the House to support the amendment.

Lord Lea of Crondall (Lab): My Lords, it is very noticeable that when people such as those from the Federation of Small Businesses are asked, “Where is

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the evidence that more people ought to be excluded?”, they say, “It is not a question of particular evidence; it is a question of perception”. Something rings a bell in my mind when somebody says, “It is not the evidence; it is a question of perception”. As somebody once said, what about changing the perception? I think that is where we are at the moment. Indeed, that is where the Government and the employers do not want us to be—to look at the evidence.

Instead, there are lots of crocodile tears and lots of red herrings dragged across the trail. One red herring is, “They do it in Germany”. Well, they do lots of things in Germany. In the one minute I have available, I say to the Government that if they would like to start citing Germany and give us the whole employment package that they have in Germany, we on this side will vote for it. I put that proposal; perhaps the Government would like to agree to it.

Finally, there is a trend in Britain today, whether or not it is being deliberately promulgated—that makes it sound like some sort of conspiracy theory, but I do not go in for conspiracy theories because we are often at the receiving end of them. But if there has been an increase in self-employment, it is hard to reconcile with the idea that it is very difficult to be self-employed now because of all the red tape. Anyway, on one side there has been a vast increase in self-employment, if we can get our brains around that. On the other side, there are a number of people who do not have contracts of employment. That is partly a question of whether, ex hypothesi, in a static labour market there are a greater number of people in work. But on the employed side of the labour market, which is the vast majority, the quality of the contracts of employment is being reduced bit by bit.

One of the great advances since the war has been to improve the quality and content of the contract of employment. If you were to interview a random group of self-employed people and a random group of people with good contracts of employment, a lot of people who are self-employed would turn out to have some sort of relation to the employed but with a subcontract in the middle whereby they are not really self-employed—they are on something which does not give them a contract of employment with four weeks paid holiday and all the rest of it. Will the Minister therefore comment on the fact that it is very desirable that the good-quality contract of employment terms are a benchmark for the self-employed, and that this is not a further means of endeavouring gradually to wear away a benchmark on which we in this country have always been able to rely?

Lord Jordan (Lab): My Lords, the Health and Safety at Work etc. Act 1974 transformed the safety landscape for all people at work. For the first time, it told everyone at work, “You are responsible for safety”. The Government’s proposals concerning the self-employed are a step backwards, telling some people, “Don’t worry, you are not responsible if someone gets hurt”.

Those who know the world of work are telling the Government that they have got it wrong. The Government have told them that the cost of regulation will be reduced, but they know that the cost of regulation

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pales into insignificance against the cost of accidents. The CBI and the EEF know it and, as my noble friend Lord McKenzie said, have both told the Government that the self-employed exemption in its current form is not fit for purpose.

What will be the cost of ignoring the significant warning of Professor Löfstedt? He is worth quoting, because he has analysed the possibilities. He has said:

“The danger with the proposed list is that self-employed individuals who are not on it will be exempt even if the jobs that these individuals do are in actual fact rather dangerous and unsafe. In other words the proposed Government list may increase injury and death in the workplace”.

The Government proposals, in their present form, will carry a cost: not in money, but in lives. This amendment will help to prevent that.

3.30 pm

The Earl of Lindsay (Con): My Lords, I should declare an interest asbeing the chairman of the United Kingdom Accreditation Service, because it is from that perspective that I want to speak to the noble Lord’s amendment. It is by virtue of that role that I am familiar with the intentions of Professor Löfstedt when he compiled his report and with the concerns that lie behind the amendment. Equally, I am familiar also with the thinking that has gone into the way in which the Bill, and particularly this clause, are drafted.

I firmly believe that accredited certification of occupational health and safety management systems could support almost every scenario. It could certainly support and benefit the status quo; it could certainly support and benefit the approach that Professor Löfstedt has proposed, which is one of positive exclusions. Equally, and probably importantly in terms of the House’s consideration of this amendment, it could also support and benefit the clause in terms of positive inclusions.

Accredited certification can provide the regulator with an authoritative assurance that the businesses concerned have good health and safety policies, procedures and controls in place. It allows organisations to earn recognition for their efforts to manage their own health and safety obligations. Accredited certification could act as a safety net for those industries, businesses and professions which may be excluded from the Act. In other words, if in doubt whether a business, profession or an industry should be within the ambit of the Act, one can safely err on the side of deregulation by putting in place a system of voluntary or mandatory accredited certification to underpin safety standards.

The accredited certification would be carried out against the recognised standard for occupational health and safety management—that is, BS OHSAS 18001—which is soon to become more formally recognised by the international standards organisation through its adoption as ISO 45001. The certification bodies would need to be accredited by the United Kingdom Accreditation Service, ensuring their competence to carry out the certification.

There may be concerns that a management system approach may not be suitable for very small businesses. However, the standard is flexible enough to be adopted by all sizes of organisation. Alternatively,

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size limits could be introduced whereby all businesses in a sector above a certain threshold would be required to comply.

Certification to BS OHSAS 18001 is now widely available in the United Kingdom. Some 40 certification bodies are accredited by the United Kingdom Accreditation Service to offer certification to the standard. It is estimated that more than 10,000 businesses are now certified as complying with the standard, and that figure is growing.

BS OHSAS 18001 was developed by a range of organisations specialising in health and safety management, certification and end-user businesses. It was co-ordinated by the British Standards Institution, the national standards body for the UK. The standard would bring immediate benefit in workplace safety to the status quo. It would bring benefit to the approach that Professor Löfstedt proposed. Most importantly, it would certainly benefit and support Clause 1.

Lord Wallace of Saltaire (LD): My Lords, this clause has emerged out of a series of consultations during the past four years. As the noble Lord, Lord McKenzie, remarked in his very detailed and constructive speech, the first consultation took place in 2012 on the principle that there should be a list of undertakings prescribed in regulations that are excluded from health and safety law. That did not find large favour in the consultation. The most recent consultation has not found very large favour for the Government’s current proposals. We are finding it difficult to satisfy all those concerned. I note that the noble Lord did not quote the Federation of Small Businesses’ response to the current consultation, which is a good deal more favourable that those that he did quote. On the question of the current consultation, it took a certain amount of time; we had a lot of responses to the consultation and we had to put them all together. It has now been published and the Government will, of course, consult and consider what their response should be. We very much hope that we will have time to consult further and return to this issue before we get to Third Reading.

The Health and Safety Executive has, of course, been actively engaged in this entire process over the last four years; I stress that it is very much part of the process of policy-making. We all share the underlying purpose, which is as it should be, as the noble Lord, Lord McKenzie, suggested in his speech, a lessening of health and safety burdens on those self-employed who are not at risk and are highly unlikely to put others at risk from their activities. That is what Professor Löfstedt suggested in his earlier report; it is part of the German system. To the noble Lord, Lord Lea, I say in passing that there are many parts of the German system of employment, training and employment protection that we would very much like to take on board. I am happy that this Government have indeed taken us a good deal further down the road towards apprenticeship training than their predecessor. There are other aspects—including some aspects of the Meister system, now that I have begun to understand that—which are clearly restrictions on trade and which we do not wish to follow. However, one cannot ever take an entire model from one country and put it into another.

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There are other areas over which I have spent some time arguing with German policymakers over the years; the idea that, just because a system has worked since the 14th century, one should maintain it at all costs, is not always an idea that one wishes to promote. I was one of those involved in the British side of the argument over the Reinheitsgebot, which the noble Lord might remember. It was to do with the purity of beer and was passed in about 1351. However, we will leave the German dimension aside and return to the current issue. We apologise that the consultation document has only just appeared. The Government will respond as soon as it is ready and we hope that we will have more to say on this before we reach Third Reading.

The issue at stake is which side one takes in reducing the burden, and whether to make a list of those, as this proposal suggests, whose activities are at greater risk of putting others in harm’s way from the way they are conducted—those involved in construction or a range of other activities that involve interaction with others. Professor Löfstedt prefers a system in which there is only a prescribed list of those activities that are exempted from the current health and safety regulations. The argument that we have been having through two series of consultation has been about how one defines “low risk” and “high risk”. This is an area, after all, on which one can spend a great deal of time, having a large number of consultations without meeting consensus. I regret that we have not yet reached an entire consensus.

The noble Lord’s first proposed amendment reverses the effect of Clause 1, so that all self-employed persons continue to owe a duty under Section 3(2) of the Health and Safety at Work etc. Act unless regulations are made to exempt them from that law, whereas the Government’s proposals exempt those unless they are on another prescribed list. This approach, we argue, would increase confusion for the self-employed because there are a plethora of low-risk activities that would need to be captured to ensure that the regulations were as extensive as possible. Furthermore, each of these activities would need to be appropriately and carefully defined. This could create further uncertainty in the law and make it unwieldy for the self-employed to comply with. This is part of what the Federation of Small Business was saying in its response to the current consultation.

The noble Lord’s second amendment seeks to impose various conditions upon the making of Regulations before self-employed persons can be exempt from Section 3(2) of the Health and Safety at Work etc. Act 1974. The amendment would require an independent review to be conducted and considered by both Houses before the regulations can be brought into force. We do not consider this necessary. The Government amended Clause 1 in Committee so that regulations made under the power that it creates are subject to the affirmative resolution procedure before they come into force. This provides Parliament with an adequate opportunity to scrutinise and debate the list of prescribed activities to ensure they are fit for purpose.

The conditions which the noble Lord seeks to impose on the regulations can already be considered by both Houses as part of the affirmative resolution procedure

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if, indeed, Parliament considers those factors to be relevant. Additionally, the proposed prescribing regulations contain a commitment for their review and for a report to be published after five years of making them. That report will seek to assess the extent to which the intended objectives of the proposed change have been met. Given the safeguards already in place, the Government do not consider that a further independent review of this alternative proposal would be of any benefit.

It is imperative that self-employed persons, especially those involved in conducting high-risk activities, understand when health and safety law will continue to apply to them after this legislative amendment is made. For the reasons I have already given, we do not consider the noble Lord’s amendments to be the best way of achieving that. They are unnecessary and overly burdensome. After all, the purpose of the Bill is to reduce unnecessary burdens. The clearest and simplest way to achieve this change is by having a list of prescribed high-risk undertakings together with guidance produced by the Health and Safety Executive which will make it clear and unambiguous to those who continue to owe a duty under the Health and Safety at Work etc. Act.

I repeat: the Government are currently considering the comments just received following the 2014 consultation on the draft regulations already produced. These raise a number of important issues which the Government will consider further before Third Reading. In that context, I hope the noble Lord will feel able to withdraw his amendment.

Lord McKenzie of Luton: My Lords, I thank noble Lords who contributed to this short debate. My noble friend Lady Donaghy put the matter straight about Professor Löfstedt’s views. My noble friend Lord Lea spoke about the danger of building proposals on perceptions rather than proper evidence. I thank my noble friend Lord Jordan for providing the historical context of health and safety, and the cost when it goes wrong. The noble Earl, Lord Lindsay, broadened the debate a bit around the accreditation processes. I am sure we would have scope for a fuller debate around that issue. As I understand it, he argued that its application could be to an inclusive, exclusive or status quo proposition.

I understand that the Government are finding it difficult to get this right. That is why two rounds of consultation have not succeeded in doing that. We argue, given the complexities and difficulties in trying to get it right, that leaving it as it is would be the far better option.

Lord Wallace of Saltaire: I should point out that the first consultation did not provide much support for the noble Lord’s amendment. The second consultation criticised the Government. I merely remark that we are struggling in this area. That is, of course, why we are considering it further.

Lord McKenzie of Luton: I am not sure that the noble Lord’s assertion about the first consultation not supporting our position is right. It does not necessarily depend upon a prescribed list of any sort. The key

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point about our amendments is that they are linked to clear criteria that have to be satisfied before any change could be introduced. There are criteria around not increasing burdens and bureaucracy, representing demonstrable improvement on existing legislative requirements, and clarity and precision as to whom they apply. The two amendments sit together. The consultation that has just been gone through proves how difficult it is to have a list of high-risk activities. I struggle to understand what changes the Government could make to that process or outcome to make it fit for purpose. That is not just my view; it is the view of a raft of people who know health and safety and business far better than I do, the CBI included.

3.45 pm

Can I specifically understand where the Government are on this? The Minister said that he was hopeful the Government would be able to come forward with something before Third Reading. I am not quite sure what that something is. Will it be a policy statement, revised draft regulations or further amendments to Clause 1? I am not sure quite what he has in mind. His answer will determine what we do with this amendment. In any event, whatever the Minister is going to bring back, I hope that it can be agreed now that this would not preclude a further round of this at Third Reading under the provisions in the Companion. Can the Minister say something further about what he hopes to bring back before Report?

Lord Wallace of Saltaire: I only had a chance to read the consultation document on Friday and we are at a very early stage on that so it is very difficult to say precisely what we will conclude. I merely wish to say in the most constructive way possible that we are considering our response. We have three weeks before Third Reading and that gives us some time to consider further.

Lord McKenzie of Luton: I am grateful for that—and I meant Third Reading, of course, not Report. Is the noble Lord saying that we will have a chance possibly for some discussions in the interim and, if not, a chance to consider this further when we get to Third Reading? It is quite important that we have that commitment from the Government on the record, whichever stage it reaches.

Lord Wallace of Saltaire: My Lords, of course I am very happy to discuss this between now and Third Reading. I am not in a position to say what the Government will conclude from their consideration of the current consultation document because we are at a very early stage, but I am very happy to promise to consult further.

Lord McKenzie of Luton: My Lords, I am not quite sure why the Government are so pressed on this matter because that consultation finished some five months ago. I note that the Minister has been less than clear on whether, if we are not satisfied with what happens in the interim, we would be able to return to amendments at Third Reading. It would be helpful if the Minister could give me an assurance that he would facilitate that; if he cannot, we have another decision to make.

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Lord Wallace of Saltaire: I recognise what the noble Lord is asking me to do. At this stage, I am afraid I cannot give him the absolute assurance he requires, but I am certainly willing to have further consultations, and the Government will be very happy to carry on on that basis.

Lord McKenzie of Luton: The Minister is not making it easy. I know it is not his job to make it easy. We are trying to see a way forward to avoid voting prematurely, in a sense, if the issue has not been completed. If the Minister is saying that he would be happy for us to come back at Third Reading with a proposition, if we need it, depending on what the Government do in the mean time, that would be helpful. If he is saying that he thinks that the processes in the Companion would preclude that, then we have another decision to make.

Lord Wallace of Saltaire: My Lords, the clerks are nodding. That suggests it would entirely open after consultation for the Opposition to come back again on this issue.

Lord McKenzie of Luton: I am grateful to the Minister and to the clerks for nodding, in which case I beg leave to withdraw the amendment—but with notice that we look to return to it at Third Reading.

Amendment 1 withdrawn.

Amendment 2 not moved.


Clause 2: Removal of employment tribunals’ power to make wider recommendations

Amendment 3

Moved by Lord Low of Dalston

3: Clause 2, page 2, leave out lines 15 to 21 and insert “omit from “reducing” to the end of subsection (3) and insert “an adverse effect on the complainant, or a serious adverse effect on any other person, of any matter to which the complaint relates.””

Lord Low of Dalston (CB): My Lords, I shall move Amendment 3—which is in my name and the names of the noble Lords, Lord Lester and Lord Hunt, and the noble Baroness, Lady Thornton—in the absence and at the request of the noble Lord, Lord Lester, who is currently recovering from heart surgery. I am glad to be able to report that he is doing well, but there would be no better “Get well soon” message that we could send him than to accept his amendment today.

Clause 2 amends Section 124 of the Equality Act 2010 to remove the power of employment tribunals to make recommendations to employers in cases where there has been a finding of unlawful discrimination, harassment or victimisation but the claimant no longer works for the employer. These are commonly referred to as “wider recommendations”. Its effect will be that, in future, an employment tribunal will be able to make a recommendation aimed at preventing or reducing the adverse effect of the discrimination on only the claimant in the particular case. In 2013, a BIS survey of employment tribunal applications found that only 16% of claimants in discrimination claims were still working for the

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employer against which they made their claim. This means that the effect of Clause 2 will be that in 84% of discrimination cases the employment tribunal will no longer have power to make recommendations to employers to take steps to improve their practices to avoid discriminating against other employees. This will be a significant reduction in the powers of employment tribunals.

Amendment 3 would remove the provision in the Bill which takes this power away from tribunals, thus preserving employment tribunals’ current power to make wider recommendations following a finding of unlawful discrimination. The power to make wider recommendations is of strategic importance for employees and employers. So far as employees are concerned, even when, as in the great majority of discrimination cases, the employment relationship has broken down and the employee has left the employer’s employment, they can help prevent or reduce future discrimination and are an effective way of tackling systemic issues and practices. So far as employers are concerned, recommendations are an important way of helping employers who have discriminated to improve their practice. An employment tribunal hears evidence about the circumstances in which the unlawful discrimination occurred and is thus well placed to identify steps the employer can take to rectify any discriminatory practices. Recommendations also offer an important means by which employers can learn from their mistakes and help avoid future discrimination claims.

The power to make wider recommendations is criticised on four grounds: first, that they impose a burden on employers; secondly, that the power is little used; thirdly, that there is no evidence that wider recommendations are effective in changing employers’ practices; and, fourthly, that there is no means of enforcing wider recommendations.

As regards burden, the impact analysis attached to the Government’s consultation on reform of enforcement provisions in discrimination cases suggested that this provision, when operating as expected, will affect only between 0% and 3% of employment tribunal cases, which, it suggests, is likely to result in 17 cases a year. It is hard to maintain that this will constitute an undue burden on employers and business. Moreover, by limiting the cases in which wider recommendations could be made to those where the discrimination, harassment or victimisation has a serious adverse effect on persons other than the person bringing the claim, Amendment 3 addresses criticisms that the wider recommendations power imposes a disproportionate burden on business.

On the point that the power is little used, perhaps it is too early to tell, as it has existed only since 2010. However, on the basis of a review of over 400 employment tribunal judgments issued between December 2012 and September 2014, the Equality and Human Rights Commission concluded:

“Given the benefits to employers and employees which can result from wider recommendations, concerns that the power is little used should be addressed by encouraging employment tribunals to actively consider whether a wider recommendation should be made … not by removing the power”,

entirely.

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As regards effectiveness, recommendations mainly concern the provision of training for managers and a review of policies or procedures. I might draw attention to a number of cases, but in order not to detain your Lordships too long I will mention just a couple. One case concerned where a disabled woman was denied a reasonable adjustment that should have been made for her. The employment tribunal ordered that within six months,

“line managers and human resources are to receive adequate training on understanding and implementing the Respondent’s disability leave policy and to ensure that the policy is properly communicated to employees as is appropriate in the circumstances”.

In another case, the Ministry of Defence was found liable for both direct and indirect discrimination in its handling of the promotion prospects of an RAF group captain. The employment tribunal commented that it was shocked that senior personnel were not fully competent in, nor apparently had they been trained on, codes of practice in respect of the Equality Act or the predecessor legislation. The tribunal made a number of recommendations including: first, that all personnel involved in promotion and recruitment should have training in equality and diversity as set out in the Equality Act and the code of practice; secondly, that decisions of the appointments and promotions board should be recorded in writing, with reasons clearly explained and these should be retained for at least 12 months; and, thirdly, that the resolution of the service complaints procedure should not be unilaterally suspended pending the outcome of an employment tribunal complaint. I submit that those are not inappropriate recommendations for an employment tribunal to make with a view to improving the employment practice of the employers with whom it is concerned, and that the effectiveness of its decision would be substantially diminished if it did not have the power to make such recommendations.

On enforcement, it is perfectly true that the employment tribunal does not have power directly to enforce the carrying out of wider recommendations. However, the Equality and Human Rights Commission reviews all employment tribunal cases where there have been findings against employers, prioritises cases where there have been wider recommendations and works with employers to secure the implementation of such recommendations.

Finally, it must be said that the Government’s approach on these matters is not entirely consistent. From 1 October 2014, the Equality Act 2010 (Equal Pay Audits) Regulations 2014 require an employment tribunal to order an employer who loses an equal pay claim to carry out an equal pay audit unless specified exemptions apply. These audits require, among other things, that employers develop an action plan, with a view to ensuring that they do not fall foul of equal pay policies in the future. I submit that this is the better approach, the right approach and the approach that should be similarly followed with regard to wider recommendations. Precisely the same considerations apply, and it is hard to see why tribunals should not have the sort of powers in relation to the making of wider recommendations that they have in relation to the ordering of equal pay audits.

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This matter was considered in Committee when an amendment to delete Clause 2 entirely was judged an amendment too far and was rejected. However, I submit that the more surgically crafted amendment of the noble Lord, Lord Lester, deals with the issue that we are considering in a more proportionate way and, as such, is deserving of your Lordships’ approval. I beg to move.

4 pm

Lord Hunt of Wirral (Con): My Lords, I declare my interest as vice-chair of the All-Party Parliamentary Group on Equalities and the other interests recorded in the register. I am sure that the whole House will join the noble Lord, Lord Low of Dalston, in sending our very best wishes to my noble friend Lord Lester of Herne Hill as he recovers from surgery. My thanks are redoubled because my participation in this debate was demanded by my noble friend, who pointed out to me what I had said in the debate on the Equality Bill in 2010. Some of your Lordships may wish that their words were not so remembered, but the encyclopaedic mind of my noble friend Lord Lester suddenly pointed out to me—in these words, I think—that, “Our Government are doing something the opposite of which you argued so forcefully in 2010”. He reminded me that I had urged then that,

“not only should due regard be paid to eliminating discrimination but that there should be a much more proactive element”.—[

Official Report

, 27/1/10; col. 1492.]

I spoke on what is now Clause 124 of the Equality Act 2010, when, as shadow Chancellor of the Duchy of Lancaster, I pointed out the deficiencies in the clause.

In many ways, the noble Lord, Lord Low of Dalston, has just repeated what I felt was a brilliant summary of the criticism of Clause 124, expressed by both government and business representatives. He gave four telling points. Against that background, I can well understand why my noble friend wishes to remove the power of employment tribunals to make recommendations to employers and other respondents in cases where there has been a finding of unlawful discrimination, harassment or victimisation but where the claimant no longer works for the employer.

There is a better way, which I tried to suggest at the time to the Labour Government, but, sadly, they refused to listen on that occasion; I hope that the Opposition are listening carefully now. We need to retain but clarify the power in Section 124. I very much hope that noble Lords will agree that there is a need for reform rather than abolition. Those are the circumstances in which I put my name to the amendment tabled by my noble friend Lord Lester of Herne Hill.

There are, however, problems. Undoubtedly, this was discovered by the then Labour Government. I think that the noble Baroness, Lady Royall, dealt with the matter from the Government Benches at that stage. As the equality and diversity commission has pointed out, this amendment could lead to a tribunal having to hear additional evidence and argument in order to decide whether the adverse effect of the discrimination on those other than the employee bringing the case was serious. I have no wish to cause such complications.

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My noble friend has already proved himself to be so amenable that I think that the noble Lord, Lord McKenzie, has gone away to recover, as I cannot see him in the Chamber. My noble friend, assisted by the clerks—who I hope might assist us once again—bent over backwards in trying to find out how Section 124 could be further improved, particularly to avoid the risk I mentioned and to address the criticisms—those four key issues—which have been so clearly set out. The noble Lord, Low of Dalston, sought to deal with them, but the criticisms remain. They concern the way in which the wider recommendations power has been used to date and its effect on businesses. One way to tackle the issue would be to limit the power of the tribunal so that it cannot recommend a respondent to take steps which are disproportionate. The commission has suggested that that might be a way forward. It also recommends that Section 124 be improved by making a failure to comply without reasonable excuse an unlawful act for the purposes of the Equality Act 2006.

In previous debates, I have urged that a clear enforcement mechanism should be introduced. I repeat what I said in the Chamber on a previous occasion, as these words were repeated to me by the noble Lord, Lord Lester. Speaking from the Conservative Benches, I said:

“Of course we believe that the provisions must be enforceable. If an organisation has been acting illegally and subverting the equality provisions, it should have to obey the recommendations”.—[Official Report, 27/1/2010; col. 1470.]

Of course, the Government did not pay attention. The noble Baroness, Lady Royall, said that it would be inappropriate to introduce enforcement powers. However, we have to think about introducing to or leaving on the statute book a power with no enforcement mechanism at all. I hope, therefore, that my noble friend will come forward with the answer. I can hardly wait to hear his speech.

Lord Beecham (Lab): My Lords, first, I endorse very warmly the amendment moved by the noble Lord, Lord Low, and supported by the noble Lord, Lord Hunt. They make a powerful case. I hope that, after also hearing from my noble friend Lady Thornton, the Minister will be persuaded to give some ground, as what they say is very compelling indeed. However, this may be a little academic given the fact that there has been an 80% reduction in the number of cases brought to employment tribunals since the charges were imposed by the Government last year. It seems to me that we are seeing the whole system being rather rapidly eroded. I hope that the Minister, in reporting back to his colleagues about the outcome of this debate, whatever it may be, will invite them to look again at the status of employment tribunals, and the great reduction in cases being brought, to see whether they intend to allow this nearly 50 year-old provision to wither on the vine, because that is the impression that is being widely—and, I think, rightly—inferred from the history of what has happened over the past year or 18 months.

Baroness Thornton (Lab): My Lords, it is very nice to be back discussing equalities matters opposite the noble Lord, Lord Hunt. He did a brilliant job helping to put the Equality Act 2010 on the statute book.

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We were very pleased to work with him at that time. I join the noble Lords, Lord Low and Lord Hunt, in wishing the noble Lord, Lord Lester, better and well for the future.

The noble Lords, Lord Low and Lord Hunt, have explained perfectly well what the issue is: in future an employment tribunal would only be able to make a recommendation aimed at preventing or reducing the adverse effect of the discrimination on the claimant in the case. That would mean that the potential to reduce discrimination against the employer’s wider workforce would be lost in the majority of cases. The EHRC has powers of enforcement on employment tribunal decisions. It was very clear on this in its evidence to the Joint Committee scrutinising the Bill. It said that it strongly disagreed,

“with the proposal to remove employment tribunals’ wider recommendation making powers”.

It said that,

“it is too early to judge the effectiveness of the power which has been in force only over the last three years. The available evidence suggests that the power has been used proportionately, and that there are important clear benefits for all concerned (including employers and employees) in exercising the power to clarify necessary remedial action, and this helps to prevent further discrimination and to reduce litigation”.

This power has not been in place long enough for evidence to suggest that it is either a burden on business or not effective enough. Those are both arguments that the Minister has used in the course of these discussions.

On these Benches, we regard these amendments as very important. We believe that we have to continue to address the concern that the law should be effective not only in providing redress for victims of unlawful discrimination, harassment and victimisation, but in preventing those unlawful acts from occurring, and in helping employers to comply with their duties. I will give one example that illustrates very well the importance of this law. Last year, the Metropolitan Police had to pay a female firearms officer who featured in Scotland Yard’s Olympic poster campaign damages of £37,000. Those damages were levied by an employment tribunal after she was bullied and victimised for being black. The tribunal branded Scotland Yard as “malicious” and “vindictive” in its treatment of Ms Howard and told the Met to review all internal complaints of discrimination made since 2009. I stress that. I have no idea whether the Met has carried out and complied with that recommendation. I hope that it has and that it is taking remedial action, because it was heavily criticised at the time.

The point is that the tribunal’s power to make these wider recommendations is under threat from the Deregulation Bill. If the Minister wants to take this amendment away and come back that is fine with us. But this is very important and I think that it is the right thing to do.

4.15 pm

Lord Wallace of Saltaire: My Lords, the Minister is not going to take this amendment away and come back. It is a very kind offer to make. We had an extensive discussion on this clause in Committee. The Committee voted by quite a substantial majority

3 Feb 2015 : Column 560

to retain it. What we have here is an amendment that is offered as a compromise but which seems to the Government to make the situation a good deal more complicated.

What we have in Clause 2 at the moment is a straightforward repeal of the requirement on tribunals to offer non-enforceable recommendations on wider issues. It does not reduce or abolish the right of tribunals to offer comments on particular cases and it certainly does not lower what they can do in this overall area. It does, however, simplify the position. By contrast, the amendment offered by the noble Lords, Lord Lester and Lord Hunt, would lead, we argue, to a more complicated system for tribunal recommendations. It would reduce the protection for claimants and set up more complex arrangements for tribunals. It would allow a tribunal to make a recommendation if it thought that it would completely obviate—not just reduce—the adverse effects evident from the case. That is a much higher standard of proof for the complainant than we require under the present system or that would be required following the repeal.

I will comment briefly on the general issue from the Equality Act. This was intended by the Government to be a light-touch element in the very large number of tribunal cases. I understand that there have been around 1 million employment tribunal cases in total, of which around 10%—100,000—were discrimination cases. Some 3,000 of these discrimination cases were successful and in 40 of them there were recommendations. Therefore, we are talking about a very small number. The range of recommendations includes the question of equal pay where there is a requirement for equal pay audits, which is enforceable. An equal pay audit ordered by an employment tribunal is a precise and mandatory requirement with sanctions for non-compliance to advance equal pay in the small number of organisations where a breach of equal pay law has been found and it is also a direct transparency measure as it has to be published.

By contrast, wider recommendations in discrimination cases are effectively discretionary for employers and do not have to be made where an employer loses a discrimination case. Wider recommendations are generally broad-brush proposals; for example, a recommendation that human resources staff undergo equalities awareness training. These are non-enforceable recommendations about training, company culture or a range of other areas that are made by tribunals that may not themselves be very closely aware of the culture of the companies concerned. They are recommendations from the outside.

The noble Lord, Lord Hunt, suggested that, although the amendment is in some ways defective, he would like the Government to take it away and improve it. The amendment, even if modified as the noble Lord proposes, would, in our opinion, result in a quite complex and heavy set of requirements. These could mean, for example, that tribunals might be required to consider wider recommendations in a very large number of cases while quite minor omissions by employers, such as failing to train a manager or to update a diversity statement, could become unlawful acts under equality law. I regret, therefore, that the Government have to decline the invitation to take this away and improve the quality of the amendment.

3 Feb 2015 : Column 561

Our repeal will not prevent tribunals from making non-binding observations on employers’ practices. These could reasonably include the type of points mentioned by the noble Lord, Lord Low, in specific cases. For all employers, losing a tribunal case and having to pay compensation, which our repeal will not affect, itself concentrates employers’ minds and persuades them to learn from their mistakes. The lack of enforcement already there means that they have to take them into account.

The noble Lord, Lord Hunt of Wirral, also talked about introducing the word “proportionate” into the legislation. As someone who struggled in the EU balance of competences review to define “proportionate”, I am conscious that it opens a large door to lawyers and that it is very difficult to discover precisely what proportionality means.

The noble Lord, Lord Beecham, raised the question of the introduction of fees and I recognise that that is of course a serious point. He will in turn recognise that the Government are struggling to contain public expenditure. It is important to emphasise that the Government have been careful to ensure that fee waivers are available for people of limited means in order that they are not excluded from seeking redress in tribunals. The Government have committed to reviewing the introduction of fees, although of course it will be for the Government after the next election to take on that review. We are considering the scope and timing of the review and will bring forward our plans in due course.

I hope that that provides sufficient information to persuade the noble Lord, Lord Low, to withdraw the amendment. The House did support the Government’s repeal proposal at Committee stage last autumn and I stress that we proposed a straightforward repeal of an unenforceable power that creates a perception of burden and unfairness.

Lord Low of Dalston: My Lords, I am grateful to the Minister for his reply and I am grateful to all those who have spoken, especially to the noble Lord, Lord Hunt of Wirral, who I thought went out of his way to suggest ways in which there might be a meeting of minds between the proposers of the amendment and the Government. I am sorry that the Minister is not prepared to respond more flexibly to the invitation from the noble Lord, Lord Hunt, to be flexible, which I am afraid does not give us a lot of room for flexibility on our part, although we might well have shown it had the Minister agreed to accede to the suggestion made by the noble Lord to make time for a further look at the amendment.

The Minister said that this is intended to be only a light-touch measure. I cannot see how more light touch it could possibly be. He gave us the statistics showing that there were 1 million tribunal cases over the period he referred to, of which 100,000 were discrimination cases. Some 3,000 of those cases were successful, and in only 40 cases were wider recommendations made. It is hard to see how this could be more light touch than that. You cannot say that the tribunals have been abusing this power.

The Minister went on to suggest that there is no need for such a power by dismissing as immaterial or unimportant the sort of cases in which it has been

3 Feb 2015 : Column 562

used. He said that it had been used in minor cases such as the failure of a company to train a manager. Well, I am not sure how much less minor it is possible to be than failing to train your managers properly. He also suggested that our amendment would make the situation worse. I cannot see that because it seeks simply to reinstate the position as arrived at in the Equality Act. It does not seek to be more draconian than that or more burdensome on employers. I think I showed in moving the amendment that it is hard to argue how the use of this power, as it has been used, constitutes a burden on business and employers.

No one in the House or even in the country is more expert on these matters than the noble Lord, Lord Lester, and I am sure that we are all extremely sorry that he is not able to be present today to give us the benefit of his wisdom. However, I am perfectly sure that he would not be moving an amendment of this kind if he did not think that it was a useful component of discrimination law and the light-touch enforcement thereof. In crafting it, the noble Lord sought to be compromising and to move a less drastic amendment than the complete removal of the clause as was attempted in Committee. This is a different approach. It is perfectly open to the House to support the amendment. It is not constrained in that matter by the discussions that took place in Committee. For all these reasons, I want to test the opinion of the House.

4.25 pm

Division on Amendment 3

Contents 190; Not-Contents 259.

Amendment 3 disagreed.

Division No.  1

CONTENTS

Aberdare, L.

Adams of Craigielea, B.

Adebowale, L.

Adonis, L.

Ahmed, L.

Allen of Kensington, L.

Alli, L.

Alton of Liverpool, L.

Anderson of Swansea, L.

Armstrong of Hill Top, B.

Bach, L.

Bakewell, B.

Bassam of Brighton, L.

Beecham, L.

Berkeley, L.

Bichard, L.

Billingham, B.

Birt, L.

Blackstone, B.

Blood, B.

Borrie, L.

Bradley, L.

Brennan, L.

Brooke of Alverthorpe, L.

Brookman, L.

Campbell of Surbiton, B.

Campbell-Savours, L.

Carlisle, Bp.

Carter of Coles, L.

Christopher, L.

Clancarty, E.

Clarke of Hampstead, L.

Clinton-Davis, L.

Cohen of Pimlico, B.

Collins of Highbury, L.

Colville of Culross, V.

Corston, B.

Craig of Radley, L.

Craigavon, V.

Cunningham of Felling, L.

Davies of Coity, L.

Davies of Oldham, L.

Desai, L.

Donaghy, B.

Donoughue, L.

Dubs, L.

Elder, L.

Elystan-Morgan, L.

Evans of Temple Guiting, L.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Flather, B.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

Gavron, L.

Glasman, L.

Goldie, B.

Gordon of Strathblane, L.

Goudie, B.

3 Feb 2015 : Column 563

Gould of Potternewton, B.

Grantchester, L.

Grey-Thompson, B.

Grocott, L.

Hanworth, V.

Harris of Haringey, L.

Hart of Chilton, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hilton of Eggardon, B.

Hollick, L.

Hollis of Heigham, B.

Howarth of Newport, L.

Howie of Troon, L.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Kings Heath, L.

Hutton of Furness, L.

Jones, L.

Jones of Moulsecoomb, B.

Jones of Whitchurch, B.

Jordan, L.

Judd, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

King of Bow, B.

Kinnock, L.

Kinnock of Holyhead, B.

Knight of Weymouth, L.

Laming, L.

Lawrence of Clarendon, B.

Layard, L.

Lea of Crondall, L.

Leitch, L.

Lennie, L.

Liddell of Coatdyke, B.

Lipsey, L.

Lister of Burtersett, B.

Low of Dalston, L.

McAvoy, L.

McConnell of Glenscorrodale, L.

McDonagh, B.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

McKenzie of Luton, L.

Mallalieu, B.

Mar, C.

Massey of Darwen, B.

Maxton, L.

Mendelsohn, L.

Mitchell, L.

Monks, L.

Moonie, L.

Morgan, L.

Morgan of Ely, B.

Morgan of Huyton, B.

Morris of Aberavon, L.

Morris of Handsworth, L.

Nye, B.

O'Neill of Clackmannan, L.

Ouseley, L.

Palmer, L.

Pannick, L.

Patel, L. [Teller]

Patel of Bradford, L.

Pendry, L.

Pitkeathley, B.

Plant of Highfield, L.

Ponsonby of Shulbrede, L.

Prashar, B.

Prescott, L.

Quin, B.

Radice, L.

Ramsay of Cartvale, B.

Rea, L.

Rebuck, B.

Rees of Ludlow, L.

Reid of Cardowan, L.

Richard, L.

Robertson of Port Ellen, L.

Rooker, L.

Rosser, L.

Rowlands, L.

Royall of Blaisdon, B.

St Albans, Bp.

Sawyer, L.

Scotland of Asthal, B.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Smith of Leigh, L.

Snape, L.

Soley, L.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Temple-Morris, L.

Thornton, B.

Tomlinson, L.

Touhig, L.

Triesman, L.

Tunnicliffe, L. [Teller]

Turnberg, L.

Turner of Camden, B.

Warner, L.

Warnock, B.

Watson of Invergowrie, L.

West of Spithead, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wigley, L.

Wilkins, B.

Williams of Baglan, L.

Williams of Elvel, L.

Wills, L.

Wood of Anfield, L.

Woolmer of Leeds, L.

Worthington, B.

Young of Hornsey, B.

Young of Norwood Green, L.

NOT CONTENTS

Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Allan of Hallam, L.

Anelay of St Johns, B.

Armstrong of Ilminster, L.

Arran, E.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Avebury, L.

Bakewell of Hardington Mandeville, B.

Balfe, L.

Barker, B.

Bates, L.

Benjamin, B.

Berridge, B.

3 Feb 2015 : Column 564

Black of Brentwood, L.

Blackwell, L.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Borwick, L.

Bourne of Aberystwyth, L.

Bowness, L.

Brabazon of Tara, L.

Bradshaw, L.

Bridgeman, V.

Brinton, B.

Broers, L.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Brown of Eaton-under-Heywood, L.

Browne of Belmont, L.

Browning, B.

Buscombe, B.

Byford, B.

Caithness, E.

Cameron of Dillington, L.

Carrington of Fulham, L.

Cathcart, E.

Cavendish of Furness, L.

Chidgey, L.

Chisholm of Owlpen, B.

Clement-Jones, L.

Colwyn, L.

Cope of Berkeley, L.

Cormack, L.

Cotter, L.

Courtown, E.

Cox, B.

Cumberlege, B.

De Mauley, L.

Deben, L.

Deech, B.

Deighton, L.

Denham, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dykes, L.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Elton, L.

Empey, L.

Evans of Bowes Park, B.

Falkland, V.

Falkner of Margravine, B.

Farmer, L.

Faulks, L.

Fearn, L.

Fellowes, L.

Fink, L.

Finkelstein, L.

Finlay of Llandaff, B.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Framlingham, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

German, L.

Glasgow, E.

Glenarthur, L.

Glentoran, L.

Gold, L.

Goodlad, L.

Goschen, V.

Grade of Yarmouth, L.

Grender, B.

Griffiths of Fforestfach, L.

Hamilton of Epsom, L.

Hamwee, B.

Hanham, B.

Hannay of Chiswick, L.

Harries of Pentregarth, L.

Harris of Peckham, L.

Hay of Ballyore, L.

Helic, B.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Holmes of Richmond, L.

Home, E.

Hooper, B.

Hope of Craighead, L.

Horam, L.

Howarth of Breckland, B.

Howe, E.

Howe of Idlicote, B.

Hunt of Wirral, L.

Hussein-Ece, B.

James of Blackheath, L.

Janke, B.

Jay of Ewelme, L.

Jenkin of Kennington, B.

Jolly, B.

Jones of Birmingham, L.

Jones of Cheltenham, L.

Kakkar, L.

Kirkham, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Kramer, B.

Lang of Monkton, L.

Lawson of Blaby, L.

Lee of Trafford, L.

Leigh of Hurley, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Linklater of Butterstone, B.

Liverpool, E.

Livingston of Parkhead, L.

Loomba, L.

Lucas, L.

Luce, L.

Ludford, B.

Luke, L.

Lyell, L.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Maclennan of Rogart, L.

McNally, L.

Maddock, B.

Maginnis of Drumglass, L.

Mancroft, L.

Marks of Henley-on-Thames, L.

Marlesford, L.

Masham of Ilton, B.

Mawhinney, L.

Miller of Chilthorne Domer, B.

Mobarik, B.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Morrow, L.

Moynihan, L.

Murphy, B.

Nash, L.

3 Feb 2015 : Column 565

Neville-Jones, B.

Neville-Rolfe, B.

Newby, L. [Teller]

Newlove, B.

Noakes, B.

Northover, B.

Norton of Louth, L.

O'Cathain, B.

Oppenheim-Barnes, B.

Oxford and Asquith, E.

Paddick, L.

Palmer of Childs Hill, L.

Parminter, B.

Perry of Southwark, B.

Phillips of Sudbury, L.

Pinnock, B.

Plumb, L.

Popat, L.

Purvis of Tweed, L.

Randerson, B.

Redesdale, L.

Renfrew of Kaimsthorn, L.

Rennard, L.

Ribeiro, L.

Ridley, V.

Risby, L.

Roberts of Llandudno, L.

Rogan, L.

Rose of Monewden, L.

Rowe-Beddoe, L.

St John of Bletso, L.

Scriven, L.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Sharkey, L.

Sharp of Guildford, B.

Sharples, B.

Shaw of Northstead, L.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shields, B.

Shipley, L.

Shutt of Greetland, L.

Singh of Wimbledon, L.

Skelmersdale, L.

Slim, V.

Smith of Newnham, B.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Stephen, L.

Sterling of Plaistow, L.

Stewartby, L.

Stirrup, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Suri, L.

Sutherland of Houndwood, L.

Suttie, B.

Taylor of Holbeach, L. [Teller]

Tebbit, L.

Teverson, L.

Thomas of Gresford, L.

Thomas of Winchester, B.

Tope, L.

Trefgarne, L.

Trimble, L.

Trumpington, B.

Tugendhat, L.

Tyler, L.

Tyler of Enfield, B.

Ullswater, V.

Verma, B.

Wakeham, L.

Waldegrave of North Hill, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Walpole, L.

Warsi, B.

Wasserman, L.

Wei, L.

Wilcox, B.

Williams of Crosby, B.

Williams of Trafford, B.

Willis of Knaresborough, L.

Wilson of Tillyorn, L.

Wrigglesworth, L.

Younger of Leckie, V.

4.38 pm

Clause 11: Private hire vehicles: sub-contracting

Amendment 4

Moved by Baroness Thornton

4: Clause 11, page 8, line 22, at end insert—

“(e) the person who made the booking has consented to their booking being sub-contracted to a second operator.

(1A) A licensing authority may exercise all its powers over a vehicle licensed as a private hire vehicle or taxi if it is operating in their area, even if the licence was issued by another licensing authority.”

Baroness Thornton: My Lords, these two amendments are both modest and simple. They concern consumer rights and customer safety. The right is that of the person booking a cab to know who will be turning up, whether it is the person whom they expect or someone else, that it is done with their knowledge and permission, and that if there is subcontracting, there is an audit trail of it. I would be grateful if the Minister could explain how many subcontracts might take place in one order for a cab and how that might be recorded.

3 Feb 2015 : Column 566

The amendments seek to mitigate the risk of subcontracting by requiring the consent of the hirer before a booking can be passed on. They also propose allowing a licensing authority to exercise its powers over a licensed private hire vehicle or taxi operating in its area, even if the licence was issued by another licensing authority.

We would have preferred the Government not to have proceeded at all with these clauses. There is still time for them to withdraw them, do the sensible thing and wait until the Law Commission’s full report can be taken forward instead of the pick and mix approach, which we believe is not based on what is safe and what is best for customers. We believe that customer safety could be undermined as, currently, only the licensing officers from the licensing authority where a vehicle and driver are registered have the power to take enforcement action.

In Committee, the Minister suggested that these Benches were against reform. That is not so. We are very much in favour of accessibility. More taxis being available for everybody is a good thing, particularly for those who are disabled. It is about how that is done. We on these Benches are not alone in our worries. Indeed, the Secretary of State for Transport said on the radio over the weekend:

“One of the things the Government has done is ask the Law Commission to look at the whole issue of licensing taxis and it is something that they have reported to us on and the Government are due to respond shortly. It will probably need, will need, almost certainly need primary legislation”.

The Minister for Transport, Claire Perry MP, held a seminar on increasing safety for women on public transport on 20 January. She said:

“The Department for Transport makes personal safety considerations a part of”—

in this case—

“all future rail franchise awards”.

We agree with her and, indeed, the Secretary of State.

Can the Minister assure the House that the same test of personal safety has been applied to these deregulatory reforms for taxis? If she cannot, I hope that she will consider accepting the amendments or bringing forward some of her own that do so. If she again prays in aid, as she did in Committee, that this is a similar regime to that which operates in London, I will ask her to consider that there were more than 111 rapes and sexual assaults between October 2011 and April 2013 where the indicated offender was a taxi or private hire driver in London. The Brighton and Hove taxi companies wrote to us and were vociferous in their opposition to this proposal. They say:

“Please can we move away from the pious, myth-making NONSENSE that the London Taxi system is the best in the world”,

and point out that it is as much in need of the reforms proposed by the Law Commission—as the rest of the country. They also point out that there were three assaults in the same period in the whole of Sussex.

The Law Commission has recommended that licensing authorities have the power to enforce standards in respect of out-of-area vehicles, which would be crucial for safety. The public, particularly vulnerable passengers such as women or disabled people, may call specific

3 Feb 2015 : Column 567

operators because they feel that that operator is both reliable and safe to travel with. This reform means that the public will lose the right to choose which operator they travel with, if someone calls operator A—their preferred choice—and operator B turns up. Amendment 4 stipulates that an operator must have the consent of the person making the booking before their booking is subcontracted and that there will be cross-border reinforcement. Indeed, in a letter from the Minister in December 2014 to Bryan Roland of the National Private Hire Association, she suggested that the Government were already thinking about this matter. I do not know the outcome of that thinking, but I sincerely hope that we are pushing at an open door here.

Noble Lords may have received a brief, as I did, from the Licensed Private Hire Association, which states:

“The Suzy Lamplugh Trust, (The Safety Charity who campaigned for Licensing in London alongside the LPHCA) agreed that restrictions on the ability to subcontract were inappropriate”.

It goes on to state:

“This was agreed by Sir George Young, Minister Glenda Jackson and Dr Jenny Tonge from the main parties”.

Leaving aside the promotion of my honourable friend Glenda Jackson MP, I asked the Suzy Lamplugh Trust for its view on this matter. This is what it said to me today:

“As a trust we have no objection to the principle behind the aims of this clause”—

I agree with that—

“often a risk to the public’s personal safety is a lack of safe transport, and any measure introduced to alleviate that is welcome”.

That is absolutely right. It continues:

“However under current regulation a licensing authority does not have the enforcement powers of vehicles and drivers operating outside their licensed area. The Law Commission’s report, published after these clauses were added to the Deregulation Bill, proposed extending the enforcement powers of all licensing authorities to deal with vehicles and drivers licensed in different areas. The proposals made under Clause 12 have not been made in conjunction with the Law Commission’s recommendations and therefore do not make adequate provision to allow licensing authorities to ensure the safety and practice of their drivers. Until there is a proposal to extend these powers and to introduce and enforce a robust audit trail to ensure the ability to trace bookings and their journeys we will be unable to support the proposal”.

4.45 pm

Taxis and minicabs are a vital part of our public transport system, They are vital for the elderly, disabled and those unable to drive, and are relied on to get young people, students and women home late at night. Councils regulate taxis and minicabs to ensure that vehicles are safe and conduct yearly checks to make sure that drivers are fit and proper to carry passengers, but we know that this system is open to abuse. In Milton Keynes, a man previously convicted of sexual assault was granted a minicab licence after a local councillor affirmed that he was of good current character. An inquiry into the child sexual exploitation in Rotherham concluded that taxis and minicabs were a major feature of sexual exploitation cases there. Ten different women and girls in the town had allegations against one firm alone.

3 Feb 2015 : Column 568

It is blindingly obvious that there is a need for comprehensive reform of our licence, taxi and car system. This is why the Government asked the Law Commission to look at the whole area, which it has done. If the Government will not wait for the primary legislation that the Secretary of State says is needed in this area, can they at least make safeguarding women and vulnerable groups their priority in this matter, and accept the amendments or bring forward their own to achieve these objectives? I beg to move.

Lord Deben (Con): My Lords, it is in the knowledge of this House that I very often find myself on the same side as the noble Baroness, but on this occasion I suggest that she is wrong, because she is unbelievably out of date. A good deal in this Bill is out of date as far as what is happening to the private hire and taxi business. One would have thought, from these amendments, that modern technology had not ever entered into the world. If you travel by certain companies, which shall be nameless, you are safer than you have ever been before, because they know exactly who you are, exactly who the driver is and exactly what the route is, and they can check these things. That makes people much safer. They do that without any regulation at all, without any local authority and without any of the people who know best entering into the discussion.

It is called the market. It works extremely well and it is much safer. I just hope that my noble friend will not be moved from the current situation, except perhaps to remind those who wrote this part of the Bill that it is already out of date because the technology has moved on. That does not mean that I am not entirely supportive of it, because it is better than what went before. But these are old fashioned proposals that have been put down as amendments. They will not achieve what they suggest, and it would be good if we could be a bit more digitally savvy when we come to find a way through the clear issue that the noble Baroness has put forward, which is the real desire to protect passengers—women in particular, but not just women—from the dangers that arise. I just wish that we did not sound a bit as if we did not know what was happening in the world outside.

Baroness Howarth of Breckland (CB): My Lords, I do not think that the noble Lord lives in the same world that I do, where many people are not digitally savvy. In some rural places in the north, they travel in taxis which appear out of the blue and feel extremely unsafe. I say that before saying to the noble Baroness that I hope this is not a matter of political process. I hope it is something where we think about those things which matter to this Government, which are safety and choice. I know that choice means that you have a range of options—I think that the noble Lord was indicating that we are moving towards that—but should we not wait for the Law Commission’s report, so that issues such as changes in digital technology can be taken on board and that we might recognise that the situation is not the same right across the country?

In many of my roles, I travel all over the UK in taxis. When I choose to travel by a taxi, as a consumer I expect that what I telephone for will turn up. Having worked in the vulnerable adult and child protection

3 Feb 2015 : Column 569

area for many years, I know that alternatives might turn up in which I or the child whom I want to be transported might well not be safe. We want to be absolutely sure when we make such a choice—as simple consumers, we have a right—that what we have asked for turns up at the door or we know that it is an alternative so that we can make an alternative choice.

Equally high on the agenda is safety, particularly as we have had so many situations up and down the country—we await reviews and more inquiries about the protection of children and vulnerable adults. This is a measure where you could really make a difference and listen and look again at these issues, rather than looking at it simply as a deregulation issue.

The Minister said earlier that this legislation is about getting rid of unnecessary burdens. I absolutely agree, having worked in a number of fields where there are such unnecessary burdens, but I do not think that this proposal is either unnecessary or burdensome. It is quite straightforward that if people want to provide a service they should be licensed.

The noble Baroness mentioned the situation in Rotherham, the report on which highlighted significant concerns in relation to taxis. That is quite recent—so the world out there is not safe. We have also had reports that many disabled and elderly people find it very difficult to deal with digital technology. Where I come from, in a large rural area, the only way of travel for some disabled and elderly people to their hospital appointment or somewhere else is by taxi because the bus comes twice a week. It is not a luxury; it is an essential way of travelling. They want to know that the taxi that turns up at their door is a taxi in which they will feel safe. Even if the contractor is safe, we know the anxieties that elderly, disabled and sick people have in terms of looking after themselves. Therefore, they have to be absolutely safe.

I only hope that if we have another child abuse inquiry, or an inquiry where something has happened to a vulnerable adult—God forbid, but that is the world out there—the Government will not find themselves in difficulty because they failed to take note of these voices of caution. It is only caution, because there are ways of thinking through this matter so that we do not reduce the capacity for business but we ensure that people are safe.

Lord Skelmersdale (Con): My Lords, I regret that the noble Baroness, Lady Thornton, has not split this amendment into two parts, which it is quite possible to do, because I am fairly certain that a person who has made a booking would not on average ask the taxi company where the taxi was coming from. It may be that they envisage—rather like, I suspect, my noble friend Lord Deben—that, when they book a taxi online, they will get a questionnaire, one of the questions in which will be whether they consent to the taxi coming from another local authority area. That is all very well, but I live in Taunton—not Yorkshire, like the noble Baroness over there.

Noble Lords: Breckland.

Lord Skelmersdale: Breckland, I apologise: the west, shall we say.

3 Feb 2015 : Column 570

On occasions, I use taxis. I ring up—sometimes from a train, sometimes from London—and the taxi company says, “Yes, you will have a taxi arriving at 5.03, or whatever the time is, to meet your train”. Even when I get into that taxi, I do not know whether it comes from, say, Exeter, or rather closer in Devon, which is another local authority area. Quite honestly, I do not care. However, I care about the second part of the noble Baroness’s amendment, which says:

“A licensing authority may exercise all its powers over a vehicle licensed”,

in another area. In other words, I want my taxi to be safe: I do not want the wheel to fall off, the bumper to fall off or whatever it happens to be. To that extent, I go along with proposed new subsection (1A) in Amendment 4, but I cannot go along with proposed new subsection (1)(e).

Lord Harris of Haringey (Lab): My Lords, the noble Lord, Lord Deben, in his stirring defence of the market and its role as a solution to all of the problems that occur, makes a compelling point. However, he also went on to talk about the changes that have happened because of new technology, suggesting that we therefore were safe as a consequence. We are only safer if the company holding and using that information is reputable and operates in a reputable fashion. In fact, you are opening up an enormous area of vulnerability because if somebody, for example, uses a particular firm where all this is electronically recorded, the precise movements are therefore on the record. If that firm is not responsible or, for example, does not maintain proper security, the vulnerable person is made even more vulnerable by that information being available. The noble Lord is of course right, under circumstances in which the company is reputable. There are enormous additional safeguards, because the precise route, the nature of the driver and everything else is on record; perhaps as a consumer, the person concerned has those data. However, that presupposes in the first instance that the company is reputable and has gone through an appropriate process.

Lord Deben: I entirely agree with the noble Lord. The point I am trying to make is that the very issue he is raising is covered neither by the Bill itself, nor by the amendment. It just makes us sound as if we are out of touch with what is actually happening. We ought, perhaps, to think again—not now, but in the future—about how to bring this into line with modern technology.

Lord Harris of Haringey: My Lords, the noble Lord, in his intervention, has made precisely the point I wanted to go into—that is, because these issues are not adequately addressed, the Government therefore need to think again. There is an opportunity to think again, because the Law Commission is looking at precisely this issue at the moment, but the Government, for reasons best known to themselves, have brought forward these proposals in advance of that Law Commission consideration. Surely the sensible thing, therefore, is for the Government to withdraw all these clauses so that we can wait for the Law Commission to

3 Feb 2015 : Column 571

come forward with clauses that would no doubt meet both the free market and the technological expectations that the noble Lord, Lord Deben, has.

At the moment, we are faced with a position where the Government are actually weakening the safeguards and are not recognising the context in which private hire firms are now operating. That is neither sensible nor acceptable, particularly if, by waiting for the Law Commission, we could have a more comprehensive and suitable solution.

The whole point about the subcontracting issue is that individuals assume—maybe they are naive to do so—that they are dealing with the firm whose number they know and are related to. They do not realise that that business could be passed on to somebody else. That might meet the needs of somebody getting off a train at 5.03, but it does not necessarily meet the needs of everybody. You at least should have the right to know that that has happened or the process that has taken place. That is why these amendments are important. Actually, the best thing of all would be for the Minister, when she replies, to say that the Government understand these issues and that perhaps what they are trying to do is not quite workable, then withdraw the clauses in their entirety at Third Reading—I do not suppose she could do that today—so that we can wait for the Law Commission to look at all these issues in the round.

5 pm

Viscount Ridley (Con): My Lords, I have great sympathy with what the noble Baroness, Lady Thornton, said about the need for people to feel safe in taxis, and with what the noble Lord, Lord Harris of Haringey, just said. However, I do not believe that the clauses weaken these aspects of the Bill. Clause 10 does not water down enforcement, policing or the responsibilities of local authorities. Local authorities can and do check the suitability of drivers. There is nothing to stop them sharing information with police. They do so already and they still will be able to do so. There is no change in the frequency of disclosure checks, for example.

As I said in Committee, it is worth bearing in mind that Clause 11 allows huge benefits from subcontracting for provincial taxi operators that are not available at the moment to taxis—except those in London. It allows better response times, reductions in dead mileage, subcontracting to trusted subcontractors when there is a sudden problem—in the event of a breakdown, for example—and more efficient deployment of vehicles. I gave examples in Committee of operators who must currently travel 50 miles to pick up someone to go two miles and then come all the way back again, and of vehicles that return empty from airports and hospitals, or that have to leave passengers in the lurch when there is a breakdown or accident outside their area.

All the subcontracting made possible in this clause is already possible for London. Operators are allowed to subcontract there. I do not see why it is not possible to make a level playing field. No one, not even the Suzy Lamplugh Trust or the Local Government Association, has suggested that there are peculiar problems arising in London as a result of subcontracting. Sure, there are problems in London, as elsewhere, but operators

3 Feb 2015 : Column 572

are still required to keep records so that there is an audit trail. Quite simply, it is already an offence to subcontract to an unlicensed operator. It is clear that there is an issue to be dealt with, but it is not dealt with by interfering with Clauses 10 and 11.

Lord Sutherland of Houndwood (CB): My Lords, I understand the good sense of legislation taking account of the modern digital world in which we live. However, in the present context, relying on that for safety and security has two major problems. One has already been mentioned, that many older people—who are among the most vulnerable—are not particularly good at this. That is a generational thing that will change but it is the reality now. Secondly, we are talking, significantly, about areas of the countryside where—we are reminded once again today—there is not adequate digital provision. To assume that every house isolated in the countryside has a proper online service so that it can book taxis in this way rather than by the old, traditional method of telephone is simply a mistake—at the moment.

Baroness Thornton: My Lords—

The Minister of State, Department for Transport (Baroness Kramer) (LD):For a moment, I thought your Lordships would have a very enjoyable debate with no opportunity for me to speak. Let me start by responding to the issue of why we are moving clauses ahead of our response to the Law Commission and—undoubtedly, some time in the next Parliament—primary legislation dealing with the much broader issues of the changing world of private hire and taxis. That is a huge area and there is significant work yet to be done.

There are two reasons for going early with these clauses. The first is safety. I point out to the noble Baroness, Lady Thornton, that subcontracting within a licensing district is permitted for everybody and has been for years and we know of no issues arising from it. In London 10 years ago this place and the other place agreed to subcontracting across districts to help deal with the problem of unlicensed cab drivers behaving in a criminal way and putting the public at risk. The noble Baroness, Lady Thornton, gave some numbers for sexual assaults in London but the category she described included unlicensed drivers as well as taxi drivers and licensed private hire drivers. Unlicensed drivers have been the real problem within London. Permitting subcontracting so that someone calling up a company can be assured that a car will come and get them instead of being told, “Sorry all our cars are taken”, makes them far less tempted to get into an unlicensed cab crawling along the street attempting to get their business. That was the driver behind subcontracting in London and those who talk to people with experience of this in London will recognise that it has indeed been helpful in increasing safety. However, one sexual assault is always too many: we have to be vigilant and there is a great deal more to do.

One of the reasons I support moving ahead with this is my own experience of being out in more provincial areas, calling every number I could find for local taxi firms and finding not a single car available. This happened to me when I was going to visit a friend in a

3 Feb 2015 : Column 573

nursing home in a country area. I was very glad that it was not dark, that I was not standing there with several small children and that it was not pouring with rain because I think that had an unlicensed cab come by and offered me a lift I might well have been desperate enough to take it. That is not a situation we want. This measure is largely designed to make sure that there is a car available when someone calls a reputable licensed operator.

The other thing I want to clarify—I think there is real confusion over it—is subcontracting from an operator in one district to one in another district. Each operator has to be licensed in their own district and each of them can give the job only to a driver and a vehicle that are both licensed in their same area. So if you call an operator in District A and they give the job directly to a driver, both the driver and the vehicle have to be licensed within that area as well as the operator. If Operator A were to subcontract to an operator in District B, as would be permitted under this change in legislation, then Operator B could give the job only to a driver who is also licensed in District B with a vehicle licensed in District B, so the chain of accountability remains. I want to make that clear because it seems there has been incredible confusion.

Baroness Howarth of Breckland: Can I just ask the Minister an honest question of clarification? In this age of technology, why can the person who has called the taxi not be told—because that is all that is being asked—that there is a different company coming and make the choice at that point that that is what they want to happen?

Baroness Kramer: Let me move on to exactly that issue because it refers to the first part of Amendment 4. We looked at this very seriously because consent is attractive. First, we looked at the existing situation. As I said, subcontracting across districts in London has been going on for a decade. We have never heard—and we genuinely asked around as much as we could—of anyone complaining that a car came to get them which was not from the firm that they called. You call the Yellow cab company in your area, and a cab from Sun arrives to pick you up. We have never found any complaints that people were not asked for their consent before that happened. So the question arises: is there a problem? Again, within individual districts, subcontracting has been permitted for as long as anyone can remember. We have not had any complaints and cannot find anybody saying “I wasn’t asked before the subcontracting happened within this licensing district”.

Then we looked at the practical application. The big companies—my noble friend Lord Deben underscored this—could probably handle it quite easily. For people who go to a website or an app to book a cab, some additional lines somewhere in the terms and conditions would probably cover the consent issue—not that I have ever met anyone who has ever read the terms and conditions. The burden will fall on small companies which rely on the telephone. When we first started to look at this, I was quite hopeful that a casual question such as, “Do you mind if we need to bring in a cab from another area?”, would do, but in this day and age, to be legally secure, in effect the operator would

3 Feb 2015 : Column 574

have to read out something very like those six or seven lines you would find in the terms and conditions. I suggest that would drive everybody batty. Small companies do not have legal staff on hand and creating that and having to say that routinely every time would be an imposition, particularly when we can identify no problem.

We want to make sure that small companies have flexibility. This brings me to the second reason why we have adopted these clauses because it is particularly important. It is that these are changing times. Small players will be able to create collaborations with other companies in another district to be sure that they will have a larger pool of companies. Their reputation is on the line and the original operator is always on the line for the booking. Having that greater reach of cars gives them the ability to compete against the big boys who, I suspect, would like to see many of them out of business. I am grateful to my noble friend Lord Ridley for enumerating the many other business benefits—not running empty cars et cetera. It is particularly important for small players to have that flexibility, and it is another rationale for bringing this forward ahead of the Law Commission.

I have covered some of the reasons why we are concerned about the consent language. It appears attractive on the surface, but when we looked at it, it was becoming an impossible burden, particularly on small players. The enforcement clause raised more questions. First, it is only with regard to a vehicle. We currently have that chain of accountability—operator, licensed vehicle licence, driver licence—within the same enforcement authority, which is important. This clause deals only with the vehicle licence. It also fails to recognise the reality on the ground—I am sorry; I have forgotten which noble Lord made this point. Local authorities can delegate enforcement powers on this issue to other local authorities. With increased subcontracting, which will primarily be across the borders of neighbouring districts, we would not be at all surprised if various local authorities decide to collaborate or to delegate enforcement powers. That has some economies for them and will streamline enforcement.

At the moment, cars constantly cross district lines. It is quite possible that the car you get into is taking you shopping in another licensing district or to see Aunt Sally in another licensing district, so local authorities are very used to having to deal with the fact that cars are coming from other licensing districts and to communicating with the licensing district for enforcement purposes. Therefore they have experience in this area and deal with it on a regular basis. I therefore suggest that we do not have a particular problem here, and that what has been presented is a rather clear and narrow power that, frankly, would not contribute very much to effective enforcement.

Baroness Thornton: The noble Baroness keeps saying that there is no problem here. Why then, for example, do the student unions all say that their agreements with local taxi companies will be undermined and that they have problems? Those campus universities have huge problems with taxi companies going from one district to another and with the accountability of

3 Feb 2015 : Column 575

those companies. The noble Baroness knows that, because she will have received the same information that I did from Warwick, Coventry and Huddersfield.

5.15 pm

Baroness Kramer: I point out to the noble Baroness that she is describing a situation that exists today. I cannot answer to the individual situations, but it may well be that with a subcontracting arrangement in place it would be possible to have more secure arrangements for these various universities, which presently go to operators that cannot do the subcontracting that I have just described. However, there are many misconceptions about the relatively small changes that we are making and the benefits that they offer.

Baroness Thornton: These student unions are concerned about the safety of their students—that is their issue. The noble Baroness is dismissing those concerns and the safety issues that noble Lords have been asking her about. She needs to address the issues around safety here.

Baroness Kramer: I absolutely accept that safety has to be the primary issue. I make the argument that you could see these measures as only enhancing safety by making licensed vehicles or drivers more available to a wider range of people, through subcontracting from one operator to another. This system was adopted in London because it added to the safety of the travelling public. We have not allowed the rest of the country to have that benefit, and it is time we did. Having read much of the material that has come to me, I agree that there are many misconceptions around the clauses we have brought forward. However, it is important for us to look at the reality and make sure that we make these relatively small changes. Eventually there will be a major piece of primary legislation, so it is important that we do not pursue the amendments that the noble Baroness has brought forward and that we understand the benefits that will come from the clauses that have been proposed to provide for subcontracting across districts in the private hire industry.

Lord Harris of Haringey: Before the noble Baroness sits down, can she just explain to the House clearly why the Government are pressing forward with these changes rather than waiting for the report from the Law Commission? If her argument is that that will be long delayed, can she tell us for how long it will be delayed?

Baroness Kramer: I thought that I had explained that, but I will repeat it very quickly. Obviously, we are working on our response to the Law Commission. I have listened to this House today, and this will be a complex piece of legislation in the very much changing world of private hire and taxis, so it seems wrong to deny the public the benefits of simple changes that could be passed now. As I say, they both enhance safety and give flexibility and opportunity, particularly to the small players, who must live day to day. I see no reason not to take advantage of that possibility.

3 Feb 2015 : Column 576

Lord Harris of Haringey: So the Government have the Law Commission’s report at this stage?

Baroness Kramer: I am sorry, but I feel as if I am constantly bobbing up and down. Yes—we are preparing our response to the Law Commission.

Baroness Thornton: I thank noble Lords for this debate and for all their contributions. I agree with the noble Lord, Lord Deben, that technology has moved on—he is absolutely correct. However, the principle of safeguarding people is one that you would want to operate whatever the technology or lack of technology that is being used to order your taxi, whether you do that online or not. I thank the noble Baroness, Lady Howarth, for her contributions.

I need to be quite clear with the Minister that I have not said that we are opposed to flexibility. The Minister keeps putting this sally up, that we are opposed to the availability of more taxis. That is not the case; I have now said it twice on the record. In these amendments, we seek to ensure that people have a choice. The Minister dismisses the idea of consent in a very cavalier fashion; she says, in effect, “Consent is attractive, but we have looked at it and it is too complicated, so we are not going to go down that road”. Well, frankly, I do not think that is good enough. It is very important that people give consent as to whose cab they get into and when.

The Minister is right that local taxi companies will combine and provide a better service, and we want them to do so, but we need to ensure that it is done with the safeguarding of the travelling public in mind. That is what these very small and very modest amendments seek to do. I say to the noble Viscount, Lord Ridley, that we are not seeking to oppose these clauses. In fact, we are silent about Clause 10. We are seeking to make modest amendments to Clause 11 that address the issues of customer choice and the travelling public’s safety.

The Minister said that there were a lot of misconceptions out there. Well, frankly, if people are worried and have misconceptions, it is the Government’s job to put those to rest, and the Government have failed to do that. They have failed to make the student unions believe that their students will be safe with this legislation and failed to convince the Suzy Lamplugh Trust that this deregulation will make women safer. At the moment, the only things before the House are my amendments, which seek to do those things. I wish to test the opinion of the House.

5.22 pm

Division on Amendment 4

Contents 191; Not-Contents 235.

Amendment 4 disagreed.

Division No.  2

CONTENTS

Adams of Craigielea, B.

Ahmed, L.

Allen of Kensington, L.

Alli, L.

Alton of Liverpool, L.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

3 Feb 2015 : Column 577

Bach, L.

Bakewell, B.

Bassam of Brighton, L. [Teller]

Beecham, L.

Billingham, B.

Blackstone, B.

Blood, B.

Borrie, L.

Bradley, L.

Brennan, L.

Brooke of Alverthorpe, L.

Brookman, L.

Brown of Eaton-under-Heywood, L.

Browne of Belmont, L.

Campbell of Surbiton, B.

Campbell-Savours, L.

Carter of Coles, L.

Christopher, L.

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clinton-Davis, L.

Cohen of Pimlico, B.

Collins of Highbury, L.

Corston, B.

Cunningham of Felling, L.

Davies of Coity, L.

Davies of Oldham, L.

Deech, B.

Desai, L.

Donaghy, B.

Donoughue, L.

Dubs, L.

Elder, L.

Elystan-Morgan, L.

Evans of Temple Guiting, L.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Filkin, L.

Finlay of Llandaff, B.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

Gavron, L.

Glasman, L.

Golding, B.

Gordon of Strathblane, L.

Goudie, B.

Gould of Potternewton, B.

Grantchester, L.

Griffiths of Burry Port, L.

Hannay of Chiswick, L.

Hanworth, V.

Harries of Pentregarth, L.

Harris of Haringey, L.

Hart of Chilton, L.

Haworth, L.

Hay of Ballyore, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hilton of Eggardon, B.

Hollick, L.

Hollins, B.

Hollis of Heigham, B.

Howarth of Breckland, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Woodside, L.

Hunt of Chesterton, L.

Hunt of Kings Heath, L.

Jones, L.

Jones of Moulsecoomb, B.

Jones of Whitchurch, B.

Judd, L.

Kakkar, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

King of Bow, B.

Kinnock, L.

Kinnock of Holyhead, B.

Knight of Weymouth, L.

Laird, L.

Lawrence of Clarendon, B.

Layard, L.

Lea of Crondall, L.

Lennie, L.

Liddell of Coatdyke, B.

Lipsey, L.

Lister of Burtersett, B.

Low of Dalston, L.

McAvoy, L.

McConnell of Glenscorrodale, L.

McDonagh, B.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

McKenzie of Luton, L.

Mallalieu, B.

Mar, C.

Masham of Ilton, B.

Massey of Darwen, B.

Maxton, L.

Meacher, B.

Mendelsohn, L.

Mitchell, L.

Monks, L.

Moonie, L.

Morgan, L.

Morgan of Ely, B.

Morgan of Huyton, B.

Morris of Aberavon, L.

Morris of Handsworth, L.

Morrow, L.

Noon, L.

Nye, B.

O'Neill of Clackmannan, L.

Pannick, L.

Patel, L.

Patel of Bradford, L.

Pendry, L.

Pitkeathley, B.

Plant of Highfield, L.

Ponsonby of Shulbrede, L.

Prescott, L.

Quin, B.

Radice, L.

Ramsay of Cartvale, B.

Rea, L.

Rebuck, B.

Rees of Ludlow, L.

Reid of Cardowan, L.

Richard, L.

Rogan, L.

Rooker, L.

Rosser, L.

Rowlands, L.

Royall of Blaisdon, B.

St Albans, Bp.

Sawyer, L.

Scotland of Asthal, B.

Scott of Foscote, L.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Smith of Gilmorehill, B.

Smith of Leigh, L.

Snape, L.

Stevenson of Balmacara, L.

3 Feb 2015 : Column 578

Stoddart of Swindon, L.

Stone of Blackheath, L.

Sutherland of Houndwood, L.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Temple-Morris, L.

Thornton, B.

Tomlinson, L.

Touhig, L.

Trees, L.

Triesman, L.

Tunnicliffe, L. [Teller]

Turnberg, L.

Turner of Camden, B.

Uddin, B.

Wall of New Barnet, B.

Warnock, B.

Watson of Invergowrie, L.

West of Spithead, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wigley, L.

Wilkins, B.

Williams of Baglan, L.

Williams of Elvel, L.

Wills, L.

Woolmer of Leeds, L.

Worthington, B.

Young of Norwood Green, L.

NOT CONTENTS

Aberdare, L.

Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Allan of Hallam, L.

Anelay of St Johns, B.

Armstrong of Ilminster, L.

Arran, E.

Ashdown of Norton-sub-Hamdon, L.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Avebury, L.

Bakewell of Hardington Mandeville, B.

Balfe, L.

Bates, L.

Benjamin, B.

Berridge, B.

Bichard, L.

Black of Brentwood, L.

Blackwell, L.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Borwick, L.

Bourne of Aberystwyth, L.

Bowness, L.

Brabazon of Tara, L.

Bradshaw, L.

Brady, B.

Bridgeman, V.

Brinton, B.

Broers, L.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Browning, B.

Buscombe, B.

Byford, B.

Caithness, E.

Cameron of Dillington, L.

Carrington of Fulham, L.

Cathcart, E.

Cavendish of Furness, L.

Chidgey, L.

Chisholm of Owlpen, B.

Clement-Jones, L.

Colville of Culross, V.

Colwyn, L.

Cope of Berkeley, L.

Cotter, L.

Courtown, E.

Cox, B.

Craig of Radley, L.

Cumberlege, B.

De Mauley, L.

Deben, L.

Deighton, L.

Denham, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dykes, L.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Elton, L.

Empey, L.

Evans of Bowes Park, B.

Falkner of Margravine, B.

Farmer, L.

Faulks, L.

Fearn, L.

Feldman of Elstree, L.

Fellowes, L.

Fink, L.

Finkelstein, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Framlingham, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Garel-Jones, L.

Geddes, L.

German, L.

Glasgow, E.

Glenarthur, L.

Glentoran, L.

Gold, L.

Grade of Yarmouth, L.

Grender, B.

Griffiths of Fforestfach, L.

Hamilton of Epsom, L.

Hamwee, B.

Hanham, B.

Harris of Peckham, L.

Harris of Richmond, B.

Helic, B.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Holmes of Richmond, L.

Home, E.

Hooper, B.

Horam, L.

Howard of Lympne, L.

Howe, E.

Howell of Guildford, L.

Hunt of Wirral, L.

Hussein-Ece, B.

James of Blackheath, L.

Janke, B.

Jenkin of Kennington, B.

3 Feb 2015 : Column 579

Jolly, B.

Jones of Cheltenham, L.

Kirkham, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Kramer, B.

Laming, L.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lawson of Blaby, L.

Lee of Trafford, L.

Leigh of Hurley, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Liverpool, E.

Livingston of Parkhead, L.

Loomba, L.

Luce, L.

Ludford, B.

Luke, L.

Lyell, L.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

McNally, L.

Maddock, B.

Maginnis of Drumglass, L.

Manzoor, B.

Marks of Henley-on-Thames, L.

Marlesford, L.

Mawhinney, L.

Mawson, L.

Miller of Chilthorne Domer, B.

Mobarik, B.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Moynihan, L.

Nash, L.

Neville-Jones, B.

Neville-Rolfe, B.

Newby, L. [Teller]

Newlove, B.

Noakes, B.

Northover, B.

Norton of Louth, L.

O'Cathain, B.

Oppenheim-Barnes, B.

Oxford and Asquith, E.

Paddick, L.

Parminter, B.

Perry of Southwark, B.

Phillips of Sudbury, L.

Pinnock, B.

Plumb, L.

Popat, L.

Purvis of Tweed, L.

Randerson, B.

Redesdale, L.

Renfrew of Kaimsthorn, L.

Rennard, L.

Ribeiro, L.

Ridley, V.

Risby, L.

Roberts of Llandudno, L.

Rowe-Beddoe, L.

Scriven, L.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Sharkey, L.

Sharp of Guildford, B.

Sharples, B.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shields, B.

Shipley, L.

Shutt of Greetland, L.

Skelmersdale, L.

Smith of Newnham, B.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Stephen, L.

Stewartby, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Suri, L.

Suttie, B.

Taylor of Goss Moor, L.

Taylor of Holbeach, L. [Teller]

Tebbit, L.

Teverson, L.

Thomas of Gresford, L.

Thomas of Winchester, B.

Tope, L.

Trefgarne, L.

Trimble, L.

Tugendhat, L.

Tyler, L.

Tyler of Enfield, B.

Ullswater, V.

Verma, B.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Walpole, L.

Warsi, B.

Wasserman, L.

Wei, L.

Wheatcroft, B.

Wilcox, B.

Williams of Crosby, B.

Williams of Trafford, B.

Wrigglesworth, L.

Younger of Leckie, V.

5.34 pm

Amendment 5 not moved.

Clause 17: Authorisation of insolvency practitioners

Amendment 6

Moved by Baroness Hayter of Kentish Town

6: Clause 17, page 12, leave out line 6

3 Feb 2015 : Column 580

Baroness Hayter of Kentish Town (Lab): My Lords, the Government’s new partial authorisation for insolvency practitioners would split the existing regulation of this quite tiny profession—some 1,350 who take appointments, according to the noble and learned Lord the Minister—into three. There would be company-only and individual-only insolvency practitioners, and some of course doing both. On the basis of no evidence, the Government have decided to dilute this very small but specialist profession. Amendment 6 would preclude the development of corporate-only licences.

The Government admitted to the insolvency practitioners’ professional body, R3, that Clause 17 was not being introduced to “fix a problem”. Indeed, the Government cited no evidence of undercapacity in the market, nor of complaints about the current system. Virtually all the insolvency practitioners consulted, and their major representatives, said that the proposal was a bad idea. The ICAEW’s consultation evidenced no support for the partial qualification. Indeed, the only body cited as being in support, the IPA, found that 61% of its respondents were against—they did not think that the proposals were a good idea.

According to the Government, it was only some of the IPA’s non-practitioner members who were in favour. More than that, having finally seen the IPA’s survey last week, I discovered that its questionnaire did not distinguish between individual insolvency-only licences, which we support, and corporate-only licences, about which we have grave reservations. So the IPA has no idea whether any of its respondents support the idea of practitioners undertaking corporate insolvencies without also being qualified in individual insolvency. Furthermore, despite finding that a majority of its respondents did not think it was a good idea, the IPA dismissed these views as being those only “of current licence holders”. Surely those are exactly the people who know what they are talking about.

Without Amendment 6, Clause 17 would allow insolvency practitioners to undertake corporate bankruptcies, which almost always also affect the financial status of individuals, with no qualification as to the latter’s needs. Indeed, insolvency practitioners often do not know at the outset of a case, particularly with micro-businesses, whether they are dealing with a corporate or personal insolvency—or, indeed, with both, given the involvement of personal guarantees and the nature of creditors.