House of Lords
Taxation: Income Tax
(11 years, 2 months ago)
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Lord Greaves
To ask Her Majesty’s Government what measures they will take to ensure that wage-earners who are below the income tax threshold will benefit from any future increases in the personal allowance.
Lord Newby
My Lords, since 2010 the Government have announced successive increases in the personal allowance totalling £2,965. Taken together, these changes will ensure that more than 2.2 million low-income individuals will be removed from income tax altogether. The Government are also taking other measures that will benefit those who are below the income tax threshold, including the introduction of universal credit, support on childcare and the pupil premium.
Lord Greaves
My Lords, some 4,300,000 employees already earn too little to benefit from the increase in the personal allowance this year—which I fully support—and this will rise to nearly 5 million workers in 2013-14, about 17% of the labour force, of which two-thirds will be women. How can it be right or fair that a policy trumpeted as helping low-paid workers does nothing for the lowest-paid 5 million? Will the Government look seriously at new ways to end this unfair situation?
Lord Newby
My Lords, some of those 5 million were paying income tax until we took them out of income tax, so they have benefited significantly from the changes that we made. The vast bulk of those 5 million are people in work who are not working full time, so one of the key things that we have to try to ensure is that more people are working full time. One of the better statistics on the labour market—which had a good year in many respects last year—is that 32,000 people who were working part time and who wanted to work full time got full-time jobs in the last quarter of last year.
Lord Morris of Handsworth
My Lords, interesting as it is to be debating the tax and benefits system, is not the real answer here the rapid and vigorous promotion of the living wage? That will do more for the poor than the tax and benefits system as outlined by the Minister.
Lord Newby
My Lords, the living wage is one component in supporting the poor, and the Government have made it clear that they encourage people to use it. However, for many people who are poor the key thing is to get into work and, having got into work, to work the number of hours that are compatible with the family circumstances in which they find themselves. Particularly via the universal credit, we are taking steps to make sure that work always pays and that people are indeed encouraged to take up the maximum number of hours that are appropriate for them.
Lord Forsyth of Drumlean
My Lords, while congratulating the Government on raising the threshold at which people pay income tax—an ideal which was first put forward by my noble friend Lord Saatchi—perhaps I may just ask whether they have any plans to raise the threshold at which people pay national insurance. Many of the people to whom the noble Lord, Lord Greaves, referred are still paying national insurance at very high rates, and national insurance is a tax. Would we not be wise to merge national insurance and income tax so that people realise just how much is being taken out of their pay packets?
Lord Newby
My Lords, the Government do not have any plans to raise the threshold for national insurance simply because—as noble Lords will be aware—to do so would be extremely expensive. The Government looked at merging national insurance and income tax but have decided that they will not take that consideration any further forward for the course of this Parliament.
Lord Brooke of Alverthorpe
My Lords, is it not true that the 5 million people who may have benefited from the changes have in fact had to pay extra VAT since this Government came to power? They are all paying 2.5% extra in VAT. Could we not look for a reduction in the VAT rate, which in turn would then be a great stimulus to the economy?
Lord Newby
My Lords, the Government do not think that a reduction in the VAT rate makes any sense at this point. A 1% reduction in the VAT rate costs about £12 billion. If we were to reduce the VAT rate, we would have to find that £12 billion from somewhere else—so we do not propose to reduce it.
Baroness Gardner of Parkes
Is any thought being given to rates of pay for the self-employed? We have heard about the living wage, which is great, and even the basic wage is something, but I meet so many people in caring jobs who are earning less than £2 an hour. How can they live on that? The employer, who is usually employing them directly, has no obligation whatever to pay any more than that. These people are often a bit intimidated but they continue to work for that sort of miserable amount because they really care about the person.
Lord Newby
My Lords, as the noble Baroness knows, we have minimum wage legislation. That is the route to ensuring that people are paid a decent minimum wage.
Baroness Farrington of Ribbleton
My Lords, will the Minister admit that some of the people to whom I think the noble Baroness, Lady Gardner, was referring are classified as self-employed and therefore are not protected under the national minimum wage legislation? Will he write to me with details of the reductions in benefit that will occur for those who earn too little to benefit from the subject matter in the Question asked by the noble Lord, Lord Greaves, and who will therefore be losing money twice?
Lord Newby
I am always happy to write to the noble Baroness. On the first point she raised, if one is self-employed, the only person you can look to to pay your salary is yourself. If you earn money yourself, you are able to pay yourself well. If you have a contract with somebody as a self-employed person, you should be looking to be paid at least the minimum wage under that contract. However, many self-employed people do consultancy work of various sorts for a fixed price or produce goods and the extent to which they earn an income depends on the extent to which they are able to sell what they produce.
Lord Davies of Oldham
My Lords, the noble Lord’s Answer to his noble friend Lord Greaves was pathetically thin against a background where, as he must surely appreciate, unfairness is perpetrated very heavily against the low-paid and the poor, for whom the Government have scant regard, having of course withdrawn significant numbers of benefits from them. When will the Government address the fact that the economy is so lacking in demand that we are in the worst depression for 80 years? Ministers are not matching up to the challenge presented.
Lord Newby
My Lords, for most people the most important factor in the economy is whether they have a job. Last year, an additional half a million people got a job and it was a major step forward in their personal circumstances. The labour market has performed well, and it continues to perform well, and all forward indicators in recent surveys suggest that, across all sectors, even more people are likely to be employed in the near future.
Health: Cardiology
(11 years, 2 months ago)
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Lord Storey
To ask Her Majesty’s Government what measures they are taking to detect and prevent sudden cardiac death.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, as the Cardiovascular Disease Outcomes Strategy published yesterday made clear, the national clinical director for heart disease will continue to work with all relevant stakeholders to develop and spread good practice in this area. Alongside this, the UK National Screening Committee is reviewing the case for screening for sudden cardiac death, and will begin a public consultation on this soon.
Lord Storey
I thank my noble friend the Minister for that Answer. He will no doubt be aware that hundreds of young people die as a result of fatal premature cardiac conditions each year. He may also have heard of the Oliver King Foundation, established in memory of a 12 year-old Liverpool boy who sadly died of sudden death syndrome at his school in 2011. Does the Minister not agree that despite many ambulance trusts having some form of community resuscitation department, it should be policy to install automated external defibrillators in all public buildings? Furthermore, will the Minister agree to meet with the foundation and others to discuss the feasibility of a national screening programme to identify those at risk and prevent further loss of life, particularly among young people?
Earl Howe
My Lords, I pay tribute to the Oliver King Foundation for its work, as indeed I do to Cardiac Risk in the Young, which for many years has been campaigning very tellingly and successfully in this area. I think that my initial Answer should have satisfied my noble friend on the screening question, because that is now being reviewed by the screening committee. Regarding defibrillators, we have to look at the need to improve survival rates in the most effective way. I understand that the majority of these deaths—possibly as many as 80%—occur in the home. While we agree that the wider availability of defibrillators could save additional lives, CPR skills—cardiopulmonary resuscitation—should save more lives. To that end, the outcomes strategy says that my department will work with the Resuscitation Council, the British Heart Foundation and others to increase the number of people who are trained in CPR.
Lord Turnberg
My Lords, will the noble Earl encourage all schools to incorporate training in CPR for all schoolchildren? A skill learnt there will carry on through the rest of a child’s life.
Earl Howe
My Lords, the noble Lord makes a very good point. Again, as the CVD outcomes strategy sets out, basic life-support skills could be more widely taught as part of volunteering programmes; for example, in schools and the workplace. I am aware that bystander CPR doubles survival rates yet is attempted in only 20% to 30% of cases. There is scope for all emergency service personnel to be trained in CPR, and for basic life-support skills to be taught more widely.
Baroness Finlay of Llandaff
Are departmental advisers working with the new chief coroner, whose appointment has been widely welcomed, to ensure that there are minimum standards at post-mortem, so that when a young person has had a sudden cardiac death the risk to other family members can be appropriately identified? It is important that specimens from the heart of a deceased young person are not lost because the post-mortem has not been done to a high enough standard.
Earl Howe
The noble Baroness makes a very important point. My department supported the formation of the UK Cardiac Pathology Network in 2006 to provide local coroners with an expert cardiac pathology service and to promote best pathological practice in sudden death cases. A national database on sudden arrhythmic death was launched in November 2008, allowing pathologists to record information on cases referred to them. In the longer term this could be very helpful in building a deeper understanding of the problem.
Lord Colwyn
My Lords, during 2011, 56 deaths were caused by fire in London. Legislation requires all public buildings to have fire extinguishers. In that same period in London, there were 9,657 out-of-hospital cardiac arrests. Why is there no similar legislation for public-access defibrillators?
Earl Howe
My Lords, as a general point, ambulance trusts are by far the best placed to understand the requirements of their local populations in terms of defibrillator distribution. However, I understand that the British Heart Foundation is looking into the need for more defibrillators in the community, so we will await that work with great interest.
Lord Glentoran
My Lords, can my noble friend tell us what effect in percentage terms obesity is having, particularly on the young? I read that a considerable percentage of deaths and heart problems are due to obesity. What programmes do we have running to reduce the level of obesity in the United Kingdom?
Earl Howe
My Lords, a variety of programmes is running, including Change4Life and the national screening programme. However, as my noble friend will be aware, the kind of sudden cardiac death mentioned in the Question is rather different from cardiovascular disease, which afflicts people in later life. We are talking in the Question about unexplained, very sudden cardiac death in the young, which we believe has little to do with lifestyles and much more to do with genetic susceptibility.
Lord Patel
My Lords, will the Minister explain a little bit more about the proposed public consultation on screening? The evidence for the screening of families where a cardiac death has occurred, particularly in a young person—which is linked to a gene—is conclusive, so what is the public consultation about?
Earl Howe
The public consultation is reviewing the policy position on screening for hypertrophic cardiomyopathy, but the noble Lord is absolutely right that better identification of families who are at high risk of inherited cardiac conditions is vital. That is stressed in the cardiovascular strategy.
EU: Salaries
(11 years, 2 months ago)
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Lord Flight
To ask Her Majesty’s Government how many people are employed by the European Union institutions; and what assessment they have made of how many of those individuals pay either no tax or reduced tax rates on their remuneration.
Lord Wallace of Saltaire
My Lords, the European Union institutions all together employ approximately 55,000 people. EU staff are exempt from national income tax, a similar situation to that found in other international bodies. As in other international bodies, the EU deducts a proportion of salary as a form of extranational taxation, proceeds from which are returned to the EU budget. This is applied progressively, rising from an initial 8% to a 45% marginal rate for the highest-paid. In addition, there is now a special or solidarity levy, which last month was increased from a top rate of 5.5% to 6%; most officials pay an average of 2%. I should declare an interest. My wife was for five years the director of the Robert Schuman Centre in Florence, whose staff regulations were those of the European institutions. We have examined her payslips and established that an average of 28% of her gross salary was deducted in community tax each month.
Lord Flight
My Lords, would it not be more sensible for civil servants working for the EU to be taxed on the same basis as civil servants working, for example, for the Foreign Office; namely, for them to pay the rates of income tax applicable to the country where they are otherwise normally resident?
Lord Wallace of Saltaire
My Lords, we are now into the whole question about residency, non-residency and international organisations. It has been a common rule for international organisations that you do not pay national taxes but are given a degree of exemption. If we were to reclassify the European Union as not an international organisation but as rather like going to work in Manchester or Leeds, different processes would apply. As a former international banker, the noble Lord will be well aware of the many complexities of international taxation, expatriate allowances and the like.
Lord Tomlinson
Is the Minister as surprised as I am by the low number of European Union institution employees? How does that figure—I think he said 55,000—compare with a large-scale local authority in the United Kingdom?
Lord Wallace of Saltaire
My Lords, the figures I have are that Paris employs 50,000 people and Birmingham employs 60,000 people, so it is a relatively modest number. I am sure the noble Lord will admit that the inefficiencies of the Commission—in particular, the rather inadequate personnel policies, the relatively generous allowances and an expatriate allowance which, unlike the NATO expatriate allowance, does not phase out after a number of years and is rather more generous—are things that we should be looking at, particularly when all national budgets within the European Union are being squeezed.
Lord Dobbs
Will my noble friend help a confused man who has trouble with numbers? We have one European Union which has two parliaments, three presidents and dozens of employees who earn more than our Prime Minister. I understand that the second parliament in Strasbourg, over the course of the parliamentary cycle, costs our taxpayers €1.5 billion. Do any of those statistics make any sense to him?
Lord Wallace of Saltaire
My Lords, there are a number of built-in inefficiencies in every international organisation to which we belong. It is not two parliaments, it is two parliament buildings. The British Government and British Members of the European Parliament have campaigned for several years for a single seat for the European Parliament. If I were to go into the enormous costs of the UN having a base in Geneva as well as New York, we would note that the EU is not the only international organisation that suffers from these inefficiencies.
Lord Anderson of Swansea
My Lords, lest the Question be viewed as in any way anti-European Union, which I am sure is not the noble Lord’s intention, will the Minister confirm that the tax regime he mentioned not only applies to the United Nations but also to a number of other organisations based within the European Union, such as the OSCE and NATO in Brussels? It is general and in no way a feature of the European Union.
Lord Wallace of Saltaire
I have already said that this applies to a large range of other European and global organisations, of which there are a great number. That does not mean, however, that Her Majesty’s Government and their allies in like-minded Governments in the EU are not entirely correct to say that we should be squeezing more efficiency out of the EU institutions and that the Commission has grown rather complacent over the years.
Lord Pearson of Rannoch
My Lords, what is the average annual cost to the taxpayer of Members of your Lordships’ House and what is the average annual cost to the taxpayer of Members of the European Parliament, including all the latter’s special perks and allowances?
Lord Wallace of Saltaire
My Lords, it may surprise the noble Lord, but I do not have the exact figures to hand. Of course, any international parliament costs a great deal more because of the travel, dual residence and so on that are involved. Members of this House who also attend the Parliamentary Assembly of the Council of Europe or the NATO Assembly also cost rather more than the rest of us.
Lord Howell of Guildford
Does my noble friend have any figures on the European External Action Service? Has he noticed recent criticism that it is not performing very effectively? Does he have any measure of cost versus performance for that body?
Lord Wallace of Saltaire
My Lords, I do not have that. The European External Action Service is still very much in its early stages. It is now performing rather better than when it was originally established. Multinational operations take longer to get going than others—I am looking at various people here who have served in the European Commission—and have a level of built-in efficiency.
Lord Foulkes of Cumnock
Is the Minister aware that the European Union Committee on which I have the honour to serve is about to produce a report on the European External Action Service? I am sure that the noble Lord, Lord Howell, will read it with the greatest of interest?
Baroness Royall of Blaisdon
My Lords, I wish to place on record, and ask the noble Lord to accept, that although we on this side of the House are very pro-European, we, like the Government, seek reform of the institutions, including all the salary levels, and so on.
Lord Wallace of Saltaire
I thank the noble Baroness for that expression of consensus. She will know from her time working for EU institutions that the staff regulations and staff unions in Brussels have a certain element of the 1960s about them which requires a little modernisation.
Syria
(11 years, 2 months ago)
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Baroness Falkner of Margravine
To ask Her Majesty’s Government, in the light of the recent Friends of Syria conference in Rome, what assessment they have made of the political situation in Syria.
Lord Wallace of Saltaire
My Lords, the Foreign Secretary has stated that there must be a political solution to the conflict, which has already claimed more than 70,000 lives. The longer the conflict continues, the more radicalised and sectarian it will become, with an increasing risk of regional overspill. There is no sign that the Assad regime intends to enter into a genuine political process. We must, therefore, increase pressure on Assad and his regime to push them to the negotiating table.
Baroness Falkner of Margravine
My Lords, does my noble friend agree that the increase in pressure proposed today in the Foreign Secretary’s Statement may be too little, too late? Does he further agree that the West’s interests are now profoundly engaged, as a failed state in Syria will result in an expansion of international terrorism, increase the dangers from WMD, endanger the supply of energy and destabilise Jordan, Lebanon, Israel, Iraq and even Turkey? Therefore, will Her Majesty’s Government now work with the United States and France to arm the non-jihadi opposition forces, recognising that the use of force will be the only way to bring the Assad Government to the negotiating table or to bring about an eventual forced peace, should Assad not be available to bring about peace?
Lord Wallace of Saltaire
My Lords, we are balancing a number of extremely difficult choices all the way through. We are attempting to force the regime to negotiate. We do not have all the permanent members of the UN on our side. The Russians continue to support and, reportedly, to supply the Assad regime. The Iranians are of course supplying the Assad regime. We have taken what we regard as a carefully calibrated decision to upgrade the amount of support, including non-lethal armour, to the Opposition, but we are all conscious that once you start supplying high-end weapons to a civil war, you never quite know where they will end up, as the French discovered in Mali.
Lord Wright of Richmond
My Lords, I hope that I may be permitted to ask a few of the many questions which I would have tried to ask if the Foreign Secretary’s Statement had been repeated in this House today. First, does the Minister accept that even the supply of non-lethal assistance to the so-called Opposition represents a dangerous escalation of our involvement in what is now, and has been for a long time, effectively a Sunni-Shia war? What reason do the Government have for thinking that the Opposition, which HMG have now recognised as the legitimate Government of Syria, would be any more accountable or democratic than the present regime in Damascus?
Secondly, can the Minister confirm that we still support Ambassador Brahimi’s mission? Does he agree that, instead of rubbishing President Assad’s recent interview in the Sunday Times, we should encourage Ambassador Brahimi to follow up President Assad’s offer of unconditional negotiations with such parts of the Opposition as have also expressed their readiness to negotiate?
Finally, I welcome the decision of the United States Government and HMG to withhold lethal military assistance from the Opposition. Are we similarly encouraging our friends in the Gulf to do likewise?
Lord Wallace of Saltaire
My Lords, there were a large number of questions there. I say simply that my right honourable friend the Foreign Secretary is meeting Lakhdar Brahimi this afternoon. He is also meeting the Russian Deputy Foreign Minister. The Foreign Secretary and other Foreign Office Ministers are extremely actively engaged. It is not yet a Sunni-Shia conflict. We are all conscious of the danger that it will deteriorate into a Sunni-Shia conflict. Working with the Opposition, we are doing our best to encourage them to represent all the different communities within Syria. Our aim is to bring a negotiated end to the conflict and to prevent it from deteriorating further.
Baroness Uddin
My Lords, what assessment have the Minister and his department made of the impact of the Saudi Government’s leadership in regional discussions with regard to the ongoing disaster and destruction in Syria, where 1 million people are fleeing persecution and violence according to the UN High Commissioner for Refugees?
Lord Wallace of Saltaire
My Lords, we are working with the Saudis, the Qataris and a number of other states in the Middle East. We are very conscious that Lebanon and Jordan are particularly affected by the Syrian conflict. In Lebanon, the number of refugees is equivalent to 10% of its population. If we imagine the impact on British society of the arrival of 6 million refugees, that is what Lebanon is currently going through. We are very conscious of the potential for this conflict to spill over Syria’s borders.
Lord Eden of Winton
My Lords, will my noble friend return to one part of the question asked of him by the noble Lord, Lord Wright of Richmond? Can he give any assurance at all that if President Assad is removed, his replacement will not be more repressive?
Lord Wallace of Saltaire
My Lords, by its nature when a very localised civil war is under way, it is very difficult for any of us to control what the outcome will be. The only assurance that I, or any other international actor, can give is that Her Majesty’s Government are working with our allies and partners in the Middle East and attempting to persuade the Russian and Chinese Governments to work towards the achievement of a negotiated solution that would see a more inclusive Government replace the Assad regime.
Lord Hylton
My Lords, have the Government studied the recent proposal for transitional justice in Syria, put forward by the Syrian Support Group? If implemented, would it not have the effect of separating ordinary, innocent Alawis from the regime?
Lord Wallace of Saltaire
My Lords, there are a great many efforts under way to protect the Alawi minority, the Christian minority and the smaller number of Druze within Syria from what could easily deteriorate into a sectional jihad. We are all very worried about that possibility. A great deal of work is under way, quite a lot of it funded by DfID, to advise the Opposition about negotiated transition, rebuilding local communities and providing the basic services that people need to start the process of reconciliation.
Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013
(11 years, 2 months ago)
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Lord Wallace of Tankerness
That the draft order laid before the House on 22 January be approved.
Relevant documents: 17th Report from the Joint Committee on Statutory Instruments, 27th Report from the Secondary Legislation Scrutiny Committee, considered in Grand Committee on 26 February.
Health and Social Care Act 2012 (Consequential Amendments) Order 2013
(11 years, 2 months ago)
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Renewable Transport Fuel Obligations (Amendment) Order 2013
(11 years, 2 months ago)
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Earl Attlee
That the draft order laid before the House on 19 December 2012 be approved.
Relevant document: 15th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 27 February.
Guaranteed Minimum Pensions Increase Order 2013
(11 years, 2 months ago)
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Baroness Stowell of Beeston
That the draft order laid before the House on 28 January be approved.
Relevant documents: 15th and 18th Reports from the Joint Committee on Statutory Instruments, considered in Grand Committee on 28 February.
Antarctic Bill
Enterprise and Regulatory Reform Bill
17:00 - Division on Amendment 80A - Ayes: 225 / Noes: 223 - Amendment 80A agreed.
18:23 - Division on Amendment 81A - Ayes: 211 / Noes: 206 - Amendment 81A agreed.
20:24 - Division on Amendment 83A - Ayes: 163 / Noes: 192 - Amendment 83A disagreed.
Lord McKenzie of Luton
The Deputy Chairman of Committees (Baroness Anelay of St Johns)
My Lords, the noble Lord, Lord McKenzie, is very courteously taking a very short respite to give colleagues the opportunity to leave the Chamber, which I know they are trying to do quietly. Perhaps quickly might also be a watchword.
Lord McKenzie of Luton
My Lords, Amendment 80A stands also in the names of the noble and learned Lord, Lord Hardie, and the noble Lord, Lord Wigley. I shall speak to Amendment 80B, which also stands in the name of the noble Lord, Lord Wigley. I should also make it clear that we strongly support Amendment 81 and look forward to hearing from my noble friend Lady Turner and the other distinguished noble and noble and learned Lords who have put their names to that amendment.
Amendment 80A is an attempt to defeat the fundamental purpose of Clause 62; effectively, it is an alternative to removing that clause. Clause 62 seeks to remove civil liability from breaches of duty imposed by health and safety regulations, and our amendment would reinstate that right of action. I acknowledge here that it would require same consequential tidying at Third Reading.
We should be under no illusions about the serious consequences which will flow from Clause 62, should it be allowed to remain unamended. It will remove the existing right of an employee to rely on a breach of health and safety legislation in any claims for personal injury, so unless any exceptions are to be applied it will be possible to claim compensation for breaches of health and safety regulations only if it can be proved that the duty holder has been negligent. We are aware of just one exception. As the Explanatory Notes to the Bill state:
“This means that in future, for all relevant claims, duty-holders will only have to defend themselves against negligence”.
The Government have sought cover for their clause by citing the report of Professor Löfstedt, Reclaiming Health and Safety for All. A small section of that report focused on strict liability, where the professor recommended that there should be a review of such provisions and that they be either qualified with “reasonably practicable” or amended to prevent civil liability attaching to such provisions. In the event, of course, the Government have not undertaken a review and are going much further than the professor in seeking to remove civil liability from all breaches of health and safety regulations. The Government have focused on strict liability as being unfair because an employer could be found liable to pay damages to an employee, despite having taken all reasonable steps to protect them.
However, that does not give fair recognition to the fact that strict liability applies in very limited circumstances and where injured employees would otherwise face a near impossible evidential burden. Overwhelmingly, the duties are qualified by the phrase, “so far as is reasonably practicable”. Examples of strict liability would include injury caused by defective equipment where the employer controls the selection, purchase, installation and maintenance of equipment, where investigation can be very difficult and with the employer holding all the cards.
The commentary in the Government’s own impact assessment is that the number of compensation cases which rely on a breach of strict liability statutory duties will be small and despite their position, the Government have declined to undertake the review that Professor Löfstedt recommended to potentially restrict the number of situations in which strict liability is relevant. They now argue that it would be too complex a task and would anyway have largely been done when consideration of the transposition of EU directives was considered. Rather than doing the work, they use the issue as an excuse to change the liability regime across the board, potentially to the disadvantage of tens of thousands of employees each year, who will find access to justice more difficult and expensive. For some, it will be denied altogether.
Lord Wigley
I support Amendments 80A and 80B tabled by the noble Lord, Lord McKenzie, to which I have added my name, as I have to Amendment 81 tabled by the noble Baroness, Lady Turner. Each of these amendments seeks to overhaul the provisions contained in Clause 62, as we have heard, which threatens to turn the clock back to Victorian times for injured workers’ rights to compensation.
The clause has rightly been criticised in earlier stages of the Bill, and was only introduced on Report in another place. By amending the Health and Safety at Work Act 1974, the clause will place the burden of proof on to the injured employee who in future will have to provide evidence that his or her injury has resulted from their employer’s negligence.
As the Association of Personal Injury Lawyers has made clear in its appeals to the Government, the clause, if passed, would be highly advantageous to negligent employers, who of course control the workplace and equipment, and are more familiar with the workings of the business. Moreover, it is completely unfair to put this extra burden on an employee who is injured, particularly in cases where the employee would have been rendered unconscious and hence possibly unable to remember details of the incident.
As I understand it, the clause would also impact on families of employees who have been killed in an accident, who would obviously be at a disadvantage in gathering evidence against the employer. If I have wrongly interpreted that, perhaps the Minister could correct me but, if I am right, how on earth can the Government justify that position?
Amendment 81 would delete the clause in its entirety, which would obviously be the most favoured option for those of us opposed to these provisions. Amendment 80A would negate the clause to all extents and purposes and so, if Amendment 81 is not passed, I urge noble Lords to support Amendment 80A. Finally, Amendment 80B would require the Government to conduct a review, before the provisions of the clause can come into effect, of all duties imposed by a statutory instrument containing health and safety regulations and to determine whether they should be actionable.
Clause 62 brings in sweeping and unnecessary changes to health and safety duties at work. The Government must surely pause before introducing such provisions, to ensure that any employer who breaks the law pays the correct penalty.
Baroness Turner of Camden
My Lords, Amendment 81 stands in my name. At Second Reading and in Committee, I opposed this clause. The Government have introduced some amendments to the original, but they do not alter the Bill substantially. It would still alter the Heath and Safety at Work Act in a way that is not to the advantage of an injured worker. Section 47(2) of the Act says:
“Breach of a duty imposed by health and safety regulations shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise”.
In practice, I am advised by the Association of Personal Injury Lawyers, to which reference has already been made, that this means that if a worker is injured and can prove than an employer has breached a statutory duty, he is entitled to claim compensation. This is the basis upon which many workplace injury cases are usually brought.
The law is clear and well understood. It is the basis on which health and safety legislation has been drafted and passed by Parliament. This is the provision which the Government seek to alter. Without this provision, the injured person would be obliged to rely on the law of negligence, which would be much more difficult. Take the case where a worker has been fatally injured after working with faulty equipment. At present, the family need only prove that there had been breaches of statutory regulation in order to claim compensation. Under the provisions of the Bill, the family would have to go much further and prove that the employer knew that the equipment was faulty and did nothing about it. That would be much more difficult than proving that regulations in place to protect the worker had been breached.
According to the Government’s own figures, the provisions in this clause will affect 70,000 cases in England, Wales and Scotland. That is quite a number of injured workers. There are many industries—construction is one—which are inherently dangerous. I urge noble Lords to look at London: it has masses of construction sites, full of scaffolding and workers working on them. The workers who regularly endanger their safety on these sites deserve proper protection. If the Government are really concerned about safety, they should strengthen the HSE instead of cutting resources and thus cutting HSE inspections, which are so necessary to maintain health and safety at work.
This clause, if enacted, will encourage employers to abnegate their responsibilities and rogue employers will get away with it. What about insurance? Employers are expected to have employers’ liability cover. It is fairly clear that insurance premiums will increase as a result of this legislation. Do the Government really believe some of the assertions in the trade press that we are becoming a compensation culture with many unjustified claims? I do not think so.
I once worked in the claims department of a large insurance company. Injured workers then had quite a tough time sometimes getting adequate compensation for their injuries. I thought at the time that they needed representation in order to get justice. Unions, of course, provide a skilled service for their members in such situations; my own union has a good and important legal department. However, not everyone is in a union. Even now, workers individually sometimes have difficulty in securing compensation. With this clause enacted in legislation, it will be much worse: the burden of health and safety will be transferred from the shoulders of well resourced employers to vulnerable workers, which is unjust and unfair. It takes the law on workplace safety back to Victorian times, beyond the landmark 1898 law, under which it became possible to claim compensation where employers had breached their statutory duty.
I oppose this clause; it is unfair and unjust and in the end will cost the taxpayer much more in support for injured workers unable to achieve compensation. I am opposing it because I want to send a message to the Government that they should not attempt to interfere with established procedures which have served people well and are respected. They should not attempt to do this, and therefore I oppose the clause completely.
Lord Phillips of Sudbury
My Lords, I suggest to the Minister that there is a lifeline to the Government in this group of amendments, particularly Amendment 80B in the names of the noble Lords, Lord McKenzie and Lord Wigley. It requires the Secretary of State to set up an independent panel to carry out a review of what will become Section 62. I agree with all that has been said so far in this debate; in particular, I think the Government would be very wise to accede to the proposal for the independent panel because there can be few provisions in our whole legislation that are more complex than Clause 62 and the multitudinous amendments that it makes to Section 57 of the Health and Safety at Work etc. Act.
I also draw to the Minister’s attention—if it needs drawing, and I am pretty sure it does not—that the litigation that could flow from Clause 62 as it stands could be formidable, not least in terms of European law. The impact of the law of the European Union in this area of life is very considerable indeed. Professor Löfstedt, in his 2011 review, reported that there were more than 200 health and safety regulations in this country that were affected by EU law. As we all know, where there is a clash, EU law will prevail over domestic law.
The impact on employees of this change in the law could be different from the one that the Government are currently arguing on. It is perfectly certain that if you take away absolute liability for breach of statutory duties and leave it with the common law of negligence, you are, as night follows day, encouraging irresponsible employers—and there are a few, I am afraid—to take risks that will redound to the disadvantage of their employees.
As has already been said this afternoon, suing in this area of law can be extraordinarily difficult. I should have first declared my interest as a solicitor. My firm, Bates Wells and Braithwaite, does a considerable amount of this type of work, as I also have in my professional life. It can be formidably difficult for an injured employee to secure redress from an obdurate employer who is willing to string out the whole business, force the employee into court, and also force him or her into the hands of the no-win no-fee system, which itself has many drawbacks.
I sincerely hope, therefore that the Government will listen to what is being said this afternoon and will take a prudent and practical course that will not hold back this legislation for long, because Amendment 80B sets a time limit for the report of the panel. I hope they will also address to some extent the failing of the Professor Löfstedt review to engage in the sort of consultation that I believe in the view of any Member of this House should have been undertaken prior to the publication of the outcome of that review. I hope, for all those reasons and many others which I hope we will hear, the Government will take the proper course.
Lord Hardie
My Lords, I have added my name to Amendments 80A and 81. I was unable to speak at the proceedings in Grand Committee because I had not by then resumed my place in this House following my retirement from the Bench.
If this clause remains part of the Bill, there is a serious risk of injustice for some people who will be deprived a remedy: the right of damages arising from a breach of their employer’s obligations towards them. The Minister himself recognised that in Grand Committee on 14 January, col. GC 176. However, the Minister suggested that there would only be a small number of cases. First, therefore, can the Minister tell the House what was meant by a small number of cases? Was the estimate of numbers based upon an analysis of cases which proceeded to proof, or did it include cases that were settled without litigation altogether? Whatever the number, it is impossible to understate the serious consequences for individuals and their families already alluded to by the noble Lord, Lord McKenzie of Luton.
If this clause remains part of the Bill, those who have suffered catastrophic injury, or the widows and families of employees who have been killed, will now have to depend upon state benefits for their maintenance. That was what the Minister said in the passage to which I referred. The financial burden will be transferred to widows, children, disabled people, and to the state, and it will be transferred to all of these people from insurance companies which will be the principal beneficiaries of this clause. Does the Minister consider that this is fair, or is it even compatible with Government policy to reduce the number of people who are dependent on state benefits?
Other noble Lords have referred to this right of action, which has existed since the 19th century. I do not wish to point out the error of the noble Lord, Lord McKenzie of Luton, by saying that it dates back to the case of Groves v Lord Wimborne in 1898. That case in the Court of Appeal certainly did decide that there was such a right. However, the law goes much further back. In Scotland and England there were cases before that dealing not with factories, which Groves v Lord Wimborne did, but with coal mines. There was a case in Scotland in 1871 of Edgar v Law and Brand at the Inner House of the Court of Session—which is the equivalent of the Court of Appeal—which decided that the widow of a collier who had been killed because the mine owner breached the regulations had a right of action, just as the court in England decided 20 or so years later. In 1912, the Judicial Committee of this House ratified these decisions—in terms to Groves v Lord Wimborne—but emphasised that they were correctly decided. In doing so, Lord Kinnear observed that when a duty of protection is imposed on employers for the benefit of particular persons, there arises, at common law, a correlative right of action in those persons who may be injured by the contravention.
Clause 62 removes that common law right. We should not sanction such a radical change in our law unless there has been detailed consultation about the consequences of the change and there are overwhelming reasons justifying it. As the noble Lord, Lord Phillips, said, there was no consultation about this change and I will return to the reasons in a few minutes.
In the context of claims for damages arising from breach of statutory provisions, some people refer to strict liability and there is a risk of misunderstanding the scope of civil liability. Where regulations impose an unqualified obligation on employers, there is clearly an automatic criminal liability, so there could be a prosecution. However, that is not the case in civil actions. Mere breach of the regulation does not give rise to a right of action: one has to establish that the breach caused the damage. There is, therefore, a double issue: the question of the breach and also the fundamental question of causation. Unless one can bring home liability based on causation there is no right of action.
I will illustrate that point by reference to the Ionising Radiation Regulations 1999. Regulation 8 contains special provisions for pregnant women who have notified their employer of their pregnancy. In such cases, the employer must ensure that the equivalent dose of radiation to the foetus is unlikely to exceed one milliSievert for the remainder of the pregnancy. If a foetus were exposed to more than one milliSievert after the date of notification, the employer could certainly be prosecuted but there would be no civil liability unless the employee established a number of facts. First, she would have to prove that she is part of the class that is protected and that she notified the employer. Secondly, she would have to prove that after the notification she was exposed to more than one milliSievert. Thirdly, she would have to prove that the baby was injured. Fourthly, she would need to prove that the injury was caused by the overexposure. The question of causation is likely to be the most difficult challenge, as it is in most cases. The injury to the child might not manifest itself for some considerable time.
Having regard to the significant margin of safety which undoubtedly will exist in the regulations, there would be possible other causes for the child having the condition that it has. However, if the evidence is such that the court is convinced that it was overexposure as opposed to anything else which caused the damage to the child, the mother would be able to recover damages for the child. If this clause is enacted, that right of action by the mother will be removed.
It seems to me that the correct balance has been struck where there are certain standards that the employee has to achieve before he or she can have a right of action. The right balance has been struck and has been reflected in about 150 years of our common law. In considering the question of balancing the rights, passing reference has been made to a further issue: namely, the additional factor that many if not most of these regulations are not absolute but qualified by the phrase,
“so far as is reasonably practicable”.
Those regulations give the employer an additional defence that he can come in and show that what happened occurred in circumstances in which he had done everything that was reasonably practicable and that, therefore, he is not liable under the regulations.
The current system of civil liability balances the interests of the employer and the employee, and the correct balance has been struck. Clause 62 disturbs that balance. It deprives people of existing rights under current regulations. It is not possible to comprehend the nature and extent to which the current regulations protect the employee. The employee will no longer be entitled to a right of action. That could be identified only if the current regulations were examined and if the Government decided to exclude rights of action, which they can under Section 47(2) in certain cases. Of course, if the present clause remains, the Government would have to look at the regulations, if they are going to be fair and just about this, and decide which of them should include a right of action. As I understand it, that is not to be done.
I do not intend to repeat the overwhelming reasons that have been mentioned by noble Lords. However, in the context of justification, I will mention the briefing by the British Chambers of Commerce that the right of action deters entrepreneurialism and growth. That explanation or reason does not bear scrutiny. If that were truly the case, how can we explain the involvement of entrepreneurs over the past 150 years who have made a significant contribution to economic growth?
Another matter that has not been mentioned hitherto is a comment made by the noble Viscount, Lord Younger of Leckie, in Committee. He said:
“This measure is not about reducing the number of claims. It is about establishing the principle that an employer who has done nothing wrong should have the opportunity to defend themselves on the basis of having taken all reasonable precautions”.—[Official Report, 14/1/13; col. GC 176.]
That can relate only to regulations where there is an unqualified duty. As I said earlier, most of the regulations contain such a qualification and afford the employer the opportunity to defend himself on the basis that he took all reasonable precautions. So this reason can be no justification for excluding a right of action in all those regulations where there is such a qualification. If this clause remains in the Bill, will the Minister give an undertaking to introduce at Third Reading an amendment to include a right of action in respect of all regulations where employers are given the opportunity to defend themselves, as desired by him? There is no sound basis for removing from citizens rights that they currently enjoy or for altering the proper balance to which I have referred.
Lord Browne of Ladyton
My Lords, it is a privilege and a pleasure to follow the contribution of the noble and learned Lord, Lord Hardie, to your Lordships’ debate on these provisions this afternoon. He has done a great service to your Lordships’ House by his considered and detailed contribution. Watching the body language of Members of your Lordships’ House, I have the impression that he has alerted many noble Lords to consequences of this provision of which they were unaware, and that he has, perhaps, concentrated minds in a way that may be helpful both to noble Lords in their consideration and to the Government in determining the correct course of action.
I agree with all the arguments in favour of this group of amendments, and I wish to be associated with them all, but I will make a few additional points to reinforce some points that have already been made. As my noble friend Lord McKenzie of Luton said, the justification for Clause 62 is that there is a perception among some employers that a compensation culture exposes them to a risk of unjustified damages claims by employees, and—this is where the briefing that the noble and learned Lord referred to comes in—that this perception prevents employers from taking on new workers and is a barrier to growth. However, no such compensation culture exists. The Government’s own statistical evidence shows that claims arising from workplace accidents are going down. The Health and Safety Executive’s impact assessment of these provisions suggests that this is the case, too, as do the figures published by the Government’s Compensation Recovery Unit.
In Grand Committee, I asked the Minister to point me to the evidence that existed—even the evidence of a perception—and argued at the same time that legislating in response to a perception, which was in fact a misperception, was a poor basis for making law. The Minister was gracious enough at our meeting to confess that, try as they might, neither he nor his officials could find evidence even of the perception—although, to be fair to the Minister, he said in effect, “We know it is there but we cannot find it”.
This is supposed to be a deregulatory measure. Therefore, the test of whether it is a proper policy is whether it will result in any deregulation. Frankly, the evidence in relation to that suggests otherwise, too. It will not remove the complexity of the challenges faced by employers, particularly if they are concerned about possible civil claims by employees. Indeed, it will add to that uncertainty by making the law less clear than it is presently. In particular, the issue of whether these reforms will leave the law incompatible with the European body of law that it has to be compatible with, will inevitably lead to complicated legal argument. I can hear the smacking of lawyers’ lips in anticipation of the cases that will come from this provision if it is enacted in its present form.
We on these Benches provided the Government with a detailed senior counsel’s opinion which set out just how complex the arguments will be. With respect to the noble Viscount, his reply to our correspondence, which was a short paragraph, suggested that his officials had not thought about the consequences that the senior counsel argued were inevitable. Perhaps they have now had the opportunity to do so and, in summing up this short debate, the noble Viscount will be able to give us a better and more considered answer than the one with which his officials provided him in response to the detailed arguments set out in the senior counsel’s opinion.
The Government’s plan is to require all those who wish to claim in the civil courts for compensation arising from workplace accidents to claim by way of a common-law negligence case. I am grateful to the noble and learned Lord, Lord Hardie, for setting out at least some of the potential complexity of such a claim. The component elements of a common-law negligence case will inevitably mean that cases will be prolonged. The health and safety regulations that the Government seek to skirt around will not become irrelevant to such claims, as the Government intend. They will add to their complexity because persons claiming will rely on them to show what a careful employer would have done—what was reasonable and feasible. So we have added an unnecessary layer of complexity to a set of claims that now proceed by way of reference only to the statutory regulations.
Neither will this reduce insurance premiums for employers. It will shift burdens but it will not reduce insurance premiums. Presently, the employers’ liability compulsory insurance regime is well settled and it works. It was in spasm in about 2004, but it has settled down again and it works. The law compels all employers to have insurance. Employers pool the risk of being employers through the employers’ liability compulsory insurance process. Everyone has to have insurance by law and the premiums are shared fairly and in a proportionate fashion across all employers.
Employers’ liability compulsory insurance represents a small percentage of the overall general insurance market and traditionally it is a loss leader for the industry, which does not make any money out of it. In fact, there is a suggestion that claims outstrip premiums. But that has been the case for a long time, and it has been absorbed into the general insurance market. If anyone believes that the consequence of a change in the law—even if it does shift the burden from the insurance market to the public sector—will result in reduced premiums, frankly, they are living in cloud-cuckoo-land. The premiums do not cover the payments.
Finally, the justification has been put forward that it will reduce necessary record keeping and paperwork. The noble Viscount defeated that argument himself in Grand Committee. In summing up the debate on this issue he reassured my noble friend Lord McKenzie of Luton that employers would still have to keep the same records because the requirement of record keeping was related to obligations that are enforced by criminal law and nothing at all to do with civil liability. So record keeping will not go down.
The Government's measures go beyond what Professor Löfstedt recommended, and he has said so. They set the clock back 150 years in terms of health and safety, which is an area of public policy of which we in the United Kingdom are rightly proud. They have the flimsiest of justifications and even then the Government themselves cannot find any evidence even of the perception —perhaps because the perceived facts do not exist. Apart from all that, they do not even meet the Government’s own limited objective of being deregulatory. The Government should take them away and think again.
The Earl of Erroll
My Lords, I rise to put the opposite opinion. I live in the world of small and medium-sized businesses. The SMEs and the micros employ half the workforce out there. As one of them, I feel it is totally unfair that, even if you took all the precautions you could, if something happened that you could not foresee and could not know about, you are held to be guilty. This is wrong in natural justice. The fact is that you can then be put out of business. I hate to disagree with the noble Lord, Lord McKenzie, and the noble Baroness, Lady Turner, but they are not all well funded.
We talk about big businesses, big organisations and corporations, government, and things like that. They may be well funded, but a lot of small businesses out there are struggling and on a knife-edge. It only takes one of those things with the Health and Safety Executive cracking down and you have had it. I invite noble Lords to look at some of the cases—I will send you pointers to the websites that will detail them—where the Health and Safety Executive, for instance, gloats over how much it has managed to get out of someone at a tribunal. I know that is not the exact case here, but the perception is out there, I am afraid, and it does restrict people. My wife, who is a small employer, is very careful about taking on extra people because of these sorts of regulations.
Regulations also start to conflict because of their complexity. You may well find that you cannot comply with them all. If you are then held to be in breach of one of them, which you did not and could not know about because you could not know that the employer was breaching it without your knowledge and against your instructions, you are still going to be held liable, because it is an absolute offence. I think that is wrong. We should remember that it is not just big businesses out there. We will be bankrupting some small businesses and putting other people out of work—and when we put them out of work, there will be other unintended consequences and damage to other families.
Lord Pannick
My Lords, I added my name to Amendment 81 in the name of the noble Baroness, Lady Turner, which would leave out Clause 62. I did so because liability under Section 47 of the Health and Safety at Work Act operates fairly, effectively and efficiently and its amendment will cause substantial practical problems.
Your Lordships have heard comprehensive arguments on these subjects, so I will be brief. Section 47 works well because the claimant needs to prove a breach of health and safety legislation. The claimant needs to prove causation—that there has been a breach which has caused serious injury or death. In those circumstances, the law has long recognised, without controversy, that the victim should be compensated without also needing to prove facts and matters relevant to negligence, which are the responsibility of the employer. That is the answer to the noble Earl, Lord Erroll; the matters are within the knowledge of the employer. They are rarely matters within the knowledge of the employee.
To require employees to prove negligence—that is, a failure by the employer to take reasonable care—will inevitably result in very substantial delay in obtaining compensation for those who have been injured or killed by reason of the employer’s failure to comply with health and safety regulations. It will require the considerable expense and uncertainty of litigation for both employer and employee—these are expensive matters for both of them—at a time when legal aid is being reduced.
Clause 62 is unnecessary, unfair and—judging by the deafening silence from the Government Benches this afternoon—unsupported by any marked enthusiasm whatever. I hope your Lordships will support its removal.
Lord Brown of Eaton-under-Heywood
My Lords, I, too, support these amendments. For a number of years before the passing of the 1974 Act, I enjoyed a reasonably successful practice at the Bar, often instructed on behalf of employers’ insurers defending negligence claims by injured workmen. Mostly these claims were settled, quite often for substantially less than their true value, because of course the insurers, for whom I acted, were altogether better able than the claimants were to risk losing them. A number of these claims were lost —I defeated them—because the claimants were not quite able to assemble all the evidence necessary to prove actual negligence.
The 1974 legislation, which Clause 62 is designed to overturn, introduced a sea change in the approach to damages claims for workplace injuries. No longer was it necessary to prove that the employers knew, or should reasonably have recognised, that their machinery, equipment, systems of work or workplaces were actually dangerous, it was sufficient to show that regulations designed to secure the workforce’s safety had been breached and that, in consequence, the employee had suffered often appalling injury. Thereafter most claims were settled early, at their true value and with very little in the way of litigation costs. Of course, we at the Bar suffered for this change, because our personal injury practices were greatly damaged, but almost everybody else benefited. Injured workmen obviously did but so too did the Exchequer, because benefits for their injuries thereafter were paid by the insurers out of the premium moneys they had received instead of the cost being put on the state. Safety conditions in the workplace were hugely improved. There is nothing like strict liability, or its civil equivalent, to induce employers to take proactive steps to ensure that the risks and dangers are reduced to a minimum. Employers’ insurers therefore, since 1974, have had altogether fewer claims to meet and have certainly incurred far fewer legal costs in meeting them.
Nothing I have yet read from earlier debates, or heard, has suggested to me that any clear advantage is to be gained by this proposed change in the law. Which precisely, one asks, are the supposed undeserving claims that in future it is intended shall fail when presently they succeed? I confess I did not find the answer to that in the speech of the noble Earl, Lord Erroll, the substance of which seemed to be directed rather to unfair dismissal claims than to claims for injured workmen, essentially against insurers, in respect of whom employers are bound to take action.
The Earl of Erroll
As a quick correction, it was nothing to do with unfair dismissal, it was about the health and safety issues which come up the whole time in certain industries, particularly agriculture and things like that. That is what I was thinking about mostly.
Lord Razzall
My Lords, if there is one lesson that your Lordships and the Government might draw from this debate, it is that it is a mistake to introduce a major change in the law so late in the process of a Bill going through the House of Commons. The noble Viscount’s department had a very good record of not changing the law without extensive consultation. It is quite clear from the debate today that even one or two noble and learned Lords did not quite understand what it is being proposed in the way that I understand it. That all would come out if there was appropriate consultation on the clause.
The Government’s intention is to try to find a balance between what the noble Earl said about protecting employers from unfair strict liability claims and protecting the rights of the sort of claimants that the noble Lord, Lord Pannick, is referring to. The Löfstedt report made various recommendations and, had we had proper consultation, that would have come out. The Government say that they are implementing what Löfstedt recommended but some would say “Up to a point, Lord Copper”. He did of course say that the strict liability issue needed to be looked at, but with a lot of reservations as well as to how strict liability could be amended. That would have come out in proper consultation. However, we are where we are. As I understand it, the Government wish to remove strict liability to protect the sort of company referred to by the noble Earl. They say that the complainant or the injured workman can rely on the law of negligence to protect them. There is of course criminal liability, and in extreme cases somebody’s offending will be prosecuted, but they are relying on the law of negligence.
I ask noble Lords to imagine the sort of scenario where these two principles would come up each against other. There could be a contractor who has employed a subcontractor to put up scaffolding and the subcontractor does so in a rather dodgy way. Somebody falls off the scaffolding and is seriously injured. Under the current law, the contractor will probably be strictly liable for that accident. The subcontractor, who is a man of straw, has disappeared, and therefore if the contractor is not liable then who is liable, and what compensation is there for the individual? That seems to me in essence to sum up the dilemma produced by this clause.
I do not think that our job here on these Benches—certainly not when we are in coalition—is to defeat the Government; it is to win the argument. I hope that when the noble Viscount sums up he will try to find a way to meet what I think are genuine concerns from all sides of the House about whether this provision can be modified to deal with the problem I have referred to.
Viscount Younger of Leckie
My Lords, this has been an extensive and interesting debate. I think it would be helpful to set out the reasons the Government seek to make this change. The recent report by my noble friend Lord Young of Graffham, Common Sense, Common Safety, and Professor Löfstedt’s independent review, Reclaiming Health and Safety for All, confirm that the perception of a compensation culture generates a fear of being sued. This, together with the confusion created by myths about health and safety, drives businesses to overimplement the law in an effort to protect themselves.
My noble friend Lord Phillips and the noble and learned Lord, Lord Hardie, asked about consultation—or rather the lack of consultation. In preparing his report, my noble friend Lord Young consulted 132 wide-ranging organisations representing relevant professionals, including personal injury lawyers, businesses and associated organisations. He also spoke to more than 100 individuals, including health and safety professionals, Members of Parliament, councillors and leading academics in the field of law.
The problem lies not with the legislation but with the way it is interpreted and applied. Illustrating this, in response to Professor Löfstedt’s review, the Engineering Employers’ Federation said:
“The current compensation system is serving the needs of neither employees nor employers and is the source of many of the media stories and public concern about excessive health and safety. It is slow, expensive and places far too much emphasis on record keeping rather than practical action to control risk.”
I am very grateful for the anecdotal evidence raised today by the noble Earl, Lord Errol, in this respect.
The noble Lord, Lord Browne, raised the issue of record-keeping. I believe he stated that record-keeping will not change, and still does what the law requires, so I think that he was asking what the problem is. I reiterate that there is clear evidence that business overimplements, going well beyond what the law actually requires.
Overimplementation does not lead, therefore, to better protection of employees. It means that employers are spending significant time and effort on activities which are not necessary or far in excess of legal requirements, resulting in significant additional unnecessary costs. Concern about the consequences of “getting it wrong” and confusion about what the law actually requires discourage businesses from exploring new opportunities to expand and diversify and consequently from taking on new employees, a point that I made in Grand Committee.
The Federation of Small Businesses stated in its response to Professor Löfstedt:
“A wider problem for small businesses is that many do not feel confident that they are compliant owing to confusion about what is absolutely necessary, and so feel the need to gold-plate the law to protect them”.
Examples of such gold-plating, according to a recent Better Regulation Executive survey, include a hairdresser unnecessarily paying £1,000 a year for portable electrical appliance testing, a micro-business paying £3,800 for a specialist health and safety consultant to do its basic risk assessment, and an electrical contractor paying £1,000 a month to a health and safety adviser. The impact therefore falls disproportionately on smaller businesses, often run by owner-managers who have less time and resources. This impact is significant for growth because such micro-businesses with fewer than 10 employees account for 96% of UK businesses and around 7 million jobs.
Some noble Lords have suggested that we should not introduce legislation merely to tackle a perception—a matter raised by the noble Lord, Lord Browne—but, as I have explained, the perception causes real problems which we believe require positive action. Clause 62 is one of a range of government reforms to tackle this perception of a compensation culture and to restore a common-sense approach to health and safety.
Amending the Health and Safety at Work etc. Act so that it will be possible to bring claims only for negligence is designed to ensure that responsible employers who have taken all reasonable steps to protect their employees will not be held liable to pay compensation for an accident that they could not reasonably have done anything about. Claims are a burden on employers not just because of the financial costs but due to the time and resources required to deal with them and, importantly, their negative impact on the wider reputation of a business.
This measure will not lower standards. Let me be clear: every death and serious injury at work is a tragedy for the individual, their family and friends. Happily, our record in the UK is a good one. In the 10 years from 2000 to 2010, the rate of fatal injuries fell by 38% and major injuries by an estimated 22%, and our overall performance is better than that of many other European countries. However, there is no room for complacency and we are committed to continuing to improve health and safety standards.
The Government do not accept the argument that this measure sends the wrong signal about the importance of complying with health and safety legislation; in fact, quite the opposite. This is about giving employers the reassurance to focus their attention on the things that have a real practical effect on controlling risks. In Grand Committee and again today, concerns have been expressed that this change represents a backward step by placing the burden of proof on employees and will make cases more difficult and costly to prove—the noble Baroness, Lady Turner, emphasised her views on this.
To be clear, the fact that someone has been injured at work does not and should not mean they are automatically entitled to compensation. Many health and safety duties require the injured employee to show fault on the part of their employer. Currently, claimants do not recover compensation in about 30% of claims. The cases that will be most significantly affected by this change are those which would have previously relied on an absolute or strict statutory duty, a point raised by some noble Lords today. In claims for negligence, the claimant will have to show that the employer failed to take reasonable steps to avoid reasonably foreseeable risks to their health and safety, which led to the injury.
However, unlike in the days before the Health and Safety at Work etc. Act, there is now a codified framework for health and safety at work and a great deal of evidence and guidance in the public domain about hazards in the workplace. Employers are expected to take account of this in carrying out their risk assessments, and this body of information will form an important part of the evidence in this aspect of a claim. This means that injured employees are in a very different and much better position to obtain information about their employer’s actions than they were when the right to sue for breach of statutory duty was first established in the 19th century. I hope that this answers the question raised by my noble friend Lord Phillips in this respect.
The noble Lord, Lord Wigley, and the noble Baroness, Lady Turner of Camden, both raised the important point of whether the provision covers fatal and serious injury. The Health and Safety Executive will continue to investigate fatal and serious injuries. The existing statutory requirements will still be relevant as evidence in claims for negligence to help determine whether the employer’s approach was reasonable. The Health and Safety Executive will also continue to take a range of enforcement action in accordance with its enforcement policy statement, including serving notices of contravention and prosecution against employers who seriously breach the requirements of the criminal law.
Lord Phillips of Sudbury
My Lords, the Minister twice said that where companies had done nothing wrong, they could still be caught and made liable under the absolute liabilities of health and safety legislation. Surely, if it is indeed the case that the legislation is so drafted that a company that had done nothing wrong is liable, the answer is to introduce a qualification to that legislation, along the lines mentioned by, among others, the noble and learned Lord, Lord Hardie, so that the situation does not recur. Would that not be a better way of proceeding, as Professor Löfstedt suggests and as the panel would enable, than to take a step into the deep unknown, with consequences that many of us fear?
Viscount Younger of Leckie
I thank my noble friend for that point, which is simply noted. It does not change the views that I have expressed about where we are with the clause, but it was valuable to hear what he had to say.
Lord Hardie
Before the noble Viscount sits down, may I clarify what is being offered? I hope that I have not misunderstood him, but he seemed to suggest that noble Lords would go through all the regulations and identify which ones should include a right of action, then come to the Government and persuade them? Is that what is envisaged, or will the Government undertake the review of existing regulations to decide which should include the right of action?
Viscount Younger of Leckie
All I am saying at this stage is that we are open to ideas so we can hear where further exclusions, above and beyond pregnant workers, might appear.
Lord McKenzie of Luton
My Lords, I am bound to say that I found the Minister’s response profoundly disappointing. It was his noble friend Lord Razzall who said that it was a mistake to introduce laws without extensive consultation and who urged the Minister to find a balance. Indeed, the same point was made by the noble Lord, Lord Phillips. Yet I do not see any balance in the Minister’s response.
With this power to make exceptions, the Minister is asking us to do the job of the Government. Frankly, that is not the way round that it should be. The Minister always goes back to focusing on strict liability and extrapolates what is perceived to be the issue around that to all other circumstances where people might be injured at work, then causes there to be a restriction on their ability to get justice.
There seems to be an incredible disconnect between an analysis of the health and safety system and the extent to which there is overcompliance with it, with the solution being to restrict the right of people to claim justice when they are injured at work. For a long time there has been a problem of overcompliance, and now there is undercompliance with the health and safety system as well. That is why, as I know, the HSE is engaged in improving guidance, not helped by the Government having restricted proactive inspections so that inspectors can no longer go out and visit as many premises as they did in the past. There is a huge disconnect there, which does not seem to have any justification.
We have had a very impressive array of contributions to this debate today, from very experienced legal minds, all of whom, with the exception of the noble Earl, Lord Erroll, argued in one direction. I would say to the noble Earl, who mentioned agriculture, that this industry is proportionately the most dangerous in the country. There are more fatalities in agriculture than in any other industry. It is absolutely right that there should be a concentration of health and safety regulations in those circumstances.
The Earl of Erroll
I am not arguing that one should not have health and safety regulations and that one should not do one’s best. However, it is just wrong when someone has done everything they can but something is done behind their back that they have no knowledge of or power over and they are made liable and possibly locked up. I object to the strict liability part.
Lord McKenzie of Luton
The noble Earl, like the Minister, has effectively conflated issues around strict liability with the overwhelming number of regulations where it is “so far as reasonably practical” that applies. The noble and learned Lord, Lord Hardie, went through this in some detail. My noble friend Lady Turner was very clear that this clause had to go in its entirety, and on the basis of what we have heard today that is absolutely the right way forward. The noble Lord, Lord Wigley, said that this clause was turning back the clock to Victorian times, and the noble and learned Lord, Lord Hardie, corrected me to say that it is not just a century that it goes back, but further than that. It has been a settled position and the Government seek to unsettle it, all because of perceptions.
We know that the data show that there is not a compensation culture. There has not been an increase in the number of claims for compensation. The Government’s own statistics show that, and their own impact assessment shows that there are a small number of cases that proceed via the strict liability route, as opposed to the generality that go down an alternative route. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, asked, “Which are the undeserving claims at the moment? Which sort of claims proceed at present that will be restricted by the Government’s change, and why is that?” We heard no answer from the Government.
The noble Lord, Lord Pannick, said that the change in the process to prove negligence would be expensive and bring uncertainty and delays to the process—a point reiterated by my noble friend Lord Browne. We heard a very powerful treatise from the noble and learned Lord, Lord Hardie, about why it would be wrong to disturb the current positions, and I entirely agree with that.
Basing these things on perception seems a very flimsy structure on which to make such a fundamental change to the law. We have a number of propositions before us. I believe that the first and the third amendments in the group have the same effect, which is to delete the clause, and I certainly wish to test the opinion of the House on that proposition.
“Letting agents etc.
(1) Section 1 of the Estate Agents Act 1979 (estate agency work) is amended as follows.
(2) In subsection (1) for the words “to which this Act applies” substitute “and in subsection (1A) below to which this Act applies.
(1A) This Act also applies, subject to subsections (2) to (4) below, to—
(a) things done by any person in the course of a business (including a business in which he is employed) pursuant to instructions received from another person (in this section referred to as “the client”) who wishes to let or have the letting of an interest in land managed (for example, the collection of rents on his behalf)—(i) for the purpose of, or with a view to, effecting the introduction to the client of a third person who wishes to let an interest in land; or(ii) after such introduction has been effected in the course of that business, for the purpose of securing the letting of the interest in land; or(iii) for the purpose of, or with a view to, managing the letting of the interest in land on behalf of the client; or(iv) for the purpose of, or with a view to, block management of interests in land; and(b) management activities undertaken by any person in the course of a business (including a business in which he is employed) in connection with land or interests in land.””
Baroness Hayter of Kentish Town
My Lords, this simple amendment in my name and that of the noble Baroness, Lady Howe, would make letting and block managing agents have to belong to a redress scheme. Estate agents must belong to a redress—that is, an ombudsman—scheme. That is good for users, having an independent arbitrator to sort out disputes. Also, if an estate agent repeatedly cheats consumers, or does so particularly badly, it can then be banned by the OFT. However, letting agents, which handle client money and have slightly younger, poorer and less confident users, are completely unregulated. This means that an estate agent banned by the OFT can reopen the next day as a letting agent. Neither the landlord nor a tenant can take a complaint about a letting agent to an ombudsman, unless that particular agent chooses to join.
There are 4.5 million people who rent privately, two-thirds through letting agents. Given that tenants move quite often, they resort to letting agents with some frequency. Half of them stay in their property for less than two years, as opposed to 6% of owner-occupiers. There are, I fear, a lot of bad—indeed, some very dubious —letting agents. Just today, we have had a major ASA ruling against a letting agent who was breaking the ASA code by not disclosing compulsory charges.
Lord Sharkey
My Lords, when we discussed this issue in Committee the Government gave four reasons for rejecting the proposal made by the noble Baroness, Lady Hayter. These reasons were as follows. First, bringing letting agents under regulation would increase costs for consumers and reduce the choice and availability of accommodation on offer to tenants. Secondly, letting agents are already subject to consumer protection legislation. Thirdly, consumers who are charged unreasonable fees can seek help from trading standards officers. Fourthly, around half of all agents belong to a voluntary scheme that sets standards and offers redress. None of these reasons stands up well to any kind of examination. The fact that half of all agents belong to a voluntary scheme is not a reason for failing to address the fact that half do not.
The fact that consumers who are charged unreasonable fees can seek help from trading standards officers is one of those facts that are true in theory but of no help in practice. Even if consumers knew about this recourse—and I am sure that they do not—it is well known that trading standards officers are overstretched and underresourced. This is an illusory comfort to ripped-off or abused consumers. That letting agents are already subject to consumer protection is another true, but comfortless, fact that relies, again, on action by trading standards officers—action that is unlikely to bring significant relief, if any at all.
However, the first reason the Minister gave in Committee for rejecting the amendment in the name of the noble Baroness, Lady Hayter, is the one on which the Government seemed then to rely most, and which at first glance appeared to have some merit—that is, that the amendment before us again would increase costs to consumers and reduce the choice and availability of accommodation on offer to tenants. This argument was challenged by the noble Lord, Lord Lucas, and the Minister subsequently wrote to the noble Lord to set out the evidence—or, rather, grounds—for this argument.
These grounds amounted to an estimate, as the noble Baroness, Lady Hayter, has already mentioned, of an additional annual cost to a letting agent of around £800. It is very hard to see that an additional cost of £800 would drive any letting agent out of business. The Government have produced no evidence of their assertion that it might do so. Even if it did—which is not only unproven but unlikely to be provable—it does not follow that rental properties would be taken off the market or that costs would be passed directly on to the tenant. The Government have produced no evidence to show that letting agents who are members of the voluntary scheme charge more than those who are not. In many cases, the reverse is likely to be the case.
Even if all the Government’s assertions in this area were true and evidenced, their position would amount to saying that they were content to have serious abuses in the marketplace because the abusers could not afford to pay to become non-abusers. This is not an attractive or coherent proposition and it is especially unattractive when one considers the analysis of cost benefit produced by RICS, among others, which gave evidence of a beneficial financial outcome for implementing the proposals. All in all, and exactly as in Committee, it is hard to understand why on earth the Government have opposed this measure. It stops significant abuse, it is easy to do, it has almost universal industry support and it has long-term financial benefits.
I strongly support the amendment in the name of the noble Baroness, Lady Hayter, and very much hope that the Government will be able to give it the sympathetic consideration it deserves.
Baroness Howe of Idlicote
My Lords, I too congratulate the noble Baroness, Lady Hayter, on her determination to pursue these important changes and am delighted to have added my name to the amendment.
The proposals provide for basic consumer protection measures for the lettings market, already governing estate agents. These days, many property businesses operate both as estate agents and letting agents. The divide between the two is, in many ways, artificial. We have, at present, the ludicrous situation whereby a member of the public who walks through the door of such a business wishing to buy a house will have access to accountability if they suffer poor practice. However, if they rent a house from the same business they will not. There is access to independent redress and client money protection for those buying a house but not for those renting one. This is quite illogical and is untenable at a time when more and more young families with children are renting privately, most of them through a letting agent. We cannot have letting agents leaving boilers unfixed, properties in a state of disrepair or running off with people’s money and facing no repercussions. When people do not get the service they pay for there should be consequences for the businesses involved. That is a simple consumer right. This is not an issue of party politics but of basic common sense, which is why this amendment enjoys cross-party support, as was clear in Grand Committee.
Letting agents themselves are asking Government for the measures that this amendment provides for. They know that much of the estimated 40% of the market that operates outside existing voluntary registration schemes is damaging the reputation of the entire profession. A survey by Shelter showed that only 20% of renters trust their letting agent, with 84% disagreeing that letting agents work in the interests of their tenants. It is vital for everybody—tenants, letting agents and landlords alike—that standards are raised. I have yet to hear a convincing argument against these proposals. The Government have claimed that requiring letting agents to meet certain professional standards will push up costs. However, research by the Royal Institution of Chartered Surveyors shows that this is not true. While there is a one-off cost, that figure is quickly recouped and there is a net benefit to the economy from these changes of £21 million over 10 years.
Lord Borrie
The noble Baroness, Lady Howe of Idlicote, has indicated that at the present time there is an increasing desire, among young people particularly, to rent rather than buy. When I say “desire”, it is of course a desire that is impelled upon them because of the difficulty of getting mortgages and actually purchasing a house. Whatever the reason, they are having to rent rather than buy.
As so many noble Lords said in Grand Committee, which, unfortunately, I was unable to attend, there is a very strong argument that letting agents and management agents employed by landlords to look after their property should be covered by the Estate Agents Act 1979 and by an ombudsman scheme, as estate agents have been for some time. In Grand Committee, my Front Bench spokesman, the noble Baroness, Lady Hayter, made a powerful speech, as she has today, in favour of extending the power of the Office of Fair Trading to ban estate agents for misconduct to those who engage in the letting and the management of property and to make available an ombudsman scheme for complaints. In Grand Committee she put forward a number of very strong arguments—for example, the size of the market, running to a couple of million letting and management agents. On the number of complaints, she quoted from the Property Ombudsman, for whose council I had the honour to serve as chairman a few years ago. It has shown how the number of complaints has increased. All of the speakers so far in this debate today have mentioned that almost all British Property Federation bodies connected with this field are in favour of the scheme being proposed in this amendment.
The ombudsman scheme is very familiar to us now in all sorts of private industries, as it was already in public concerns—for example, the Parliamentary Ombudsman, which in 1967 started the ball rolling in this country, and the Local Government Ombudsman. I found very puzzling the response of the noble Viscount the Minister in Grand Committee when he said that there would be a reduction in choice if the amendment were carried. When government departments were made subject to the Parliamentary Ombudsman, individual departments were not given the choice as to whether they should be subject to the Parliamentary Ombudsman; they are all subject to it. As new departments and, indeed, quasi-departments, if I may put it that way, have come into being, they, too, have been particularly mentioned as being subject to the Parliamentary Commissioner or Parliamentary Ombudsman.
I thought that the Minister’s answers, as I understood them, were quite inadequate. They seemed to bring in the subject of competition. I am all in favour of competition, and part of this Bill is concerned with improving competition. Competition and choice are very important. Nevertheless, where does the benefit to the consumer come to choose between estate agents, estate management or letting agents, or whatever, which belong to an ombudsman scheme and those which do not? If there is a choice, surely no sensible consumer would wish to go to somebody who does not belong. It seems to me that a mandatory scheme is most desirable in this field.
Finally, I mention in passing the banning of estate agents when they engage in misconduct. This dates, as we all know, from the Estate Agents Act 1979. The Office of Fair Trading has probably not used it as much as it might to deal with bad estate agents. In my day at the Office of Fair Trading we tended to ban only estate agents who were in prison. In other words, they were imprisoned for fraudulent activities and we received evidence that they were coming out of prison shortly. We decided that they must not come out and engage in estate agency so we would ban them. There are not that many estate agents who have been banned who were not at the time in jail.
It is a pity if the Office of Fair Trading has, whether under my guidance or later, not been a little bolder, but it needs adequate evidence of course. Whatever it is, surely letting and management agents should be subject to the same rules.
Lord Campbell-Savours
My Amendment 82 is in this group. I apologise to the House for not being able to raise these matters in Committee due to my engagements in other proceedings.
I want to make it clear that I am not criticising in any way the actions of any particular property auction company in the United Kingdom. I also want to make it clear that my amendment is not lobby-driven: it is based on my own experience at property auctions.
Whereas most people’s measure of confidence in the national economy is based on news reports, share prices, unemployment and growth statistics, surveys of business confidence and a number of general indicators, my personal approach has been to measure confidence in what happens in the property market and, in particular, in property auctions. For almost every year over the past 20 years, I have watched the movement in regional property prices in London auction rooms, which I have attended—never as a vendor, never as a purchaser, but only as an observer. In my view, regional price movements excluding London are a real-world barometer of confidence in the economy.
However, there is one particular practice in the management of bidding processes that concerns me. I know that it causes a lot of upset among inexperienced bidders and particularly for young people buying their first home. Catalogues invariably show a guide price against the property description and lot number. I have a catalogue in my hand that shows the lot number of a property in Birmingham and the guide price.
As Barnard Marcus, a reputable company, says in its catalogue:
“The Guide Prices listed must not be relied upon by prospective purchasers as a valuation or assessment of value of the properties. They are intended to provide purchasers with an indication of the region at which the reserve may be set at the time of going to press”—
with the catalogue.
“Guide prices may be subject to variation … Prospective purchasers should be aware that eventual sale prices may be above or below guide levels dependent on the competition”.
That is the background against which people often judge whether they intend to attend an public auction.
Noble Lords should remember that I said,
“the eventual sale price may be above or below guide levels dependent on the competition”.
With that in mind, bidders often take time off work and travel great distances to attend property auctions. But what happens when they arrive and bid often comes as a shock. They presume, as per the quote that I read out from the Barnard Marcus catalogue, that the guide is an indication of the reserve. That is often not the case. The reserve is often substantially higher. The bidders are unaware that the guide is no guide at all as the reserve is not known to the bidder. As Countrywide Property Auctions states in its catalogue under the heading “Reserve Price”:
“Each property will be sold subject to a reserve price. This is a confidential figure agreed between the Auctioneer and the seller prior to auction and is a figure below which the Auctioneer cannot sell the property”.
In other words, the reserve price is unknown to the bidder.
What the bidder is witnessing is effectively a trade misdescription. The guide is no guide at all. Bidders are being attracted to property auctions on the basis of a guide that may or may not be exceeded dependent on bids received—the competition referred to in the Barnard Marcus quote. But the property is being sold on the basis of a reserve price known only to the auctioneer and unknown to the bidder.
Let us take an example. Property A has a guide price of £100,000. Bids received are £95,000, £100,000, £105,000, £110,000 and £115,000. The bidding stops at £115,000, £15,000 above the guide, at which point the auctioneer abruptly intervenes with the statement: “I am sorry but the property is withdrawn under instructions from the vendor because the reserve has not been met”. That reserve is £15,000 above the guide price.
Baroness Brinton
My Lords, I spoke on this in Grand Committee and I do not want to repeat either the points I made then or the many comments that have been made by noble Lords this afternoon. I want to make two or three additional points.
I have noticed in my home town of Watford a proliferation of letting agents, a constant change in their brand and marketing or moving address. Certainly, for the tenant, there is no clarity in the difference between an estate agent and a letting agent. The Government have argued that accepting this amendment complicates the landscape in this area. I think the exact opposite is true. I have two examples of tenants suffering problems with letting agents and one of landlords.
A typical prospective tenant might be a single mum who has found her way back into work. I happen to have a friend who was in this situation last year. The letting agency decided that it was going to demand of all single mothers with children, regardless of whether they had work and were able to show they had continuous employment, four months’ rent and, in addition, a guarantee from a male whose work they also wanted guaranteed. These are most extraordinary conditions.
One of the major problems is that many people who are desperately seeking rented accommodation would not know where to go. If you are struggling to find accommodation in your home town, to be able to go to Citizens Advice means that in reality you will lose the property. Certainly, in the south-east, lower cost rented property is at an absolute premium. This sort of behaviour, when there is no ombudsman and no code of conduct, is very difficult to police. I only know about this because of a personal contact.
More familiar to your Lordships’ House will be the example of students in a university town trying to find accommodation. If they have been lucky enough to have a year in halls, they often end up trying to find accommodation elsewhere. One of my children’s universities used to say: “Please find your accommodation through the university accommodation syndicate. If you go outside, we cannot guarantee that you will not be ripped off by letting agents. In particular, many letting agents have a reputation for finding every reason under the sun not to return your deposit”. The fact that you have to warn students of this before they have even entered into a contract tells me that there is something wrong with the letting agency business.
Many landlords pay extra money for their agent to manage the day-to-day business, perhaps if they are away. I have had, again, anecdotal evidence from two landlords who have been away from their town—which is why they pay the extra percentage charge—and discovered the letting agent ringing them to ask them to clean the house between lets and to arrange for the plumber to call and all the other things that they had thought were included in the extra percentage charge that they were paying. The noble Baroness, Lady Hayter, referred to the Liberal Democrat paper that was passed by conference, Decent Homes for All, and my honourable friend Annette Brooke MP has also been fighting with EDMs and other comments in another place on this important issue. My party certainly believes that we need to regulate the letting area.
I will add one final point. The coalition agreement, rightly, seeks to reduce red tape. Not accepting this amendment allows the continuation of a red tape for a consumer and a tenant, simply because, at the moment, a tenant has to understand the difference between being with an estate agent and a letting agent and to understand that if they are with an unlicensed letting agent, instead of going to the ombudsman and taking redress through the code of practice, they may have to go Citizens Advice, a small claims court or trading standards. My 19 year-old son in his first foray at university would not have known where to start with that. If we can do what his university rightly tries to do in guiding the students and say, “You need to be assured that the people you are dealing with actually follow a code of conduct and there is an ombudsman to whom you can turn”, then we would have a much simpler system, which is free of red tape.
I am very grateful to the Minister for the meetings that have been held over the past few days and hope that we will be able to hear some progress when he informs the House of any further consideration.
Lord Jenkin of Roding
My Lords, I hope that the noble Lord, Lord Campbell-Savours, will forgive me if I do not follow him in his very interesting description of what may happen in auctions, but I look forward to hearing the reply from my noble friend on the Front Bench.
Coming back to the amendment that was moved by the noble Baroness, Lady Hayter of Kentish Town, I will just raise one or two points. Members of my family have been both lessors and tenants in the present market and, apart from one case, have on the whole had good experiences. I was approached by the Association of Residential Letting Agents, ARLA, and have been quite impressed by what it has told me. Its primary function, as it puts it, is to professionalise the profession and to make sure that it has high standards and that those who enter the profession understand what the standards should be. It operates a voluntary scheme of registration and its anxiety is that a number of letting agents do not register for whatever reason, one of which may be that they do not want to comply with the standards.
Can my noble friend refer to one particular point when he replies? The noble Baroness, Lady Hayter, reminded us that, in opposition, my honourable friend Mark Prisk moved very similar amendments to legislation before the House produced by the then Government. In the debate in Grand Committee on 16 January—I apologise, again, that I was not able to be there—after referring to the speech that I have read from my noble friend Lord Deben, who gave the clear impression that he supported the amendment of the noble Baroness, Lady Hayter, my noble friend Lord Younger said:
“I note and respect the intervention of my noble friend Lord Deben in this respect as well. I know that the Housing Minister is aware of these concerns but I will raise them with him for further consideration. It is clear from the speech from the noble Baroness, Lady Hayter, that he—Mark Prisk, my honourable friend in another place—is aware of the issues that she has mentioned”.—[Official Report, 16/1/13; col. GC 250]
At this stage, all I need to ask is whether my noble friend Lord Younger approached Mark Prisk and what his response was. What was his reaction when reminded that he had in fact moved a very similar amendment himself when in opposition?
One is tempted to say, “Let us return this clause, with this amendment, to another place so that my honourable friend Mark Prisk may have an opportunity to say why he has changed his mind”. I am not sure that that would necessarily be the right thing to do but I will be impressed and influenced by the answer that my noble friend on the Front Bench gives me to this point. I find it difficult to accept that you can hold one very clear opinion in opposition and then find yourself responsible in the same field and hold a completely different one. It is often, as my noble friend Lord Deben said quite firmly in Committee, because it is a departmental attitude, which in this case may stem from the Treasury. As a former Treasury Minister, all I can say is that I understand that does in fact happen from time to time. However, whatever the reason, it does not seem to be a very satisfactory position and I look forward to hearing my noble friend on the Front Bench explain it.
Baroness Gardner of Parkes
I will start at the back and deal first with Amendment 82, in the name of the noble Lord, Lord Campbell-Savours. You might think that auctions are bad here but you should see them in Australia. I bought my flat at auction out there and what they do is start the auction and when they reach a certain point they stop and say, “We’ll have a break”. In the break, they get hold of the vendor and say, “Why don’t you come down on your reserve?”, and get hold of the purchaser and say, “Why don’t you go up on what you are going to buy?”. They might do that two or three times within the auction. Fortunately I had someone helping me, who made clear to the auctioneer that if they went on and broke more than once, we were out. We got the property and I have had it a very long time.
There are good and bad things about auction. I accept the point the noble Lord made about deceiving people about how cheaply they are going to get something, but of course it is unpredictable and properties sometimes really do not sell, while in other cases they do. At least with an auction all the documentation about the property is provided in advance of the auction so people are not kept in the dark the way they are with lettings and by managers. People launch into a property they are going to rent, or buy leasehold, and they find that there are all sorts of hidden clauses that no one ever drew their attention to and that no real documentation is available. It is quite different; each system might have its faults but they are different faults and it is hard to know whether you will ever get them right.
However, I have a certain sympathy with the point the noble Lord, Lord Campbell-Savours, made. If you have gone a long way it is very difficult—you have gone to the trouble, you think the place is going to be within your range but it is not. It is really very hard to resolve that one. Do people wake up to the fact that it is just a selling technique, which happens all the time, or are people genuinely taken in by these deliberate ploys? It is complicated but he has got a very interesting point that requires further investigation.
I strongly support the amendment of the noble Baroness, Lady Hayter. Talking about letting agents, I was quite stunned to see on television people letting these sheds in some parts of London. They had no windows or anything in them; a family of 10 living there and sometimes no running water or electric light. It was just unbelievable. The people who were renting them produced leaflets from the agent who was offering them to let. When the BBC—I think it was the BBC although it could have been another broadcaster—went to say to these people, “How could you be letting this when it has no planning permission and does not conform with any health standards of any sort?”, the answer was, “Oh, no, we were never letting it”. Yet they had proof in front of them of the printed leaflet about it being available to let from that particular agent. That is the absolute bottom of the scale but between that and the really desirable letting agent, there are all sorts of gradients.
Viscount Younger of Leckie
My Lords, Amendment 82, spoken to by the noble Lord, Lord Campbell-Savours, concerns sales of property through auctions. I shall turn to that shortly. Amendment 81A and the next group of amendments are aimed at two different types of activity. One is the letting and management of privately rented homes. The other is the management of residential leasehold properties. It is important to make that distinction because, while some agents engage in both these activities, they are different activities, with different clients, contractual relationships and issues. However, a number of the amendments we are debating cover both sectors, so I shall make some remarks about each sector in turn before turning to the amendments.
The Government are aware of the important and growing role played by private renting and residential leasehold. This is true particularly in London and the south-east, where the pressures of growth in housing demand and the challenges of increasing supply are intense. There are now around 3.8 million privately rented and 3 million leasehold properties across England, with the majority of the latter being flats. Obviously, not everyone living in those millions of properties is happy with their property in every respect, whether because of the costs they face in buying or renting it and then living in it, its condition or the quality of its management. Many of them are content, of course, and find that on balance private renting or leasehold meets their needs.
We have heard a number of contributions today, and previously in Grand Committee, describing unsatisfactory practices by letting agents in the private rented sector. This was highlighted today, notably by the noble Baronesses, Lady Howe and Lady Hayter, among others. Indeed, this sector has had a substantial amount of attention recently in the other place, in the media and in recent reports from Which? magazine, the Office of Fair Trading, the Property Ombudsman and others. The Government have been listening carefully to the views expressed on this subject, and recognise that there are issues. I am pleased that the noble Baroness, Lady Hayter, acknowledged this and highlighted it today.
While there are many agents who perform a good and honest service for their clients and serve an important role in the private rental market, there are too many agents who are not acting responsibly. My honourable friend in the other place, Mark Prisk, said in a debate in Westminster Hall last week that the Government consider many of the problems to be a consequence of years of undersupply in the housing market. The imbalance between supply and demand has put rents, the quality of accommodation and standards of service under pressure in some areas of the country. That has had consequences for the way lettings agents, as well as landlords, operate.
Expanding the supply of rented homes is therefore at the heart of the Government’s strategy. We want a bigger and better private rented sector. That is why we established a debt guarantee scheme of up to £10 billion to encourage institutional investment and, alongside that, a £200 million Build to Rent fund. Boosting supply is not just about financial support, however. It also means avoiding excessive regulation that can deter investment and stifle supply. Excessive regulation, however well intentioned, can result in precisely the outcomes we want to avoid. That is why we did not proceed with the proposals of the previous Government, such as a national register of landlords and the full statutory regulation of letting agents.
Nonetheless, there is a role for regulation in preserving standards. We have heard a number of people express the view that the lettings market is totally unregulated. That is not in fact the case. There is a substantial body of consumer protection legislation that covers letting agents. The Consumer Protection from Unfair Trading Regulations 2008 protect tenants from letting agents who mislead or engage in aggressive business practices. Similarly, the Unfair Terms in Consumer Contracts Regulations 1999 protect tenants from unfair conditions, such as unfair restrictions on the ways in which they can use a property. We know that trading standards bodies use these powers to prosecute lettings agents. Some very substantial fines, and indeed prison sentences, have been handed down to agents who engage in serious misdemeanours, such as misrepresenting their membership of professional bodies, or indeed misappropriating clients’ money.
However, my honourable friend in the other place, Mark Prisk, acknowledged that there is a problem with enforcement, and that action is needed on the less serious cases as well as the most serious ones. He stated his determination in Westminster Hall only last week to encourage national trading standards bodies to ensure that they tackle these issues across the marketplace. I am pleased to reassure my noble friend Lord Jenkin that recently my honourable friend indeed stated his case very clearly. I strongly support making better use of existing regulations before we create new ones.
The noble Baroness, Lady Howe, raised the question of bad letting agents harming the reputation of good ones, which is an extremely fair point. That is why we are clear in government guidance to landlords and tenants that they should ask which bodies letting agents belong to. The more that landlords and tenants ask these questions, the more pressure there will be on all letting agents to join such schemes.
The Office of Fair Trading has just produced its report on the lettings sector. It makes some suggestions for regulatory changes, but it makes other, non-regulatory proposals, too. The Government will study the report carefully, alongside the evidence to the Communities and Local Government Select Committee’s inquiry on the private rented sector. Evidence and recommendations are being presented by bodies with extensive expertise. We owe it to them to study the committee’s recommendations carefully.
The noble Baroness, Lady Hayter, referred to the fact that the OFT called for redress and enforcement. The OFT report on lettings agents recommends that the Government should consider whether it would be beneficial to require agents to sign up to a code of practice or to join a redress scheme. The Government will consider the OFT’s recommendations carefully, but we need to see the recommendation to consider mandatory redress alongside other elements of the OFT’s recommendations, some of which relate to making better use of existing laws and non-regulatory mechanisms.
Turning to residential leasehold, I believe that we have to be realistic and to recognise that living in a property where more than one party has significant financial and other interests, and where common parts of a property need to be maintained, is bound on occasion to lead to concerns and disputes. Although complaints procedures and a range of mediation and ombudsman services are already available—and, where those options fail, a number of legal options that can be pursued—we recognise that not all leaseholders are happy. The noble Baroness, Lady Hayter, asked why there is no client money protection in residential leasehold, but I reassure her—as she may know—that statutory protection already exists for leasehold service charges, which the law deems to be held in trust.
Our postbags, and those of Members of the other place, sometimes contain letters from leaseholders whose freeholder—or, more often, whose freeholder’s managing agent—is not providing the service they deserve or expect, or is sending increasingly unaffordable bills. We also hear from elderly and sometimes vulnerable people whose freeholder, or their agent, is failing to follow good practice and, in some cases, may even be breaking the law. Where relationships over the management of people’s homes break down and become adversarial, it can lead to real worry and distress and can in some cases, as we know, culminate in cases before tribunals and the courts.
The Government are aware of concerns among some leaseholders about a range of issues such as management standards and consultation, but remain unconvinced of the case for increasing government regulation at this time. Rather than create new leasehold regulation, the Government want, in the main, to see existing rights and protections on the statute book used to best effect. We therefore welcome current moves towards greater self-regulation by professionals in the sector and are interested in ideas for giving these more support and encouragement. The Government are aware that there are failings and even abuses in some parts of both sectors and will continue to address them. We have carefully considered the amendment of the noble Baroness, Lady Hayter, and her arguments for regulating letting and management in the private rented and leasehold sectors, and I can assure her that the Government take her concerns very seriously.
The amendment would amend the Estate Agents Act 1979, extending the definition of “estate agency work” to include those involved in letting and managing agency work. This is intended, as we understand it, to give the Office of Fair Trading powers to prevent letting and management agents conducting business and to require agents to have in place redress schemes, client money protection and to meet the other requirements of the Act. While we acknowledge that there are issues that need addressing, we do not believe that the answer is to regulate letting and managing agents in the way that the noble Baroness proposes. The regulatory burden could be substantial, adding to costs borne by landlords and, in turn, tenants.
In his report for the Property Ombudsman, Professor Michael Ball set out a range of costs that this would entail. The noble Baroness, Lady Hayter, and my noble friend Lord Sharkey both brought up the issue of the cost of compliance with a mandatory scheme, and both stated that there would a debit of only some £800. Indeed, there are costs to bear in mind, including of extra staffing and other administrative work, to ensure that the business is run according to the relevant codes of practice. Our own figures suggest that these are on top of costs of perhaps £170 per office per year for redress, £300 for client money protection and £300 or more for professional indemnity insurance.
Lord Jenkin of Roding
Before my noble friend goes on to discuss auctions, will he give some indication of how long it will take for the Government to study the substantial report to which he referred, and how long he thinks it will take for the DCLG Select Committee at the other end to produce its report? I understand both his arguments—there is a substantial report from the OFT and there is also that Select Committee report—but we really do not want to have to wait for ever.
Viscount Younger of Leckie
My noble friend makes a very good point. I can reassure him that the Select Committee report is due out very soon. It is likely to be in May; it may even be as early as April. That is not a guarantee, but I hope that it gives a helpful indication as to what the timing might be.
None the less, I recognise that the issue of a lack of redress is a serious one, and I know that my honourable friend in the other place, the Housing Minister Mark Prisk, considers this a serious issue, too, and is giving it the most serious consideration. We will reflect very carefully on this and other recent debates, and I am sure that the Housing Minister will keep in touch with Peers who have spoken today.
I shall turn as fast as I can to Amendment 82. I thank the noble Lord, Lord Campbell-Savours, for having brought this issue to my attention and to that of the House. I have considered carefully the amendment and the arguments for introducing it. The Government are of course concerned to hear that buyers may be experiencing difficulties when trying to purchase a property at auction, especially if it involves first-time buyers. I am pleased to say that there is already legislation in place designed to address just this sort of unfair practice. Therefore, new legislation will not change the position regarding consumer protection in such matters. I will explain why.
Under the Consumer Protection from Unfair Trading Regulations 2008, auctioneers, like traders in all sectors of the economy, are required in their dealings with consumers to treat them fairly and not mislead them. Under the CPRs, there are also a number of business practices that are considered unfair in all circumstances and are prohibited. When marketing a property, it is prohibited to use bait tactics such as luring bidders to auctions using pricing techniques, which the noble Lord raised as an example. OFT guidance on the CPRs published last September, of which the industry should be fully aware, gives the specific example of guide prices not being distorted to attract potential buyers.
Where traders treat consumers unfairly, they may face criminal or civil enforcement action. Enforcement of the CPRs is by the OFT and local authority trading standards services. We are, of course, in the process of better equipping trading standards to take greater responsibility for consumer law enforcement, and will be transferring central government funding for national leadership and co-ordination of enforcement activity from the OFT to the National Trading Standards Board. In addition, the new Competition and Markets Authority will have consumer enforcement powers to address business practices that distort competition or impact on consumer choice in otherwise competitive markets.
Furthermore, I understand that the industry encourages fair practice in this area and offers guidance and training. For example, the Royal Institution of Chartered Surveyors provides best practice guidance for auctioneers selling real estate. Such guidance addresses price guides and states that these guides must not be misleading, advising that a price guide that is clearly below the figure that the seller will accept is misleading. As best practice it also says that auctioneers should clearly indicate in the catalogue that price guides may be subject to amendment during the period leading up to the day and time of the auction sale.
In the light of the consumer protection legislation already in place, and as we have not seen any evidence on which a change of legislation could be justified, we do not feel the necessity to change legislation in this area. The noble Lord may wish to write to the OFT, providing evidence of the experiences and findings in this matter that are causing him concern. I hope that he is reassured by my answer and that he will therefore not press his amendment. I note that this is a new issue that was not raised in Committee and I acknowledge his apology. However, I believe that he raised some interesting points that we will keep in our sights. I also ask the noble Baroness, Lady Hayter, to withdraw her amendment.
Baroness Hayter of Kentish Town
My Lords, this amendment simply asks that letting agents should have to sign up to a redress scheme. We have checked it with the lawyers, and it does not apply to development land or anything else. If that was the case, and if the noble Lord had said he that accepted the need for redress, that it was just the wording that needed changing and that it was coming back at Third Reading, I would be happy to withdraw. Sadly, that is not what the Government have said.
The unfair trading regulations do not work. You cannot go to trading standards; it does not give redress. The Government have given no answers other than self-regulation or, “Wait for another committee”. Consumers want this; Mark Prisk wanted this in 2007; Lib Dem policy is in favour; landlords and tenants want it; the OFT wants it; and so does the industry, despite the costs. I thank noble Lords who have all spoken in support—there has been nothing but support from all around this House. I believe that, in addition to that list, the House will support the amendment. I beg leave to test the opinion of the House.
“Leasehold Valuation Tribunals: costs
At the end of paragraph 10 (costs) of Schedule 12 to the Commonhold and Leasehold Reform Act 2002 (leasehold valuation tribunals: procedure) insert—“(5) A tenant of residential property shall not be required to pay costs incurred by a landlord or any other party with an interest in that property in connection with proceedings before a leasehold valuation tribunal except when their lease specifically permits such costs to be included as a legitimate management charge.””
Baroness Gardner of Parkes
My Lords, I shall speak to the group of amendments in my name, so that we do not have to keep coming back on different items. I have been asked to put them all together. I will start with Amendment 81F because that is the most important of them all. That has come about because of the court decision recently in the Phillips and Goddard v Francis case that any amount of work to be done per flat worth more than £250 in a year would require consultation. If, for example, it was a block of 10 flats and you had spent £2,500, after that, for everything, even if it was for £1, £10, or whatever, you would have to implement a consultation process.
In their answers tonight, the Government have told us that the one thing that they want to avoid is lots more paper, cost, expense and consultation. That is exactly what the amendment is designed to achieve. The Public Bill Office has now gone online and worked out that the sum of £250 should in today’s prices be £330, so that is why there is a difference in the figures. We have gone through it carefully, and we think that certain things are particularly important or desperate, such as fire provisions, safety provisions and—one of which I have had personal experience—when the front door of a block of flats is damaged. What would happen if you had to wait for about two months to get consent for you to put on a new front door lock, although it was so urgent?
We do not wish to change the law at all. We wish to clarify the law as it is to make clear that the £250 is not an annual figure but a per item or per effective work figure. That amendment is straightforward and the Government should certainly consider it. I have heard them tonight and 50 million other times say that they want to reduce costs, difficulties and expenses. This is the opportunity to do it. Otherwise, every tenant will be burdened with so many consultation documents that they will get to a point where they barely look at the really important, serious one because they say, “Oh, that’s another one from the agent and it is all out of my pocket”. Amendment 81F is really simple.
Amendment 81B concerns leasehold valuation tribunal costs. I tabled the amendment because when I asked about the cost of leasehold valuation tribunals, which, at the moment, are limited to £500 for any applicant, I found that the practice, which is quite wrong, has arisen where the landlord, head lessee, or whoever is at the next stage above the leaseholder, is bringing in more and more expensive legal brains against the ordinary applicant. The worst thing about that is that, win or lose, the amount paid for that extremely major legal defence is charged back to the residents in the leasehold flats as a management expense. That was never the way that leasehold valuation was envisaged. In 1996, I was very involved when we passed the legislation. Those things were specifically against what we wanted. We wanted it to be approachable for anyone at £500. I received a letter from the noble Lord, Lord McNally, from which I understand that later in the year it will be swallowed up into a major tribunals review and the figure of £500 will probably rise. However, that is different from where the unlimited cost is being charged back to the leaseholders. That is the reason for that amendment.
Amendment 81C concerns a redress scheme. As we pretty well won the redress scheme with the previous amendment, which has just been passed, I do not think it is so important any more. However, when we had a round-table meeting at the department of all the interested people, they all said, from the most extravagant people down to the most careful, that the one thing that could save time, trouble, expense and simplify life for everyone would be a redress scheme. Therefore, no matter what happens with the previous amendment, I am hoping that at Third Reading the Government might bring forward some wording on a simple redress scheme.
That takes me on to Amendment 81D and protection schemes for service charge money. The noble Baroness, Lady Brinton, mentioned that university students had a problem regarding their deposits and so on for the premises they were letting. I pay full tribute to the Labour Government who as a response to that introduced protection for tenancy deposits. Tenancy deposits are well-protected now. No longer can an avaricious landlord grab every penny of your deposit money. Even if you are just an ordinary individual, letting property without an agent or anything like that, you have to place the deposit in a secure government scheme, which is very good and desirable. However, why is the same amount of protection not given to people who pay service charges, which are probably very much larger amounts?
Amendment 81E concerns the redress scheme. If I am satisfied with how the previous amendment, which has just been passed, is interpreted, I will not bring it back at Third Reading. However, if I find there is something that really could be clearer or better, I might bring it back. I beg to move.
Baroness Hayter of Kentish Town
My Lords, not surprisingly we support these amendments. I have been working with ARMA on trying to get some of this done. There will be a voluntary scheme, but only the good ones will join. The advantage of these amendments is that they will make sure that everyone, not only the good, will have to meet those standards.
Viscount Younger of Leckie
My Lords, I am grateful to my noble friend Lady Gardner for the thought and effort that she has put into the preparation of the five amendments we are now considering. Her ideas and broad experience of the housing sector are an invaluable resource to this House. Her amendments, like those of the noble Baroness, Lady Hayter, address the private rented and residential leasehold sectors. I will not repeat what I have already said about those areas.
I have carefully considered my noble friend’s Amendment 81B on the ability of freeholders to recover their legal costs from leaseholders and I take her concerns very seriously. This amendment aims to limit the circumstances in which costs of proceedings incurred by a landlord or other party with an interest in the property at a leasehold valuation tribunal could be charged back to leaseholders. I should point out that where a freeholder is able to recover costs in connection with proceedings from the leaseholders, this is contractual matter between them and will be set out in the lease. I am aware that leaseholders are increasingly concerned about the recovery of such costs as administration charges where the lease permits this and I understand that my honourable friend Mark Prisk is thinking about this issue. I am concerned that my noble friend’s amendment would not achieve her goals and would not in fact provide any greater protection for leaseholders than already exists.
I know that my noble friend, as she said, recently took part in a high-level round-table discussion on residential leasehold issues. I understand that a number of practical ideas for improving awareness of leaseholders’ rights emerged from that event and that the Department for Communities and Local Government is committed to working with the Ministry of Justice and others to take those ideas forward. The issue of recovery of legal costs as an administration charge, rather than a service charge, requires detailed consideration. For this reason, I believe that the current Bill is not the best place to consider this complex issue.
Baroness Gardner of Parkes
My Lords, I listened to the explanations from the Minister, some of which are quite unsatisfactory. For example, he says that what people are really concerned about is the level of service charges and that we want to keep those down, and so on. We all understand that. But he then rejects Amendment 81F, which is so important and would clarify exactly what you can and cannot do in a block with or without permission and would tremendously reduce the paperwork and red tape, with its terrible waste of time and money, on the ground that it is perhaps too cheap and saves too much. I do not know on what ground he is rejecting it but I do not accept that it is fair to reject it.
The Minister says that they will look into it over the coming months, but the coming months are too long. Even this Bill is going to take quite some time before it goes through. The thought of having extra “coming months” on top of that is just too much, so I do not really accept his arguments. As I said, if the amendment tabled by the noble Baroness, Lady Hayter, covers a redress scheme that is mandatory for everyone, and if they would have to belong whether they are managing agents or whoever, then I am satisfied with that. I would not then want to pursue it further myself because if we have put a good scheme through, that might be the thing to run with and it would not need amplification.
If, on the other hand, after studying the noble Baroness’s amendment, to see what it means and whether there are any loopholes in it, I think there is still a need for clarification on redress I would want to come back on that. In no way could I say that I have forgotten this matter. I warn the Minister to expect me to return at Third Reading, by which time I hope we will be a bit clearer on exactly what is good and bad in what we have decided tonight. Fortunately, there is the opportunity to return at Third Reading. I reserve my right to do that because nothing has been said today that really satisfies me completely on those amendments. I beg leave to withdraw the amendment.
“Abolition of Agricultural Wages Board and related English bodies
(1) The Agricultural Wages Board for England and Wales is abolished.
(2) Every agricultural wages committee for an area in England is abolished.
(3) Every agricultural dwelling-house advisory committee for an area in England is abolished.
(4) Schedule (Abolition of Agricultural Wages Board and related English bodies: consequential provision) (abolition of Agricultural Wages Board and related English bodies: consequential provision) has effect.”
Viscount Younger of Leckie
My Lords, these amendments will simplify employment legislation for around 40,000 farm businesses in England and Wales. They will ensure the same levels of employment protection for agricultural workers as for workers in all other sectors of the economy. They will also abolish 31 public bodies whose functions are now used infrequently or have simply fallen into disuse. This is an important reform, which will contribute to the Government’s key objective of encouraging economic growth as well as the programme of reducing the number of public bodies. We brought these provisions forward in Grand Committee but they were not accepted. We believe that the case for them is very strong and therefore we have reintroduced them.
The agricultural wages committees were set up in their current form nearly 65 years ago, just after the Second World War, although their origins go back even further. The Agricultural Wages Board is now the only remaining sector wage council; the 26 others were abolished 20 years ago, in 1993. Agricultural workers represent 0.5% of the total workforce. There is no reason why they should be treated differently from the other 99.5% of workers, who are all protected by the national minimum wage and other statutory employment provisions.
Agriculture today is very different from 65 years ago. It is a now a global, international business. Farmers compete against not just each other but farmers overseas to sell both here and in international markets. Technological developments and increased mechanisation mean that workers need to be highly skilled and qualified to operate complex machinery, and to be able to keep up to date with modern animal husbandry methods. The industry is also becoming increasingly diverse, particularly as businesses move away from mixed farming to specialise in specific sectors. Around a quarter of farms now also operate non-agricultural businesses; for example, a farm shop or bed and breakfast. This means that many farm businesses have to employ workers under both the agricultural minimum wage and the national minimum wage regimes. They therefore have to comply with two sets of employment legislation, which is an unnecessary cost to farm businesses in both time and resources.
Even within what are traditionally regarded as agricultural activities, there are grey areas where a farm business has to determine whether employees are employed in agriculture and entitled to the agricultural wages order terms and conditions as opposed to general employment terms. For example, livestock and poultry rearing would normally be considered agricultural activities and covered by the agricultural wages order, but this is not necessarily the case for on-farm slaughtering operations. Similarly, where there is a farm packing business, packing of produce grown on the farm would normally be covered by the agricultural wages order, whereas packing of bought-in produce is not.
The abolition of the agricultural minimum wage will remove the need for farm businesses to operate two employment regimes and end the confusion of whether activities fall within the national minimum wage regime or the agricultural minimum wage regime. It is widely accepted that the legislation which underpins the Agricultural Wages Board is outdated and hampers the ability of the industry to offer more modern, flexible employment packages. For example, it effectively dissuades employers from offering the payment of annual salaries, which is disadvantageous for workers as it hinders long-term financial planning—and thereby better security for farm workers and their families.
The abolition of the Agricultural Wages Board and the agricultural minimum wage regime will allow farmers to agree terms and conditions that take account of the requirements of the farming sector and suit the particular circumstances of both employers and workers. It will make it easier for employers to offer opportunities for workers to work the same number of weekly hours, but over a compressed period. This could be beneficial for businesses, who may want to provide for longer shifts, and for workers with family and domestic responsibilities.
Abolition will enable farm businesses to compete for workers on a level playing field with other local employers. It should encourage longer-term and more permanent employment of farm workers, which will boost growth and have wider benefits. For the avoidance of doubt, research suggests that there will continue to be considerable demand for farm workers in the years ahead, which will mean that employers will need to offer competitive pay rates to attract new workers. A majority of workers already receive terms and conditions above the agricultural minimum wage rates, and as contracts are already in place their wages should not be affected if the board were abolished.
The underlying market conditions suggest that there will be a sustained demand for agricultural workers. The 2011 survey from the UK Commission for Employment and Skills indicates a shortage of workers with relevant skills within the agricultural sector, and that this shortage is higher than comparable shortages in other areas of the economy. The agricultural workforce is also ageing: 55% of the sector’s workforce is aged over 45, which again is higher than in other sectors of the economy. These factors mean that we can expect demand for both workers and skills in the sector to increase over the next 10 years and beyond, which means that market drivers will ensure that wages remain competitive. Farm businesses will be wise and prudent to provide career and development opportunities to encourage workers into agriculture and offer attractive terms and conditions to retain them.
It is also important to remember that agricultural workers who have contractual rights reflecting the terms of the agricultural wages order at the time of the board’s abolition will retain those rights until either their employment contract is varied by agreement or their employment comes to an end. New workers coming into the industry or workers who negotiate a new contract will have the same level of employment protection as workers in all other sectors of the economy. Furthermore, agricultural workers who are supplied by a labour provider and who may be at the lower end of the wage scale will continue to have the added protection of the gangmaster licensing legislation.
Turning to the 15 agricultural wages committees in England, most of their functions have now lapsed in practice or have been replaced by wider legislation. Their only remaining active function is to appoint members of the 16 agricultural dwelling house advisory committees in England—or, as they are more generally called, ADHACs.
Lord Whitty
“(1) Every agricultural wages committee for an area in England is abolished.
(2) Every agricultural dwelling-house advisory committee for an area in England is abolished and the services formerly provided by such a committee shall instead be provided by the Agricultural Wages Board for England and Wales.
(3) Without prejudice to section 3 of the Agricultural Wages Act 1948, any minimum rate of pay contained, or to be contained, in an Order of the Agricultural Wages Board may, where the Agricultural Wages Board considers it convenient to do so, be fixed by reference to any periods during the currency of employment.”
Lord Whitty
My Lords, my name is on this, as are the names of the noble Lord, Lord Greaves, the right reverend Prelate the Bishop of Hereford and the noble Baroness, Lady Trumpington. I regret to inform the House that the noble Baroness has suffered a fall and will not be with us tonight. I understand that there was no government Whip close to the incident so I am sure that we can pass unanimously our best wishes to the noble Baroness, Lady Trumpington, and wish her a speedy return.
Lord Whitty
My Lords, what the Minister failed to mention is that the Government’s own best estimate, in the only document that they have produced on the effect of abolishing the Agricultural Wages Board, will be a direct cut of £240 million from the income of rural workers.
Our amendments would do some of the things that the Government are after: they would abolish the 31 bodies; they would allow for simplification and modernisation to the wages order; but, crucially, Amendment 83A keeps the legal underpinning of the terms and conditions of those who work in our agricultural sectors.
That figure of £240 million comes directly from Defra’s impact assessment, and it is its best estimate—there is a range, but that is its best estimate. The House is in some difficulty here because it should have more information. We are in a slightly bizarre procedural position because on the face of it the Government had the right to abolish the Agricultural Wages Board under the Public Bodies Bill. But, of course, under that Bill, after long and rather testy debate in this House, there are some very detailed procedures for implementing that abolition. They require much greater information, much clearer arguments, much better figures and much more effective consultation than the Government have coming forward. The Government are trying to cut corners by inserting their amendment into a piece of legislation that had already passed all stages in the House of Commons and which was not accepted in Committee in this House.
There may be good reasons why the Government are trying to change tack. One is that they have problems with the Welsh Government—this is England and Wales legislation. The Welsh Government, like their counterparts in Scotland and Northern Ireland, want to maintain statutory minimum standards in the agriculture sector. Of course, it is also convenient for the Government that they have not been required to come forward with that kind of information. They have not presented us with any alternatives; they have simply come forward with a proposition for abolition. The House would be entitled to say to the Government that we are not prepared to consider this government amendment until the equivalent of Section 11 of the Public Bodies Act is before the House. Clearly, the Government are not prepared to go down that road.
I will say a few words about the nature of the agricultural workforce. Of course, the Minister is right that it has changed since 1917 and 1948, but we are left with an agricultural work structure of a lot of relatively small businesses that employ one, two, three, perhaps six, permanent staff and parts of a sector that employ large numbers of casual workers on a seasonal basis. There is no other sector in the whole of the economy that is like that. There is no other sector, therefore, that requires the kind of legal protection that until very recently all parties in the industry and all parties in the House recognised was important.
Moreover, the Government’s analogy is quite wrong. The Agricultural Wages Board specifies a whole wages structure and a whole career structure for workers in the agricultural sector. It does not simply specify a minimum wage, like the national minimum wage; nor is it the same as most of the old wages councils, which simply specified a basic rate rather than the whole range of conditions required within the agricultural sector, which will be difficult to achieve without some legal underpinning by normal methods of collective bargaining either nationally or by agreements between individual farmers and their own workforce—something that would often be very difficult for both sides to accomplish.
The Minister claims that this is a great removal of burdens on small farm businesses, but the operation of the board has in many cases been of great benefit to small farmers. In the consultation—such as it was; it was only four weeks’ consultation, whereas most people are required to go through three months, and it was only one week in Wales—a significant number of small famers said they wished to retain the Agricultural Wages Board because that meant that once a year they knew what they were going to pay their staff and they did not have to go into embarrassing and lengthy detailed negotiations with their own two or three employees. Therefore, the burden of administration on the farmers is actually less under the Agricultural Wages Board than it will be if the Minister gets his way and it is abolished. In the evidence, there are a large number of small famers saying precisely that, ranging from the West Country to Yorkshire to Norfolk.
The impact assessment also says that the effect on farmers’ incomes will be a significant improvement. In fact, it has that down as the reciprocal of the cut in the agricultural workers’ wages. But the reality is that a lot of those famers will never see that money, or will only see it temporarily. The wage cut for workers will almost certainly end up being of benefit to the supermarkets. It is very interesting that in the consultation nearly 40% of the replies are from the horticultural sector, which employs the mass amount of casual, unskilled labour and which deals directly with the supermarkets. Even more tellingly, the strongest supporters in the rest of the food chain are the Fresh Produce Consortium, whose dominant members happen to be Tesco, Morrisons, Asda and Marks & Spencer.
The reality is that once the supermarket buyers hear that the Agricultural Wages Board and the minimum rates have been abolished, they will go back to their farmers and suppliers and say, “We want a cut in the prices that we are giving you”. The reality is that whatever burdens the Minister claims will be removed from small employers, many of whom do not accept that, the money will not come out of the pockets of farm workers and into the pockets of the farmers, it will go out of the rural community entirely and into the pockets of the supermarkets.
This is a very dangerous move and one that we certainly could not support. There is little in what the Minister said tonight with which I can agree. There is little in what his supporters in Committee, who were in the minority, brought to bear. They said, “In my area, on my own estate, on my own farm, people I know pay a lot more than the minimum wage”. Of course they do. It is a wages structure. A lot of employers pay more than the minimum. But once you abolish the floor, the whole wages structure starts coming down. The impact assessment which the advisers of the department of the noble Lord, Lord De Mauley, Defra, and BIS had before them makes it quite clear that the best estimate is that this will be nearly £250 million out of the pockets of relatively low-paid agricultural workers. It is a disgrace, frankly, that the Government are proposing this. It is a disgrace, in some ways, that the NFU has changed what has historically been its position in support of the board to pressing for its abolition and, in so doing, does not represent the views of many small farmers.
Our amendment would allow simplification and modernisation. It would allow the abolition of the 31 quangos to which the Minister has referred, which would give Defra a few brownie points on the Cabinet Office’s scorecard of the quango cull. The abolition of the wages board, however, is a different matter. It will bring distress to rural communities, a cut in income to rural workers and will do nothing for the farmers and the agricultural sector of this country. I beg to move our amendment to the Government’s amendment.
The Lord Bishop of Hereford
My Lords, I thank the noble Lord, Lord Whitty, for his clear and eloquent statement on why it is essential not to abolish the Agricultural Wages Board, and why it is therefore vital that as a House we support this amendment of the Government’s amendment.
It is noteworthy that the wages councils were established by Winston Churchill in 1909, and he spoke of the need for them in these words:
“It is a serious national evil that any class of His Majesty's subjects should receive less than a living wage in return for their utmost exertions … where you have what we call sweated trades, you have no organisation, no parity of bargaining, the good employer is undercut by the bad, and the bad employer is undercut by the worst; the worker, whose whole livelihood depends upon the industry, is undersold by the worker who only takes the trade up as a second string … where those conditions prevail you have not a condition of progress, but a condition of progressive degeneration”.—[Official Report, Commons, 28/4/1909; col. 388.]
That may not be quite the language that we would use today. It is language from 100 years ago, but they are still salient points. Indeed, these underlying principles and thinking have led to a minimum wage and then a living wage.
When other wages councils were abolished in the 1980s, the Government chose to keep the Agricultural Wages Board on the grounds that the industry required some central oversight to prevent wages being driven down unacceptably. In order to consolidate and build upon the progress achieved in terms and conditions during the past 30 years, we need to retain and further develop, and update, the Agricultural Wages Board, not abolish it.
The NFU has criticised the cost and provision of the AWB claiming that it is a,
“bureaucratic irrelevance since the advent of the Minimum Wage”,
and pointing out that the gap between the national minimum wage and the basic agricultural wages order minimum is only tuppence. However, the AWO also, of course, lists six different grades, to which we have heard reference made, with levels to be paid according to responsibilities, qualifications and the nature of the work in question: a salary structure.
Lord Greaves
My Lords, I was pleased to add my name to this amendment. I congratulate the two previous speakers who said quite a lot of what I might have said, and I will try not to repeat what they said. I agree with practically every word that both speakers said and I think we should be aware that the noble Lord, Lord Whitty, is probably the greatest expert on these matters in your Lordships’ House. There are obviously others on different sides who have similar expertise.
This takes me back to the debates on the Public Bodies Bill some two years ago when I moved an amendment in Committee to remove the Agricultural Wages Board from the purview of that Bill. Noble Lords will be surprised to learn that I made a long speech on 1 December 2010, which is reported in Hansard, beginning in column 1513. I read it again just now and nothing seems to have changed, so I thought I would read it all out again. Then I looked around the House and saw at least half a dozen people whom I remember being present in that debate; it would be unfair to them to subject them to it again, although it might have done everybody else some good.
At the time, efforts were being made within what I might call coalition circles, led by my honourable friend Andrew George, who was co-chair, along with me, of the Liberal Democrat Defra committee at the time. We were trying to save the AWB, or at least find an alternative system which would preserve some of its best features. We thought we were going to achieve some success, but we failed; I very much regret that. One reason may have been that the Defra Ministers at that time did not include any Liberal Democrats, but I do not know.
When the then Secretary of State Caroline Spelman announced that she wanted to abolish the Agricultural Workers Board, there had been no consultation whatever. There has now been a consultation, but, as the noble Lord, Lord Whitty said, it was for a mere four weeks. That breached the standard of 12 weeks which is supposed to prevail for such consultations. It was obviously part and parcel of the effort to shunt this clause into the end of this Bill, pretty well at the end of the parliamentary process. It has resulted in my appearance for the first time in this Bill at the end of the process.
Why are the Government doing this? The Government’s consultation and their report on it are thorough and very interesting. It is absolutely clear, as the right reverend Prelate said, that the people and organisations in favour of it include, in particular, the horticultural sector, with its very large number of seasonal workers. There are some very good horticultural firms, but there are also some where the conditions for the workers leave a lot to be desired. They are different from most other farms in this country. Those in favour of abolition also include the big farms, which are often prosperous, the supermarkets and the food processors. They are the people who want this and we have to ask ourselves why.
Then there are the people who do not support it, which is clear from the consultation. There are some quite harrowing comments from small and medium-sized farmers who believe that, far from it removing the regulatory burdens from farm business, as the Minister argued when he opened this debate, it will increase their administrative burdens. These are small businesses that rely very much on the help and support they get by having a firm structure and framework for employing their staff. If they have to do it all themselves, it is going to be much more difficult for them.
Two years ago, my honourable friend Mark Williams spoke in the Public Bill Committee in the House of Commons and quoted what I had said here; it is all a bit circular, but there is a good reason for this. He said:
“As we have heard, it is not totally acceptable to rest behind the national minimum wage legislation, because other concerns about terms and conditions need to be addressed. Lord Greaves said in that debate:
‘Will there be a new national system set up? Will there be a bargaining system set up within the industry—an unofficial system…outside the purview of statutes and government, in which employers and representatives of agricultural workers negotiate? Or to what extent will it be left to individual farmers to negotiate with their own workers or just impose’—
the word “impose” is critical—
‘terms and conditions and wages…above the national minimum wage?’—[Official Report, House of Lords, 1 December 2010; Vol. 722, c. 1515.]
I am still looking for the elusive clarity on that matter, particularly about the issues that the hon. Lady mentioned on terms and conditions, people under 16 and so on”.—[Official Report, Commons, Public Bodies Bill Committee, 8/9/2011; col. 54.]
As far as I can see, that remains the position. The NFU has answered this to a degree by saying that it would provide support, assistance, advice and help to its members, but first, not all small and medium farmers are members of the NFU by any means. That is a problem.
Secondly, the NFU, which sounds like a trade union, is in fact the employers’ organisation in this context. It simply cannot give the sort of balanced and unbiased regulation that the AWB now provides. The AWB has an equal number of representatives from the NFU and from Unite, as well as five independent members on top. It provides a place in which negotiation can take place, but it also has to take an overall balanced view, which we would lose. The questions that Mark Williams put have not been answered; it will be interesting to hear how the Government think it will work.
Lord Cavendish of Furness
My Lords, I read carefully the recent debate on this subject in Grand Committee, and I am sorry that I was not there. I declare an interest in that I have beneficial interests in a landed estate based mainly in south Cumbria. The estate’s activities include farming, forestry, leisure, minerals and housebuilding. As a family business we farm modestly on our own account, but the majority of the land is tenanted.
It is not my intention to pretend that the Agricultural Wages Board and its satellite committees represent one of the great evils of our time, but the Government deserve support on this issue, and I am happy to give them mine. I will resist repeating the arguments that the Minister made beyond saying that all of them carry weight. I am not sure that there is much disagreement; some want abolition while others want reform, but all seem to be fairly clear that we need to change.
Stirred by the apparent passions that came through in the Official Report on Grand Committee, I have been to some lengths to canvass opinion in my native Cumbria and a little bit in Lancashire, and have also sought to inform myself better of the facts. On the basis of my findings it is very hard to find any justification whatever for the continued existence of this body. The AWB may not be a great evil but the very best that can be said of it is that it is an obsolete irrelevance and symbolic of the way small businesses continue to be fettered in a way that disadvantages business and inhibits growth.
My canvass extended to farmers on small, medium and large farms, to those who had diversified and those who had not, to tenants and to owner occupiers. Much to my surprise, unlike my noble friend Lord Greaves, I had to go quite far down my list before I found anyone who had even heard of the AWB. It simply did not appear on their radar. One of the local NFU representatives said that he had never had any call to understand the workings of the board, adding wryly that he expected that the sort of committee I was talking about would indeed be a very nice thing to belong to.
I drew a complete blank when it came to finding any evidence to support the claim that the noble Lord, Lord Whitty, appeared to make in Grand Committee, that the handful of workers on smaller farms would be exposed to exploitation in the event of abolition. Not one person I spoke to could bring themselves to say that the board was a force for good. The noble Lord, Lord Whitty, went on to say:
“The abolition of the Agricultural Wages Board is a direct attack on the living standards of 150,000 rural workers”.—[Official Report, 16/1/13; col. GC 258.]
Let us have a look at that claim. In the decade to 2011 the consumer prices index rose by 28% and the retail prices index by 38%. Over the same period, the national minimum wage—almost identically mirrored by the lowest grade of AWB—rose by 64%.
Alternatively, we could approach this from a different angle. The Institute for Public Policy Research confirmed that just 12.3% of agricultural workers earn below two-thirds of median hourly pay. By comparison, hotels and restaurants are nearly 70% below; the wholesale and retail sectors are over 40% below; the situation is much the same in administration; and the arts are about 37% below. The figures for education and health, where the state is predominantly the paymaster, are 18.3% and 14.6% respectively below two-thirds of median hourly pay. Even those workers are paid less than workers in the agricultural sector. I understand that 90% of farm workers are paid at or above grade 2 on the board scale.
Surely the noble Lord, Lord Whitty, and others, understand that all but a tiny minority of employers these days have long since grasped the fact that bad pay always produces bad results. Can he not see that this is especially true in this sector, which has become so much more specialist in recent years? Will he accept that there is now far more legal protection for those who are vulnerable to exploitation?
Low pay among agricultural workers is manifestly a myth, but more important for today’s debate is the demonstrable absurdity of the notion that the AWB is the appropriate vehicle to address rural poverty. I should perhaps stress that I mind very much about rural poverty—it exists and is worthy of debate. However, it is simply not related to the issue under discussion. If, as I have heard suggested, the objection to abolition is to do with terms and conditions of work, I can only say that I found a dearth of convincing arguments that this sector alone should be picked out for special treatment.
The noble Lord, Lord Whitty, said that administration costs would be lower. I do not agree. In this House there is no dearth of people prepared to talk about wages but rather fewer pay them. I speak from experience in this matter. When the Labour Government was introducing the national minimum wage in June 1998, the noble and learned Lord, Lord Falconer, said:
“As I have indicated, the Government do not believe that a multitude of regional, sectoral or other minimum wages is the right approach. It is neither sensible nor justifiable intellectually”.—[Official Report, 11/6/98; col. 1240.]
I do not understand what has changed to invalidate that sensible opinion then held by the party opposite. There is something unattractively patronising about these discriminatory attitudes. They come close to suggesting that people involved with the farmyard must be so primitive as to need their hand held by agencies of the state.
In his opening remarks, the Minister most pertinently pointed out that farmers compete globally these days, not just one with another. It is possible to imagine a future world without the common agricultural policy. It is possible to envisage a future where farmers are vastly more exposed to the marketplace and with many fewer subsidies. Subsidies, after all, are not just handouts by the taxpayer; they disguise all kinds of market distortions on the one hand and, on the other, fund environmental initiatives prescribed by Parliament or the European Union. Nor is it entirely fanciful that, as the right reverend Prelate said, the day might come when we have to take the question of fuel security seriously. These considerations are not necessarily matters to be dreaded; rather they are challenges to be faced. Whatever the future, we must be prepared for change.
As I have said before in your Lordships’ House, SMEs stand ready to lead growth in our economy if only they are allowed to. It is time agriculture was unshackled and allowed to prosper as it is capable of doing. It is time we were treated as a well established, modern industry. Above all, it is time we were treated like everybody else. Our farmers have a huge amount to offer. The abolition of the AWB is a welcome and long overdue measure and the Government must be congratulated on introducing it. It deserves support in your Lordships’ House.
Lord Curry of Kirkharle
My Lords, I fully support the Government’s desire to abolish the Agricultural Wages Board. I declare an interest as a tenant farmer in Northumberland. I started my business in 1971, employed two young people who had left school, and built up the business until I employed six. Though I no longer employ staff, I have done so for most of my professional life. As a contrast, I also chair the Leckford estate for Waitrose, where we employ 170 staff. My key interest in this debate, however, is as chair of the Better Regulation Executive—and this is an important deregulation measure. I consider myself to be firmly embedded in the agricultural community. I know lots of farmers and I know no farmer who rewards their staff at Agricultural Wages Board rates. The NFU has 70% farmer membership and most of those who are not members do not employ staff.
The Agricultural Wages Board is a relic of the past. In 2002, in a report for which I was responsible, commissioned by the previous Administration, I recommended that its future be reconsidered. The noble Lord, Lord Whitty, and I had interesting conversations about the wages board at the time. No other industrial sector has a wages board. We do not have one in construction or in transport: why in agriculture? The perception seems to be of a sector stuck in a Lark Rise to Candleford era where employees are exploited by unscrupulous employers who resemble the mill owners of the 19th century. Nothing could be further from the truth. The agricultural sector is now a highly professional industry. Today’s employees have to be skilled to cope with the technological changes that are taking place at an unparalleled rate. The cab of a modern tractor is now like the cockpit of an aircraft.
The Duke of Montrose
My Lords, I was most grateful to hear what the noble Lord, Lord Curry of Kirkharle, has been telling us. A particular difficulty for the House has been the shortened consultation period, which left a number of questions not fully answered in our minds.
The noble Lord, Lord Whitty, and agricultural workers who came to brief us this morning are obviously very worried at the Government’s assessment of a loss of £259 million. The noble Lord, Lord Curry, has given us some indication as to how that was achieved. Can the Minister tell us whether that figure includes savings or reductions in monies other than purely wages, where the figure was derived from and on whom is it likely to impact? The agricultural representatives took it that overtime rates will be totally abolished. The question of working hours is well defined, for all workers, by the EU working time directive, so everyone knows how many hours are required in any employment in excess of this figure. Under what guidance or legislation will the rates of payment for these hours be determined?
The noble Lord, Lord Whitty, said that the floor was being removed. As the right reverend Prelate said, that is not quite the picture. The floor is not being removed. At the present rate, it is very slightly diminished by 2p. One of the other factors that the representatives are keen to emphasise is that currently there is a graded system in the rates of remuneration. However, the grades currently in place are built on a system of certified qualifications and experience. Is it not possible for the agricultural workers’ union to produce its own guide to a graded wage structure, which would give its members an indication of what the level should be when they are entering into a new contract? These things could be done by responsible people in their own way and would not necessarily require the retention of the wages board.
Lord Cameron of Dillington
My Lords, first, I declare an interest as a farmer. We have all received much evidence, both for and against, on this amendment. It seemed right to consider all the evidence and facts afresh, including my own knowledge of the industry, and to re-examine the case for and against abolition.
I think everyone acknowledges that agriculture is very different from 60 to 65 years ago when the current Agricultural Wages Board was introduced. I know that some of the work can still be very tedious and repetitive, such as riddling potatoes for hour after hour or even driving up and down a field all day, albeit in an air-conditioned or heated cab, either with or without sat-nav assisted steering. Of course, now no weights are lifted because instead of bags coming in at 1 hundredweight or even 2 hundredweight as they used to, they come in weights of 1 tonne. So you automatically jump into the forklift truck, do things much quicker and save yourself from exposure to the weather.
I admit that some of the work with livestock can be pretty full-time. You are always on call, particularly at certain times of the year, such as during lambing or calving and, even more importantly, when quietly walking up and down your dairy buildings at night to check which cows might be on heat in order to maintain or to avoid your calving index slipping. I also know that work with livestock can sometimes take place in fairly fresh and rugged conditions, both wet and cold. It has always seemed to me that shepherds and dairymen really should be flock or herd managers and paid an annual salary with bonuses paid on targets achieved. As I understand it, that is not specifically allowed under the current rules of the AWB—or at least it does not count.
On our farm, including in our dairy, we do not pay much attention to that or to any Agricultural Wages Board rates. We pay much more than the AWB rate. We would not keep staff very long if we did not. As I have said before, why would one pay a minimum wage to people responsible for operating machinery costing up to £500,000 or more, and whose skill at operating it can sometimes be the difference between profit and loss on the farm?
However, the Agricultural Wages Board is—everyone has mentioned this and I have admitted it before—a very convenient benchmark to use in the annual wage adjustments. On our farm, all wages across the farm go up by the 2%, 3% or whatever the AWB rate is. In addition, we usually round it up. Incidentally, in the consultation evidence I received from Unite, I noted that by far the most common reason—again, it has been repeated in the debate today—from farmers for opposing the abolition was the helpful benchmarking service that the AWB provides. However, as I have also said previously, this is a service quite easily replaced, and indeed promised, by the NFU and others on a non-statutory basis. Therefore, I am afraid that I have to discount all that evidence. I do not think that it is relevant to the debate.
The question really is: why should we get rid of the safety net? If most farmers pay no attention to it, does it really matter whether we have it or not? After all, it is only a small cost to the taxpayer in the general scheme of things. It is the last of many wages boards and councils, and therefore has a historic role, if nothing else—the last vestige of post-war socialism. I admit that I have only limited knowledge of the horticultural industry, where it is claimed that the national minimum wage—a full 2p per hour less—would apply if the AWB was not there. Furthermore, the rightly generous overtime rates of the AWB would no longer apply in that industry, which I believe is a valid point. But perhaps that is a fault of the national minimum wage rules rather than a plus point for the AWB.
I paused in my thought processes here. What harm is the AWB doing? After all, agriculture is no longer a poorly paid industry, so it must be being successful. The hourly average pay in agriculture is higher than in hotels, restaurants, shops and even local authority administration. Why dispense with all that gain? I like to think that I care about farming families, both employers and employees. I have spent most of my life trying to promote wider businesses and jobs in the countryside outside farming, because agriculture represents less than 4% of rural employment. Therefore, one of the reasons for my passionate promotion of the wider economy is that many farming families, both employers and employees, depend on having a non-agricultural wage earner in their family to maintain their lifestyle or, if they are the employers, their presence on the land.
I asked myself whether it is helpful to overall employment in agriculture that there should be a state-controlled wage structure over and above the minimum wage which the other 96% of the rural workforce does not enjoy. I asked myself whether the rest of the rural economy was ruined by the abolition of the other 100 or so wage councils. Or is it spoilt now by having a free market in wages, subject of course to the national minimum wage?
Are lorry drivers disadvantaged by not having a lorry drivers’ wages board? I take that as a good equivalent because they, too, spend long hours in cabs, driving up and down—not fields but roads. I thought that they were not disadvantaged. The rural economy is flourishing better than ever before, including lorry drivers. As an aside, obviously any reform of the CAP should put more money into Pillar 2 and less into Pillar 1 but that is not the subject we are debating today.
My next question to myself was whether UK agriculture can adapt and grow better, including providing more overall employment up and down the whole food chain, with or without its own centrally controlled, state-run wage order. All my experience over the past 50 years suggests that state interference in an industry is not very helpful to any of the participants in that industry, apart from the need for a national minimum wage structure and having a strong Health and Safety Executive, in which agriculture is not its finest field.
While I understand the safety net argument, I fear that the AWB is at best somewhat of an irrelevance in this day and age, and at worst is preventing new practices of salaries and well targeted bonuses that could reignite our farming industry as a career path for those who love the countryside and the healthy working life associated with it. I do not always support the Government but on this issue I fear that I must.
Baroness Byford
My Lords, in Committee we had a long discussion about whether the Agricultural Wages Board should be continued. Although the noble Lord, Lord Whitty, implied that a majority was in favour of retaining it, that is not quite a true reflection of those of us who took part.
Tonight, we have had the extra bonus of looking at Amendment 83A in the name of the noble Lord, Lord Whitty. It is within that context that I want to pose one or two questions. Amendment 83A proposes that,
“every agricultural wages committee … in England is abolished”.
However, it adds the requirement that “the services formerly provided” should be transferred to,
“the Agricultural Wages Board for England and Wales”.
I hope that the noble Lord will explain to the House what is involved and what he expects the board to do. Perhaps he might also tell us what caused so many of those committees to cease to function. Were they no longer needed or were they being dealt with in a different way? His amendment requires detailed examination.
Subsection (3) of Amendment 83A proposes that,
“any minimum rate of pay contained, or to be contained, in an Order of the Agricultural Wages Board may”—
I repeat, “may”—
“where the Agricultural Wages Board considers it convenient to do so, be fixed by reference to any periods during the currency of employment”.
Therefore my question to the noble Lord is: will he please tell us what “convenient” means, or how it is defined, or how it would work? It seems a very unusual way for an amendment to be expressed.
Viscount Younger of Leckie
My Lords, this has been an interesting and lively debate. I am very grateful to all noble Lords for their contributions.
I turn to some of the points raised by noble Lords during this debate. First, the noble Lord, Lord Whitty, raised the issue of the impact assessment, and the noble Lord, Lord Curry, referred to this as well. The noble Lord, Lord Whitty, pointed out that the Government’s best estimate is a cost to the rural workers of £236 million over the next decade. Abolishing the Agricultural Wages Board would bring agriculture into line with all other sectors in the economy. Allowing farmers to compete fairly in the labour market and allowing agricultural wages to follow market levels will enhance the competitiveness of the sector and may increase employment. This would in turn encourage long-term prosperity in rural areas.
The impact assessment itself gives a range of impacts and makes it clear that there is considerable uncertainty, with a potential £238 million impact for workers being at the upper end of the range. The impact assessment also makes clear that there may be, in fact, no reduction in wages or worker benefits. I would like to give a little more information than was asked for in terms of how we arrived at these figures. I stress that the figures are the upper estimate, based on empirical research comparing wages in fisheries and the agricultural sector over an 11-year period up to 2010. The figures are based on two particular issues. First they are based on existing workers. With the abolition of the Agricultural Wages Board, one assumes that existing workers on contracts would not receive a pay rise over 10 years. Therefore there would be a definition of wage slippage, allowing for inflation. Secondly, it allows for new workers who may be taken on at the national minimum wage rate, not the old agricultural wages rate, if the Agricultural Wages Board was abolished. So it assumes the very worst scenario, with no increase at all on what there was before, and it assumes, in effect, that farmers would be sitting on their hands. I would argue that this would be highly unrealistic.
As I mentioned earlier, the reality on wages will depend on demand, and evidence shows that demand is increasing. Farmers will want to be more flexible and will be able to be more flexible with the abolition of the Agricultural Wages Board.
Lord Hunt of Kings Heath
What impact has the Minister’s department assessed there will be as a result of supermarkets forcing down costs on farmers, and what will be the impact of that on wages?
Viscount Younger of Leckie
I am glad that the noble Lord has brought up this point because I was about to move on to the issue of supermarkets which was raised by the right reverend Prelate the Bishop of Hereford and, indeed, by the noble Lord, Lord Whitty. From our perspective, we do not have any evidence at all that supermarkets—some names were mentioned by the noble Lord, Lord Whitty—would put pressure on farm workers’ wages.
Viscount Younger of Leckie
If I may be allowed to finish, prices paid to producers are determined by international markets, not just supermarkets. Supermarkets now recognise that they have their reputations to protect. Since February 2010, all contracts between major food retailers and their direct grocery suppliers must comply with the groceries supply code of practice, the aim of which is to ensure that those who directly supply the large grocery retailers do not have unexpected costs or risks transferred on to them. I finish by saying that the horticultural sector similarly operates in international markets, with imports representing nearly 40% of fresh vegetables and over 90% of fresh fruit sold in the UK.
The right reverend Prelate the Bishop of Hereford also raised the issue of workers who worked in the farming sector who were below the school leaving age, if I understood him correctly. He argued that they would be disadvantaged by the abolition of the Agricultural Wages Board. I would like to reassure him that the National Minimum Wage Act 1998 does not apply to children below compulsory school leaving age. Therefore, following the abolition of the Agricultural Wages Board, no minimum rate would be set for young workers in agriculture in this age group. However, this would leave them in a similar position to children who work in other sectors such as shops, hotels and hairdressing salons. They will continue to be protected by general employment law and by health and safety legislation. Children of school age should be in full-time education and it is not the Government’s policy to encourage them to seek work.
The right reverend Prelate the Bishop of Hereford, in quoting Winston Churchill's words “sweated workers”, raised the question of protection. There is now a raft of protections for all workers under general employment legislation including the national minimum wage, working time regulations, the Employment Rights Act, equal pay and equality legislation and legislation for fixed-term employees, part-time employees and agency workers. If the Agricultural Wages Board were abolished, agricultural workers would enjoy the same protection as workers in all other sectors of the economy. That emphasises how far we have come since 65 years ago. It is interesting that there is quite a long list there.
To conclude on the issues that the right reverend Prelate the Bishop of Hereford raised, he made the point that there should be a defined living wage. I support that and in fact the Government support the concept of a living wage and encourage employers to take it up where possible. But the decision on what wages to set is one for employers and workers.
My noble friend Lord Greaves raised the issue of the consultation and much discussion was had in Grand Committee on that. The noble Lord, Lord Whitty, also raised this matter concerning Wales. I believe that I wrote quite a long letter to the noble Lord, Lord Stevenson, and copied it to a number of other noble Lords to address this matter.
The policy of the abolition of the Agricultural Wages Board and related committees was first announced in July 2010 so stakeholder and interested parties have had plenty of time to consider the matter. During this time, key stakeholders also had the opportunity to make their views known to Defra during meetings of the Agricultural Wages Board and agricultural wages committees. The department felt that a four-week consultation period was proportionate and realistic given the length of time that the policy had already been in the public domain.
The noble Lord, Lord Whitty, raised the issue—which, again, I believe was raised in Grand Committee—over the lack of use of the Public Bodies Act. To address this directly, the Public Bodies Act was only one method by which the Agricultural Wages Board could have been abolished. The Government are perfectly free to bring forward primary legislation to abolish the board.
The removal of the board will provide simplification and greater flexibility and allow the agricultural sector to compete on a level playing field with all other sectors of the economy, encouraging employment and competitiveness which will benefit all those in the industry. The noble Lord’s amendments would retain the Agricultural Wages Board and the separate employment regime for agriculture. This would continue the dual regulatory burden for farm businesses. The proposal that the board should be able to fix minimum pay rates by reference to any periods of the employment is intended, we presume, to make it easier for the board to provide for annual salaries. We are not convinced that the amendment would serve its purpose.
The provisions on the enforcement of the agricultural minimum wage are derived from the National Minimum Wage Act, which dissuades farm businesses from offering annual salaries. Moreover, the introduction of salaries would not be enough in itself to bring employment in agriculture into the 21st century. If the amendment were accepted, the opportunity for the agricultural industry to move forward and modernise would be lost. Instead, agriculture would be stuck in the past with an antiquated system of statutory wage fixing and prescriptive regulation of employment practices.
The Duke of Montrose
My Lords, I wonder whether my noble friend could also answer the point that I raised earlier. Does he know of any form, format or regulation that will deal with the question of what payment rates should be for work over and above the minimum hourly rate?
Viscount Younger of Leckie
I thank my noble friend the Duke of Montrose for that question. It is best that I get back to him in writing after the debate.
While I welcome that the amendment acknowledges the need to abolish the 15 agricultural wages committees and 16 agricultural dwelling house advisory committees in England, we do not consider that there is a need to retain any of the functions. The amendment tabled by the noble Lord provides the Agricultural Wages Board itself to take over the functions of the ADHACs in England. The Government are committed to growing the rural economy. A key part of that would be to ensure a dynamic and prosperous future for the agriculture industry.
We are already taking forward the recommendations of the Farming Regulation Task Force which will remove a range of unnecessary regulatory burdens from farm businesses. We are improving access to superfast broadband and the mobile network coverage in rural areas, which will make it easier for farm and rural businesses to operate. We have provided almost £57 million to the Welsh Government to ensure that broadband access is available to homes and businesses including the hardest to reach areas in Wales.
Some £100 million is being invested from the Rural Development Programme for England, which will help small rural businesses to improve their skills, facilities and competitiveness. We have also introduced a pilot of rural growth networks to share lessons learnt to stimulate sustainable economic rural growth.
This whole package of measures, together with the ending of a separate agricultural minimum wage, will support the agriculture industry in having a successful and competitive future, which will benefit all those who work in agriculture and the rural economy.
The abolition of the Agricultural Wages Board is supported by industry bodies, including the National Farmers’ Union, the Country Land and Business Association, the Tenant Farmers Association and the Association of Labour Providers. It is supported by independent professional advisers, such as the Central Association of Agricultural Valuers and the Agricultural Law Association. In view of the above, I hope that the noble Lord will feel able to withdraw his amendment and I commend the government amendments to the House.
Lord Greaves
On the question of dairy prices, is the Minister aware that for many dairy farmers, many of whom have been forced out of business, the farm gate price which has been forced on them by the market power of supermarkets and milk processors has been around or even below the cost of producing the milk? The supermarkets and milk processors have been able to use their market power to force down prices. The fact that there may be cheap milk imports means that the supermarkets can do that. But it is the supermarkets themselves who are responsible.
Viscount Younger of Leckie
I thank my noble friend for his comment. I understand that the code adjudicator is called in in this particular case. But I owe my noble friend a full answer to his question and I will follow up after this debate.
Lord Whitty
My Lords, I thank the Minister and everyone who has participated in the debate, particularly those who supported my amendments. Those who objected to my amendments, including the Minister, seem to have two points—that we have to get rid of archaic bureaucracy and that this will not have any effect because wages will be paid well above the rate and that farmers as employers will not notice the disappearance of the Agricultural Wages Board.
As for bureaucracy, most of us are on the same page. We are happy to see the abolition of the 31 bodies. Our amendments would allow significant modernisation and simplification of the procedures and substance of the Agricultural Wages Board. To answer the noble Baroness, Lady Byford, that is why that form of phrasing is there—to move to annual salaries and so forth.
Indeed, when I was Minister, as the noble Lord, Lord Curry, will recall, I tried to get a lot of modernisation through on the Agricultural Wages Board but to retain essentially the legal underpinning which is needed in this unique industry for an isolated, sometimes exploited workforce. We have had a benign picture of the way that farming operates, but actually we know that in large parts of farming and probably most obviously within horticulture, there is still some serious exploitation of workers in all their terms and conditions including their minimum wage. The Government have not answered my points regarding amendment and reform of the Agricultural Wages Board rather than abolition.
On the point about wages, we are facing a serious dilemma. By abandoning the Public Bodies Act route, the Government have not presented to the House detailed information. The impact assessment to which we have all referred is an authoritative document. It says that the Government’s best estimate—not the most extreme case, not the worst case, not the lowest case, and not the highest case either—is that in aggregate £240 million will be taken out of the pockets of current and future workers within the agricultural sector. That is the view and best estimate, not of the Minister’s department, but of the department of the noble Lord, Lord de Mauley, of what is going to happen. Obviously, there is a range of probabilities, but the Government’s best estimate is that this measure will lead to a reduction in wages in the agricultural sector by £250 million. That is the bare fact of this.
No doubt, in many of the enterprises of the noble Lords, Lord Cavendish, Lord Cameron and Lord Curry—I am sorry to fall out with him, but at least we are both being consistent on this issue—there will be better pay and little impact. But all the Government’s statisticians, agronomists and economists are looking at the total situation and saying, “The net effect of all this in aggregate across the whole of the agricultural and horticultural sector will be a loss of wages of that order”. That is their best estimate and that is at odds with the noble Lord, Lord Cavendish, and the circle of farmers in which he moves. Although clearly they are in the same geographical area, they are a different lot from those among whom the noble Lord, Lord Greaves, moves. But, even if he is right for all those farmers, the Government’s view is that is not the total effect on the sector. Either the Government’s impact assessment is utterly wrong, or the anecdotal evidence from those who are close to land-owning interests in this House is not accurate.
Lord Cavendish of Furness
My Lords, I gave statistics showing that the way farm workers were paid was overwhelmingly higher. Those are the statistics that matter. I am not in a position to defend an impact assessment with its huge range, which seems to me entirely meaningless, but I gave the statistics that are irrefutable.
Lord Whitty
My Lords, nobody is disputing that, at present, after years of operation of the Agricultural Wages Board and the economics of the industry, a lot of agricultural workers are paid above the minimum rate and above rates in some other industries. To that extent, I agree with him. My point is that the Government have refused to do what the House asked them to do under the Public Bodies Bill and present us with a full explanatory memorandum with arguments for the abolition and arguments against any other alternatives. They have tried to cut corners on this, but their own experts tell them that the net effect of this will be a substantial cut in rural workers’ incomes.
If the House votes for the Government’s amendment and defeats my amendment to that amendment, that is what they are voting for tonight and they had better recognise it. That is the message they will be sending out to rural areas. I am looking perhaps particularly to people on the Liberal Democrat Benches who were not committed by their manifesto to this abolition, as the noble Lord, Lord Greaves, said. I do believe that the Government have got this wrong. We could have had a more coherent debate had we gone down the route of the Public Bodies Bill and the Government had produced their range of statistics and we could have had a sensible argument. Instead, we have a minimalist consultation, minimalist information and the Government sticking to an ideological position, supported by some elements of the farming industry but by no means all, and prepared to try and push through something which has an impact on the incomes of a lot of rural workers and their families. My amendment would allow a better way forward, a modernising way forward, and a reduction of bureaucracy, but it would retain the central protection that those agricultural workers have had and which they deserve to retain.
Baroness Byford
My Lords. I will be very brief. Three times the noble Lord, Lord Whitty, has referred to the rural workforce. This is nothing to do with the rural workforce; it is to do with the Agricultural Wages Board and he is misleading colleagues if he keeps using that phrase.
Lord Whitty
My Lords, the right reverend Prelate said two things. First, the agriculture workforce is a smaller proportion of the rural workforce than it used to be, but also the Agricultural Wages Board is taken, either in its substance or in the rate of increase, to a lot of other rural workers, so it does affect a wider range than those who are legally entitled to Agricultural Wages Board rates. It is not the whole of the rural workforce, but it is nevertheless taking £250 million out of the rural economy, ostensibly giving it to the farmers, but actually giving it to the supermarkets. If that is what the House wishes to vote for tonight, they had better be clear that that is what they are doing.
Arrangement of Business
Baroness Anelay of St Johns
My Lords, I appreciate that many noble Lords wish to leave the Chamber after that event. The right reverend Prelate is ready to begin his Question for Short Debate and this has taken two minutes out of his time. We might find at the end of this that the usual channels will arrange for an extra two minutes so that he does not lose a precious second of his Question for Short Debate.
Crime: Sexual Violence
(11 years, 2 months ago)
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The Lord Bishop of Wakefield
To ask Her Majesty’s Government what steps they are taking to address the level of sexual violence in conflict and post-conflict situations.
The Lord Bishop of Wakefield
My Lords, when Robert Runcie, then the Archbishop of Canterbury, gave the Falklands service—which rather surprisingly became controversial—he quoted Pope John Paul II. He noted the Pope’s speech in Coventry in his 1982 visit to this country, in which he said:
“War should belong to the tragic past, to history. It should find no place on humanity’s agenda for the future”.
The Archbishop himself noted:
“War is a sign of human failure, and everything we say and do in this service must be in that context”.
That last comment came, of course, from someone who had not only driven his tank up the Normandy beaches and rescued another person from a burning tank, but who had also entered the newly liberated death camp at Belsen as an Allied military observer.
Sadly and wretchedly, war remains a part of the tragic present, and today’s debate takes us to the very heart of contemporary conflict. Sexual violence in conflict stretches back into history, well before the 20th century. That conflict-strewn century saw such abuses of our common humanity multiply terrifyingly. In the Bosnian conflict, in our own continent of Europe, somewhere between 20,000 and 50,000 women were raped. In a continent that traces the history of its civilisation back to antiquity, and indeed in a continent ravaged by two world wars in that century, these figures can scarcely be taken in.
More terrifyingly still, in the Rwandan genocide between 300,000 and 400,000 women were raped in a period of only 100 days. These figures alone give us cause enthusiastically and energetically to support and develop the Government’s initiative, led personally by the Foreign Secretary: the preventing sexual violence initiative. I am sure that the Minister will elaborate further on that initiative, and on the prospects for achieving a resolute consensus on this matter at the G8 Foreign Ministers meeting next month, so I shall focus in the minutes available to me on further background.
The 2012 Human Security Report Project challenged this dominant narrative on a number of fronts. It pressed home some important points and argued that such violence is exceptional and confined to certain conflicts. Sometimes the claims are not based on evidence. The omission of male victims from the mainstream narrative is also crucial. Indeed, some of the data were missing. These exaggerations and weaknesses can too easily play down the significance of sexual violence in wider society. However, the figures quoted earlier from specific conflicts are sufficient to indicate the alarming abuse of humanity implied.
Sadly, we are seeing such terrifying abuse committed in Syria today. I would welcome some comment from the Minister on how we might properly document such abuse, so that future legal redress and prosecution will be possible. In Syria, for reasons we all know, the western nations appear powerless to halt the appalling atrocities being committed by both sides in the conflict. What, then, are the crucial questions? First, this is obviously more than a moral issue. However morality is defined—by human rights, by a categorical imperative, by natural law, by respect for persons—sexual violence is an extreme denial of moral purpose and integrity, even in the extraordinary and tragic conditions of war and armed conflict.
Secondly, there is the issue of impunity. The facts of war do not somehow remove culpability and the normal patterns of human responsibility. Rape and sexual violence are inhumane and immoral in every circumstance, but fear has too often driven out a proper challenge and response to these tragic and inhumane abuses. In places such as the Democratic Republic of the Congo, which I know well, this is the precise situation. In the case of that republic, Her Majesty’s Government should be encouraged to push the donor community to enforce all aid-funded reforms: in the army and justice sectors, in infrastructure, in basic services provision and elsewhere. By pressing this home, there is that much more chance of putting an end to the conflict in general, and also to respond to the lack of protection and the fragile situation of women. In the DRC, many agencies, including the churches, have been muzzled by fear and terror of retribution, not only individually but within entire communities. This is true, and it is one of the reasons why it has been difficult even for churches to act together without somehow endangering some members of their sister churches.
Universally, genocide is certain to collapse courage and invade human integrity. This breeding ground of fear has led to a coalition among the Christian churches under the title We Will Speak Out. The catalyst for this, the Tearfund report, Silent No More, particularly documented the churches’ responses in the Great Lakes region of Africa. The churches are determined to set their faces against the muzzling of those caught up in such conflict. It would be good to hear from the Minister how the bottom-up, community-based efforts of churches and other faith-based organisations might best feed into the Government’s own initiative.
As was hinted at by the Human Security Report Project, there is a correlation between the incidence of sexual violence in armed conflict and its incidence in wider society. The frightening fact is that the collapsed barriers in conflict spin out into a wider world. To remove proper ethical norms in these extreme conditions cuts at the very roots of a common morality. It is often seen as unfashionable to link the study of history with moral purpose. Disconnect the two, however, and we shall repeat, or even deepen, moral dis-ease. Her Majesty’s Government’s preventing sexual violence initiative is rooted in a belief in moral purpose. It is one crucial step among others towards restoring the integrity of the human community.
I am coming close to my conclusion and I hope that the usual channels will be impressed that I may not even take up the whole of the time that I was offered. However, I beg noble Lords to accept that we dare not ignore this initiative, which has the active support of this Bench. Out of the tragedy of war and armed conflict, we have an imperative to encourage our humanity to flourish and be fulfilled.
Baroness Eaton
My Lords, I give my thanks to the right reverend Prelate for bringing this debate to your Lordships’ Chamber this evening and for presenting to us the sobering issues of war in so many parts of the world. It is heartening to recognise, as the right reverend Prelate mentioned, the seriousness with which Her Majesty’s Government have approached the problem of sexual violence in conflict areas and to note the attention being paid to it through the Foreign Secretary’s initiative on preventing sexual violence. The initiative aims to address the culture of impunity, to replace it with one of deterrence and to change the balance of shame away from the survivors to the perpetrators of these crimes.
Two minutes is a very short time, so I shall concentrate on an area of concern in post-conflict areas. Rape as a weapon of war is unacceptable. Equally abhorrent is the practice that has become almost the norm in some post-conflict countries, where young men seek to rape women as a form of male sexual initiation.
The root causes of sexual and gender-based violence lie in society’s attitudes towards and practices of gender discrimination, which place women in a subordinate position in relation to men. The lack of social and economic value attached to women and women’s work, along with accepted gender roles, perpetuate and reinforce the assumption that men have decision-making power and control over women. Through acts of sexual and gender violence, the perpetrators seek to maintain power and control over others. In post-conflict areas, there is an urgent need for campaigns that rethink gender awareness, that inform everyone that rape is a crime and an unacceptable practice, and that focus on respect for women.
Lord McConnell of Glenscorrodale
I, too, thank the right reverend Prelate the Bishop of Wakefield for securing this debate and for his excellent, comprehensive introduction. I am certain that, even in the two minutes that each of us has been allocated, we could collectively ensure that our voice is heard on this vital topic ahead of International Women’s Day.
In Rwanda in 1994, as has already been mentioned with a different statistic, at least one woman was raped every two minutes while the genocide was taking place. As was said, potentially as many as half a million women were raped in that small country that year. From the Balkans to the Congo, from Haiti to Syria, rape is used all too often as a weapon of war. Extreme sexual violence, committed regularly in many countries against children not just under the age of 16 but under the age of 10, is designed to terrorise and subjugate women, their families and their communities. Mass rape has been used in far too many situations as a strategy for ethnic cleansing of the population.
I have seen too often the tortured memories and the present-day fear in the eyes of women and children from the Congolese jungle to wonderful city of Sarajevo. That is, frankly, a vision of hell and we must be clear in our resolve never to tolerate or accept it. I have also seen visions of hope. I have seen women in Nepal organise for their legal rights in a way that is starting to put the horrors of the past behind them. I have seen young girls in Liberia—young mums, the victims of rape—with the support of Save the Children rebuild their lives and give their children the potential of a better future.
We need not only to prosecute the guilty; we need to support the victims. We need also to ensure that we do something to bring about lasting change. In the 2015 review of the millennium development goals we must ensure we deliver the capacity-building that will ensure safety and security for citizens in individual fragile states, and also ensure that women have the legal, political and economic empowerment that can deliver that lasting change. If we do that we will make a real difference.
Baroness Hamwee
My Lords, if I were raped I believe I could count on the support of my family, my friends and my community, including the men—provided that I could bring myself to talk of something that to some is literally unspeakable. I would not become an outlaw from my own society. However, in many cultures the victims of sexual violence are outlaws. It is a terrible, vicious spiral when violence is a systematic response to opposition to a regime. The victims and the children born of rape are stigmatised. The health, social and economic impacts are obvious.
I say with huge humility from the comfort of my own background that a major part of the work facing a world seeking to help is to change attitudes to sexual violence—where it is regarded as normal and not to be questioned—and the response to it. Those affected need support and treatment, not ostracism. I know that training and facilitating work by local people is a focus of the PSVI. It must be because it is best led by members of the communities involved, particularly men and boys and especially religious leaders.
There are immediate and long-term needs. The immediate need is the provision of safe, protected areas for women and children who are refugees to protect them from continued violence when they have fled their own country. In the long term victims need help to give evidence of what has happened. Prosecutions need evidence; evidence needs witnesses; witnesses who are traumatised victims need treatment, both to rebuild their own lives and to be able to give evidence to prosecutors and the courts. The burden of acting as a witness must not be overlooked.
The issue has moral, political and practical dimensions so, as others are saying, let us work with everyone who can contribute and especially those who from their own lives have a deep understanding of the cultural dimensions.
Baroness O'Loan
My Lords, I thank the right reverend Prelate for bringing this debate today. I have worked with women in conflict in many countries and I want to share some of the things that they say donor countries could do to help.
The UK Government in their engagement with the UN could contribute by seeking to place the issue of sexual-based violence on the agenda at peace negotiations. There can be no amnesty in law for rape and violent crimes in times of war. However, very little has been done not just to bring offenders to book but even to articulate that rape is a crime and action will be taken against those responsible. These issues rarely form part of peace negotiations and that is because the offenders are the people at the table and they have no interest in bringing the issue to the table. If supporting Governments, such as the UK, could make it clear that aid and assistance will only follow if women have a place at the negotiating table and if the peace agreement contains a clear statement about sexual violence and its consequences, this would provide a context for beginning to address the problem. The UK could also use its influence to promote compliance with the requirement that peacekeepers deal with their own perpetrators of sexual violence and most particularly that they deal with, and provide for, the UN babies—those born out of the conflict.
Another contribution that the UK is very well placed to make would be in the context of criminal investigation. Any complaint that a rape victim makes has to be in the context of local and national law. Women often have to accept that they have no access through criminal law courts and their only redress is through local laws. The Government could, in their aid packages, prioritise a functioning police and judiciary. Women in these countries express the fact that they need to be able to work closely with the social guardians to disseminate messages about GBV. They say that when church and state and any UN and EU peacekeeping units work together with the women to say these things, it works.
Women want recognition of the level and extent of that violence. They want databases established to demonstrate that. That will make self-evident the need to address the issue. They need to be able to report. They need a functioning police service. They need aid which will support the development of policing, with an emphasis on the need to provide for women. They need, above all, more than a desk and a computer in a sexual violence unit. They need cameras to photograph injuries. They need properly equipped medical services. They need medication. They need the capacity to carry out investigations. Most of all, they need a methodology through which forensic science facilities can be made available to produce, for example, DNA testing of semen left in women after rape. Properly retrieved and handled, that evidence can be conclusive. It may negate the need for investigation.
We have highly developed forensic science facilities. I am not suggesting the creation of labs across the world, but it should be possible to develop a system by which evidence could be sent to a forensic science lab for analysis and reporting. That might provide a breakthrough. Women would see that there might be some point in reporting; it would encourage and affirm them. Of all the issues that I have discussed with women in the third world, this is the one that they most want.
Lord Wallace of Saltaire
My Lords, I know that we are very tight on time, but perhaps people will remember that when the clock shows two minutes, you have had your two minutes. Most people are taking a good two and a half minutes or more. Please can noble Lords keep their remarks brief.
Lord Sheikh
My Lords, rape and other forms of sexual violence have been used as weapons against women in conflicts all over the world. The militias in eastern Congo are violating women as a means of exerting control, humiliation and submission. The abuses in the region are said to account for the majority of the work carried out by international aid organisations. The level of brutality is alarming and leaves victims with physical and psychological wounds. There is a stigma attached to rape which results in many victims being ostracised from mainstream society. The majority of victims are therefore reluctant to report their abuse for fear of rejection by their communities.
Some of the most brutal sexual violence occurred in Srebrenica, which was the worst atrocity on European soil since the end of the Second World War. It is a sorry state of affairs that so far only 30 people have been convicted for the 50,000 rapes committed during the Bosnian war.
There are also reports of rape being used as a weapon in Syria. In this regard, I would like to say that the Prophet Muhammad—peace be upon him—instructed his followers not to lay hands on women, children and elderly people in any form of warfare.
Ending sexual violence is central to conflict prevention and peace-building worldwide. It is important that the perpetrators of these heinous crimes are brought to justice. I am pleased that the Government have formed a UK team of 73 experts devoted to combating and preventing sexual violence in armed conflict. The experts will be able to be deployed overseas to gather evidence and testimony that can be used to support investigations and prosecutions.
I wholeheartedly support the plans to deploy UK experts to Libya, Bosnia, South Sudan and eastern Congo. I also support the Government’s decision to provide £1 million in funding to the office of the UN Secretary-General’s Special Representative on Sexual Violence in Conflict. The Government deserve praise for ensuring that victims of these abhorrent crimes will be given access to the support and justice that they deserve.
Lord Parekh
My Lords, I thank the right reverend Prelate the Bishop of Wakefield for securing and introducing the debate.
Sexual violence tends to occur in conflict situations far more than in others. That is so for three reasons. First, the perpetrators of sexual violence think that they have a right to the bodies of their victims, either because they have subdued them in war or because they have spared their lives. Secondly, there is a culture of immunity. They believe that they will be able to get away with this. Thirdly, there is a collective ethos that supports and encourages such behaviour, because of either a breakdown in law and order or a climate of hatred.
If these three are the conditions that facilitate sexual violence, the answer has to lie in addressing them. In the one and a half minutes left to me, I suggest that there are half a dozen things that we might think about, and I am simply going to list them.
First, it is very important that we must change the intellectual climate of the armed forces. They should not think that subduing somebody gives you a right to that person’s body.
Secondly, there should be successful prosecution. In order for that to happen, there must be a team of experts who will gather evidence and make sure that the prosecution succeeds.
Thirdly, as a result of conflict there are peace agreements in which perpetrators of this sort of violence are generally exempted from punishment or given amnesty. That should not happen.
Fourthly, the West must set an example. In all the cases we have talked about it is always the other part of the world that engages in sexual violence. We forget the fact that the American forces in Iraq behaved no better and that, sadly, some of our own have not proved exactly worthy of the highest standards that this country sets them. It is important that the West should set a good example.
Fifthly, the churches should play a very important role. It is not entirely a matter for the state. The churches have either been silent, as in Rwanda, or partisan.
Finally, there must be a way of introducing some kind of early-warning system. Sexual violence does not break through the surface just like that; there is a build-up to it, and if it can be caught early enough it can be stopped.
Lord Alderdice
My Lords, I suppose it is a tragic inevitability that shooting, bombing, injuring and killing people violently is part of war, and there is often debate about which incidents of bombing, shooting or violence are within the moral or legal framework. However, there is no dispute that sexual violence in the context of war is outside all moral and legal limits. I believe that those who in engage in this kind of behaviour know perfectly well that they are outside what is morally acceptable—unless they have so dehumanised those whom they are abusing that they have largely lost their own humanity. We should be clear about this: there are no contexts in which this is acceptable, either to the overwhelming majority of victims who are women, or as we are increasingly seeing in Syria, the minority who are men, often young men.
That is why I am proud that our own Government have seized on this issue as one of the most important for the G8 and for our foreign policy. Can my noble friend assure me that, as the Foreign Secretary and colleagues move to try to engage in negotiations about a new international protocol on this issue, these crimes will be taken to the International Criminal Court if such a protocol is accepted? Can my noble friend also assure me that we shall see not just a legal change but, as my noble friend Lady Hamwee has said, a cultural change, which will ensure that those who engage in sexual violence can never be regarded as national heroes, but always as cowardly and brutal people who damage their own humanity as they damage that of their victims?
Baroness Coussins
My Lords, I want to draw attention to sexual violence in Colombia and to ask the Government if they will reconsider their decision not to include Colombia as a designated priority country under their excellent PSVI programme.
The Colombian Constitutional Court itself has said that sexual violence is,
“a habitual, extensive, systematic and invisible practice in the context of the Colombian armed conflict”.
The UN special representative noted only last May that all armed groups there—the guerrillas, the security forces and the paramilitaries—use sexual violence as a strategy of war and terror, with near total impunity.
I believe there is a great deal that the UK could do to help the situation in Colombia, and that the excellent work being carried out by our embassy in Bogota would be all the more effective if backed up by further dedicated resources and the authority of priority country designation.
First, there is the issue of impunity and effective amnesty for crimes of sexual violence. Colombia has recently begun peace dialogues with the FARC guerrilla group, but if these talks are to conform with UN Resolutions 1325 and 1820, this amnesty must be reversed, Colombian women themselves must be represented, and the issue of sexual violence must be on the negotiating table from day one. Colombia has not even drawn up an action plan on implementing Resolution 1325.
Secondly, there is the issue of the attacks on, threats to and killing of women human rights defenders and even their children. This has increased markedly in the past few years. Finally, there is a lack of effective security and psychosocial support for survivors, who are often the ones feeling shame and guilt. This is exacerbated by cultural issues in indigenous communities. We know that Afro-Colombian women are particularly exposed to constant physical assaults and violence. Will the Minister therefore undertake to review the status of Colombia within the PSVI, in particular the resources available to support women’s organisations, which are documenting and prosecuting cases of conflict-related sexual violence while supporting survivors?
Baroness Tonge
My Lords, I congratulate the right reverend Prelate on securing this debate. I wish to raise three practical points. First, the Foreign Secretary has stated that rape and sexual violence are used as a deliberate weapon of war. That said, will he take the lead at the G8 in calling for rape and sexual violence in conflict to be classified as a war crime?
Secondly, we had reassurances during the debate tabled by the Lord, Lord Lester, two weeks ago that after rape during conflict, women are entitled to have a safe abortion, if they want it, under international humanitarian law. Can we therefore have this specifically included in DfID’s paper on safe and unsafe abortion, so that it is quite clear? It is unthinkable that women who have been raped should be forced to continue their pregnancy, should they not want to.
Finally, NGOs often pool funds for specific projects and I have been totally unable to establish whether the USA’s ban on funds for abortion is affecting our projects in this field. NGOs that I have approached—and there are many—are unable to give me any figures at all so how can we be sure that our money, channelled through DfID, is being used for safe abortion? Please can the Minister give us some more information?
Lord Hodgson of Astley Abbotts
My Lords, I offer my thanks, briefly but sincerely, to the right reverend Prelate for having given us the chance to debate this important matter. I need to draw the House’s attention to my involvement with the charity Freedom from Torture, which offers solace, comfort and rehabilitation to refugees in the UK who have been tortured overseas. All too often, I am afraid, that torture involves rape.
In the rest of my remarks, I want to focus on an aspect of this terrible topic that has not been raised before: that is to say the rape of men, young boys and adults. It is an equally ugly but less reported crime and one where perpetrators are rarely, if ever, brought to justice. Male rape does not fit easily into the narrative. As my noble friend Lady Eaton said, men are supposed to be strong and dominant, not vulnerable and weak. Further, male rape, which will inevitably involve anal penetration, gives rise to particularly horrific injuries. In countries where homosexuality is culturally frowned upon or remains a criminal activity, such injuries are even more likely to remain unreported and untreated.
The right reverend Prelate referred to the Democratic Republic of Congo. The American Medical Association, which surveyed that country, said that 30% of the women had been raped but that 22% of the men had been raped as well. It is not just in Africa that these stories remain unheard. One of the few academics to have looked into the issue in any detail is Lara Stemple of the University of California’s Health and Human Rights Law Project. Her study, Male Rape and Human Rights, notes incidents of male sexual violence as a weapon of war or political aggression in countries as diverse as Chile, Greece, Croatia, Iran, Kuwait, the former Soviet Union and the former Yugoslavia.
Finally, as we inch towards the exit door in Afghanistan we are in danger of leaving behind an endemic male-rape culture. As the BBC reported recently, every police base has at least one “chai boy”, who usually looks between 13 and 15 years old. Police commanders often see it as their right to abduct a local boy from his family and keep him as a servant and sex slave. Is this what we went to Afghanistan to preserve?
Lord Judd
My Lords, I express my appreciation for this debate and for the right reverend Prelate for having introduced it. It goes way beyond this House. I am a trustee of Saferworld, I also work very closely with bodies such as Amnesty International and UNA and many others of course who have accumulated vast amounts of evidence about the sickening brutality of the way rape is now used, as has been argued in this debate, as a weapon of war. All the people working day after day on these issues are really grateful for the right reverend Prelate’s pressure on this matter.
Impunity has been mentioned and the United Nations Development Programme for Multi-Partner Trust Fund Office gives one example. It is just one of a great number. In the years between 2005 and 2007, 14,200 rape cases occurred in South Kivu in the Congo. What is really disturbing is that only 2% of the perpetrators were ever brought to justice. The Foreign Secretary has put on record his conviction that effective response to sexual violence needs to be built into every aspect of conflict prevention and peaceuilding. Could we perhaps be told what progress is being made on that?
Access to justice in tackling sexual and gender-based violence in conflict necessitates improving security and justice systems. What progress is being made on that? Physical protection, medical protection, including emergency reproductive health services, particularly taking HIV and AIDS into account, psychosexual support and legal assistance are all essential. Are we making progress on these? Also essential is building sustained capacity of women’s organisations coupled with support and protection for the women involved because the risk to them and the threats to them can be acute. What are we doing in a co-ordinated way to meet all these points? Are we really using our knowledge and concern to influence effectively the remaining stages of our engagement in Afghanistan?
Lord Hussain
My Lords, I too thank the right reverend Prelate the Bishop of Wakefield for securing this debate. I would like to draw your Lordships’ attention to the sexual violence used by occupying Indian forces in Kashmir. Out of many cases, I would like to mention one incident of the night of 23-24 February 1991 when the Fourth Rajputana Rifles troopers entered the village of Kunan Poshpora in north Kashmir. This incident was reported widely by Indian media, by the UK newspaper the Independent on 19 March and the New York Times on 7 April 1991. Amnesty International has also quoted this incident. In its judgment, the Jammu and Kashmir State Human Rights Commission concluded:
“Analyzing the statements of all the witnesses/victims it transpires that at about 10 to 11 pm in the night, security personnel cordoned the village. The men folk of the village were ordered to come out and were confined in a Kothar”—
store houses. It continued:
“Then small groups of security forces made their forced entry into the houses. They had consumed liquor and then gagged the mouths of the victims and committed forced gang rape against their will and consent. The personnel from the security forces had actually turned into beasts and had lost their sense of reasoning as even minor girls of 8 years were also raped. The indecent incident continued approximately till 3/4 AM. Almost all the women folk of the village suffered some atrocities during the whole night”.
It is sad to see that no prosecution has taken place so far—not one. I ask the Minister whether the Foreign Secretary will raise this issue with his counterpart in his next meeting to bring those responsible to justice.
Lord Collins of Highbury
My Lords, I, too, thank the right reverend Prelate for initiating this debate. I, too, welcome the Government’s preventing sexual violence initiative and the Foreign Secretary’s plans to use the UK’s leadership of the G8 to raise awareness and seek concrete commitments to help combat the widespread prevalence of sexual violence in conflict.
However, not only must we be tough on the crime we have to be tough on its causes. We must tackle the underlying problems of lack of empowerment, education and inclusion. I heard Justine Greening on “Woman’s Hour” this morning and could not have agreed more with her sentiments. Challenging attitudes and beliefs around gender-based violence is critical alongside the implementation of effective legislation. But I would have liked to have heard more about how we translate those positive sentiments into action. I therefore ask the Minister how much funding the UK Government are willing to commit to PSVI. How much are we asking the other G8 countries to commit? How can we ensure that this issue is prioritised among the G8 Foreign Ministers at the G8 meeting, and that the momentum continues after April to translate the commitments into co-ordinated and effective action?
Finally, I ask the Minister whether the PSVI and G8 messaging and funding include increasing support to survivors and broader protection systems, as well as efforts to tackle the root causes of sexual violence in conflict, including addressing gender and age discrimination and creating livelihood opportunities.
Baroness Northover
My Lords, I, too, thank the right reverend Prelate the Bishop of Wakefield for securing this extremely important and timely debate. In this week of International Women’s Day, I am glad that we have this focus tonight and that so many noble Lords chose to contribute, albeit briefly.
The statistics on violence against women and girls are shocking. Globally, one in three women is beaten or sexually abused in her lifetime. In conflict and post-conflict situations, sexual violence can be even more widespread, as the noble Lord, Lord Parekh, pointed out. As the noble Baroness, Lady Eaton, the noble Lord, Lord Collins, and others have said, women and girls are the poorest and most marginal in society, with the least power. In conflicts, they are the most vulnerable. As the noble Lord, Lord McConnell, the noble Baroness, Lady Tonge, and others have pointed out, we also see rape being used as a weapon against the woman, her family, her community and her society. However, as the right reverend Prelate says, and my noble friend Lord Hodgson emphasised, we also see sexual violence against men and boys used to degrade and destroy. We see that now in Syria. The noble Lord, Lord Sheikh, rightly emphasised the stigma of rape.
How do we break the silence on this and change behaviours? Unless we do, we undermine the likelihood of peaceful resolutions. We know that sexual violence causes huge physical and psychological trauma. My noble friend Lady Hamwee referred to that. But it also exacerbates ethnic, sectarian and other divisions, further entrenches conflict and undermines efforts to restore peace and stability. It reduces progress towards the millennium development goals and represents one of the most serious forms of human rights violation or abuse. For all these reasons, tackling violence against women and girls is central to the Government’s work overseas. We agree with the noble Lord, Lord McConnell, that women and girls must continue to be at the heart of whatever replaces the MDGs.
This year, 2013, is a hugely important year for this agenda. We are working hard with other Governments to ensure that this year’s UN Commission on the Status of Women, whose focus is on violence against women and girls, is a success and agrees a set of robust global standards to protect women and girls from discrimination and violence. My honourable friend Lynne Featherstone is leading the UK delegation. We also want to see women and girls at the heart of the new millennium development goal framework to be published later this year. Their inclusion is critical to achieving our goal of ending extreme poverty.
This year will also see greater government action to address the use of sexual violence in conflict as we further develop and implement the Foreign Secretary’s preventing sexual violence initiative, to which noble Lords have referred. In our own lifetimes, millions of women, men, and children have endured this horror, including in the Democratic Republic of Congo, to which noble Lords have referred, in South Sudan, in Colombia, as the noble Baroness, Lady Coussins, said, in Bosnia and in Syria. The truth today, as the right reverend Prelate pointed out, is that the perpetrators of these appalling, life-shattering crimes more often than not go unpunished.
We believe that more must be done to combat the use of sexual violence in conflict. We want the international community to address the culture of impunity that has been allowed to develop for these crimes and to increase the number of perpetrators brought to justice, both internationally and nationally. As other noble Lords have mentioned, the Foreign Secretary has placed this issue at the top of the G8 agenda for 2013. We want G8 Foreign Ministers at their April meeting to speak out against those who use sexual violence in conflict and to declare that rape and serious sexual violence amount to grave breaches of the Geneva Conventions. This is a very significant step in the development of international humanitarian law. Declaring that serious sexual violence and rape amount to grave breaches sends the message that these crimes are to be treated in the same way as the most serious category of war crimes. I can therefore reassure my noble friends Lady Tonge and Lord Alderdice that these crimes will become the most serious category of war crime in international law. I can also assure my noble friend Lord Alderdice that they can be taken to the International Criminal Court. Consultation with prosecutors at the ICC has clearly identified that a lack of clarity over investigations and collection of evidence led to the low number of prosecutions in the ICC and other international tribunals. The protocol will directly address this.
We are also proposing a set of practical G8 commitments that, taken together, will promote justice and accountability and provide greater support to victims. I hope that my noble friend Lady Hamwee, the noble Lords, Lord Parekh and Lord Judd, and others will welcome them. These commitments are, first, to improve investigations and the documentation of sexual violence in conflict, including through endorsing a new international protocol; secondly, to provide greater support and assistance to survivors, including child survivors, of sexual violence, so that they can rebuild their lives and attain justice for what they have endured; thirdly, as the noble Baroness, Lady O’Loan, emphasised, to ensure that the response to sexual and gender-based violence is fully integrated into wider peace and security efforts; and fourthly, to improve international co-ordination, including through the UN, because a co-operative approach to addressing sexual violence will have a much greater long-term impact.
To underpin these international efforts, the Government have established a new specialist UK team of experts, to which the noble Lord, Lord Sheikh, referred, who can be deployed to conflict areas to help local authorities and organisations address sexual violence. This team has already been deployed to the Syrian border to help train local health professionals. In answer to the right reverend Prelate, we aim to work with, and support, those who can document these abuses in that area. We also plan to deploy the team to at least five other countries this year. It will go to Libya, to support survivors of sexual violence committed during the revolution; to South Sudan, to work alongside the UN and the Government to strengthen local justice; to eastern DRC, to help doctors and lawyers to investigate crimes against the hundreds of women and girls who are raped each month; to Bosnia-Herzegovina, to help courts and prosecutors address the backlog of war crimes cases; and to Mali, to provide human rights training to the Malian armed forces on preventing and responding to sexual violence. As the noble Baroness, Lady O’Loan, emphasised, in order to address these issues, we need first the law to protect and then we need to work with those who can help to ensure the implementation of those laws: the police, the judges, civil society and the media.
Our plans for the initiative have been developed in consultation with UN agencies, other international bodies, NGOs, and—I can also reassure the right reverend Prelate—representatives from faith groups. These groups have a particular role, not least because of their ability to reach out across communities. We want to continue to work closely with them as we challenge the myths and stigma associated with victims of sexual violence.
There were a number of questions. My noble friend Lady Tonge asked about the proposals we brought forward earlier this year in terms of international humanitarian law. In conflict situations, even if it is contrary to national law, abortion care can be offered where its denial would amount to torture or cruel treatment. We need now to focus very much on bringing our international partners with us on this. We are very forward-looking on this, as we have been in the area of safe abortion as well, and it is extremely important that we take others with us. However, if the noble Baroness has any evidence that UK aid is not being used appropriately and is not reaching women, will she please let us have those details?
The noble Baroness, Lady Coussins, asked about Columbia. PSVI is working in partnership with the UN special representative’s office and its team is leading on these issues in Columbia. We support that. I will be very happy to provide further details for the noble Baroness.
My noble friend Lord Hussain spoke about the abuse of human rights in Kashmir. I hear what he has to say in this regard, and we welcome the invitation by the Indian Government to the UN special rapporteur, who is to look in detail at those allegations. We are not willing to put up with abuse of human rights, wherever it happens in the world.
The noble Lord, Lord Collins, asked about funding. I will be very happy to spell this out further in writing. The G8 commitments are essentially very practical, but groundbreaking. By working with our international partners we have moved this forward in a very significant way, and we now need to take our international partners with us so that we can ensure that this is as effective as it needs to be. It needs to be done right across the international spectrum.
Tackling the impunity of those responsible for sexual violence is essential for any conflict or post-conflict society seeking to come to terms with past abuses. It is also essential to prevent their recurrence. This is an absolutely key year as we seek to take this forward. This is the year to ensure that we make the difference for those who are at risk of this horrific form of abuse.
Lord Wallace of Saltaire
My Lords, as several of the final speeches were shorter than time allowed for, and as one speaker withdrew at the last minute, we have now come rather short of our time limit. I thank everyone for their indulgence at the unpleasant roles that Whips have to play, and I suggest that the House should now adjourn until 9.36 pm.
Enterprise and Regulatory Reform Bill
“Abolition of Agricultural Wages Board and related English bodies: consequential provision1 In section 28 of the Rent (Agriculture) Act 1976 (duty of housing authority upon receiving application that agricultural worker be re-housed etc), in subsection (3), for “The authority” substitute “If the dwelling-house is in Wales, the authority”.
2 The repeals and revocations in the following table have effect.
Reference | Extent of repeal or revocation |
|---|---|
Agricultural Wages Act 1948 (c. 47) | Section 1. |
In section 2— (a) in subsection (1)— (a) the words “England and”, and (b) paragraph (a), and (b) subsection (4). | |
Sections 3 to 4. | |
Sections 6 to 16. | |
In section 17— (a) in subsection (1), the definition of “the national minimum wage”, and (b) subsection (1A). | |
Sections 17A to 19. | |
Schedules 1, 2 and 4. | |
The Agricultural Wages Committee Regulations 1949 (S.I. 1949/1885) | Regulation 3(2)(a) and the word “and” after it. |
Regulation 16. | |
Public Records Act 1958 (c. 51) | In the table at the end of paragraph 3 of Schedule 1, the words “Agricultural Wages Board.” |
Parliamentary Commissioner Act 1967 (c. 13) | In Schedule 2, the words “Agricultural Wages Board for England and Wales.” |
Agriculture Act 1967 (c. 22) | Section 67. |
Agriculture (Miscellaneous Provisions) Act 1968 (c. 34) | Section 46. |
Agricultural Wages Committees (Wages Structure) Regulations 1971 (S.I. 1971/844) | The whole instrument. |
Agricultural Wages Committees (Areas) Order 1974 (S.I. 1974/515) | In article 3(1), the words— (a) “Subject to the provisions of this order”, and (b) “an agricultural wages committee for each county in England and”. |
Article 3(2). | |
Article 4. | |
The Schedule. | |
Social Security (Consequential Provisions) Act 1975 (c. 18) | In Schedule 2, paragraph 32. |
House of Commons Disqualification Act 1975 (c. 24) | In Part 3 of Schedule 1, the words “Member appointed by a Minister of the Crown of the Agricultural Wages Board for England and Wales.” |
Northern Ireland Assembly Disqualification Act 1975 (c. 25) | In Part 3 of Schedule 1, the words “of the Agricultural Wages Board for England and Wales or”. |
Social Security Pensions Act 1975 (c. 60) | In Schedule 4, paragraph 10. |
Employment Protection Act 1975 (c. 71) | Section 97(1) and (2). |
Schedule 9. | |
In Schedule 17, paragraph 12. | |
Agriculture (Miscellaneous Provisions) Act 1976 (c. 55) | In section 4(1)(c), the words from “(including” to the end. |
Agricultural Wages Committees (New Combinations of Counties) Order 1981 (S.I. 1981/179) | The whole order. |
Agricultural Wages Committee (Cleveland, Durham, Northumberland and Tyne and Wear) Order 1989 (S.I. 1989/1173) | The whole order. |
Social Security (Consequential Provisions) Act 1992 (c. 6) | In Schedule 2, paragraph 4. |
Agricultural Wages Committees (Areas) (England) Order 1995 (S.I. 1995/3186) | The whole order. |
Employment Rights Act 1996 (c. 18) | In section 35— (a) in subsection (2), paragraph (a) and the word “or” at the end of that paragraph, and (b) in subsection (3), paragraph (b) and the “and” before that paragraph. |
National Minimum Wage Act 1998 (c. 39) | In section 16(6)— (a) in the definition of “the agricultural wages legislation”, paragraph (a), and (b) in the definition of “relevant authority”, paragraphs (a), (b) and (c). |
In section 16A(5)— (a) in the definition of “enforcement officer”, paragraph (b), and (b) in the definition of “the relevant legislation”, paragraph (b). | |
Section 46(4)(a). | |
In section 47— (a) subsection (1)(a), (b) subsection (2)(a) and (d), (c) subsection (4)(a), (d) in subsection (4)(b), the words “(similar provision for Scotland)”, and (e) subsection (6)(a). | |
In section 55(1), in the definition of “regulations”, the words “by the Secretary of State and the Minister of Agriculture, Fisheries and Food acting jointly or”. | |
Part 1 of Schedule 2. | |
National Minimum Wage Regulations 1998 (S.I. 1999/584) | Regulation 38(5)(a). |
Freedom of Information Act 2000 (c. 36) | In Part 6 of Schedule 1, the words “An Agricultural Wages Board for England and Wales”. |
Criminal Justice Act 2003 (c. 44) | In Schedule 25, paragraph 28. |
Employment Relations Act 2004 (c. 24) | Section 47. |
In Schedule 1, paragraph 1. | |
Public Contracts Regulations 2006 (S.I. 2006/5) | In Schedule 1, in the entry relating to the Agricultural Wages Board and agricultural wages committees, the words “Board and”. |
Employment Act 2008 (c. 24) | Section 8(6). |
Section 9(6). | |
Public Contracts (Scotland) Regulations 2012 (S.S.I. 2012/88) | In Schedule 1, in the entry relating to the Agricultural Wages Board and agricultural wages committees, the words “Board and”.” |
Lord Clement-Jones
“Annual report on copyright licensing
(1) The Copyright Designs and Patents Act 1988 is amended as follows.
(2) In Part VII (miscellaneous and general), after section 301 insert—
“301A Annual report on copyright licensing
The Secretary of State shall present to Parliament an annual report from the Intellectual Property Office which shall include a review of the state of copyright licensing in the United Kingdom, of cross border co-ordination with other jurisdictions and of progress on protecting metadata.”.”
Lord Clement-Jones
My Lords, since we are starting Part 6, which I suppose is a form of light relief from earlier parts of the Bill, I want to thank the Minister. All those participating in Part 6 will have noticed that the Minister has been a prolific correspondent. In case full details are not provided on all the amendments we have put forward, those outside the House should know that letters were passed on 25 February to the noble Lord, Lord Stevenson of Balmacara, on the orphan works aspects of Clause 69 and on Clause 67; to myself on 11 February, and on 4 March on Clause 68; and, most recently, on 5 March there was a letter on extended collective licensing. I thank the Minister for the clarification that a lot of that has produced.
Lord Howarth of Newport
Like other noble Lords, I much appreciate what the noble Lord, Lord Clement-Jones, has just said. However, should we not also thank the Minister for his willingness to meet with noble Lords on a number of occasions? It has been extremely helpful to enable us to understand the Government’s thinking and for him to be able to understand some of ours.
Lord Clement-Jones
I very much welcome what the noble Lord, Lord Howarth, said. I quite agree. It is refreshing to be able to have that communication. It is not always a game of ping-pong or tennis. One can resolve some of these issues as we go along. In particular, this probing amendment is designed to elicit further information from the Minister. I thought we had a very good assurance from him that the IPO would publish an annual report which would be laid before Parliament, and that this could include a progress report on work towards a digital hub for licensing purposes.
When the Government’s response to the informal consultation on the role of the Intellectual Property Office came out very recently, it was very good to see that precisely that is enshrined in the document. Essentially, the Government are confirming that they will do that and that it will take place, particularly in terms of progress on licensing.
I would like to push the boat out a little further. In Committee we had a very useful discussion about metadata, its treatment and its protection. It is, of course, an issue of great importance to many creators, and we discussed that informally as well when we met the Minister. Work is ongoing in a working group, but as yet there is no indication of what its work might produce, technologically or legally. This new amendment is really designed to get a further assurance from the Minister that there will be regular progress reports on this aspect and that the proposals for action by the working group will be acted on. I beg to move.
Lord Jenkin of Roding
My Lords, I added my name to this amendment. Of course I support entirely what the noble Lord, Lord Clement-Jones, said, but it gives me an opportunity to intervene and to say how much I appreciate what my noble friend on the Front Bench has been able to do in the light of the Committee debates and of the several meetings that he has been kind enough to hold. Indeed, there are now amendments on the Order Paper in his name, which I think will be extremely welcome.
Noble Lords will remember that, when we started debating the copyright clauses in Grand Committee, I moved a new clause to set up what was in effect intended to be a champion for IP. I was gratified by the support I had from all parts of the Committee for that new clause. I have not retabled it for the very good reason that I think my noble friend Lord Younger has gone a long way to prove that he will be an effective champion of IP. He made it clear in his reply to the debate that he was, in fact, in charge of IP at his department, and he has been as good as his word in the amendments that he has tabled.
I can assure him that the correspondence that I have had since the end of Committee, and in particular since the government amendments were tabled, has entirely changed in tone. Those who were very deeply concerned beforehand at what the Bill appeared to portend for the future of copyright property rights seem to have been greatly reassured. For that reason I have not retabled the amendment asking for a champion because I think my noble friend has gone a long way to satisfying me that he will do his best to perform that function.
Moreover, my noble friend’s speeches and letters, to which my noble friend Lord Clement-Jones referred, have made it very much clearer than it was before what the Bill is intended to do and what the Government’s policy on this issue is. I like to think that there has been not only a change in tone but a change in substance, and recognition that IP is indeed a hugely important economic factor in this country’s economy, involving many billions of pounds and many hundreds of thousands —indeed, millions—of people whose livelihoods depend on it. If the Government have really hoisted that one on board, that can only be a credit to the debates that we had in this House and, above all, to my noble friend.
Baroness Buscombe
My Lords, I add my support to my noble friends who have already spoken and congratulate the Minister on all that he has done to engage with us and our concerns in relation to this part of the Bill.
When I have spoken on this Bill previously, I have said that it has much to commend it, and I am still of that view—very much so. Close scrutiny through Grand Committee has given the Government the opportunity to improve the Bill further and indeed in many cases they have. I am particularly interested in Clauses 67 to 69, which have a direct impact on the cultural fabric of and economic opportunity for the UK. In particular, the creative industries have shown incredible concern about the manner in which these proposals were formed and the perception that there is a will within Government and the Intellectual Property Office to unpick the intellectual property framework that underpins many creators and rights holders, in favour of US technology companies and others who want to use more copyright content for free. Of course, the Minister has gone a long way to seek to allay those fears.
However, commercial companies and organisations in our creative industries quite rightly expect a financial return from investing in creating original content and then archiving and preserving it for others to pay a licence. They lead the way in it and in many sectors such as audiovisual there is healthy competition, sensible pricing and industry-driven innovation to adapt to the digital age. Therefore, it is wholly wrong, in our view, for legislation to reduce these commercial incentives in favour of the radical and in many cases I believe ill-advised recommendations from Professor Hargreaves that inform the copyright measures in this Bill.
One of the reasons for putting my name to this particular amendment is that we have to think about competition not just in terms of cross-border and close to home but further afield. For example—I may refer to this later when we are looking in more detail at extended collective licensing—China has just announced that it would implement ECL in its copyright law. It is said that the details will be in regulations yet to be published. The UK Government will not be in a position to demand appropriate safeguards for licensing of UK copyrights by ECL in China if we ourselves do not have them in our own legislation as the Nordic countries do. Nor will UK rights holders or their representative bodies be in a strong position to safeguard UK rights abused by ECLs in foreign countries if the UK’s own statute lacks the necessary safeguards.
I support this amendment. A regular update so that we know about progress in terms of the Intellectual Property Office is really important. I feel that the Minister is on our wavelength and understands our issues, and we would be grateful for some positive comments from him with regard to this amendment.
Lord Howarth of Newport
My Lords, I, too, welcome the Minister’s commitment that an annual report should be published by the Intellectual Property Office. It may not reach the top of the bestseller lists, but it is right in principle that the public should have the opportunity to be informed about what the current issues are and what developments in policy are or may be. That is very proper. Of course, Parliament in particular should have that information. I hope that we would find the opportunity to debate the annual report each year that it comes out.
I congratulate the noble Lord, Lord Clement Jones, and his co-signatories on the terms in which they have they expressed this amendment and the particular examples that they have given of the kind of material that should be covered in the annual report. The report would need to review the state of copyright licensing in the United Kingdom. I hope that in fulfilling that requirement it would provide a discussion about how the Intellectual Property Office seeks to balance its absolutely right and necessary defence of the interests of intellectual property holders with wider interests that the public may have in the early and extensive benefit that can be received from the dissemination of this new information, knowledge and material. That is important.
I am also pleased that the expectation would be that the annual report should review cross-border co-ordination between our own jurisdiction and jurisdictions in other countries. For example, we would certainly want to know how the Intellectual Property Office and BIS are looking to mesh the complementary policies that we develop in this country with the policies that are being developed in the European Union and other countries that may be ahead of us in some respects.
For example, we know that the European Union orphan works directive is very limited and strictly curtailed in what it would allow. Only cultural sector bodies and educational establishments, not companies, could benefit from its provisions. Public/private partnerships, for example, would be prevented. That represents what is at the moment too limited and cautious an approach on the part of the European Union.
Mass digitisation projects are only going to be able to be carried out by our great cultural institutions in partnership with the private sector, and that ought to be contemplated as policy-making develops both in this country and in Brussels. The attempt to continue to draw absolute distinctions between commercial and non-commercial purposes will prove to be too restrictive of the ability of great institutions that are publicly funded in this country, such as libraries, universities and museums, which ought to be able to work freely in partnership with the private sector but which may be constrained by legislation as it has so far appeared to develop.
The noble Lord, Lord Clement-Jones, also mentioned the question of metadata. That is highlighted in the amendment. It is excellent that, at last, we have a working group looking at the problems that arise with metadata and digital photography. The working group is trying to find out why this stripping happens, why creators do not get paid and, above all, what solutions might be found, presumably by way of new technology but perhaps in other ways, to ensure that intellectual property is not stolen from photographers. The fact that it is already illegal to strip metadata under Section 107 sadly does not prevent it happening. There is a legitimate and very important issue there and I hope that progress on that will be covered in the report, as the noble Lord said.
I also hope that the report will inform us as to how the Intellectual Property Office seeks to gather views and reconcile different interests and points of view. I have very much sympathy with it in the very difficult and sensitive task that it has to carry out.
Let me give an instance. I saw in the British Journal of Photography recently a story headed:
“News agencies go on the offensive, call for judicial review of copyright changes”.
I was surprised to learn that:
“The world’s largest news agencies have delivered a Letter Before Claim to the UK’s business secretary Vince Cable in what is described as the first step in the process of initiating a Judicial Review - a formal legal challenge to governmental planned legislation”.
The article goes on to suggest that the Government are proceeding quite improperly. It challenges the Government’s plans to introduce their proposed changes through what they were pleased to call “Henry VIII clauses”—secondary legislation which is not subject to the full scrutiny of Parliament.
That is not very complimentary to your Lordships. We are engaged in quite serious and intensive scrutiny of this legislation. We certainly will be when we have the regulations in due course. What was completely bizarre was then to read a quotation in the name of Mr Paul Ellis of the Stop43 organisation:
“The technology, academic and cultural heritage sectors want to be able to use other people’s copyright property without having to ask or pay for it, and view copyright law as an obstacle. Under their intense propaganda and lobbying onslaught several governments have fallen for this line and are trying to introduce laws that weaken copyright, such as the Enterprise and Regulatory Reform Bill now going through Parliament”.
He then goes on to denounce,
“these lobbying-driven legislative attempts to confiscate our property”.
It seems a bit of a case of the pot calling the kettle black. The serious point is that the IPO is very vigorously lobbied from a multiplicity of sources and by a multiplicity of powerful commercial interests; the noble Baroness, Lady Buscombe, referred to some of them. It has always to be the duty of the IPO, the Government and us in Parliament to ensure that workable policies are arrived at that represent an appropriate balance between the range of competing, relevant and, indeed, legitimate interests that are all intensely concerned about what we do.
I hope that the annual report will include some account of how the IPO weathers these storms and what its philosophy is in terms of receiving and listening to representations and establishing working groups which allow people to have the opportunity to contribute their thinking and remind policy-makers of their legitimate interests but, at the same time, do not cause the policy to be unduly tipped and biased in favour of those who shout loudest. That would always be wrong. I have every confidence that that will not be allowed to happen. However, it may be helpful to those who have this arduous and difficult responsibility of developing the technical details of policy in the copyright field that we have a better understanding of what it is that they have to cope with. I support this amendment.
Lord Stevenson of Balmacara
My Lords, I will make a few brief remarks in closing this short debate. First, I associate myself with the warm expressions of thanks and support to the Minister not only for his very assiduous work in responding to the questions and queries that were raised at earlier stages of the Bill but for the meetings that he has had. I am not quite sure how he has managed to keep going—he is looking a bit shell-shocked, although that may not just have been today. We are all very grateful to him for what he has done. Indeed, it has brought a different sensibility to the whole way in which we have been able to engage with this and I am very grateful for that. I am sorry that the choir has lost his very nice tuneful voice as a result, but I hope he will get back into it after this intensive work is over.
Having said that, has the mood really changed? We have just heard that there are still quite big guns out there, and the reference from my noble friend Lord Howarth to the judicial review—I have benefited from the courtesy of being shown a copy of the 36-page document that went in—certainly suggests that there are still some people with axes to grind out there and serious points, too, which need to be considered and reflected. Although we are making progress and, I think, beginning to arrive at a common position on a number of issues raised in this part of the Bill, there are still some hurdles ahead which we have got to think about. For instance, I got two letters and several e-mails today from people again expressing concern about what is happening here. They are not sighted and perhaps not up to speed with what is going on but they certainly feel very strongly about it.
As other noble Lords have said, there are other things going on here. We are doing a lot of the work in this Bill but, in parallel, the outcome of the Hargreaves report and the various pieces of secondary legislation that will be going through, which radically change the way in which we deal with copyright and performance rights, need to be accommodated and brought alongside some of the movements that are here. A lot of what we have been saying in the discussions and debates on this Bill has been contingent on a satisfactory outcome for those things, and I do not want to prejudge where we are going to get to on parody, exceptions for educational use and desirable things like copying for archives. These are all important parts of the ecology that this Bill touches on but does not completely encapsulate. We must therefore be careful not to overcall what we are achieving here.
A third example on that list would perhaps be the one raised by the noble Baroness, Lady Buscombe, which is that we are not alone here; lots of other people are working on their copyright registrations and legislation and moving forward. That will always affect how we do things. We will not make the progress that we want to make in terms of this industry, and the work that goes into this type of activity in the UK will be for nothing, if we are outsmarted and outgunned by those who either have a much more advanced concept of copyright and licensing or none at all. These are important points.
Viscount Younger of Leckie
My Lords, first, I appreciate the warm comments that have been made by my noble friends Lord Clement-Jones, Lord Jenkin, and Lady Buscombe, and also by the noble Lord, Lord Howarth. I agree that it is highly desirable from the Government’s perspective to understand and resolve issues outside the Chamber. I very much hope that will continue; I am sure it will. I thank the noble Lord, Lord Stevenson, for the collegiate approach that he takes to these issues. It is much appreciated on this side.
I want to focus, as other noble Lords have done, on the report—or perhaps I should say the response to the informal consultation, a copy of which I have here —which I have read with interest. It is refreshing to read that views were in general very positive on having a report. I noted that the Motion Picture Association thought that the report should be developed in full and open dialogue with the copyright sector. That is all in the right spirit. Certainly, the Government believe that the proposed annual report will increase the transparency of IPO activities and they welcome the support from the respondents. Again, that should be a very good thing to highlight given some of the comments that have been made today.
The noble Lord, Lord Howarth, asked about issues that might be covered within the report. I confirm that I will want to look very carefully at all his points to see what we can say about them in the report, so I thank him for his input on that.
The noble Lord spoke also about the judicial review. I am afraid that all I can say at the moment from the Government perspective is that we have received a pre-action letter concerning copyright measures in the Bill to which we have responded. Therefore, it would not be appropriate to comment further at this time.
The noble Lord, Lord Stevenson, stated that he did not want to prejudge the debate on copyright exceptions. As I hope he will be aware, I am keen that Parliament should have the necessary time for debate on the statutory instruments—I think that I made that clear in Grand Committee.
Lord Howarth of Newport
The Minister very kindly answered a Written Question on whether an individual impact assessment would accompany each of the regulations introducing new exceptions. While I normally follow the noble Viscount with ease and find his presentations pellucid, I did not find the answer to his question without ambiguity. While I recognise that the impacts of some of the regulations may overlap, I think that it is extremely important that, when Parliament is considering this very important secondary legislation, we should have in each and every case the best impact assessment that the Government are able to provide. Will he assure us that that will be the case?
Viscount Younger of Leckie
I thank the noble Lord for that point. I shall look again at what I said and what we produced. If we can improve on it, we most certainly will. I shall get back to the noble Lord on that point.
The Government are keenly aware of and sensitive to the concerns of creators in relation to metadata. They believe that an industry-led approach is most likely to identify the key issues and the most effective solutions. They warmly welcome the establishment of a metadata working group which brings together key players from across the industry, including the Association of Photographers, Stop43, the BBC, the British Association of Picture Libraries and Agencies, Getty Images and News Corporation. We will consider carefully any recommendations aimed at government and, if they are proportionate and effective, will certainly support them. I also commit to keeping Parliament informed on progress.
The Intellectual Property Office will also be working with the Technology Strategy Board to consider other options to tackle the issues around the misuse of digital images as well as search and stripping of metadata. I hope that in the light of what I have said in my brief comments my noble friend can withdraw his amendment.
Lord Clement-Jones
My Lords, I thank the Minister for the very useful assurances coming at the end of his speech that he will consider all the metadata working group recommendations and keep Parliament informed, and that the Technology Strategy Group will be involved in this as well.
Generally, we are breaking into fresh territory with the concept of an annual report. We seem gradually to be moving language forward more positively about the creative industries and the value of intellectual property. The language of the exceptions document before Christmas moved it on a notch; this response document moves it on a notch, in particular to meet what I thought were extremely useful comments on the part of the noble Lord, Lord Howarth, not only on what an annual report should contain but on impact assessments.
This report is quite positive about the improved evidence base that the IPO is going to adopt. A lot of people, particularly some of those mentioned by the noble Lord, Lord Stevenson, would say amen to that. Some of the impact assessments have not been up to scratch and this has created quite a lot of concern and, indeed, anger from some sectors when they see that the benefits are not clearly there but the costs to them are. It is an extremely positive move.
I agree with the noble Lord, Lord Stevenson, that there are a number of further issues we really must get to grips with as we move along on Report. Of course, any Minister is as good as his last set of assurances. I am sure we will put that to the test as we go along. I am grateful to the Minister for his responses. I am very grateful to noble Lords, in particular to the noble Lord, Lord Jenkin, for his comments. I entirely agree with him about the Minister in the assumption of his role. It has been a very positive step. We have some way to go still, particularly in terms of the photographers mentioned by the noble Lord, Lord Stevenson, and also the news agency industry mentioned by my noble friend Lady Buscombe.
I hope that by the time we come to the end of Part 6 on Report, sweetness and light will reign and we will all feel that assurances of the right kind have been given. In the mean time, I beg leave to withdraw the amendment.