Corporate Manslaughter and Corporate Homicide Bill

– in the House of Lords at 3:05 pm on 22nd May 2007.

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Votes in this debate

Moved accordingly, and, on Question, Motion agreed to.

[The page and line references are to HL Bill 19 as first printed for the Lords.]

Motion A

Clause 2, page 2, line 29, at end insert-

"(d) a duty owed to anyone held in custody."

Page 3, line 12, at end insert-

""custody" includes being held in prison, secure mental healthcare facilities, secure children's homes, secure training centres, immigration removal centres, court cells and police cells, and being subject to supervision by court, prisoner and detainee escort services;"

Clause 3, page 3, line 37, leave out "or (b)" and insert ", (b) or (d)"

Page 3, line 40, leave out "or (b)" and insert ", (b) or (d)"

Clause 5, page 5, line 8, leave out "or (b)" and insert ", (b) or (d)"

The Commons disagree to Lords Amendments Nos. 2, 3, 5, 6 and 10 but propose Amendment No. 10A in lieu—

The Commons disagree to Lords Amendments Nos. 2, 3, 5, 6 and 10 but propose Amendment 10A in lieu-

Page 2, line 43, at end insert-

"(5A) The Secretary of State may by order make amendments to this section to the effect that a duty of care owed by an organisation under the law of negligence to a person who-

(a) is in any specified form of custody or detention, or is otherwise on premises of a specified description or on premises in specified circumstances, and(b) is by reason of that fact a person for whose safety the organisation is responsible,

is a "relevant duty of care".

(5B) An order under subsection (5A)-

(a) may amend this Act so as to specify exceptions with respect to the application of any provision contained in this section as a result of such an order;(b) may make any amendment to this Act that is incidental or supplemental to, or consequential on, an amendment made by such an order.

(5C) An order under subsection (5A) is subject to affirmative resolution procedure."

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I beg to move Motion A, That the House do not insist on its Amendments Nos. 2, 3, 5, 6 and 10 and do agree with the Commons in their Amendment No. 10A in lieu.

I am delighted to join the debates on this Bill. I am particularly pleased to stand here today as a Minister from the new Ministry of Justice. I pay tribute to my noble friends Lady Scotland and Lord Bassam and to my noble and learned friend the Attorney-General for their work in bringing this Bill to the point that it has reached today.

The Ministry of Justice marks a new departure and provides an opportunity for the whole justice system to work together better than even before. I am determined that we make the most of that opportunity. I am also pleased to be participating in debates on this particular Bill, as it reaches its conclusion. This important Bill has been a long time in the coming. It has received support from noble Lords from all sides of this House and in the other place, and discussion has been probing and constructive. Discussion of the Bill now draws to a close and one issue remains outstanding between this House and the other place: whether the offence should extend to custody. That issue returns to us for consideration again, with an opportunity to complete this Bill's parliamentary passage. I am grateful to the noble Lords, Lord Lee, Lord Hunt of Wirral and Lord Dholakia, the noble Baroness, Lady Stern, and the noble Lord, Lord Ramsbotham, for the time that they have given me to discuss informally the provisions in this amendment.

We have listened carefully to the debate on this and strived to find a constructive way forward. In the other place, my honourable friend Mr Gerry Sutcliffe set out three proposals aimed at addressing the concerns here. At the heart of these lies the amendment proposed by the other place: a power to extend the Bill to custody. This is offered in lieu of the preference of your Lordships' House, which was to extend the new offence to custody from the outset. The order-making power does not shy away from its purpose. It is explicit and refers directly to extending the offence to custody and detention. It therefore puts the principle of extending the offence to custody clearly in the Bill. Noble Lords will want me to address why we set store in this being an order-making power rather than a straight extension of the offence.

Noble Lords who have followed this Bill closely will know that lifting Crown immunity in this Bill represents a very significant step, but it also brings with it substantial uncertainties about the consequences of making government departments liable to criminal prosecution for the first time. It is right that the new offence should apply to matters such as employee and workplace safety. Those matters, by and large, will not involve significant questions of public policy.

However, the distinction between operational matters and policy becomes more blurred when the issue is one of how a public body discharges its statutory or public responsibilities. It is not enough to say that these are matters of management and not policy. Faults may well lie in management but disentangling those faults from the wider policy context in which they arose can be difficult. We do not believe that the offence should become a vehicle for seeking to examine policy decisions for which Parliament holds the Government to account.

Noble Lords will also understand that the Ministry of Justice has itself only recently been established. We need to discuss carefully with those who would be affected by the extension of the offence, such as the Prison Service and police forces, what the implications would be and how implementation can be managed sensibly. Until we have had a chance to consider how the legislation has bedded down across the public sector more widely, it would not be wise to look to extend it to the way particular public functions, such as managing custody, are carried out.

However, I am very clear that the proposal to include an order-making power in the Bill is done in good faith. It is done because we believe that it is right that the offence ought to be capable of applying to custody. We would not have done that if it was our intention never to exercise the power. The power therefore clearly opens the door to the offence applying to custody—a very significant step in itself—and we would not have done that if we were not prepared to take that further step ourselves.

In the mean time there will be an opportunity to put the ombudsman on a statutory footing, strengthen the arrangements for the Forum for Preventing Deaths in Custody, and allow those changes to bed in. A statutory footing for the ombudsman will change significantly the basis on which investigations into deaths in custody are conducted, and there is some sense in allowing those changes to become established before seeking to make further changes.

I shall set out in a little more detail the changes I have just mentioned. The ombudsman, Stephen Shaw, has investigated all deaths in prisons, young offender institutions and immigration detention centres since 2004 and, since last year, those in secure training centres. Through this and his wider work investigating complaints, he and his office have developed detailed knowledge of the management of custody. Putting his office on a statutory footing will strengthen the investigation of deaths in custody in three ways. First, there will be a formal duty on the ombudsman to examine all deaths within his remit. He will also decide the scope of investigations and the procedures to be adopted. His remit would extend to the treatment of and conditions for prisoners. As now, we would expect investigations and recommendations to cover management and wider policy issues where he deems it appropriate. Secondly, there will be new High Court powers to obtain evidence, as well as a clear foundation for working with other ombudsmen where appropriate. Thirdly, while the ombudsman is already independent of the organisations he investigates, a statutory basis would strengthen his independence from government.

Noble Lords will want to know when we intend to bring proposals for this legislation before the House. I cannot name a particular vehicle but our intention is to find a suitable Bill in this Session or, if necessary, the next. The Government's second proposal is to look at the further development of the Forum for Preventing Deaths in Custody. The word "review" has been used but I make clear for the benefit of the House, especially the noble Baroness, Lady Stern, who I see in her place, that the purpose here is to look at how we can strengthen the forum. I believe that the phrase the noble Baroness used to me was, "make sure that you beef it up".

The forum brings together a wide range of organisations involved professionally in the management of custody and its inspection and scrutiny. It includes representatives from the Prison Service, Department of Health, Youth Justice Board, Association of Chief Police Officers, Inquest, the Prison and Probation Ombudsman and the prisons inspectorate. It is chaired by John Wadham, the deputy chair of the Independent Police Complaints Commission, and its membership also includes the noble Baroness, Lady Stern, as an observer.

The forum stems from the Government's response to recommendations from the Joint Committee on Human Rights for a task force dealing with deaths in custody. It works by comparing and contrasting approaches, identifying good practice and drawing attention to issues which need to be addressed by operational bodies or Ministers.

Its terms of reference are:

"The Forum exists to learn lessons and effect change to prevent deaths in custody".

I understand that its first annual report is being prepared. It has made a good start in meeting some of the criteria that the committee set for a task force, but we acknowledge that there is room for improvement.

For this critical area of work to be effective, a strong focus needs to remain on personally involving senior representatives from organisations that inspect, investigate and oversee custody. In the review, we will look at issues such as greater autonomy from government and improved interaction with Ministers, including the relationship with the ministerial round- table on suicide, which my honourable friend Gerry Sutcliffe chairs, its powers, resources and capacity. The noble Lady, Baroness Stern, is, I understand, already in early discussion with the forum's chairman about a seminar to explore views. That seminar would be an integral part of the review, and we will report on progress within six months.

These two proposals are squarely aimed at some of the key concerns that have arisen in the debate on custody: that there should be strong arrangements for the independent investigation of all deaths in custody to find out exactly what happened and to make recommendations for change; and that the Government must take further steps to improve the management of custody to prevent these deaths from occurring in the first place. In addition, we propose a power to extend the offence to custody to enable us to take that further step when the time is right.

I pay tribute to the efforts of all Members of your Lordships' House and the other place for their efforts in getting this legislation to the point that we have reached today. A single issue remains to be settled. The Government have sought to move positively on this matter and have offered a package aimed at the core issues of preventing and investigating deaths in custody, as well as opening the door to the Bill's extension. That is a significant move, and I commend the amendment in lieu to the House as a basis on which this Bill can now be brought to a successful conclusion.

Moved, Motion A, That the House do not insist on its Amendments Nos. 2, 3, 5, 6 and 10 and do agree with the Commons in their Amendment No. 10A in lieu.—(Baroness Ashton of Upholland.)

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 3:15 pm, 22nd May 2007

My Lords, I beg to move, as an amendment to Motion A, Motion A1, leave out from "House" to the end and insert "do insist on its Amendments Nos. 2, 3, 5, 6 and 10 and do disagree with the Commons in their Amendment No. 10A in lieu".

When this House debated these amendments on 5 February, I argued then, as I do now, that my purpose was to rectify a glaring deficiency in what was otherwise a generally welcome Bill by including,

"a duty owed to anyone held in custody".

I emphasised that there was a stark difference between the rule of law and the Bill on the one hand and, on the other, the Government's perverse reasoning as to why neither the rule of law nor their own Bill should be applicable to those with a duty of care to those held in custody.

I must acknowledge how far the Minister and the Government have moved since then on this issue, in good faith, and I thank her personally for the courteous, frank and open way that she has discussed and explained her case for continuing to reject my amendment. She rests her case on the three concessions that she has described, which were debated at length in the other place.

The first is the strengthening of the arrangements for the independent investigation of deaths in custody by putting the appointment of the Prisons and Probation Ombudsman on a statutory footing. I welcome that, but I remind the House that that measure has a long history that is nothing to do with this Bill. When Her Majesty's Inspectorate of Prisons was reformed in 1981, three aspects of imprisonment were under consideration for inclusion in that role. In the event, inspection of the efficiency and propriety of the treatment and conditions of those in custody was put on a statutory footing but not the inspection of grievances.

It was not until 1994 that the first Prisons Ombudsman was appointed to do that. Since then, successive holders of the office have fought, unsuccessfully, to be put on a statutory footing similar to that of the Chief Inspector of Prisons. In addition, the Joint Committee on Human Rights made a recommendation to that effect in 2003. I acknowledge that the investigation of all deaths in prisons, young offender institutions and immigration detention centres has been added to his remit since then, but the investigation of grievances remains his principal task, requiring a statutory footing.

The second concession is to review and strengthen the role of the forum on deaths in custody, as has been fully described by the Minister. The forum's current remit is to identify and draw ministerial attention to good practice and issues relating to changes and improvements to safety in custody that require further attention. When discussing this House's amendments in the other place, the Minister, Mr Gerry Sutcliffe, to whom I also pay tribute for his movement on these amendments, announced that the forum would report on its review within six months. I welcome that in the context of safety in custody but, important though that is in its own right, it is not the principal subject of this Bill.

Thirdly, the Government propose to give the Secretary of State the power to amend the Bill by affirmative resolution to increase the categories of duty of care. Mr Sutcliffe said in another place:

"We have accepted the principle that the new offence may extend to custody at some time in the future".

He also said:

"Although the power that we are proposing does not bring custody into the Bill, it leaves the door open to doing so without primary legislation".

Immediately, that movement was recognised by Mr Chris Mullin, who asked:

"Will the Minister give us some idea of the timetable he has in mind? When will that day dawn?"—[Hansard, Commons, 16/5/07; cols. 667-69.]

I submit that that is and remains the crucial question. In accepting the principle underlying the new offence—namely, that everyone is equal before and entitled to equal protection under the law—the Government are accepting that its purpose and content apply to failures of management in the duty of care when it is owed by government departments and other Crown bodies. I cannot for the life of me see why, having accepted that in the context of a Bill that is subject to carryover procedures, they cannot go further and draw up a clear timetable, as they have done for the review of the forum.

Since 5 February, I and, I suspect, many other noble Lords have been put under considerable pressure by relatives and other pressure groups representing those who have died as a result of corporate negligence outside custody. This pressure includes the suggestion that, by representing the case of relatives who have died as a result of corporate negligence inside custody, we are putting the Bill at risk. I am sure that none of those who voted for these amendments wishes the Bill to be killed; we wish only that the Bill that is passed is better than the one that was originally brought before this House. Mr Dominic Grieve urged Members in the other place,

"to look to their consciences on this matter, because the House has an opportunity to do some good".—[Hansard, Commons, 16/5/07; col. 674.]

Noble Lords will remember that, when we discussed these amendments on 5 February, the noble Lord, Lord Dholakia, and others made the point that we are not suggesting that every death in custody should automatically be followed by a charge under this Bill; we are talking only about those that involve gross breaches of management and the duty of care. Since that date, there have been at least two further cases of avoidable and gross breaches of management: the murder of Shahid Aziz in Leeds prison, in depressingly similar circumstances to the murder of Zahid Mubarek in Feltham, and the suicide of Michael Bailey in Rye Hill, which attracted scathing remarks from the coroner about management failure. The depressing continuance of avoidable deaths in circumstances for which the Government are responsible is surely a very strong reason for bringing the now accepted principles behind the Bill into effect as soon as possible. I was therefore very concerned to read a report in the Observer on 29 April, referring to our vote on 5 February, which stated:

"The defeat has prompted fury at the Home Office, which believes the peers' plan would be unworkable, as it would place an impossible burden on the Prison Service to prevent deaths in custody".

That fury implies that proper management is not currently being carried out by the Prison Service regarding the duty of care that it owes to all those in its custody. If that is true, I am sure that it will be of considerable concern to the Minister.

As I said on 5 February, these amendments are not about examining government policy or the allocation of resources; they are, in line with the remainder of the Bill, about good management. Improved management supervision was one of the recommendations that I made to the Government in1999 in a thematic review of the prevention of suicide in prisons, Suicide is Everyone's Concern, conducted at the request of the then Minister, Joyce Quin—now the noble Baroness, Lady Quin—and accepted by the then Home Secretary, Mr Jack Straw. Good management does not depend on resources but, rather, on the whole ethos, structure and direction of management. That is what the Bill and the vote of this House are all about.

Moved, as an amendment to Motion A, Motion A1, leave out from "House" to the end and insert "do insist on its Amendments Nos. 2, 3, 5, 6 and 10 and do disagree with the Commons in their Amendment No. 10A in lieu".—(Lord Ramsbotham.)

Photo of Lord Lee of Trafford Lord Lee of Trafford Spokesperson in the Lords (Tourism), Culture, Media & Sport, Spokesperson in the Lords, Trade & Industry

My Lords, when we last debated this Bill in your Lordships' House in early February, we saw the House at its best. Opposition parties rallied behind the noble Lord, Lord Ramsbotham, whose knowledge and experience on the deaths in custody issue is recognised by all sides in the Palace of Westminster and beyond, and inflicted a heavy defeat on the Government. There was virtually no support for the Government's stance from their own Benches, and even Ministers were hard pushed to find serious, sustainable arguments to justify their position.

We had hoped that, on reflection, given the scale of the defeat, the Government would accept our amendments but, with John Reid in overall charge of the Home Office, we were not optimistic. However, the creation of the new Ministry of Justice offered fresh hope. I categorise politicians into two broad groups: warriors and healers. John Reid, as the Cabinet bull terrier, was unquestionably a warrior, while I suggest that the noble and learned Lord the Lord Chancellor and new Secretary of State at the Ministry of Justice is more of a healer. He has an avuncular presence, beautifully described, I remind the House, by the Leader of the Official Opposition in this Chamber some time ago as delivering more ho-hos than a Father Christmas in a department store.

How fitting it would have been if the first act of the new Ministry of Justice had been to grant justice to those who die in custody and bring them within the scope of this important corporate manslaughter Bill. Sadly, it was not to be. The new Ministers and their civil servants searched for a way out of their dilemma and came up with a package of modest improvements to the Bill, clearly buying off doubters on their own Benches in the other place. However, that should not have been particularly difficult, given that those Back-Benchers were obviously focused elsewhere. Half the Parliamentary Labour Party was engaged on active service north of the border fighting the SNP, while the other half was back at Westminster fighting each other for the deputy leadership of the Labour Party.

But this is a serious issue. Putting the Prisons and Probation Ombudsman on a statutory footing is to be welcomed, as, I suppose, is a strengthening of the Forum for Preventing Deaths in Custody, although few seem to have heard of this body and I can find no reference to it in earlier ministerial contributions on the Bill. The affirmative resolution merely puts off, possibly till tomorrow, what should be done today.

Having participated in debates in this House and having studied in Hansard what was said in the other place last Wednesday, I have to say that no substantial arguments have been put forward for the non-inclusion of deaths in custody in the Bill. Yes, there are hints of the police becoming risk-averse, of prison overcrowding and perhaps of problems with the Prison Officers' Association but nothing substantial.

For the near 12 months that I have had the privilege to be a Member of this House, I have seen and heard the Minister at the Dispatch Box on many occasions. I genuinely believe that she is a sincere and caring Minister who, if it were up to her, would wish to include deaths in custody in this Bill. It is our wish too.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative 3:30 pm, 22nd May 2007

My Lords, I start by declaring my interest in the register as a practising solicitor. I, too, join the noble Lords, Lord Ramsbotham and Lord Lee of Trafford, in paying tribute to the Minister. She has, as the noble Lord, Lord Ramsbotham, said, been courteous, frank and open. I thank her for that and for her willingness to find a way through the problems that have arisen. I welcome her to the Dispatch Box in her ministerial role in the new Ministry.

I hope that the Minister understands that this is a hugely significant debate for many of us. Matters of constitutional importance are at stake. The first point that I want to make is that the amendments passed by this House by a substantial majority earlier this year were serious, positive and constructive. As the noble Lord, Lord Lee of Trafford, put it, it showed the House at its best. Those amendments greatly enhanced the Bill and restored balance to it. They were entirely consonant with the primary purpose of this important legislation, and in no way conflicted with or undermined it. They did not emasculate, vitiate or weaken it. Indeed, the amendments unambiguously extended the remit of the Bill to protect some of the most vulnerable people in any country—those who are incarcerated, whom the state has deprived, legitimately, of their liberty.

This is what the Minister described as the single issue, but we on all sides would stress that this single issue is a serious and profound one, because holding individuals in custody is a massive responsibility for any Government in any country in any era. Exemption from the full extent of that responsibility is unacceptable. In seeking to reject these amendments, Ministers are effectively refusing to concede that they and other agents of the state owe a full, total and transparent duty of care to those they hold in custody. They have never explained why. I would venture that they have not made the argument because there is none. There is certainly a case for arguing that, by exempting themselves in this way, the Government are running the risk of ending up in breach of Article 2 of the European Convention on Human Rights. There was an interesting if inconclusive debate on this at Report. Far more importantly, this is an argument about natural justice. Is it not now time for Ministers to accept and acknowledge that the existing systems of accountability for death in custody are regarded by many people as pretty useless?

Reference has been made to a report in the Guardian last Friday, in which an inquest jury was described by Vikram Dodd and Eric Allison as having delivered a "devastating verdict" when it criticised the Prison Service for allowing a violent white prisoner to remain in a cell with an Asian man whom he later beat and stabbed to death. That report was only last Friday. The statistics are worrying. The families in that case and in the Mubarek and Scholes cases had to endure the most difficult processes in addition to the grief of losing a loved one. Can Ministers really be arguing that bereaved people in search of justice and answers should have no easier recourse than to take the Government to the Court of Appeal just to get an inquiry? The Bill should be even-handed; there should be one rule for all. In an outstanding speech in another place, my colleague Dominic Grieve, the shadow Attorney-General, said that if this House were to prevail—and he were to take on that responsibility in government—he would accept that this was the right way forward.

Of course the suggested compromise deserves our scrutiny and careful thought, but it is unsatisfactory for a number of reasons. First, the inadequate function of the amendment itself just provides an order-making power to add deaths in custody to the public functions that the legislation will cover, but there is no guarantee that that power would ever be used. The Minister has virtually indicated that it would, but the Minister in another place stated unequivocally that there was no guarantee that the order would be used. He said:

"the development of ... processes will lead us to consider whether to use the affirmative procedure".—[Hansard, Commons, 16/5/07; col. 667.]

—that is, the affirmative procedure for bringing forward this order. To my mind, that renders this proposal, well intentioned as it may be, little more than a smokescreen.

There is, of course, another reason to be clear and unambiguous in the Bill. I know that the Minister is in rude health, but she is a member of a Government in transition. I have no wish to use the phrase "somewhat undead", but we are now in between Governments. We have an outgoing Prime Minister and an outgoing Home Secretary. Any oral commitment, however well intentioned and sincere, will not bind anyone with a new Administration that is mere weeks away.

The noble Lord, Lord Ramsbotham, has provided a comprehensive critique of the ombudsman and forum proposals. Following that, suffice it for me to say that those proposals look flimsy, insufficient and inappropriate in the light of his analysis. They are no substitute for a full and fair extension of this legislation to protect a group of people, those held in custody, who are entirely and uniquely at the mercy and under the protection ofthe state and its agents. As the noble Lord, Lord Ramsbotham, said, this is a glaring deficiency.That is why I urge my colleagues and the House wholeheartedly to support the Motion standing in the name of the noble Lord.

Photo of Lord Dear Lord Dear Crossbench

My Lords, I welcome the concessions which the Minister has already set out. I join others in congratulating her on how that has happened and how those views have been put forward today. I reflect upon what I said to your Lordships' House when this was debated at length on 5 February, and I repeat: in any developed country which believes in itself and its tradition, a litmus test of that society is how it treats prisoners held within the official places of incarceration. They are listed, and need no further comment from me; police cells are one and prisons are another, as the noble Lord, Lord Ramsbotham, has indicated.

It seems that we hold up our hands in horror time and time again at what we see taking place in banana republics, in central African republics and, on occasions, in Middle Eastern republics. We look at how prisoners are frequently treated in those places and congratulate ourselves on how we do things differently in this country. Of course, by and large, we do, and, by and large, we have something which we can be proud of in this country. If that is the case, why are we pursuing this debate today? What have we got to hide? Why raise questions in the minds of those who seek to criticise about our seeking officially to exclude ourselves from something which seems patently clear? As a civilised country, we should be prepared to offer ourselves up for examination on the way in which we conduct prisons, police cells and so forth.

The noble Lord, Lord Ramsbotham, has already commented upon prisons, and I, declaring an interest, of course wish to comment about those held in police custody. When, in February, I checked the official ACPO view, it was that it was rather surprised that there were moves to exclude the police from the Bill. Now, I understand that a letter is in circulation in which the official ACPO view is expressed, which is that it is quite happy to be excluded from the Bill and to enjoy the exclusions that apply to prisons and elsewhere. This morning, I checked with the ACPO spokesman, and he told me that, in coming to that view, ACPO found it a borderline decision, but was still happy to find itself outside the compass of the Bill. I have to tell noble Lords what I told him; that I was extremely disappointed to hear that. I would have thought that a mature service that believed in itself would have nothing to fear and nothing to hide. I do not speak with any remit—nor would I speak with a remit on behalf of ACPO—when I say that I believe that the police should be included along with prisons and the other organisations and places that we are aware of. I think that ACPO is wrong and that we in this country should be prepared to be transparent and to expose the circumstances of what happens in our prisons, our cells and elsewhere to court examination. For that reason, I support Motion A1.

Photo of Lord Lea of Crondall Lord Lea of Crondall Labour

My Lords, many of us on this side of the House who support the Government are concerned that we get an answer on this so that the Bill gets on to the statute book. I remind the House that the Corporate Manslaughter and Corporate Homicide Bill, which has enormous support in the trades union movement, has a much wider footprint than simply police and prisons. I shall come to them in a moment, but we ought not to lose sight of the tremendous advance that the Bill will make in the protection of millions of workers. That is a question that the noble Lord, Lord Hunt of Wirral, is professionally very seized of. We are very anxious to see the Bill get on the statute book.

When it comes to the progress made by the Government in ensuring that the police and the prisons will be covered by the legislation, the noble Lords, Lord Hunt and Lord Lee of Trafford, failed to draw attention to the quite narrow point now at issue. The noble Lord, Lord Hunt, referred to obiter dicta by Mr Gerry Sutcliffe—I think I am quoting him accurately in distinguishing the issue of whether the order would be used rather than when it would be used. I shall ask him a question in return. If it were possible to say that the issue was when the order would be used rather than whether it would be used, would that make a difference to his attitude? We cannot go on for ever playing with words, but that is a substantial point. My understanding is that there will now be progress. To make this happen in the prisons and police stations overnight, as it were, is an issue, and I am not surprised to hear the careful discussions that are taking place. For those of us on this side who are voting for the Government on the basis that this will happen, it is a question of when and not whether. The noble Lord, Lord Hunt, can give further consideration to the matter if that point worries him. I also put the same point to the Minister.

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs 3:45 pm, 22nd May 2007

My Lords, we, from this side of the House, support the powerful case made by the noble Lord, Lord Ramsbotham. We went into the Lobby with him on the previous occasion, and we would join him again if he were to call for a Division. I have no problem with the implication of the noble Lord, Lord Lea, that the Bill is much wider than simply the two aspects—police cells and prison cells—we are talking about. If so, why exclude these two very important areas from the Bill? If the Government were to include them, the Bill could become an Act and there is no problem.

It is important to remember what the noble Lord, Lord Hunt, rightly said a little while ago; that the original amendment to bring deaths in police custody and prison custody within the ambit of the Corporate Manslaughter and Corporate Homicide Bill received very strong backing when it was before your Lordships' House: it had a substantial majority.

Today's debate on the Commons amendment does not help to rectify the anomaly that many noble Lords pointed out last time. I do not underestimate in any way the work of the prison ombudsman, but this matter is far too important simply to be left to investigation. We would like to ensure that no one is excluded from this legislation.

I say straight away—and a number of people have complimented the noble Baroness on her performance on other Bills—that she is a listening Minister. I hope that she will listen very carefully to the arguments advanced and that there will be a way to move forward on this issue. We cannot deny that there is a slight movement in our discussions with the Minister on the Government's part, but it is not sufficient to allay our fears about lack of action on deaths in a custodial situation. We need to bring to task those who fail in their duty of care when persons are placed in police or prison cells.

I do not see why the Government should be worried. It would not of course mean that all or most deaths in custody would result in prosecution for corporate manslaughter, as pointed out by the noble Lord, Lord Ramsbotham. That would apply only when, exceptionally, there had been a gross breach of the relevant duty of care. In those circumstances a prosecution for corporate manslaughter should enable the courts to hold that a serious management failure had occurred resulting in an individual's death.

I note that it is no longer the Government's case that deaths in custody should be exempted from the scope of the Bill. I hope that is the case because I can well understand that there is a need for discussions with the Prison Service, as the Minister mentioned earlier, and the police. I do not dispute that. That is right and how it should happen.

Let me advance some of the arguments mentioned by the noble Lord, Lord Dear, about the police. I have looked at the response from ACPO, the Association of Chief Police Officers. It argues that mechanisms are already established to ensure that all such incidents are robustly and independently investigated. However, the IPCC, the Independent Police Complaints Commission, the one body with an independent oversight on policing matters said on the Government's draft Bill for reform:

"The consultation paper suggests that the reason for not applying corporate manslaughter to public functions is that this would conflict with existing accountability mechanisms ... In fact, it would complement them. All deaths following police contact have to be referred to the IPCC, and some of these will be independently investigated. If the evidence from such an investigation showed the most appropriate way forward was a corporate manslaughter prosecution, it would cause serious public concerns about the effectiveness of public accountability if this was not an option".

The commission pointed out that at present in a case of serious systematic failure resulting in death,

"there could be a disproportionality whereby a death occurs and the only sanctions available are minor disciplinary sanctions against individual officers".

This is wholly unsatisfactory, and the Commons amendment goes nowhere near the original amendment to rectify it.

I am aware that the Ministry of Justice is in consultation with the governors of prison establishments on this subject and requires more time to conclude that discussion. That is unacceptable. There are still grieving parents, who have no answers to the question of how many vulnerable youngsters have died. I have secured a number of debates in your Lordships' House on deaths in custody, but I have never succeeded in getting the Home Office to set up an independent inquiry. We cannot allow this situation to continue for the next year or two. A private company running a business could be liable to a charge of corporate manslaughter, but a public service charged with the care of particularly vulnerable people behind locked doors and high walls would not. That cannot be right. Indeed, it is indefensible; because of the particularly vulnerable position of prisoners, we should take special care to protect their lives. Even more indefensibly, a private company running a prison would not be liable to prosecution for corporate manslaughter, although a private company running any other kind of business would be liable to such a charge.

Let me conclude by repeating what the House of Commons Home Affairs Select Committee and the Work and Pensions Select Committee concluded in their joint report on the Bill:

"there is no principled justification for excluding deaths in prisons or police custody from the ambit of the offence ... where deaths in prisons and police custody occur, they should be properly investigated and the relevant bodies held accountable before the courts where appropriate for an offence of corporate manslaughter".

The Government must give way, and must do so this time by sending our concerns back to the Commons one more time so they are taken into account.

P

At least, justice and common sense have prevailed in the House of Lords, where the Government has rightly been defeated over plans to exclude prisons from its Corporate Manslaughter Bill.

It is morally repugnant that in a so-called modern Labour Government, Ministers seek to exclude prisons and police. Those held in custody deserve the same legal protection as employees and customers.

The Corporate Manslaughter & Corporate Homicide Bill MUST include prisons & police. Had this important legislation reached the statute book years ago, my daughter Sarah might still have been alive today. As it is, she died in the care of the State in 2003 (Sarah was the youngest of six women who died in the 12 months ending August 2003, in the care of the notorious Styal Prison, Cheshire). The six deaths have been described as "a clear example of corporate manslaughter" by INQUEST in London (BBC Online News, "Dying for change", 27.10.04).

Shame on Blair's Government that our mediaeval prisons are not held to account when vulnerable people die in the 'care' of the State. (My daughter's death was not 'suicide'; she died a slow and painful death from anti-depressant prescription drug poisoning, and the jury said a "failure in the duty of care" contributed to her death.)

[Bereaved mother of Sarah Elizabeth Campbell, 18, who died in the so-called care of HMP & YOI Styal, 18.01.03]

Submitted by Pauline Campbell

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, may I ask one question? Is it not the case that the Government, on the advice of the Home Office, have deferred to representations from the Prison Officers' Association, which is directly involved in this?

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, this subject is vital, as is the Bill, and I entirely agree with the view that the Bill should become an Act as soon as possible. When this matter was debated before, certain arguments in principle were put as to why this provision for corporate manslaughter should not apply to prisons and the police. I found those arguments very difficult to follow, although they were ably presented by the Attorney-General. However, it is now clear that the Government have no confidence in them, because they have agreed that a power should be put into the Bill to extend the corporate manslaughter provisions to these agencies. Therefore, the only argument left is when this should happen, or at least whether it should happen in the form in which it is put. I humbly suggest that if there is some difficulty of timing,the proper way in which to handle this is to makethe statutory provision work but subject to a commencement order. In other words, the Bill should be passed in accordance with the amendment tabled by the noble Lord, Lord Ramsbotham, and should then be considered when various parts of it are brought into force as part of the commencement arrangements. No other argument addresses the situation better than that.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, I strongly support the argument put forward by the noble and learned Lord, Lord Mackay. On listening to the noble Lord, Lord Ramsbotham, I was very much struck by the strength of the argument that the principle has already been accepted by the Government. It may be that I am rushing in where angels fear to tread, but what is the difficulty in therefore having these provisions in accordance with the Lords' amendments to the Bill? I strongly support Motion A1.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I am extremely grateful to noble Lords for putting forward—with great passion and very succinctly—the arguments against what the Government seek to achieve. I understand the strength of feeling in your Lordships' House. First, I shall tackle a couple of the specific points. In response to the noble Lord, Lord Campbell of Alloway, there has been no official contact with the Prison Officers' Association and no submissions from it during scrutiny, which I hope deals with that point quite quickly.

The noble Lord, Lord Lee of Trafford, described my Secretary of State, the noble and learned Lord the Lord Chancellor, as a healer as opposed to a warrior. I think that he would quite like a bit of hybridity, for he can be a bit of a warrior, as the noble Lord, if he has not seen already, may see in the future. I also agree that he is a healer and he listens. It is precisely because the Ministry of Justice has listened that we have brought forward the amendments before your Lordships' House today. That is what noble Lords would expect and I am sure that the noble and learned Lord, Lord Mackay of Clashfern, would recognise that it is important that the ministry is seen to do that and to take on board the questions that have been raised.

My noble friend Lord Lea of Crondall talked about the breadth of this Bill. It is probably worth reminding ourselves that the concern that led to the Bill and the approach to corporate liability for manslaughter came from a number of high-profile cases, with which noble Lords will be very familiar, in which many people lost their lives; namely, the Zeebrugge disaster in which the "Herald of Free Enterprise" capsised and sank, the Piper Alpha oil rig fire, the "Marchioness" tragedy, and a number of terrible incidents on the railways including Southall, Ladbroke Grove and Hatfield. However, work-related death is not confined to incidents such as these and has touched the lives of many families who have lost spouses, children or parents at work. The Bill is equally applicable to those cases.

I know that noble Lords will join me in saying to all of the families who have suffered these terrible tragedies that our hearts go out to them and that our united purpose is to get this legislation on the statute book in order to protect them. We have all received letters from individuals who feel extremely concerned about that. I take it that your Lordships share with me at least that we are trying to find a way to get this on the statute book as quickly as possible. It is in that spirit that I hope those who read our deliberations will recognise that, for I am nervous that some people who have written to us are deeply concerned that this issue which stands between us should prevent the Bill reaching the statute book. I know that there is no shred of an intention for that from any noble Lord who has spoken about the issue, which they feel passionately about. I would want all those listening to our deliberations to understand that.

Noble Lords who have dealt with the Bill all the way through its stages will know well how it is intended to operate and the new and unprecedented step that we have taken in lifting Crown immunity. As I said in my opening remarks, never before have government departments been liable to criminal prosecution, which will be the case under the Bill. The Bill also recognises the difficulties inherent in seeking to apply the criminal law to difficult issues of public policy and public responsibilities. Noble Lords discussed with my noble friends who took parts of the Bill through the issues around the Army, the police and the emergency services. The Bill offered to your Lordships' House strikes the right balance.

As ever—the noble Lord, Lord Hunt of Wirral, talked about this—the Bill has been improved in this House. Noble Lords made amendments that extend the range of organisation covered by the new offence, so it applies to certain unincorporated bodies, such as partnerships, trade unions and employers' association where these are employers. Amendments were made to strengthen the range of sanctions available to include a new publicity order, which will allow the courts to require an organisation to publicise details of its conviction, which could have a salutary effect on large organisations where corporate reputation is extremely important. There is much that is good in the Bill, but the issue of custody has divided the House and is one of the few areas on which we have not been able to reach a consensus.

The noble and learned Lord, Lord Mackay of Clashfern, said that we could bring in the Bill and simply not commence the provisions that would apply to this. I prefer the route we have taken, which is to be clear about the issues we want to address, to look at the implications in terms of operation and policy, and to bring it forward for formal debate in your Lordships' House by affirmative order to demonstrate precisely what we have done, and of course enable noble Lords to debate it effectively. For me, that is a better way forward. However, the noble Lord, Lord Lee of Trafford, said that he thought that perhaps I wanted to do this now. It would be a lot easier for me if I did, but it is my job as a government Minister to listen carefully to representations. Although I do not have policy responsibility, noble Lords know that I listen both to colleagues and to those interested in and concerned about legislation. Part of being responsible in government is to make sure that when you say you will do something, you have thought through all the implications and worked through the potential problems. In this area I believe that there are issues we need to address with those working in the services, and as a new ministry, we need to address them too.

For all these reasons, I believe that our course is responsible and right. I take nothing away from the strength of feeling expressed by noble Lords and the principle lying behind what is sought here, but we believe that the way we have provided for this in the Bill demonstrates that we have listened, we have moved our position, and in good faith present the provision now before noble Lords. I hope that they will take on board what the Government are seeking to do and allow the Bill, which has so many good provisions in it, on to the statute book in order to help protect many people in the future.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 4:00 pm, 22nd May 2007

My Lords, I am sure that I can speak for all noble Lords in thanking the Minister for the clarity with which she has explained her position, but she will not be surprised to hear me say that I do not think that the Government have gone far enough. The noble and learned Lord, Lord Mackay of Clashfern, put it clearly by saying that the one word missing from all that has been said is "when". My noble friend Lord Dear, whom I listened to with considerable care, also put his finger on one of my reasons for not being entirely satisfied when he said, "I think that this will happen". When the noble Baroness reflects on what has been said in this serious and well conducted debate, reflecting as ever the gravity with which this House treats such issues, she will also reflect on the spirit and experience behind those who have spoken and where they come from. It is extremely important that this Bill, which is nearly there except for the question of "when", should go back to those responsible for trying to produce an answer. As the Minister explained, I realise that certain very senior political arms have been pushed nearly as far up their backs as it is possible to go, but from military experience I know that they can always go just a little further. I therefore wish to test the opinion of the House.

P

Lord Ramsbotham is absolutely right to say the Government have not gone far enough. And Lord Dholakia refers to grieving parents of vulnerable youngsters who have died in custody: Parliament must not ignore us. We do have a voice! I am one such grieving parent, and remain aggrieved at the absence of culpability when people die at the hands of the State.

This legislation has been in the making for 10 years. Why is Government dragging its feet on this important issue? Regarding prison deaths, does the Prison Service fear that some of the deaths in custody might be traced back to the negligence or incompetence of staff and lead to lawsuits?

[Bereaved mother of Sarah Elizabeth Campbell, 18, who died in the 'care' of HMP & YOI Styal, 18.01.03]

Submitted by Pauline Campbell

On Question, Whether the said Motion (A1) shall be agreed to?

Their Lordships divided: Contents, 227; Not-Contents, 136.

Division number 1 Private Parking: Ports and Trading Estates — Corporate Manslaughter and Corporate Homicide Bill

Aye: 225 Members of the House of Lords

No: 134 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and Motion agreed to accordingly.

Photo of Baroness Andrews Baroness Andrews Parliamentary Under-Secretary, Department for Communities and Local Government, Parliamentary Under-Secretary (Department for Communities and Local Government) 4:19 pm, 22nd May 2007

My Lords, with the leave of the House I shall repeat a Statement made in another place by my right honourable friend Ruth Kelly. The Statement is as follows:

"With permission, I would like to update the House on the Government's proposals for the implementation of home information packs. It had been the Government's intention to implement home information packs, including energy performance certificates, on 1 June. In debate last week, reference was made to the judicial review requested by the Royal Institution of Chartered Surveyors. This judicial review focused on energy performance certificates, not home information packs. On Wednesday, the judge issued an interim order which was received by my department on Thursday. That order would have effectively prevented the introduction of energy performance certificates on 1 June while the case was being considered. The Government believe that introducing home information packs without energy performance certificates would be neither practical nor acceptable. It is important to introduce energy performance certificates and home information packs at the same time because cutting carbon emissions should go hand in hand with market transformation. "We have been in detailed discussion with RICS to prevent lengthy legal delays. The Government and RICS are committed to the swift and smooth introduction of both home information packs and energy performance certificates. I am pleased that we have today reached a pragmatic way forward that gives certainty and allows us to get on with implementation. As a result, we are proposing to withdraw the Home Information Pack Regulations to clear the way for successful implementation of revised arrangements. Although the issue of the judicial review is now resolved, long-running uncertainty has already had an impact on the number of energy assessors. For implementation on 1 June, we would need at least 2,000 to be accredited, with over 2,500 by the end of the month. "Today, I am updating the House with the latest figures. There are more than 2,500 people currently in training. A further 3,200 have already passed their home inspector or domestic energy assessor exams. Of those, 1,500 have been accredited or have applied for accreditation, but only 520 of them have been fully accredited. These figures show that the number of assessors is unlikely to meet our needs in time for implementation on 1 June. Equally, they show that, in the long term, there will be enough assessors to meet demand."The Government remain convinced of the importance of home information packs and energy performance certificates. Home information packs will cut costs and delays in buying homes. Energy performance certificates will help reduce energy bills and cut carbon emissions from our homes, which, as they make up 27 per cent of our national carbon emissions, could make a big difference in our effort to tackle climate change. The measures in energy performance certificates will cut carbon emissions by nearly 1 million tonnes every year."I have always said that the right test of the legislation should be how it brings benefits for the consumers and how it protects the environment. Today, therefore, I am setting out a practical way forward. I propose to change the start date for home information packs to 1 August and intend to phase their introduction. From 1 August, home information packs, including energy performance certificates, will be required for the sale of four-bedroom properties and larger. These are the properties where there is the greatest potential to make energy efficiency savings. This will ensure work for those energy assessors who have already been trained and accredited. We will extend the requirement to smaller properties as rapidly as possible, as sufficient energy assessors become ready to work. As we see the number of accredited assessors rise, so more properties will be included in the system. "We are also introducing a number of transitional measures. First, until the end of the year, we propose to allow people to market their properties as soon as they have commissioned a pack rather than make them wait until they have received it to avoid unnecessary delays when the systems are introduced. Secondly, to allow energy performance certificates to be implemented at the earliest opportunity, we will make amendments to allow energy performance certificates to be up to 12 months old when the property is put up for sale, extending the current three-month limit. Thirdly, we are inviting councils and registered social landlords to work with us to introduce energy performance certificates on a voluntary basis in social housing; for example, at the time of stock transfers. This will also provide work for energy assessors at an early opportunity. I will shortly bring forward revised regulations to implement the changes that I have outlined. "Towards the end of the year, we will assess the implementation of home information packs and consider what further steps might be needed to maximise the reduction in carbon emissions and drive forward the reform of home buying and selling. This assessment will be informed by the operation of the market from 1 August, by the results of the area trials and by further consultation on the next steps in implementing home information packs and energy performance certificates, which we will begin in the summer."The approach that I have set out gives clarity to everyone about the next steps. It delivers home information packs and energy performance certificates. It removes uncertainty for energy assessors and others, and ensures a smooth transition for people buying and selling their property. Most importantly, it provides an opportunity to make real progress towards cutting carbon emissions from our homes".

My Lords, that concludes the Statement.

Photo of Baroness Hanham Baroness Hanham Deputy Chief Whip, Whips, Shadow Minister, Scotland, Shadow Minister, Transport, Shadow Minister, Communities and Local Government 4:25 pm, 22nd May 2007

Oh dear, my Lords, oh dear. One can have only the deepest sympathy for the hapless Minister required by the obduracy and incompetence of her predecessors in this House and the other place to have to make such a Statement at the 59th minute of the 11th hour before a humiliating defeat in this place. Despite this Statement, I intend to carry on and move the Motion on the Order Paper so that the House will have an opportunity to discuss this issue at greater length than this debate allows.

Is the Minister aware that while the Statement claims to have delivered clarity, it has, in fact, merely thickened the cloud of confusion, incompetence and chaos surrounding home information packs and energy performance certificates? The House will have the greatest sympathy for the Minister, sent into bat by others with a text that even the kindest would regard with scorn and derision. It is no fault of hers and the House well understands that, but will she accept that this must be one of the most shameful episodes in public administration ever to come before this Parliament? Not only the Secretary of State but the Permanent Secretary should reflect on this appalling performance.

The Minister, because she is an honourable Minister, must be blushing at the Government's created shambles over this whole issue. Will she inform noble Lords why Her Majesty's Government have pressed ahead with a scheme which everybody who knows anything about the housing market was telling them was not workable? Indeed, the Government have been told in this and the other House for years that it was not workable.

Further to the questions asked in Question Time today by my noble friend Lady Gardner, will the Minister inform us when sufficient assessors will be trained and accredited to carry out the energy performance certificates? Does the Minister recall that the previous shambles of the home condition reports having to be abandoned was also because there was an inadequate number of inspectors available to carry them out? For how long has the department been aware that there were insufficient numbers and for how long has it declined to inform the House and the public properly of this matter? It has been asked the question repeatedly and promises and assertions were always made that plenty were in training, but that is now a hollow statement.

The Government have announced that they are going to delay the introduction of home information packs until 1 August. That is eight weeks away. Will the Minister say when the new regulations will be laid, when we will have sight of the result of the pilots which have taken place and whether they are aware that the Royal Institution of Chartered Surveyors is still pursuing the judicial review?

We must all be grateful for the serious and considered judgment handed down by Justice Collins today. But why, when the Government had 10 years to get this right, has it taken the intervention of a High Court judge to finally bring a stop, if only temporarily, to what has been an unbelievable mess?

Justice Collins's intervention will, I hope, protect home buyers and the house market for the time being. Why did the Government not pay more attention to the crucial report of this House's Merits of Statutory Instruments Committee, which demonstrated that the policy was not fit for implementation? While the present stay has come about as a result of the Royal Institution of Chartered Surveyors seeking judicial review, the Minister must be aware of the extreme hostility there has been to the introduction of these packs from both consumers and the housing industry.

The Government's only defence for the emasculated home information packs has been the inclusion of the energy performance certificate. Housing information packs without either the home condition report or the energy performance certificate are now nothing more than an empty packet. Tackling climate change and helping first-time buyers have been relegated to the afterthoughts in this entire process. It is clear that today's delaying tactics are nothing more than a botched attempt to minimise the Government's embarrassment over yet another U-turn.

Whatever the spin, we all know the truth. The housing information pack saga has been a model of how not to do government. HIPs are unnecessary, ill designed to address the problem they claimed to address, badly planned, badly timed, badly executed and, incredibly, not even ready for implementation after three years of legislation and more years of planning. Can there ever have been such a fiasco from the department? Home information packs as now conceived were a tax on home owners which offered no help to home buyers and would have frozen the market just when it needed liberating.

Would it not now be better just to bury this whole issue quietly and to bury it deep? Will the Minister accept that this House has been right all along on this matter? Noble Lords were right in 2004 when they rejected the idea by a majority of 47, but the Deputy Prime Minister insisted on reimposing it. This House was right in resisting the original regulations. The outstanding report produced by the noble Lord, Lord Filkin, who is in his place, and the Merits Committee was right and they deserve congratulations.

Is this climbdown not a major vindication for this House and its right to vote against regulations, and a major humiliation for the Government? Will the Minister confirm that in future the Government will conform with recommendations of the Merits Committee, and do so with less foot-dragging and much better grace? Will she take back the message from this House that this ill conceived plan should never again see the light of day?

Photo of Baroness Scott of Needham Market Baroness Scott of Needham Market Spokesperson in the Lords, Department for Communities and Local Government 4:33 pm, 22nd May 2007

My Lords, one can but sympathise with the Minister who is having to defend the indefensible. Last week the Royal Institution of Chartered Surveyors launched a judicial review. It was an unprecedented move, which it did not take lightly. It took it in the end in desperation because it simply could not get anyone in government to listen to it. Today, Sir Andrew Collins has agreed that there is an arguable case and that the RICS could not have moved any sooner than it did. Because we cannot have a hearing before 1 June, the stop-gap was to go ahead with home information packs without the energy performance certificates. It really begs the question what on Earth would be left inside the HIP. Householders would be left paying to hand over an empty folder. The solution now is to postpone the whole thing for two months. That means that we shall have another set of hastily scribbled regulations, which will have to come to this House in the next six weeks if there is to be any parliamentary scrutiny of them at all before the recess. It is simply not good enough.

The Government started looking at changes to house purchase 10 years ago. Seven years ago they brought forward legislation which introduced the home information packs. The practical objections from all sides of the industry, particularly the Law Society, led these Benches to oppose the measure. The Government ignored the advice they received and ploughed on anyway. It took them two years to bring forward regulations and, at the last minute, under pressure from an industry that knew that it could not deliver what it was being asked to deliver, they removed the home condition survey—the most important part of the pack. Since then, there has been a whole year in which the Government have continued to ignore the advice that they have been given, until they have been forced to make this ignominious U-turn today. They have finally admitted that they do not have sufficient energy assessors—after months of questions from noble Lords in this House and after months of assuring us that there were enough. Why has it taken a judicial review finally to reach the truth of this matter?

In her Statement, the Minister said that this will bring clarity. It is difficult to see how. We are going to start with four-bedroom houses. For the next two months, people will be converting bedrooms into studies at a rate of knots. My noble friend Lord Shutt wants to know whether the room that contains his model railway will be classed as a bedroom if he puts his house on the market. I am afraid that I am unable to tell him. We will have to wait to see whether the regulations include a model railway clause.

We are now told that social housing is to be included at the point of stock transfer and will apply regardless of where the stock transfer is taking place and how many houses are involved. Stock transfers involving many hundreds of homes could take place in areas where there are no surveyors—but we do not know, because that has not been thought about.

How much faith can we, the industry, or the public have in a solution that has, by the Government's own admission, been cobbled together over the past few days? Individuals out there have paid to become accredited home condition surveyors. When the surveys were pulled, they had wasted their money. They then paid to become accredited energy performance surveyors, but now the future of those is in doubt, too. We must retain some form of energy performance certificates, because EU legislation demands them and, in any event, the climate change agenda demands that we take steps to reduce domestic energy emissions. Where will the assessors come from now that they have had their fingers badly burned by the Government's mishandling of this matter?

Another measure that we are told will be taken is first-day marketing. In other words, you can put your house on the market without having a pack in place. We proposed that measure when the Bill was going through and we were given all sorts of reasons by the Government why it would not work. Four years later, we suddenly find that that is the answer. If this matter was not so serious, it would be laughable and it brings a new meaning to the expression, "Whitehall farce".

The most important asset owned by anyone is their home. Whatever the shortcomings of the previous system, at least the uncertainties were well understood and could, to an extent, be planned for. As a result of the Government's bungling, the system is in tatters. Neither the industry nor households have any idea what is coming next. It takes a staggering degree of incompetence to end up with no policy and every single interest group opposed to you—but the Government have managed it.

Photo of Baroness Andrews Baroness Andrews Parliamentary Under-Secretary, Department for Communities and Local Government, Parliamentary Under-Secretary (Department for Communities and Local Government) 4:38 pm, 22nd May 2007

My Lords, I suppose that I should be grateful for sympathy, but I have no problem in defending the Government's policy, which is certainly not in tatters. We have spelt out exactly where we are going and the reaction this afternoon highlights some of our problems in trying to keep the confidence of the market in assessors, which has been very much at the forefront of our minds as we have made our decisions in recent days.

First, perhaps I may clarify the specific point on where we are in the judicial review process. Judicial review has been stayed. We welcome, and I am sure that the House will welcome, our discussions with the RICS. We do not expect the claim to continue and we look forward to moving forward with the RICS. Let me also restate that we remain convinced that, for a market that has seen no change since my mother and father bought their house 25 or 30 years ago, it is right to try to reform and improve a system that is the slowest, the least transparent, the least predictable, the most costly and the most stressful in Europe. The information that we are receiving from our area trials of HIPS is that 70 per cent of sellers actually agree with us that HIPS are useful.

Some of the criticisms should be held for a little while. We remain committed to the principle of home improvement packs and we remain equally committed not just to the principle but to the necessity of energy performance certificates. Every week, we have a new report about the speed of climate change. Every week, we are told that unless we act now it will be too late. By bringing forward the energy performance certificates, we have tried to set a lead and an example in Europe.

Both noble Baronesses said that we had not listened; they said that we had rushed ahead and refused to listen to common sense, including to what this House and the Merits Committee said. In fact, we have listened extremely hard for the past two years. When the Council of Mortgage Lenders told us that it was not ready to implement the home condition report, we withdrew it as a mandatory element of the pack. We have looked at the evidence from our area trials, which we set up last autumn; I explained to the House at the time that we were doing that to get more evidence. We have made transitional arrangements for when, for example, leaseholds and legal searches will be presented. We have listened hard to what the stakeholders have told us about the problems that they have encountered. That is why the consultation exercise that we are putting in place will address the specific issue that the RICS raised about the EPC, so that we can determine at what age we can generate a performance certificate that is proportionate, effective and in the best interests of the consumer and the community. So we have listened.

I was asked how we will know that we have enough trained assessors. Earlier, I gave figures that I think are extremely healthy and very sound. We have 2,500 people in training—those who are still to do their exams. We have 3,200 people who have passed their exams. As I said, 1,500 people are accredited or in the pipeline for accreditation. These are people who have made a commitment for a new career. We keep faith with them, which is why the process that I outlined is about keeping up their confidence in a climate that has been extremely difficult and harassing for them, because of the responses of some of the stakeholders and the constant commentary in some of the press. Our intention is to ensure that they have the work that they want. That is why we are introducing this in a phased manner, starting with the larger houses on 1 August, because we know that we can guarantee that work for them.

We will look to the social housing sector, not least because that is the right thing to do. We will have detailed negotiations with the RSLs and local authorities. We will be pragmatic and practical at this point. We will use the evidence that is coming forward from the numbers of assessors that we have and the work that they are getting to plan properly across the autumn how we bring other properties online.

I was asked about four-bedroom houses. I do not have anything in my brief about model railways, but I have a strong sense that trading standards officers and the people involved will have a good idea about what a four-bedroom house is. I think that the point is a bit of a red herring.

I was asked when the regulations will be laid. I cannot give a date now, but I assure the House that there will be ample opportunity for full parliamentary scrutiny. Indeed, I am happy that we are having the debate later this afternoon, as that will be a good opportunity for the House to explore some of the aspects that we do not have time for with this Statement.

I was also asked when we will be able to retrieve information from the pilots. We have already had two tranches, which have informed the changes that we have made, and we will get more information in July and August. Because transactions in this country take a minimum of six months, we will not have the full information until early autumn. We will certainly take the evidence into account.

Let me address some of the other questions that I was asked. We made an initial response to the Merits Committee by putting additional information in the Library of the House and by writing to the chair. One of the committee's specific criticisms of the Government concerned the age of the EPC. We are addressing that and will address it in the consultation that we will bring forward. I have dealt with the issue of stock transfer.

In conclusion, as the Secretary of State said earlier today, our intention is to maximise the benefits and to proceed with the people with whom we need to keep faith by being as open, frank and pragmatic as possible. We need to minimise the risks but maximise the benefits to the consumer both in the way that houses are bought and sold and also by cutting carbon and costs for the consumer.

Photo of Lord Tebbit Lord Tebbit Conservative 4:45 pm, 22nd May 2007

My Lords, do the Government have a definition of a bedroom which would stand up in law? Has the Minister not seen advertisements in estate agents' windows for houses with two/three bedrooms or three/four bedrooms? The Government must have a legally binding and watertight definition; otherwise this situation will be more of a shambles than it looks now. Further, can the noble Baroness say who in government should take the credit for what she clearly feels has been an administrative coup?

D

'Shambles' is rather a mild description.

Submitted by David Wright

Photo of Baroness Andrews Baroness Andrews Parliamentary Under-Secretary, Department for Communities and Local Government, Parliamentary Under-Secretary (Department for Communities and Local Government)

My Lords, there is no definition of a four-bedroomed house in any housing law that I am aware of, but I should have thought that we could bring a fair degree of common sense to bear in the matter. We know that four-bedroomed houses represent 18 per cent of the stock, which is why we have specified that size of home at this point. We shall certainly issue guidance to trading standards officers, who will have responsibility in this area, and we shall certainly listen to stakeholders, who I am sure would want to ensure that we got things right. With regard to who takes credit, there is collective responsibility, as the noble Lord knows.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

My Lords, does the noble Baroness agree that this situation is so charged with human misery, waste and frustration and is so serious that it should not be the subject of party bickering or of trite political points? Furthermore, does she accept that for 10 years the Government have shown remarkable consistency in this matter? They made it a commitment before the 1997 election; in 2000, a Bill was introduced, which ran out of time; and it was the subject of Section 163 of the Housing Act 2004.

However, does the Minister accept that, whereas the Government can improve the situation for the community at large in only a limited area—there is no magic wand that can change the basic problem of the gap between the agreement and the ultimate exchange of contracts—what really counts in relation to HIPs is the home condition survey? If that is not made compulsory, there is very little prospect that the scheme will succeed. If it is made compulsory, there has to be a credible inspectorate that wins its spurs in executing its duties. But, if the survey is not made compulsory and it is left on a voluntary basis, the scheme will be a ship without a bottom.

Photo of Baroness Andrews Baroness Andrews Parliamentary Under-Secretary, Department for Communities and Local Government, Parliamentary Under-Secretary (Department for Communities and Local Government)

My Lords, I am grateful to the noble Lord, who is absolutely right. We made a commitment in the 1997 manifesto to try to improve the home-buying process. I suspect that from his professional experience the noble Lord knows more than most how many millions of pounds are lost each year in failed transactions and how many times people have to arrange yet another survey because a house is withdrawn from the market. The insecurity, lack of information and lack of transparency makes the process a misery. When I answered questions in this House a week ago, a noble Lord on the Cross Benches pointed out that the system was much better in France. He was absolutely right, and that applies to many other European countries as well.

We withdrew the home condition survey as a mandatory element of the pack because mortgage lenders told us that they felt that valuations would still be necessary. It seemed to us that we had to test that assertion, and that is what we have been doing in the area trials. However, the information coming back to us is that people like home condition reports. They give them information when they first look at a house so that they do not get nasty surprises. It is extremely important that they should have that information. But we are where we are, and I shall no doubt be reporting to the House in due course on how the trials are affecting transactions.

Photo of Lord Graham of Edmonton Lord Graham of Edmonton Labour

My Lords, sympathy has been expressed to the Minister; she is entitled to have it, given the history of this matter. I hope that she and her ministerial colleagues will persist in ultimately producing a scheme that is acceptable to all parties. I remind the House that it was Peter Walker in 1984 who began outlining a scheme whereby the kind of thing that the Government are now introducing should be part of every mortgage. Over the years, successive House of Commons Select Committees have asked for this sort of thing, and I cannot understand how people, especially those from another place with constituency experience, do not understand the importance of its introduction and the misery caused by the present hiatus.

The Minister spoke in general about waste, but I have seen figures proving that £1 million a day is wasted under the present system. Will she confirm whether that is the case? Surely any scheme that ultimately helps to eradicate such waste is useful. Will she confirm, too, that despite remarks from the opposition Benches that this scheme has no friends, bodies such as the Council for the Protection of Rural England, Friends of the Earth, the World Wildlife Fund and others are its friends and should be encouraged? Those really interested in this matter can prove their interest in about half an hour's time by staying behind to hear the debate that the noble Baroness, Lady Hanham, has said we will persist with. I cannot see the purpose of that, but I assure the House that the best speech that has never been made will be heard during that debate.

Photo of Baroness Andrews Baroness Andrews Parliamentary Under-Secretary, Department for Communities and Local Government, Parliamentary Under-Secretary (Department for Communities and Local Government)

My Lords, that is surely an irresistible invitation to all noble Lords to stay and take part in the next stage of this debate. I am delighted to know that the Conservatives were so creative and committed in 1984 to bringing forward similar ideas, but I wonder what happened from 1984 to 1992.

I can confirm that £1 million a day is wasted in failed transactions; that is a well worked figure. Secondly, I confirm that the scheme has friends, certainly in this House, I am delighted to say, and in environmental groups which see the huge benefit of confronting as fast as we can the waste that we subscribe to by not being serious about saving carbon and not knowing how our houses use heat and how we can save on costs and energy. My noble friend is right on both counts, and I look forward to what I think will be a splendid speech shortly.

Photo of Baroness Hamwee Baroness Hamwee Spokesperson in the Lords (Regional & Local Government), Department for Communities and Local Government

My Lords, the Minister talked about being open and frank. With a view to achieving that, can she tell the House when the Government will publish the results of the pilots and studies that have been running? They must not merely take those results on board but share them with the rest of the House, stakeholders and the public generally. When will the Government publish a full response to the report of the Merits of Statutory Instruments Committee, which dealt not only with home information packs but with the energy performance of buildings regulations? I guess that it will be delayed in a similar manner, although I am not sure that I have heard that. The Minister will be aware that many noble Lords on this side are keen to see energy performance certificates introduced in an effective manner that is acceptable to the public.

Photo of Baroness Andrews Baroness Andrews Parliamentary Under-Secretary, Department for Communities and Local Government, Parliamentary Under-Secretary (Department for Communities and Local Government)

My Lords, we will certainly publish the results of the pilots at the end of the research cycle. Because of the length of transactions—we must look at the impact of home condition reports on them—that will be in the autumn. We put two full documents in the Library in response to the Merits Committee, including the RIA in which the costs and benefits were worked out. I will see what else we can do in response to that.

Photo of Baroness Gardner of Parkes Baroness Gardner of Parkes Conservative

My Lords, why are the Government talking about four-bedroom houses if they want to be forward looking? We have heard from the noble Baroness, Lady Scott, and my noble friend Lord Tebbit that this definition is not firm at all. The Minister has replied that she is sure that the Government can look at something firm. Everyone who now buys a property does so according to square footage. The district valuer works on both square footage and square metreage of a property. Surely that is the clear-cut definition of how to determine the size of a property, rather than saying how many bedrooms it has. I reinforce the points of the noble Baroness, Lady Scott, and my noble friend Lord Tebbit.

Photo of Baroness Andrews Baroness Andrews Parliamentary Under-Secretary, Department for Communities and Local Government, Parliamentary Under-Secretary (Department for Communities and Local Government)

My Lords, I am listening closely to what noble Lords are saying about this. There will be a chance to look at the revised regulations when they are introduced. I will provide the House with as much information as possible before then.

Photo of Lord Berkeley Lord Berkeley Labour

My Lords, what will happen if people who own properties with fewer than four bedrooms—three, three and a half, or whatever it is in square metres—believe it is in their interest to produce HIPs with energy performance certificates after 1 August but before the end of the year when the full scheme comes into operation? Many of them, possibly first-time buyers, may think that it is a selling point. They will save an average of four buyers commissioning surveys, environmental reports, searches and everything else in the intervening period. This would be on a voluntary basis, but would the Minister consider including that in the new regulations?

Photo of Baroness Andrews Baroness Andrews Parliamentary Under-Secretary, Department for Communities and Local Government, Parliamentary Under-Secretary (Department for Communities and Local Government)

My Lords, I will certainly take away what the noble Lord says. On the fascinating subject of the four-bedroom house, I argue that there would be a financial disincentive to market a property on the basis that it has fewer bedrooms than it has. I cannot see the logic of noble Lords' concerns about that. We will certainly ensure that we have the number of assessors needed to bring smaller properties with fewer bedrooms on to the market as we proceed.

Photo of Lord Redesdale Lord Redesdale Spokesperson in the Lords (Agriculture & Energy), Environment, Food & Rural Affairs

My Lords, does the Minister take heart from the fact that, in a debate on home improvement packs in another place, both opposition parties gave a great deal of support to EPCs? I hope that we would not now bury this valuable aspect of the report, which is supported by all sides of the House. I find it distressing that they are not being brought in as quickly as possible. Those of us worried about climate change realise that some of the most wasteful properties are old ones that must be improved and insulated. EPCs are one way that that could happen. Although there has been a great deal of disquiet and justifiable anxiety about how this process has been brought to this point, I hope that the Government will implement EPCs at the earliest opportunity. They have the support of all parties, as I am sure will be confirmed by all those speaking. It is therefore unfortunate that, by the Government's figures, if we are to save 1 million tonnes of carbon a year, we will probably lose about 250,000 tonnes of carbon dioxide into the atmosphere during this delay.

Photo of Baroness Andrews Baroness Andrews Parliamentary Under-Secretary, Department for Communities and Local Government, Parliamentary Under-Secretary (Department for Communities and Local Government)

My Lords, the noble Lord makes an important new point about the unfortunate but inevitable implications of delay. He is absolutely right: we are not going to renege on EPCs. They are an extremely important part of our national policy for carbon reduction and of what people can do for themselves in cutting energy and bills. We will continue to consult closely with the environmental groups to ensure that we do this in the best way. We must now look at some of the issues raised by stakeholders during the consultation.

Photo of The Earl of Caithness The Earl of Caithness Conservative

My Lords, I declare an interest as a surveyor and a member of the Royal Institution of Chartered Surveyors. I congratulate the Government on alienating the institution—the one body that was behind them throughout the legislation—which tells me that it cannot have any reasonable dialogue with the Government and has not been given answers to lots of questions. It is not surprising that it took the Government to judicial review.

The Minister is aware that I am included in her statistics about those training to be assessors, but she is not aware that I have refused to get fully qualified because of the waste of money that the Government have put me and hundreds of other people to. We spent a lot of money getting qualified for a new career that the Government have now taken away from us. A lot of surveyors who were on the course that I was on have decided not to become assessors for EPCs by themselves because it is not a sensible thing for a surveyor to undertake, particularly in a small practice.

The Minister said that the kits are useful; nobody is denying that. However, the market has taken care of improvements to the buying and selling process without central dictatorship from government. Lawyers have instituted better conveyancing—there is now e-conveyancing—and surveyors are getting more information upfront. The Government do not need to tell us to do that; everybody wants to do it.

The introduction of four-bedroom houses will give us surveyors such fun. We are going to have really good details from now on. My noble friend Lady Gardner of Parkes mentioned houses being sold by square footage. That might be the case in central London but not so much in the country. We are going to have real joy with three, four, five and six-bedroom houses. The poor trading standards officers, who are pushed for time now as there are not enough of them in local government, will come scurrying round. It is a mess. Please, just drop it.

Photo of Baroness Andrews Baroness Andrews Parliamentary Under-Secretary, Department for Communities and Local Government, Parliamentary Under-Secretary (Department for Communities and Local Government)

My Lords, I hope the noble Earl completes the accreditation course, as the process is obviously going to be so much fun. I imagine that he will find it a better possibility.

As I said in the Statement, we are pleased that we have arrived at an accommodation with RICS. That takes us forward. The noble Earl said that he is not going to complete his accreditation course. We think that one of the reasons why people were slow to finalise their accreditation after they passed their exams, probably after they had done their five practical EPCs, was that they were uncertain what was going to happen. That uncertainty was wound up in different ways, not least by some of the newspapers, and we are sure that removing it will help. That is the only explanation we have for why so many people in training were being so slow to pay their final fees.

The noble Earl's second argument was that the market will do its own job and regulate itself. We have not seen evidence of that, and the noble Lord, Lord Elystan-Morgan, made that point. However, where HIPs have been introduced—on a voluntary basis or in the trial areas—there has already been a shift in the market that is driving up competition. Local authorities could charge variable fees for searches, but 25 local authorities have already lowered their fees. We are not relying simply on HIPs to improve the process. We think they will provide a platform for the market to improve its own processes through introducing competition—noble Lords opposite are surely in favour of that. That will make a difference to the way things are done, which has not changed for at least a generation.

Photo of Baroness Morgan of Drefelin Baroness Morgan of Drefelin Government Whip

My Lords, it is the turn of the Cross Benches.

Photo of Lord Cobbold Lord Cobbold Crossbench

My Lords, cannot the EPC be disassociated from the sales process and, like an MoT certificate, be valid for 10 years, as suggested in the European directive?

Photo of Baroness Andrews Baroness Andrews Parliamentary Under-Secretary, Department for Communities and Local Government, Parliamentary Under-Secretary (Department for Communities and Local Government)

My Lords, we do not believe that is the right thing to do. EPCs and HIPs together make up a coherent and effective package. If they were split, both would be weaker. We have a delivery mechanism with HIPs to develop the EPCs. Because they are inter-related, the regulations reflect that interdependence.

Photo of Baroness Maddock Baroness Maddock Liberal Democrat

My Lords, I think it is our turn. Will the Minister give us any further information about large-scale voluntary transfer? I declare an interest in Berwick borough council. We are half way through LSVT. She will know that I support measures to try to reduce emissions from housing; that is important. I am also aware of the very difficult process councils go through with LSVT. It would be much appreciated if the Minister could give concrete information as early as possible about how the provisions will affect that process. Can she indicate when she will be able to do that?

Photo of Baroness Andrews Baroness Andrews Parliamentary Under-Secretary, Department for Communities and Local Government, Parliamentary Under-Secretary (Department for Communities and Local Government)

My Lords, I cannot, I am afraid. It is something that we need to get absolutely right. We need to have discussions with individual RSLs to know what is possible at what pace and with what implications. It would be wrong of us to try to collapse that process in any way. I am afraid that it will take time, but I will try to keep the noble Baroness fully informed about our progress.