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The Deputy Chairman of Committees (Baroness Fookes) (Con)
My Lords, I must first make the usual announcement that if there is a Division in the Chamber, this Committee must immediately adjourn when the Division Bells ring and resume after 10 minutes.
Digital Markets, Competition and Consumers Bill
Wednesday 24th January 2024
(4 months, 1 week ago)
Grand CommitteeRead Full debate Digital Markets, Competition and Consumers Act 2024 View all Digital Markets, Competition and Consumers Act 2024 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 12-II(b) Amendment for Grand Committee (Supplementary to the Second Marshalled List) - (24 Jan 2024)
Lord Faulks
Member’s explanatory statement
This amendment would restore the Bill’s original wording in relation to Clause 19.
Lord Faulks (Non-Afl)
My Lords, I begin by apologising for not taking part at Second Reading. I have read the excellent debate, including the helpful introduction by the Minister. I also had the privilege of sitting through the first day in Committee, during which I learned a great deal. I refer to my interests in the register. I am not a competition lawyer, but I have experience of judicial review and of the operation of the Human Rights Act. I was chair of the Independent Review of Administrative Law, which reported a couple of years ago and resulted in the Judicial Review and Courts Act.
My amendment, which has the support of the noble Baroness, Lady Stowell, and the noble Lord, Lord Black of Brentwood, concerns the use of the word “proportionate” in Clause 19. I also have a similar amendment in this group, Amendment 53, which concerns Clause 46.
Despite some heavy lobbying of the Government by big tech, the right to appeal against an intervention by the CMA will engage the judicial review test, rather than a merits test, except as to penalty. Later amendments will carefully probe this latter aspect and I look forward to hearing the debate.
The original adjective in Clause 19 was “appropriate”. The word “proportionate” replaced it at a relatively late stage in the Bill’s progress through the Commons. Why? In one view, it is an innocuous change. Indeed, one would expect an intervention by the Digital Markets Unit to be proportionate. The word also has a respectable legal pedigree. For example, you can defend yourself against attack, provided that your response is proportionate to the attack. Whether that response is proportionate will be a question of fact, often for a jury to decide.
But judicial review is primarily concerned not with the facts of a decision but with the process by which the decision is made. Classically, the courts got involved only if a decision was so unreasonable that no reasonable public body could have reached it. The scope of judicial review has expanded somewhat to include challenges based on, for example, irrationality or the failure to take into account relevant considerations. There are other grounds, but all are effectively concerned with the process rather than with factual findings, although I readily concede that there are occasions when these distinctions can be somewhat opaque.
Since the enactment of the Human Rights Act, the concept of proportionality has entered the law in relation to judicial review, but only in limited circumstances. The most recent edition of De Smith’s Judicial Review, generally regarded as the leading textbook in this area, says at 6-090:
“Domestic courts are required to review the proportionality of decisions and enactments in two main categories of case: cases involving prima facie infringements of Convention rights and cases involving EU law”.
Some think that proportionality should be the test in all cases of judicial review, but that is not currently the law.
I cannot see why an appeal in the context of this Bill would obviously involve a convention right, although those rights have a habit of getting in everywhere. If convention rights are engaged, proportionality comes into the analysis anyway. Choosing to put “proportionate” into the legislation might lead a court to conclude that Parliament had deliberately used the word to widen the scope of a judicial review challenge, even when no convention right is engaged. For my part, that is a risk that I do not think should be taken. Your Lordships’ House is well aware of the risk of expensive, time-consuming litigation that may result from these interventions, which it may be perfectly sensible to bring about.
A proportionality test is far closer to an appeal on the facts than one based on conventional judicial review principles. Whether an intervention is proportionate or not gives the court greater scope for looking at those facts. I would therefore much prefer to revert to the original word, “appropriate”, which does not carry the same heavy legal charge and does not risk expanding the grounds of appeal. I look forward to hearing the Minister’s response and explanation behind the change in wording. I beg to move.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I add at this point that, if Amendment 16 were to be agreed, I could not call Amendment 17 by reason of pre-emption.
Baroness Stowell of Beeston (Con)
My Lords, I am hugely grateful to my noble friend Lord Faulks, if I can still call him that—in real life, he is my friend, even if he now sits on another Bench—both for tabling his amendments and for the incredibly comprehensive and thoughtful way in which he has introduced this group. To have the noble Lord’s expertise on this topic is incredibly valuable. I have signed his Amendments 16 and 53 but have also tabled my own in this group: Amendments 17 and 54. I am grateful to the noble Lords who have signed mine.
By way of some background to add to what the noble Lord has said, as I mentioned on the first day in Committee, and indeed at Second Reading, the Communications and Digital Select Committee held hearings on the Digital Markets, Competition and Consumers Bill during the summer of last year. We took evidence from the large tech firms as well as a range of challenger firms. We focused on Parts 1 and 2 of the Bill, which is what we are discussing at this time.
As my noble friend the Minister acknowledged when he spoke at Second Reading, we as a committee found that the Bill as it stood at that time—as introduced to Parliament—struck a careful balance. We felt that, overall, it was proportionate and would deliver on the outcomes that we were seeking to achieve and all felt were necessary for this legislation—namely, a level playing field for the various different businesses that now seek to operate in digital markets. We were careful to acknowledge that striking that balance was hard to achieve; it was not an easy thing. We commended the Government for that. We were also clear, however, that any further changes, particularly to some contentious areas, such as the appeals process, could cause significant problems.
As the noble Lord, Lord Faulks, said, we will come on to the question of appeals in a later group. The insertion of the word “proportionate” in the Bill, in the context of the conduct requirements that the CMA may impose, or the specific pro-competition interventions, has the potential to create a question and introduce a loophole that could be exploited during the appeals process. This is making people nervous—it is certainly making me nervous.
The noble Lord’s amendment would change the Bill back to its original wording. I have signed the amendment based on the way he, as a legal expert, has explained it, which seems to me to be the best way forward. However, my Amendments 17 and 54 try to make it clear to any tribunal hearing down the line that, by including the word “proportionate”, Parliament has not intended to create any new, novel or different opportunity for anybody to interpret what the CMA should always be doing, which is being proportionate in the way in which it goes about its duties. My amendments are, if you like, a safeguard, but I think what the noble Lord, Lord Faulks, has proposed is clearer and neater. Like him, I look forward to the Minister’s reply. This is an area which is causing quite a lot of concern and on which we need a clear response from the Government.
Baroness Harding of Winscombe (Con)
My Lords, it is an honour to follow such an esteemed legal brain and parliamentary brain. I am neither, but I have put my name to my noble friend Lady Stowell’s two amendments and I want to make two points in support of her arguments.
The common-law concept of proportionality is important in this legislation. I am not supporting these amendments in any spirit other than wanting to make sure that we are proportionate in the way we regulate the technology sector. After our first day in Committee, I was reflecting a little that perhaps all of us got a bit carried away—certainly I did—with some of our oratory about the importance of mitigating the downsides of the technology sector. I want to put it on the record that I recognise the upsides, too. Therefore, a proportionate path is important. I sit on the Communications and Digital Select Committee that my noble friend so ably chairs and, as she said, we felt that the Bill as introduced into the Commons got that proportional balance right.
We have been in this place before, having a very similar argument. A number of us here today are part of the Online Safety Act gang. I had a look at Hansard and on 19 July, during the last group on Report on the Online Safety Bill, I proposed a group of amendments in the name of the noble Baroness, Lady Kidron, which sought to clarify how non-content-related harms would be captured in the Bill. The argument made by the Minister, my noble friend Lord Parkinson of Whitley Bay, was that, by trying to define it in the Bill, we would create legal uncertainty because that concept was already defined. Now we find ourselves on the opposite sides of the same argument, where I think I am hearing the Government say that there is no intention to bring in any different definition of proportionality than that which already exists—that the CMA is already mandated to give significant consideration to proportionality—yet they want to put the word back in the Bill in the way that they resisted firmly in the Online Safety Bill, when a number of us were seeking a different form of clarification. I do not think that you can have it both ways quite so quickly in related legislation. Either the Government mean something different from the existing requirements of proportionality that the CMA is under, or we should simply take out this additional complexity and reduce the risk of further legal disputes once the Bill is enacted.
Baroness Kidron (CB)
My Lords, I have had a number of arguments about “proportionate” in the decade that I have been in this House. In fact, I remember that the very first time I walked into the Chamber the noble Lord, Lord Pannick, was having a serious argument with another noble Lord over a particular word. It went on for about 40 minutes and I remember thinking, “There is no place for me in this House”. Ten years later, I stand to talk about “proportionate”, which has played such a big part in my time here in the Lords.
During the passage of the DPA 2018, many of us tried to get “proportionate” into the Bill on the basis that we were trying to give comfort to people who thought data protection was in fact government surveillance of individuals. The Government said—quite rightly, as it turned out—that all regulators have to be
“proportionate, accountable, consistent, transparent, and targeted”
in the way in which they discharge their responsibilities and they pushed us back. The same thing happened on the age-appropriate design code with the ICO, and the same point was made again. As the noble Baroness, Lady Harding, just set out, we tried once more during the passage of the Online Safety Bill. Yet this morning I read this sentence in some draft consultation documents coming out of the Online Safety Act:
“Provisionally, we consider that a measure recommending that users that share CSAM”—
that is, for the uninitiated, child sexual abuse material—
“have their accounts blocked may be proportionate, given the severity of the harm. We need to do more work to develop the detail of any such measure and therefore aim to consult on it”.
This is a way in which “proportionate” has been weaponised in favour of the tech companies in one environment and it is what I am concerned about here.
As the noble Lord said, using “proportionate” introduces a gap in which uncertainty can be created, because some things are beyond question and must be considered, rather than considered on a proportionate basis. I finish by saying that associating the word specifically in relation to conduct requirements or making pro-competitive interventions must create a legal uncertainty if a regulator can pick up that word and put it against something so absolute and illegal and then have to discuss its proportionality.
Lord Vaizey of Didcot (Con)
I wonder if I can just slip in before Members on the Front Bench speak, particularly those who have signed the amendment. I refer again to my register of interests.
I support the principle that lies behind these amendments and want to reinforce the point that I made at Second Reading and that I sort of made on the first day in Committee. Any stray word in the Bill when enacted will be used by those with the deepest pockets—that is, the platforms—to hold up action against them by the regulator. I read this morning that the CMA has resumed its inquiry into the UK cloud market after an eight-month hiatus based on a legal argument put by Apple about the nature of the investigation.
It seems to me that Clause 19(5) is there to show the parameters on which the CMA can impose an obligation to do with fair dealing and open choices, and so on. It therefore seems that “proportionate”—or indeed perhaps even “appropriate”—is unnecessary because the CMA will be subject to judicial review on common-law principles if it makes an irrational or excessive decision and it may be subject to a legal appeal if people can argue that it has not applied the remedy within the parameters set by paragraphs (a), (b) and (c) of Clause 19(5). I am particularly concerned about whether there is anything in the Bill once enacted that allows either some uncertainty, which can be latched on to, or appeals—people refer to “judicial review plus” or appeals on the full merits, which are far more time-consuming and expensive and which will tie the regulator up in knots.
Lord Holmes of Richmond (Con)
My Lords, it is a pleasure to take part in day two of Committee on the DMCC Bill. Again, I declare my interest as an adviser to Boston Limited.
It is a pleasure to follow the introduction from my noble friend Lord Faulks. I think is highly appropriate that we discuss proportionality. I have a number of amendments in my name in this group: Amendments 33, 52 and 220, and then the rather beautifully double Nelsonian, Amendment 222. Essentially, a considerable amount of work needs to be done before we can have proportionality going through the Bill in its current form. My amendments suggest not only addressing that but looking at counter- vailing benefits exemptions and financial penalties.
Agreeing with pretty much everything that has been said, and with the tone and spirit of all the amendments that have been introduced thus far, I will limit my remarks to Amendment 222. It suggests that regulations bringing into force Clauses 19, 21, 46 and 86
“may not be made until the Secretary of State has published guidance”
going into the detail of how all this will operate in reality.
Proportionality is obviously a key element, as has already been discussed, this is just as important, as we will come on to in the next group. My Amendment 222 straddles the groups a bit, under the vagaries of grouping amendments, but it is nevertheless all the better for it.
I look forward to hearing my noble friend the Minister’s response on proportionality, countervailing benefits exemptions and financial penalties, and on the need for clear, detailed guidance to come from the Secretary of State before any moves are made in any and all of these areas.
Lord Black of Brentwood (Con)
My Lords, I am afraid I am going to play the role of Little Sir Echo here. I hope that the unanimity expressed so far will send a strong message to my noble friend the Minister. I support Amendment 16 in the name of the noble Lord, Lord Faulks, to which I have added my name, and Amendments 17, 53 and 54. I note my interests as declared at the start of Committee.
As I made clear in my remarks on Second Reading, we must, throughout the consideration of the Bill, steadfastly avoid importing anything into the CMA and DMU procedures that would allow the platforms to deploy delaying tactics and tie up the regulators in endless legal knots. Long legal wrangling will destroy the very essence of the Bill, and it is not mere speculation to suggest that this might happen. As we have seen elsewhere in the world, and indeed in publishers’ own existing dealings with the platforms, we do not need to gaze into a crystal ball; we can, as the noble Lord, Lord Tyrie, put it the other day, read the book.
In that light, as we have heard consistently this afternoon, I fear that the government amendments made in the other place, requiring the conduct requirements and PCIs to be proportionate rather than appropriate, do just that. They impose significant restrictions on the work of the CMA and, as an extremely helpful briefing—which I think all Members have had—from Which? put it, produce “a legal quagmire” that would allow the unaccountable platforms
“with their vast legal budgets … to push back against each and every decision the regulator takes”.
It is simply counterintuitive to the design of the flexible and participatory framework the legislation portends. As my noble friend Lady Stowell said, it certainly makes me very nervous.
The key point is that introducing the concept of proportionality is, frankly, totally otiose, as the noble Lord, Lord Faulks, put it so well, as proportionality is already tested by judicial review—something the CMA itself has already reiterated. The courts, in this novel area of legislation, will rely on Parliament clearly to state its intentions. Introducing the concept of proportionality not only is unnecessary but in fact muddies the waters and creates confusion that will be mercilessly used by the platforms. It certainly does not produce clarity. The Government really must think again.
Lord Tyrie (Non-Afl)
My Lords, I do not know whether I am the sole dissenting voice—I do not think I am—but I want to make one preliminary point. I never thought I would make a point in defence of lawyers, but not all legal challenge or scrutiny will necessarily be wrong as this Bill proceeds or as the CMA takes its decisions. It is extremely important that we bear in mind, as we will come on to later on in the Bill, that we need to have a sense of balance about all this, so that we do not allow quite reasonable discontent with some of the shocking practices we have seen from platforms to lead us to a place that we might subsequently regret and which could lead to injustices or damage to British interests through loss of innovation or inward investment.
I listened very carefully to what the noble Lord, Lord Faulks, said. It seemed to boil down to very few things. Are convention rights engaged? They probably are, or if they are not then they will be. Even if they are not, the courts will find a way of getting them in eventually. If they are, what have the Government added? That is why I think I might be with the amenders here. I think very little, if anything at all, has been added. Was this a piece of window dressing, supplied by the Government to satisfy the intense lobbying that has taken place, particularly of No. 10? It had a whiff of that about it for me when I first saw it—I see one or two nods of assent. If it is, I am particularly wary of this change, which is what leads me to think that the amenders might be right. If it is more than this—if something very substantive has been added—then I think we would all like to hear from the Minister what exactly it is that, as a result of the adding of “proportionality”, will be considered for legal scrutiny when this Bill is on the statute book.
Lord Lansley (Con)
My Lords, I will briefly intervene. I have not signed the amendments but I am rather supportive of what the noble Lord, Lord Faulks, said in support of his amendment.
In thinking about this, among other thing I had the benefit of seeing a letter that the Parliamentary Under-Secretary at the department sent to my friends in another place, Robert Buckland and Damian Collins, after Report in the Commons; other noble Lords may have seen it. In that letter, he set out why he was building proportionality into Clause 19. He said:
“Our intention for this amendment is to allow a firm to appeal a decision by arguing that the DMU made public law errors in its consideration of proportionality under normal JR principles—without establishing that their rights under the European Convention on Human Rights are engaged”,
for example, the right to peaceful enjoyment of possessions. So that would not bring convention rights on board. The letter continues: “For example”— it is always helpful to have an example—
“the firm could argue that the DMU failed to take a relevant consideration into account, made a material error of fact or otherwise acted unreasonably”—
so JR principles—
“when deciding against an intervention that would have been less burdensome on the firm while still achieving the same outcome”.
So the outcome has to be achieved, but is it proportionate to impose this particular conduct requirement or pro-competitive intervention?
Lord Kamall (Con)
My Lords, I have not put my name to these amendments but I want to speak in favour of Amendments 16, 17 and others in this group. After the first day of Committee, which I sat through without speaking, one noble Baroness came up to me and said I was unusually quiet—“unusually” being the key word there. When another noble Lord asked me why I sat through proceedings without saying a word, I said I had once been told about the principle that I should speak only if it improves the silence. Given the concern for my welfare shown by those two noble Members, I am about to violate that principle by making a few remarks and asking a couple of questions.
As this is the first time for me to speak in Committee, I refer noble Lords to my interests as set out in the register. These include being an unpaid member of the advisory board of Startup Coalition and a non-executive director for the Department for Business and Trade. I have also worked with a couple of think tanks and have written on regulation and competition policy, and I am a professor of politics and international relations at St Mary’s University. I mention that last role because in future interventions I will refer to some political science theories, but I assure noble Lords that I will try not to bore them. I am also a member of the Communications and Digital Committee.
I want to make only a short intervention on the amendments. Previous noble Lords made the point that we want to understand the Government’s intention behind deciding to change the word from “appropriate” to “proportionate”. I am grateful to my noble friend Lord Lansley for seeking to answer that question. I am not a lawyer, so I am very grateful to the noble Lord, Lord Faulks, for his intervention, which explained the legal context for “proportionate”. It has to be said, however, that at Second Reading I and a number of other noble Lords repeatedly asked the Minister to clarify and justify the change in wording. A satisfactory answer was not given, hence we see these amendments in Committee.
We could argue that this is an entirely appropriate response to what my noble friend said in Committee. Maybe the Government could argue that it was a proportionate response. It is a very simple question: can the Minister explain the reasons? Is it, as my noble friend Lord Lansley says, that there is something wider in “proportionate” than “appropriate”? Will the Government consider bringing forward an amendment that explains this—sort of “appropriate-plus”—to make sure that it is legally well understood? Can the Government assure us that it is not a loophole to allow more movement towards a merits appeal, as opposed to judicial review, which many of us have come to support?
I have some support for Amendment 222, in the name of my noble friend Lord Holmes, which seeks clarity on the appeal standards for financial penalties and countervailing benefits, but I know we will discuss these in a later group.
Lord Clement-Jones (LD)
My Lords, this has been a really interesting and helpful debate, with a number of noble Lords answering other noble Lords’ questions, which is always pretty useful when you are summing up at the end. One thing absolutely ties every speaker together: agreement with the letter to the Prime Minister from the noble Baroness, Lady Stowell, on behalf of her committee, about the need to retain the JR principle throughout the Bill. That is what we are striving to do.
It was extremely interesting to hear what the noble Lord, Lord Lansley, had to say. He answered the second half of the speech by the noble Lord, Lord Tyrie. I did not agree with the first half but the second was pretty good. The “whiff” that the noble Lord, Lord Tyrie, talked about was answered extremely well by the noble Lord, Lord Lansley. It was a direct hit.
The interesting aspect of all this is that the new better regulation framework that I heard the noble Lord, Lord Johnson, extolling from the heights in the Cholmondeley Room this afternoon includes a number of regulatory principles, including proportionality, but why not throw the whole kitchen sink at the Bill? Why is there proportionality in this respect? It was also really interesting to hear from the noble Lord, Lord Faulks, who unpacked very effectively the use of the proportionality principle. It looks as though there is an attempt to expand the way the principle is prayed in aid during a JR case. That seems fairly fundamental.
I hope that the Minister can give us assurance. We have a pincer movement here: there are a number of different ways of dealing with this, in amendments from the noble Lords, Lord Holmes and Lord Faulks, and the noble Baroness, Lady Stowell, but we are all aiming for the same end result. However we get there, we are all pretty determined to make sure that the word “proportionate” does not appear in the wrong place. In all the outside briefings we have had, from the Open Markets Institute, Foxglove and Which?, the language is all about unintended consequences and widening the scope of big tech firms to challenge. What the noble Lord, Lord Vaizey, had to say about stray words was pretty instructive. We do not want language in here which opens up these doors to further litigation. The debate on penalties is coming, but let us hold fast on this part of the Bill as much as we possibly can.
Lord Bassam of Brighton (Lab)
My Lords, I thank the noble Lord, Lord Faulks, for his neat and precise analysis of the position in which we find ourselves in the discussion on this group of amendments. This debate is a prequel to that which will follow on penalties, and we should see it in that light; the two things are very much connected, as the noble Lord, Lord Clement-Jones, made clear. Like him, I completely agreed with the noble Lord, Lord Vaizey, when he warned about using stray words. Proportionality is probably one of the most contested terms in law, and in all the 25 years or so that I have been in this House, I must have heard it in all the legal debates we have come across.
These are the first amendments seeking to restore some of the Bill’s original wording, which, as we have heard, was changed late in the day in the Commons. We are yet to receive a full explanation from the Minister of the reasons for that. The noble Lord, Lord Faulks, asked why, and we on these Benches pose the same question. Were Ministers lobbied into this and, if so, why? We support Amendments 16 and 53 in the name of the noble Lord, Lord Faulks, which, as he outlined, seek to restore the original wording of the Bill, taking out the word “proportionate”, removing proportionality as the determining factor behind a CMA pro-competition intervention and reinserting the word “appropriate”.
We have two, possibly three, sets of solutions to the problem that the Government have set. However, we also have added our names to Amendments 17 and 54, in the names of the noble Baronesses, Lady Stowell and Lady Harding, and the noble Lord, Lord Clement-Jones, with the intent of ensuring that clarifying that the condition for conduct requirements imposed by the CMA to be proportionate does not create that novel legal standard for appeals of decisions and the confusion that will flow from that. In our view, as the noble Baroness, Lady Harding, says, the original wording strikes the right balance, roughly speaking, whereas the Government’s version would weaken the intent of this part of the Bill.
The formulation of the noble Baroness, Lady Stowell, relies on prevailing public law standards—in other words, standards that are commonly understood. We take the view that we all need to know what rules we are working to, and if the Bill introduces or creates a new standard then that certainty is removed. Of course, when it comes to the issue of pre-emption, we will need to resolve the best way forward on this issue at the next stage of the Bill. For my part, I think that reversion might be the best route, but no doubt by negotiating round the Committee we can come up with a workable solution.
The amendments of the noble Lord, Lord Holmes, particularly Amendments 220 and 222, offer another way through it. However, on the face of it, for us they are useful in the context of reminding our Committee that guidance will need to be produced on the operation of this regime as it covers financial penalties and the countervailing benefits exemptions.
We have heard a lot about the new regime being flexible and participatory as a framework for regulation, and we agree with that principle. However, we think that, with this particular change, the Government strike at the heart of that and bring in a measure of uncertainty that is unwise, frankly, in this particular process. The intervention of the noble Lord, Lord Lansley, was very telling. What he told the Committee was extremely important and we should listen very carefully to what was said in that exchange of correspondence. He rather shot the Government’s fox.
In conclusion, the Minister has a bit of a difficult job on his hands here. He may feel the weight of the Committee against him. I rather hope that he can offer us a measure of reassurance and perhaps help us come to a point where the whole Committee can agree a sensible reversion or an amendment that makes the Bill as workable as it seemed when it was first drafted.
The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)
I thank the noble Lord, Lord Faulks, for raising the topic of proportionality in the digital markets regime and for doing so with such a clear and compelling analysis, which I think all of us, myself included, found deeply helpful. This is of course the requirement for the CMA to impose conduct requirements and pro-competition interventions on firms only where it is proportionate to do so.
First, I reassure my noble friend Lady Harding that this change is not about introducing a new standard or meaning of proportionality but about clarifying the scope of decisions that it applies to.
Amendments 16 and 53 from the noble Lord, Lord Faulks, seek to remove the explicit statutory requirement for PCIs and conduct requirements to be proportionate. Under these amendments, SMS firms would still be able to argue that their rights to peaceful enjoyment of property under Article 1 of the first protocol of the ECHR, or A1P1, were engaged in most cases, allowing them to appeal on the basis of proportionality. I refer noble Lords to the ECHR memorandum published by the department, which explains how the regime intersects with human rights and how this relates to property rights. A1P1 protects possessions, which can include enforceable rights such as contracts, and so regulating SMS firms under the regime would commonly affect possessions, and therefore engage A1P1.
The Government have always been clear that the CMA will need to act proportionately and comply with ECHR requirements, and that imposing obligations on SMS firms will very often engage the firm’s rights under A1P1. However, having a statutory requirement for proportionality in the Bill reinforces the Government’s expectations for how the CMA should design conduct requirements and PCIs, to place as little burden as possible on firms while still effectively addressing competition issues. This should be the case even when A1P1 property rights are not engaged, which this requirement provides for.
In particular, it is worth highlighting that A1P1 rights on their own would not amount to grounds to challenge interventions that impact a firm’s future contracts. It is right that these interventions should be proportionate. I understand the concern from many noble Lords about any extension to the grounds for appeal in the regime, but we are giving extensive new powers to the CMA to regulate digital markets.
Lord Lansley (Con)
Before we move away from this point, there was an interesting use of the word “reinforces”. Am I right in thinking that my noble friend is telling us that, if the original wording in the Bill were used and the word “appropriate” was there, it would none the less be his expectation that, in making decisions about conduct requirements or pro-competitive interventions, the CMA would in fact do so in a manner that was proportionate, because that is the appropriate way in which to make those decisions? Our worry is that by “reinforcing”, my noble friend is actually opening a door.
Viscount Camrose (Con)
I will go on to speak more about this. The intention of the Government in “reinforcing” is to bring clarity, particularly since, as I say, A1P1 is not universally applicable to these cases. It brings clarity, and therefore I hope that the effect will be as much closing the door as anything else.
Lord Faulks (Non-Afl)
The Minister has talked about A1P1 and the right to peaceful enjoyment of possessions. That may come into the analysis or it may not, but he has taken the view that it may not. If it does, then it is covered by the normal doctrines of judicial review, which include proportionality. If it does not, and he says it may not, why have proportionality in at all?
Viscount Camrose (Con)
I believe that, in most cases, A1P1 rights would be invoked, but there are cases where A1P1 would not necessarily be invoked, rare as those cases are. The intention of the Government is to treat all those cases in the same way. As I say, it is important that we also consider the safeguards around the new powers. Having an explicit requirement for proportionality, rather than just the implicit link to A1P1, sets a framework for the CMA as to how it must design and implement significant remedies. A proportionate approach to regulation supports a pro-innovation regulatory environment and investor confidence. I am also aware, of course, that later we are due to debate concerns noble Lords may have about the accountability of the CMA. Without pre-empting that debate, it is worth pointing out that setting out the requirement for proportionality explicitly will help ensure that the CMA uses its powers responsibly.
Lord Clement-Jones (LD)
This all sounds as though, really, the Minister should come clean and say that what he is trying to do is bring in merits by the back door.
Viscount Camrose (Con)
It is not my intention to bring in merits by the back door, nor is it my intention not to come clean, or to conceal from Members of this Committee any intentions of the Government. All this is about producing the clarity that we need to safely deliver the wide-ranging new powers of the CMA.
Lord Vaizey of Didcot (Con)
Can the Minister clarify for the Committee at some point, perhaps by letter, at what point the penny dropped within the department, with officials, that the word “proportionate” was necessary? If the word “proportionate” is removed, does this give the CMA permission to act disproportionately?
Viscount Camrose (Con)
I am happy to provide that information in the form of a letter, and I will leave it at that for now.
Lord Tyrie (Non-Afl)
Perhaps I could answer the question: the CMA never has scope to act disproportionately in law.
Viscount Camrose (Con)
In respect of my noble friend Lord Vaizey’s concern that proportionality will affect how the CAT conducts an appeal, the retention of judicial review in Clause 103 will still apply to the CAT, which will still have to conduct an appeal when a firm raises non-ECHR proportionality arguments in a JR style. It will not become a full merits appeal.
Amendments 33 and 52, from my noble friend Lord Holmes of Richmond, also remove the statutory requirement for proportionality but, in doing so, create greater impacts on the regime. Amendment 33 would remove the obligation on the CMA to set out, in its conduct requirement notice, the objective in relation to which it must consider proportionality. However, this is a key feature for setting a conduct requirement and it is important to include it in the notice for both the SMS firm and third parties.
Amendment 52, by removing Clause 46(1)(b), would reduce the Bill’s clarity that the primary objective of PCIs is to address competition problems. It is important that the Bill is clear on the objective that PCIs must pursue. Additionally, proportionality provisions will ensure that the CMA addresses its objectives without placing unnecessary burdens on firms and harming consumers.
I turn to my noble friend Lady Stowell’s Amendments 17 and 54. As she set out in her explanatory statement, these amendments seek to clarify that the use of “proportionate” does not create a novel legal standard. The amendment would state that it is defined in accordance with prevailing public law standards. Of course, I agree with her that it is important to be clear about what we expect from the CMA and concur with the spirit of her amendments. However, I hope my explanation of this provision as currently drafted will satisfy my noble friend’s concerns.
These amendments assume that there is a single public law definition of proportionality, when there is not. However, proportionality is also not a novel concept for either the CMA or the domestic courts to apply. There is domestic case law about how proportionality requirements have been interpreted. We expect that the CMA, the CAT and courts would follow the broad approach set out in the Bank Mellat 2 case, which considered proportionality in relation to the application of ECHR rights, as well as fundamental rights at common law. This is relevant when considering whether an infringement of a qualified ECHR right and/or a fundamental common-law right is justified. Noble Lords with an interest in this area will be familiar with the four-limb test set out by Lords Sumption and Reed. Previously, our domestic courts applied a separate, but broadly similar, test when considering proportionality under EU law.
In the event of an appeal against CMA interventions, it is the role of the courts to provide a definitive interpretation of the legislation, but they will likely give a certain amount of deference to the CMA as the expert regulator. When an intervention has engaged A1P1, there would be a clear link with the approach of the domestic courts to the ECHR proportionality requirements that I have already discussed. In the rare situation when an intervention did not engage A1P1, it seems logical that the courts would take an approach consistent with how they approach digital markets cases which do engage A1P1, although this could involve some modifications on a case-by-case basis.
The basic requirements of proportionality—that it balances private interests adversely affected against the public interests that the measure seeks to achieve—is well understood. As such, I hope my noble friend can appreciate that although I agree with the spirit of her amendments, in practice I do not believe they would provide the clarity they seek.
Amendments 220 and 222 from my noble friend Lord Holmes of Richmond would require the Secretary of State to publish guidance on how the appeals standard for financial penalties, proportionality and countervailing benefits exemption would operate. The amendments set out that the CMA could not impose conduct requirements, pro-competition interventions or financial penalties before this guidance was published.
I thank my noble friend for these amendments. He should be pleased to hear that the CMA will, as part of its approach to implementing the regime, produce guidance outlining its approach to delivering the regime before it is implemented. We expect this guidance to include the CMA’s approach to proportionality and the countervailing benefits exemption. The Secretary of State will have oversight of the CMA’s approach through the approval of that guidance. The Government feel that this approach strikes the right balance between maintaining the independence of the CMA and the CAT, and providing appropriate government oversight and clarity about how the regime will work. Suitable guidance will already be in place before the regime commences; as such, these amendments are not required.
I hope this has helped to address the concerns of the noble Lord, Lord Faulks, and my noble friends Lady Stowell of Beeston and Lord Holmes of Richmond, and that, as a consequence, they feel able to withdraw, or not to press, their amendments.
Lord Clement-Jones (LD)
My Lords, what harms does the Minister think the inclusion of “proportionate” is designed to prevent? What does he really think would happen if that word was not included in the Bill?
Viscount Camrose (Con)
As I said, for those cases where A1P1 cannot be engaged, they can be treated in the same way—equally proportionately to other cases under A1P1. In addition, it creates further clarity around the use of these extensive new powers for the firms that will be affected by their use. In addition, it creates another means for this newly powerful independent regulator to be held to account.
Lord Vaizey of Didcot (Con)
Forgive me for intervening to make what is more of a rhetorical point.
Lord Vaizey of Didcot (Con)
I want to get all the heckles out of the way; they have to be recorded in Hansard. I listened to the Minister’s explanation very carefully. He said that there is no single accepted definition of “proportionate”—that there are different definitions depending on case law and the common law. Is that not exactly what the problem is? The minute you put that word in the clause, you have, effectively, said that there are eight, seven or six definitions of proportionate. Guess what the platforms will do with that.
Lord Holmes of Richmond (Con)
May I build on that before my noble friend the Minister responds? What precisely was inappropriate about “appropriate”?
Lord Black of Brentwood (Con)
My Lords, this is not just to prevent the Minister getting up again; it is relevant to both points that have just been made. A number of noble Lords asked whether this huge volte-face by the Government between the publication of the Bill and the amendments made very late in the other place came about as a result of pressure from the platforms. Could he tell us whether the platforms lobbied for this change and whether he discussed it with them?
Lord Bassam of Brighton (Lab)
My Lords, if I might help the Minister, this legislation has been knocking around for some time now, so what was it that provided that blinding flash of official or ministerial inspiration to bring this amendment about “proportionate” so late in the day in the other place that it was tabled right at the end of the Commons process? What was it that was so compelling as to make that dramatic change?
Viscount Camrose (Con)
If noble Lords will forgive me; that was a large variety or questions. First, I can confirm right away that I have not received any lobbying from any big tech firms on this topic—none; zero. Secondly, as with any Bill, this was part of an ongoing pattern of constantly looking for means of improving the Bill, to maximise its clarity and effectiveness. I recognise the concern voiced by the Committee about this. I am very happy to set out in detail all the arguments I have attempted to make. I hope that will go some way further towards satisfying the Committee.
Lord Faulks (Non-Afl)
I am very grateful to the Minister and all noble Lords who took part in this debate. I think it has raised a pretty fundamental point which runs through a number of different parts of this Bill. I do not know whether to take it personally, but I have not received any of this lobbying that so many other noble Lords received about this particular adjective and its use. My approach is simply to look at it as a lawyer with some experience of the way litigation actually works, and it seemed to me egregious in what it is doing, or at least at risk of doing.
The Minister did well to stick with his instructions that this was to provide clarity. I am afraid it does not do that. As I indicated when I was talking about self-defence, the whole problem with proportionality is that it is very much a question of fact. I might regard something as proportionate; someone else might regard it as disproportionate. It is far more difficult than the tests of rationality or Wednesbury unreasonableness, the tests that are normally used for judicial review, so it is a much lower bar.
On the question of A1P1, it is not usually the most common of the convention rights relied upon. To the man and woman in the street, the idea that Google or Apple have human rights is perhaps a little counter- intuitive. However, I accept that there are ingenious arguments to the effect that A1P1 may have a role to play, which I acknowledged in my opening remarks. However, the Minister accepted that there would be cases when the European convention is not engaged in the analysis, in which case why have proportionality at all? I am afraid I did not find his answer convincing.
I am most grateful to the noble Lord, Lord Lansley, for referring to the communications he had with the Parliamentary Under-Secretary, who, in the course of the communications, seemed to me to be guilty of a most spectacular own goal and reinforced all the fears which have been expressed around the Committee.
This is not paranoia on our part. We have not received sufficient reassurance for the reason for this change. Of course I concede that we expect regulators to act proportionately, but that is not the same as inserting the particular word “proportionate”, which carries such a heavy charge. If it does not mean anything, do not put it in. If it is put it, it is going to be absolute catnip for the courts and judges. It will give them a chance to examine these decisions in a wholly broader perspective.
Grateful though I am to the Minister, I feel it is almost inevitable that we will return to this on Report. I beg leave to withdraw.
Lord Clement-Jones
“(ba) provide a means of payment within the platform in a way that offers consumer protection from goods and services disputes.” Member's explanatory statement
This amendment would allow the CMA to require online marketplaces to provide consumers with a more secure way of paying for goods or services, with a means of recourse in the case that something goes wrong.
Lord Clement-Jones (LD)
My Lords, let us go back to the calmer waters of Clause 20. In moving Amendment 18A, I look forward to hearing what the noble Lord, Lord Lansley, has to say about his Amendment 31, which I have signed as well.
It seems that 75% of purchase scams originate from social media platforms. They often occur when consumers go to digital marketplaces, such as Facebook Marketplace, and try to buy goods from their peers which never arrive. Such scams cost consumers over £40 million in the first half of 2023 alone, and they seem to be on the rise. Currently, many consumers purchasing on peer-to-peer marketplaces have no access to secure payment providers that offer protections in the event that their purchase never arrives. Some marketplaces, such as Vinted and eBay, have integrated with secure providers, but despite many experts stating that these integrations will protect consumers and keep money out of the hands of criminals, adoption is still patchy across major marketplaces.
Building on voluntary commitments made in the recent Online Fraud Charter, this amendment would empower the CMA to require these marketplaces to provide consumers with a way to pay on these platforms that offers protection when things go wrong, such as when goods and services do not arrive as described, provided that these marketplaces are identified by the CMA as designated undertakings which have strategic market status. This would also be a good step in protecting consumers transacting online. Some payment services, such as PayPal or Stripe, do offer consumers protection when things go awry.
Such an amendment would also have a secondary impact: marketplaces would be better incentivised to vet sellers to ensure that they are able to meet the risk-management expectations of the commercial partners that offer secure payment services. For the avoidance of doubt, this amendment does not propose that designated marketplaces use any specific provider of secure payment services. Clause 20 sets out an exhaustive list of permitted types of conduct requirements that may be applied to designated undertakings. This amendment would confer power on the CMA to impose conduct requirements that protect consumers buying goods on peer-to-peer marketplaces identified as designated undertakings with strategic market status. I hope very much that the Minister will give this suggestion serious consideration.
Lord Lansley (Con)
My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for introducing Amendment 18A. On Monday, in the previous day of Committee, we looked at the list of conduct requirements—both the obligations placed on designated undertakings and the capacity to set conduct requirements preventing designated undertakings doing certain things. The noble Lord is asking whether we have covered the ground sufficiently, and so am I.
In Amendment 31, I come at it from the position that I took in earlier amendments, but I wanted to separate this out because it is in a different case. The train of thought is the same: to look at the detailed obligations included in the EU’s Digital Markets Act and to say that we are approaching it in what I hope is a better way that sets broader, more flexible definitions and looks to see how they will be implemented in detail by the Digital Markets Unit. That is fine; I am okay with that, but we need to be sure that the powers are there. For example, Amendment 18A is about whether the requirement to trade on fair and reasonable terms in Clause 20 comprises this power. It is a simple question: would it be possible for such conduct requirements to be included by the DMU under that heading?
Mine is a different one. In paragraph (6) of Article 5 of the Digital Markets Act, the European Union sets an obligation for gatekeepers—that is, its comparable reference to designated undertaking; in this sense it is dealing with platforms—that:
“The gatekeeper shall not directly or indirectly prevent or restrict business users or end users from raising any issue of non-compliance with the relevant Union or national law by the gatekeeper with any relevant public authority, including national courts, related to any practice of the gatekeeper”.
For our purposes, I have rendered that in the amendment as something slightly simpler in our language—that is to say, that an obligation may be placed on designated undertakings that they shall not seek
“directly or indirectly to prevent or restrict users or potential users of the relevant digital activity from raising issues of non-compliance with any conduct requirements with any relevant public authority”.
It is not just the CMA, of course; there may be others involved, such as the Information Commissioner and other public authorities.
For this purpose, I looked at the conduct requirements laid out in Clause 20 to find where this might be covered. I do not think it is covered by the material about complaints handling processes. This is not about whether you can make a complaint to the designated undertaking; this is about whether one is subject to the provision, as a user or potential user, such as an app seeking to complain about the non-compliance of a designated undertaking to the Digital Markets Unit. That is not the same as having a complaints process in place.
Do we think this could happen? Noble Lords will make their own judgments about that. All I am assuming is based on the fact that, for example, in April 2021, in the Judiciary Committee hearings on competition in app stores in the US Senate, Senator Klobuchar said, to paraphrase, that a lot of providers of apps were afraid to testify. They felt that it was going to hurt their business and they were going to get intimidated. So I am not having to invent the proposition that there may be a degree of intimidation between the providers of apps, for example, and the platforms that they wish to use.
In a sense, we do not actually need to know that it is happening to know that we should give the power to the Competition and Markets Authority to set conduct requirements as and when necessary to prevent such a thing happening. I do not think that it is comprised within the existing text of Clause 20.
I hope that my noble friend will take this one away, with a view to thinking positively about whether it is required to be added to the conduct requirements in Clause 20 at Report.
Lord Stevenson of Balmacara (Lab)
I am grateful to the noble Lords, Lord Clement-Jones and Lord Lansley, for raising this point. Clause 20 is very important, as has been mentioned, as it puts flesh on the bones of what we have been talking about for most of the first and half of the second day in Committee—which is whether we have in place the ability to deal with the important firms likely to be designated as SMS and the challenger firms. We have said before, and I am sure that we will repeat it, that this is a very innovative approach to regulating. We are very much trusting those who are appointed to take this forward with a great deal of power and not a lot of overarching scrutiny —or, if it is, it will be retrospective and not prospective.
Therefore, we have to understand that the CMA must have the ability to do all this and have the range of functions that are important. The noble Lord, Lord Clement- Jones, raised one in particular—a very important one to consumers—around seeing on the internet the goods of your dreams and then finding a payment system that siphons your money away but does not deliver the goods; that is not a palliative one for any Government to propose. I hope that the Minister has some reassuring words about the points raised by the noble Lord.
I had to read the amendment proposed by the noble Lord, Lord Lansley, three or four times to understand what he was getting at, so I am very grateful to him for his brief introduction. It was only on this occasion; normally, he is as a lucid as we would wish—and sometimes as pellucid. He raises a very subtle question about whether the measures that are not sufficiently exposed here will cover the question of those who have innovative lawyers thinking about ways in which they can avoid some of the very broad measures in Clause 20.
Viscount Camrose (Con)
I thank the noble Lord, Lord Clement-Jones, and my noble friend Lord Lansley for bringing these important amendments. It is enormously valuable and important to kick the tyres of Clause 20 and understand or assure ourselves that it works.
Amendment 18A, tabled by the noble Lord, Lord Clement-Jones, would create a new permitted type of conduct requirement, allowing the CMA to require an SMS firm to provide users with a way to pay for products and services that would provide consumer protection. I thank him for the amendment; it highlights the vital issue of ensuring that consumers are protected when using online marketplaces.
We feel that conduct requirements are already able to require that SMS firms have effective processes for handling complaints by and disputes with users or potential users. This will allow the CMA to intervene when competition issues arise in this area. My noble friend Lord Offord will be talking to the consumer provisions in Part 4 in a later sitting, and I will not tread on his toes here. However, those provisions put it beyond doubt that, where platforms promote or facilitate consumer transactions, they must act with professional diligence, in addition to more specific duties such as refraining from misleading omissions or actions or aggressive practices.
We recognise that public understanding of the requirements of professional diligence could be clearer, and we recently consulted on how price transparency and product information for consumers can be improved. The Government’s response to that consultation was published this morning, and, in the light of this, we will be undertaking further work with stakeholders to ensure that platforms’ obligations to consumers are more widely and easily understood. I would of course welcome the noble Lord’s input during that process.
Amendment 31, tabled by my noble friend Lord Lansley proposes to add a new permitted type of conduct requirement to deal with the issue of SMS firms attempting to stop third parties raising possible non-compliance with the CMA. I thank my noble friend for tabling this amendment and highlighting the importance of this issue, on which I have also received representation from affected firms.
Alongside information gathered through its own monitoring, the CMA will rely on information from third parties that will have direct knowledge of market conditions. It is therefore crucial that third parties have the confidence to speak to the regulator. I can provide assurances that the CMA will have strong powers to tackle discriminatory or unfair behaviour seeking to frustrate the regime or interfere with enforcement, where it occurs within the scope of a designated activity. Both conduct requirements and PCIs will be available to combat such behaviour, supported by the usual robust enforcement powers and penalties. I draw my noble friend’s attention specifically to Clause 20(3)(a), which, in addition to the conduct requirement
“on fair and reasonable terms”
in Clause 20(2)(a), can be used where relevant.
The CMA will also be able to intervene outside the designated activity, but not in an unconstrained way: it can use conduct requirements to prevent leveraging, or a PCI to address an adverse effect on competition in a designated activity.
Input from third parties will be crucial in ensuring the success of this regime. However, some stakeholders may have concerns about sharing information or experiences for fear of retaliation. The CMA has well- established processes for handling information and maintaining the anonymity of those providing evidence, whether informally or as part of an investigation. Recognising the importance of engagement, the CMA has also announced plans to expand this approach; for example, by establishing representative panels—one for consumers and civil society, and one for businesses and investors. This will facilitate input from third parties, which in turn will support the design and implementation of interventions.
I therefore hope that the noble Lord will feel able to withdraw his amendment.
Lord Stevenson of Balmacara (Lab)
The Minister mentioned in his address—I was grateful to him for doing so—that there was a recent announcement from the department about sneaky hidden fees or drip prices that are unavoidable, and the press report that I am reading says that they will be banned. Does not this bear directly on points made during this debate, and in particular on Clause 20? Does this mean that the Minister will bring forward amendments at a later stage?
Viscount Camrose (Con)
My preference would be to consider so doing once the Committee has had a chance to debate later sections of the Bill which go directly to consumers.
Lord Clement-Jones (LD)
My Lords, I think there is quite a lot of meat in what the Minister said just now, both in respect of the amendment in the name of the noble Lord, Lord Lansley, and my amendment.
I appreciate that we have a set of moving parts here, including the response to the consultation on smarter regulation, improving consumer price transparency and product information for consumers, which came out this morning.
The answer to the noble Lord, Lord Stevenson, was quite interesting. However, if what the Minister said about the conduct requirements in Clause 20 is to be put into effect, I suggest that he has to bring forward amendments on Report which reflect the response to the consultation. I do not think this can be done just as a sort of consumer protection at the back end of the Bill; it has to be about corporate conduct, and at the Clause 20 end of the Bill.
Obviously, we will all read the words of the Minister very carefully in Hansard. It is interesting. I have written down: “Why are we kicking the tyres on Clause 20?” As the noble Lord, Lord Stevenson, said, this is absolutely central to the Bill. Basically, it could not be more important; getting this clause right from the outset will be so important. This is why not only we but the CMA will be poring over this, to make sure that this wording absolutely gives it the powers that it needs.
I take the point of the noble Lord, Lord Stevenson. These are very important powers, and we have to make sure that they are used properly, but also, as the noble Lord, Lord Lansley, said, that the powers are there. Otherwise, what are we spending our time here in Committee doing, if we are going to put forward a Bill that is not fit for purpose? We have to make sure that we have those powers. I like what the Minister had to say in reference to the Clause 20(3)(a) provision. Again, when people look at Pepper v Hart and so on, that will be an important statement at the end of the day.
We have certainly managed to elicit quite a useful response from the Minister, but we want more. We want amendments coming down the track on Report which reflect some of the undertakings in the response to the consultation on consumer price transparency and product information for consumers.
The only other thing to say—exactly as the noble Lord, Lord Stevenson, has said—is that comments about the consultation are that it was half a loaf. There is a whole lot more to be said on drip pricing. We have a discussion coming down the track on that, and we will reserve our fire until then.
Lord Lansley (Con)
As I understood it, Clause 20(3)(a) is about discrimination between users; it is not about trying to stop any user of a platform going to the CMA to complain about non-compliance or other conduct requirements—or indeed that conduct requirement. I will happily look at what my noble friend said and hope that it meets the test of the kicking of the tyres. If it does not, we may have to return to this.
Lord Clement-Jones (LD)
My Lords, that is a useful warning that we need to read Hansard extremely carefully to see what the Minister thinks the scope of that really is and whether it covers the point that the noble Lord, Lord Lansley, has made.
This is a continuing discussion and, in the meantime, I beg leave to withdraw my amendment.
“(2) The CMA may have regard to any significant benefits to users or potential users that the CMA considers have resulted, or may be expected to result, from a factor or combination of factors resulting from a breach of a conduct requirement.”Member's explanatory statement
This amendment would ensure that the CMA considers any significant benefits to users resulting from the breach of a Conduct Requirement when it is considering representations from designated undertakings as part of a Conduct Investigation.
Baroness Jones of Whitchurch (Lab)
My Lords, in moving this amendment I will also speak to Amendments 39, 40 and 48 and the Clause 29 stand part notice, all in my name. I thank all noble Lords who have added their names.
These amendments follow on from our earlier debate about the proportionality of the CMA’s judgments and our desire across the Room not to create unforeseen legal loopholes. They address the new wording in Clause 29, which the Government introduced at a late stage in the Commons. They also address the countervailing benefit exemption, in which companies can argue that their conduct gives rise to benefits to consumers that outweigh the detrimental impact of competition that their conduct would otherwise breach. This clause then goes further and makes it clear that the CMA “must” close a conduct investigation in these circumstances.
Viscount Colville of Culross (CB)
My Lords, I have put my name to Amendment 48 in the name of the noble Baroness, Lady Jones of Whitchurch, and I support dropping Clause 29 from the Bill.
These amendments are also about speeding up the process of stopping anti-competitive behaviour by the tech companies. It is essential that no hostages to fortune are given for tech company lawyers to drag out the process, as many noble Lords said, particularly in the first group.
I want noble Lords to bear in mind that, for every big tech company, every week they succeed in delaying a decision against their anti-competitive practices is one in which they earn millions of pounds, while their competitors are left struggling in so many areas. Speed is of the essence.
As a former newspaper journalist, my most immediate field of concern is local and regional media, which are suffering from the anti-competitive behaviour of the tech companies. There has been a collapse in local newspapers over the past decade and in the next three years this will turn in to a major exodus, with huge areas of the country becoming local news deserts with nobody reporting on local councils, courts and other important civic activities.
The Digital Markets Taskforce study on digital advertising found that the tech companies had used network effects and economies of scale to dominate the market. It concluded that the “more vibrant competition” in the market would improve
“the bargaining power of online news publishers”,
which would
“improve the health and sustainability of journalism in the UK”.
In turn, this would
“contribute positively to the effectiveness and integrity of our democracy”.
On top of this, much of the news content generated by these media companies is used by tech platforms either for free or for little remuneration.
I have long campaigned for the final offer mechanism to be available to the CMA as a powerful deterrent against anti-competitive behaviour by the tech companies, but surely all deterrents are more effective if there is a realistic chance that they will be deployed, and in a short time. Once the CR requirements on an SMS have been imposed, breached and reported, the CMA should be in a good position to know whether the designated SMS company will take the long or short road to a solution. Amendment 48 would allow the CMA to issue an enforcement order, decide whether that has been breached and investigate the breach, if it feels that it will lead to a satisfactory resolution to the company’s behaviour. However, if, earlier in the process, the solution is not going to be possible, the regulator needs the power to bring forward its ultimate deterrent. No SMS will want to have the final offer mechanism imposed on it, and I understand that the CMA is equally reluctant to deploy it, but the more pressing the threat the more likely it is that the DMU investigation will be brought to a quick and effective resolution.
I know that these companies will fight tooth and nail to preserve their massive profits resulting from the anti-competitive behaviours. It might be useful for the Committee if I give just one really shocking example of how effective these delaying actions can be. The salutary lesson is the story of a nascent shopping comparison site, Foundem, based in London and founded in 2005, which was doing very well until 2008, when it was massively deprioritised on Google Search, at about the same time that Google Shopping, the search engine’s own shopping comparison site, was set up. Foundem issued a complaint to the EU Commission in 2009 about anti-competitive behaviour by Google. The Commission set up an investigation and, three years later, after many legal arguments, Google was given a preliminary assessment—similar, I imagine, to an SMS designation. Rules were then laid down for the company to follow, but within six months market tests revealed that it was not tackling the anti-competitive behaviour. The response was dragged out by Google until 2016, when it was given a supplementary statement of objectives, which were also heavily fought by the search engine.
Finally, on 27 June 2017, the EU imposed a record €2.4 billion fine on Google for violating EU competition law. However, the company appealed, first to the EU General Court and then to the Court of Justice of the European Union. Final judgment on the case has yet to be issued. Meanwhile, Foundem exists in order to fight the case, but it suspended all its services eight years ago. This is a 15-year David-versus-Goliath battle with a company, some of whose activities CMA might have to designate. This legislation must be drafted to ensure that the process brings results, and fast, if small digital competitors are to have a chance of surviving.
Already the CMA estimates that the designation process will not become operational until June 2025. I know that the hope is to set up a designation process at the same time as negotiating the conduct requirements, but that could still take up to nine months to implement on the SMSs. Meanwhile, many of the smaller media outlets I talked about earlier will have gone under.
The same arguments for legal delay by tech companies must apply to Clause 29, which introduces the concept of countervailing benefits. I do not understand the need for Clause 29. Clearly, the balance between consumer benefit and anti-competitive behaviour will have been looked at as part of the SMS designation process, which is clearly set out in the Bill. Does the Minister think that our world-class regulator will ignore these considerations in the initial process? If they will be considered then, why introduce this clause for consideration all over again? I have already explained the need for speed in the CMA’s process. This exemption can only play into the hands of the tech companies to draw out the processes and hold up the prospect of many more companies like the start-up shopping search website Foundem being littered by the digital wayside. I ask the Government to seriously consider taking Clause 29 out of the Bill.
However, I support the fallback in Amendment 40, to have the word “indispensable” inserted into the clause. Your Lordships’ Committee has heard that “indispensable” was taken out on Report in the other place. The Minister has said that the simple threshold of “benefit” is already established in Section 9 of the Competition Act 1998 and Section 134(7) of the Enterprise Act. However, the former talks of an “indispensable benefit” and the latter just of a “benefit”. The Minister says that the two thresholds are the same; clearly, they are not.
The new definition of the grounds on which anti-competitive conduct can be permitted states that
“those benefits could not be realised without the conduct”.
It requires only that anti-competitive conduct be necessary, rather than indispensable, which means that anti-competitive behaviour is the only way to achieve the benefit. Surely, if that is the case, it would be better for the consumer, in whose name the Bill is being enacted, to have the highest possible threshold of benefit.
The Explanatory Notes open up avenues for further legal wrangling by lawyers, as they say the definition of benefit will be similar to that in the Competition Act and the Enterprise Act. As the two Acts use “benefit” in different ways, that will surely lead to confusion. Is the use of the word “similar” because it is not possible to say “same”, in the light of the divergent terms that appear in these two Acts? Without it, there seems to be room for legal ambiguity. At the very least, there should be an explanation in the Bill that establishes “benefits” as having the same definition as in the Competition Act.
I know that all noble Lords want the Bill to be implemented and effective with all possible speed, to make this country a world leader in digital start-ups. However, it needs to be amended to avoid legal confusion and unnecessary delay by world players that have everything to gain from protecting their dominant position in markets.
Lord Fox (LD)
My Lords, on the pretext that he would not be here, my noble friend passed responsibility for this group on to me. As noble Lords can see, he is “not” here. This is a long group and my noble friend managed to attach his name to every amendment in it, with the exception of the two proposed by the Minister, so I apologise if I give a slightly long speech on his behalf.
I spoke at Second Reading, but I was not here for the first day in Committee, as I was in the Chamber speaking to the main business there. My noble friend has tabled Amendments 38 and 41, on countervailing benefits; Amendment 43, on goods and services; Amendments 49, 50 and 51, on final offers; and Amendment 107, on injunctions. He also supports Amendments 36, 39 and 40 from the noble Baroness, Lady Jones, which seek to restore the status quo of Clause 29.
In Clause 29, as we know, there is an overarching provision that enables SMS designated firms to push back on regulatory decisions through a countervailing benefits exemption. This is, in our opinion, a potential legal loophole for big tech to challenge conduct requirements through lengthy, tactical legal challenges. We just heard an example of how similar measures can be employed. This is a significant loophole, not a small one, and it would require the CMA to close a conduct investigation into a breach of conduct requirement when an SMS firm is able to prove that the anti-competitive conduct in question produces benefits which supposedly outweigh the harms, and that the conduct is “proportionate”—that word again—to the realisation of those benefits. It has the potential to tie up CMA resources and frustrate the intent of the legislation. It is critical that these provisions do not inadvertently give designated firms immunity from CMA decisions. We heard from other speakers that the scale of resources at the command of these companies far outweighs the resources that the CMA would be capable of summoning. That inevitably leads to the ability to clog things up.
As the noble Baroness, Lady Jones, explained, the Government added amendments to the Bill on Report in the Commons that could further weaken the ability of the DMU to push back against spurious claims of consumer benefit. The removal of the term “indispensable” may weaken the regulator’s ability to rebuff these claims as, by analogy with competition law, the use of the term “indispensable” is likely to require a high standard for firms to meet; therefore, the standard is now lower.
Lord Black of Brentwood (Con)
We are all delighted that he is in fact here. I support Amendment 48 in the name of the noble Baroness, Lady Jones of Whitchurch, to which I have added my name.
The final offer mechanism is a crucial part of the Bill; it is the engine that makes it all work. In an ideal world, of course, it ought never to be deployed because the platforms would see the light of day and enter into sensible agreements with publishers. It should be a last resort only where common sense has failed. But this last resort is—like a deterrent—credible as an incentive to negotiate only if it can be deployed throughout the process of negotiation, not at some far distant point in the future. If it is something so far off that the platforms and publishers believe it will never in reality be reached, publishers will be compelled, out of commercial necessity, to accept suboptimal deals from SMS firms, in some cases—I think in particular of the local and regional press—simply to survive. As the Bill is currently drafted, that is exactly what might happen. The noble Viscount, Lord Colville, talked passionately about that aspect.
SMS firms that have time and money on their side—in the way that hard-pressed publishers do not—could very easily hold out until the very last minute of negotiations before the final offer mechanism is deployed. That ability continually to delay things simply reinforces the market power of the SMS firms and does nothing to redress the balance, which is what the Bill is supposed to be all about.
Such an extended nature of the enforcement process means that it could take years for the FOM to be reached if SMS firms are not acting in good faith—and, let us face it, that will happen. We need a system much closer to the Australian news media bargaining code, whereby strict timelines mean that every step combined—bargaining, mediation and final offer arbitration—would take just over six months. Of course, neither publisher nor platform wishes to end up in FOM unnecessarily. This amendment from the noble Baroness would make the FOM available at an earlier stage only if the CMA judged that its standard enforcement mechanisms would not be effective; for example, if an SMS firm had simply refused to enter negotiations. However, if the CMA judges that its standard enforcement mechanisms under Part 1 would be sufficient to ensure that deals are made swiftly, it could proceed with other remedies. This ensures that the FOM is a last resort but also a credible alternative.
Many publishers, particularly local and regional ones, as I have mentioned, are under the most severe commercial pressure. They simply cannot afford to wait to see the fruits of this Bill. Many more titles will have closed and some publishers may have gone under. In the interests of media plurality and local democracy, we need to get this right. As it stands, the Bill wills the ends but not the means.
Lord Holmes of Richmond (Con)
My Lords, I shall speak briefly to this group of amendments and particularly commend those in the name of the noble Baroness, Lady Jones.
There are key themes that inevitably run through deliberations across groups in Committee, and it seems that, this afternoon, a recurrent theme has understandably been that the Bill is certainly better as was than currently as is. A number of amendments make that point very firmly.
If the Bill does not address at every point necessary the whole question of asymmetry in the nature of the relationship between the parties in all these complex arrangements, there is precious little point in proceeding beyond this point. The whole nature of the relationship and the negotiations therein is framed by the asymmetry of power, of resources and of what can be brought to bear by each party to proceedings. Hence, in this set of amendments, while different approaches are taken, similar ends are sought.
I look forward to hearing the Minister’s response and, as the noble Lord, Lord Clement-Jones, is “not” here, I also look forward very much to him “not” intervening on the Minister.
Baroness Stowell of Beeston (Con)
My Lords, I support Amendments 39 and 40 in the name of the noble Baroness, Lady Jones, which are about countervailing benefits. I have added my name to them. Before I make my remarks about those amendments, it is worth noting that my noble friend Lord Black gave quite a compelling argument in support of Amendment 48, describing how it would not drive a coach and horses through what the Bill is trying to introduce by virtue of the final offer mechanism but would strengthen it further. I will be interested to hear what my noble friend the Minister has to say in reply to that.
In response to the debate on a previous group of amendments, my noble friend the Minister said that, by virtue of the process of parliamentary scrutiny, or just making laws, we should improve Bills, in the sense that the way in which they are first introduced to Parliament does not mean that they cannot be changed. He is absolutely right: doing our jobs should lead to stronger, better and more effective legislation.
In the few amendments I have tabled I have tried not to unpick what has already been changed in the Commons but to add clarification where I felt that the changes were going in the wrong direction. On the topic of countervailing benefits, I added my name to Amendments 39 and 40, which revert Clause 29 back to its original wording at the point of the Bill’s introduction to Parliament, because I could not think of another way to secure the important purpose of Clause 29.
If I may, I again return to the way in which the Communications and Digital Committee scrutinised the Bill when it was first introduced. Countervailing benefits was one of the topics that we identified as an area of contention. In the course of our hearings, we heard a range of views on this clause. As other noble Lords have voiced in this debate, some wanted to see Clause 29 removed and others wanted it strengthened. The committee found that it should remain as it was; that it did not need to be changed and should remain in the Bill. We noted that the countervailing benefits exemption is
“designed as a backstop rather than an initial enforcement measure: the CMA is expected to take consumer benefit into account throughout its work”.
In conclusion, we said that the exemption
“provides a proportionate backstop as long as the threshold for using it remains high. The Government should resist any changes that would lower the threshold”.
Contrary to those who argued either to take out Clause 29 or to raise its threshold even further, my view is that, as it stood, it was fair and proportionate. Some of the big tech firms did not like it at all, but we thought none the less that it was an appropriate measure. Therefore, it would be fair to all parties for us to revert to the original text.
Baroness Harding of Winscombe (Con)
My Lords, I, too, wish to speak to Amendments 39 and 40, to which I have added my name. First, it is worth dwelling briefly on what the countervailing benefits exemption is: quite a “get out of jail free” card. To be clear: the company in question will have been found to have SMS, conduct requirements will have been imposed and the company will have been found to be breaching them and be on its way to jail. The countervailing benefits exemption is a “get out of jail free” card because the benefits that the new product or functionality brings are so good that it is worth breaching this set of fundamental competition principles.
That exemption is a really powerful tool that gets you completely out of jail. It can also enable you to simply slow down the process by arguing that it should be used, even if you will not succeed in getting out of jail. The process of slowing down being sent to jail is also very powerful for the big tech firms. This is a big weapon in the Bill.
However, I can also make the case, as many of the tech companies did at our Select Committee—as my noble friend Lady Stowell just said—that the exemption is an important tool to have in the Bill because we do not want to live in a world where large monopolists are not encouraged to innovate at all. There is an argument that we need to find the Goldilocks spot, if noble Lords will forgive me mixing my metaphors. I sit on my noble friend’s committee and, as she said, we have heard from the companies that would like this removed and from the companies that would like it strengthened. I share her view that the Bill as introduced to the House of Commons got that spot just about right.
Does my noble friend the Minister think that the new wording, introduced at a late stage in the Commons, of
“could not be realised without the conduct”
is the same as “indispensable”, or does it set a higher or a lower threshold to be able to use the “get out of jail free” card? I do not think he is going to argue that it sets a higher threshold; I think it is either the same as or a lower threshold. If it is a lower threshold, why do we really think that we need to make it easier for people who are on their way to jail to get out? If it is the same then we are right back to where we were two hours ago. Why do we need to define something differently that is already well enshrined in law as “indispensable”?
Lord Lansley (Con)
My Lords, in my short contribution I will look at what Clause 29 adds and whether it is necessary. I suppose I am saying that I want to speak to whether Clause 29 should stand part. We might have to come back to that.
My starting point was Clause 19(10):
“Before imposing a conduct requirement … on a designated undertaking, the CMA must have regard in particular to the benefits for consumers”.
Unless I am missing something, that will include disbenefits, so the countervailing benefits form part of that consideration. I do not understand why it would not be the best drafting, or the best Explanatory Note, to say, “Under Clause 19, when the CMA is considering imposing a conduct requirement, it must have regard to any countervailing benefits of not imposing such a conduct requirement”.
That is the starting point but let us say, for the purpose of the argument, that Clause 29 is not really about the imposition of a conduct requirement in the first place but about what should happen when there is a conduct investigation. But there are more stages for the designated undertaking. When the CMA wants to impose a conduct requirement, it has to give a notice under Clause 21 and say what the benefits are. The undertaking can come along and say, “Well, we have countervailing benefits if you don’t do this”, so it is entirely open at that stage to raise the countervailing benefits clause. I do not know why it is called an exemption. It is not an exemption. There should not be an exemption from the regime; there should just be a balance: how is the consumer benefit to be maximised? Once that notice has been served, it is subject to a public consultation under Clause 24, and the undertaking can come along under Clause 24.
Let us say that all that has happened, and there is a potential breach of the conduct requirement, and the CMA initiates an investigation under Clause 26. When the CMA does that, it has to give the opportunity to make representations within a defined period. Even if the countervailing benefits have not been taken into account in the original activity, when a breach is considered the notice is issued and the undertaking can come along and say, “Well, actually, the consumer benefits are being delivered by this means, and it is necessary and indispensable”, or whatever word you use. We could include it, if necessary, in the guidance.
I do not think that we are quite finished, even then. Clause 27 requires that in the
“undertaking to which a conduct investigation relates … the CMA must consider any representations that the undertaking makes”.
We could have put it in there, because it has a right to make representations at that point.
After all these things, which get us to the point where it has been considered in the first place, considered in whether a notice of a breach should be issued, and considered in the notice for the conduct investigation, and been given the opportunity to make representations, why do we need another clause that says that there is this thing that is called a countervailing benefits exemption as distinct from, at each previous stage—and there are many of them—the benefits or disbenefits and potential consumer benefits from different requirements that are to be considered? Frankly, I do not see it—unless it is, as my noble friend said, that there is a “get out of jail free” card that can be played. If it can be played, it will be played, so I do not think that we should allow it to be played.
Lord Kamall (Con)
My Lords, I will speak to Amendments 36, 38, 39, 40 and 41. I have been trying to understand the reason for the current government position. One issue that I have thought about, and which I have written about in the past, is the notion of unintended consequences. Often a well-intended government intervention can make things worse. Many of you will remember the example of the Government of the 1990s introducing the dash to diesel, as it was supposed to be better for the environment—and, in response, we found that actually it made things worse. That is not to criticise the Government of the day, as it was well-intentioned, and many people supported the reduction of greenhouse gases.
One thing that I have thought about with regard to better law-making is how we ensure that there are safeguards in place for when there are negative unintended consequences. For that reason, I have some sympathy for considering whether the unintended consequence of a CMA decision could make things worse for consumers. However, like many noble Lords I am concerned that this is a massive loophole for large tech companies to continue to engage in anti-competitive behaviour or, as other noble Lords have said, slow down the process.
Having looked at the amendments and the Government’s position, I want to ask my noble friend the Minister a direct question. Could he explain what the Government mean by countervailing benefits and give some real examples, or hypothetical examples, of where consumers may be harmed by a pro-competitive intervention by the CMA? If that response convinces noble Lords, perhaps the Government could consider bringing forward an amendment based on Amendment 41 from the noble Lord, Lord Clement-Jones. I look forward to my noble friend the Minister’s response.
The Lord Bishop of Manchester
My Lords, I shall be extremely brief. When we debate in Grand Committee, it always strikes me that we do so in the Moses Room —Moses, the great giver of the law. However, the biblical characters that I am more thinking of today would be David fighting Goliath, because it seems to be that a lot of the conversation around this group of amendments is about how we create a proper balance between the large platforms and small entrepreneurial providers. My mother was a small businesswoman; she ran two record shops in the Greater Manchester area. We could have been put out of business very easily if somebody had been able to delay some anti-competitive business action against us. We also have the judgment of Solomon here; he was quick in his judgment—there were no lengthy processes that took for ever and a day. I tend to the view that the Bill, as it entered the House of Commons, was probably at about the sweet spot, but let us get this right so that Davids have a chance amid the Goliaths. And yes, I apologise for not declaring that interest—I am called David.
Viscount Camrose (Con)
As ever, I start by thanking all noble Lords who have spoken so powerfully in this group.
I turn first to the series of amendments on the countervailing benefits exemption. I start by addressing the proposal to remove Clause 29 as drafted, Amendment 36 from the noble Baroness, Lady Jones of Whitchurch, and Amendment 38 from the noble Lord, Lord Clement-Jones—in his absence.
Lord Fox (LD)
The Minister has already introduced a difference between the two. There is a difference between “there is no other reasonable or practicable way” and “indispensable”. They are not the same—they are not synonymous. If I have to prove that something is not practicable, that is not the same as indispensable. The Minister has absolutely proved the point.
Viscount Camrose (Con)
Again, in my opinion, the two sentences are indistinguishable in their meaning.
Baroness Stowell of Beeston (Con)
My Lords, one of the arguments that has been advanced—I did not make it in my remarks because I forgot—is that part of the problem with changing the word from “indispensable” to what is now in the Bill is that the current phrase has not been tested in the courts, whereas “indispensable” has. The argument that changing from “indispensable” to what we have now provides clarity is one that is really hard for people to accept, because the clarity it is providing is not, seemingly, in everyone’s interests. That is part of the problem here.
Viscount Colville of Culross (CB)
If “indispensable” and purely “benefit” are the same, why was the change made on Report in the Commons?
Baroness Kidron (CB)
I was really interested in the introduction of the word “unknown”. The noble Lord, Lord Lansley, set out all the different stages and interactions. Does it not incentivise the companies to call back information to this very last stage, and the whole need-for-speed issue then comes into play?
Viscount Camrose (Con)
I will revert first to the questions about the word “indispensable”. As I have said, the Government consulted very widely, and one of the findings of the consultation was that, for a variety of stakeholders, the word “indispensable” reduced the clarity of the legislation.
Baroness Harding of Winscombe (Con)
Before my noble friend answers that, can he shed some light on which stakeholders feel that this is unclear?
Viscount Camrose (Con)
I cannot give a full account of the individual stakeholders right now; I am happy to ask the department to clarify further in that area. My contention is that the effect of the two sentences are the same, with the new one being clearer than the old one. I am very happy to continue to look at that and listen to the arguments of noble Lords, but that is the position. Personally, when I look at the two sentences, I find it very difficult to discern any difference in meaning between them. As I say, I am very happy to receive further arguments on that.
With respect to the participative arrangements by which a decision is reached around, for example, a conduct requirement, during the period of conduct requirement design, and during the decision-making period, it is, as my noble friend Lord Lansley has stated, highly to be expected that firms will make representations about the consumer benefits of their product. During a breach investigation, on the other hand, later on in the process, a consumer benefits exemption can be used as a safeguard or defence against a finding of breach.
Sorry, but there were so many questions that I have completely lost track. Perhaps the noble Baroness, Lady Kidron, will restate her question.
Baroness Kidron (CB)
I think the Minister was in the middle of answering it and saying why something might be “unknown” right at the last.
Viscount Camrose (Con)
As many noble Lords in the debate have alluded to, we have to be clear that this is a fast-moving field, and we have to at least allow for the possibility that new technologies can provide new consumer benefits and that it is okay to argue that a new and emerging technology that was not part of the original consideration can be considered as part of the defence against a finding of breach. The fact that the intended meaning is intended to be clearer in the current drafting is aiming to provide greater certainty to all businesses while ensuring that consumers continue to get the best outcomes.
Amendment 41, from the noble Lord, Lord Clement-Jones, would change the current drafting of the countervailing benefits exemption in several ways that together are intended to ensure that the CMA is provided as soon as possible with information relating to an SMS firm’s intention to rely on the exemption. We agree with noble Lords who have spoken today that it is important that the exemption cannot be used to avoid or delay enforcement action. The conduct investigation will operate in parallel to the assessment of whether the exemption applies, meaning that the investigation deadline of six months is not affected by the exemption process. The regime has been designed to encourage an open dialogue between the CMA and SMS firms, helping to avoid delays, unintended consequences and surprises on all sides. Therefore, in many cases, if a firm intends to rely on the exemption, we anticipate that this will be clear to all parties from early on in the process.
Lord Fox (LD)
I appreciate what the Minister said. By “early on in the process” does he mean after the process has been instigated, or before? A lot of this information is needed in order to understand whether there needs to be a process in the first place. There is a chicken and an egg here, in that some of this information is up front before we get to actions and enforcement.
Viscount Camrose (Con)
Indeed. It is an important point. Right from the beginning of potential conduct requirement design or PCI design, it would be consulting very widely with all stakeholders, including SMS firms and tech challengers. As part of that consultation, consumer benefits would be expected to be stated, in what is designed to be a participative process on all sides. As I was saying, the CMA is required to consider consumer benefits early on, when setting conduct requirements. The SMS firms will therefore outline the consumer benefits associated with their conduct at that stage, long before a conduct investigation.
Finally, adding further evidential requirements risks overburdening the regulator with more documentation than necessary, and therefore potentially delaying any enforcement action. For the reasons I have set out, I hope the amendment will not be pressed.
I come now to the discussion on the powers of the CMA to enforce obligations where they have been breached by SMS firms. Amendment 43, from the noble Lord, Lord Clement-Jones, would provide the CMA with a power to impose an enforcement order requiring an SMS firm to offer fair and reasonable payment and non-payment terms to third parties for goods or services. I can confirm that, under Clause 19, the CMA already has the power to require a firm to offer fair and reasonable terms through conduct requirements, and, where these are breached, the CMA has power under Clause 31 to make an enforcement order obliging the firm to stop the breach. As such, this amendment would not give the CMA any additional powers and could risk a narrower reading of its powers by raising the question of why other types of orders are not mentioned.
Amendment 107, also from the noble Lord, Lord Clement-Jones, would allow the CMA to apply to the High Court where a firm was breaching, or attempting to breach, an obligation or one of the conduct requirement objectives set out in Clause 19(5). The objectives in Clause 19(5) are not intended to be binding on SMS firms. Their purpose is to guide the design of conduct requirements by the CMA. It would therefore not be appropriate for the CMA to find a firm in breach of these objectives.
However, I agree with the noble Lord, and others who have spoken today, that it is important that the regulator can respond quickly before irreversible harm results from SMS-firm conduct. Where urgent action is needed in relation to a suspected breach of conduct requirements, the CMA will have the power under Clause 32 to make an interim enforcement order before irreversible harm occurs. For PCIs, the CMA will be able to issue directions setting out specific steps that a firm must take to become compliant with a pro-competition order. Failures to comply with orders under either conduct requirements or PCIs can be enforced through robust penalties. There is also the possibility of affected persons applying to court to enforce relevant requirements, and to apply for injunctions under Clause 101.
Lord Fox (LD)
I appreciate the Minister giving way again and his answers. I am slightly confused; I either misheard or misunderstood, but did the Minister say that Clause 19(5) is, in essence, unenforceable by the CMA and is merely an advisory action?
Viscount Camrose (Con)
I said that the purpose of Clause 19(5) is to set the parameters for the design of conduct requirements by the CMA. Its purpose is to guide the CMA, not to bind the recipients of conduct requirements.
Amendment 48 from the noble Baroness, Lady Jones of Whitchurch, would allow the final offer mechanism tool to be used earlier in the enforcement process. The final offer mechanism is a backstop tool designed to incentivise sincere negotiations about fair and reasonable payment terms between the SMS firm and third parties. It is crucial that there is room for good faith negotiation where disputes arise from sincere differences of understanding rather than deliberate non-compliance. Overly shortening the enforcement process would greatly reduce these opportunities.
We recognise, however, that some stakeholders may be concerned about SMS firms frustrating the process and refusing to comply with these conduct requirements and any subsequent enforcement. Here, the CMA could seek to accelerate the stages before the final offer mechanism, making use of urgent deadlines for compliance with enforcement orders and significant financial penalties where appropriate, ensuring that parties will also not be able to drag their feet and delay the process. In addition, interim enforcement orders can be issued on a temporary basis during a conduct investigation, before a breach has been found. They could be used to prevent significant damage, such as a company going bust, to prevent conduct that would reduce effectiveness of future remedies or to protect the public interest. Our regime aims to tackle the far-reaching power of the most powerful tech firms.
I know that my noble friend Lord Black noted the Australian legislation. Our regime contrasts the Australian legislation in that it has been designed to protect businesses and consumers across the economy including, but not limited to, news publishers. Alongside the final offer mechanism, the DMU will have other powers to tackle unfair and unreasonable payment terms via conduct requirements, ensuring that the final offer mechanism will rarely, if ever, need to be used.
Amendments 49, 50 and 51 from the noble Lord, Lord Clement-Jones, would allow parties to submit further final offers if the CMA considers that the first were not fair and reasonable. The final offer mechanism involves a binary choice between the two final offers submitted by the parties. It is the finality of the process that creates such a strong incentive for the parties to submit fair and reasonable offers. An unreasonable offer only increases the likelihood of the CMA choosing the other party’s proposal.
Introducing scope for an additional round of bidding would undermine these incentives and would only serve to delay the securing of fair and reasonable terms for the third party. As a result, we hope, for the reasons set out, that the noble Lord feels able not to press these amendments.
Finally, this group includes two government amendments, which are both minor and technical in nature, relating to Clauses 38 and 117. These amendments clarify that digital content is included in the meaning of the phrase “goods or services” when used in Part 1 of the Bill, including when mentioned under the final offer mechanism. I hope that noble Lords will support these amendments.
Lord Kamall (Con)
I apologise—I should have maybe intervened earlier but I did not want to join the barrage, as it were. When my noble friend the Minister writes to us, as he inevitably will, I wonder whether he can help us to understand the Government’s position on countervailing benefits by outlining what they really mean by that and giving some real or hypothetical examples of where consumers may be harmed by a pro-competitive intervention by the CMA.
Viscount Camrose (Con)
Yes, indeed. I thank my noble friend for repeating the question and I apologise that I did not get to it earlier. I would be delighted to write and provide such examples.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank all noble Lords who spoke in support of our amendments. It is worth saying at the outset that it sounds like we are being very critical of the potential SMS firms. This is not about being critical but about getting the balance right. That is what we are aiming to do. A lot of the discussion that we have had in Committee today has been about feeling that that has become out of kilter. We are trying to get the very careful balance that the noble Baroness, Lady Stowell, talked about. Her committee felt, having agonised over it, that the original wording was about right. A lot of us feel that, which is why we are so anxious and testing of the changes that have come along more recently.
As we debated and identified in the previous discussion, the CMA already has a responsibility to act proportionately. This ought to apply to its judgments about countervailing benefits as well. The noble Baroness, Lady Stowell, said that it is designed as a backstop. It is important that the threshold remains high; that is one of the key issues.
The noble Lord, Lord Fox, said that because of the word “must”—that the CMA must desist if there are countervailing benefits—it becomes almost mandatory, so there will be no opportunities for the CMA to make balanced judgments. We agree that it is far too prescriptive.
I rather liked the canter through all the preceding clauses from the noble Lord, Lord Lansley, before he concluded: why do we need Clause 29, because all those provisions are already there? He made an important point about all of that.
I listened carefully to the Minister. He repeated what he said at Second Reading: that this clause on countervailing benefits is only to pick up new, unknown consumer benefits that have not been identified before. Try as I might, I have looked at the wording of Clause 29 and I do not see that it says that there. As the noble Baroness, Lady Kidron, quite rightly pointed out, as it is worded there is a danger that the SMS companies could hold back evidence to that last backstop and then start challenging at that point. It would then be very difficult for the challenger firms to come forward with different evidence. The current wording opens up a disturbing void.
We have had a really good discussion about whether the previous wording or the new wording maintains the high threshold. I think most of us remain unclear about that. I think it was the noble Baroness, Lady Harding, who said that this new wording has not been tested in the courts, so it gives us not more certainty but more uncertainty. That is the last thing that we want at this point.
The Minister said that this was put in partly because stakeholders were confused. I would push back and say that the Select Committee chaired by the noble Baroness, Lady Stowell, looked at this in a lot more detail than some of those stakeholders have and concluded that the original wording is clearer and more robust than anything he has come back with. I hope the Minister will take that point away. I do not think he was particularly convincing about why that new wording was necessary.
On Clause 48, I have considerable sympathy with the case made by the noble Lord, Lord Black, and very much support his arguments. We do not want companies to be put in a situation where they have to accept suboptimal deals because they are running out of time and money when, if we are not careful, it could take many years for the process to be completed.
The Minister tried to reassure us, because if there was an anxiety about the time we could have interim enforcement orders, for example. However, the difference is that the final offer mechanism is more of a collaborative process. When we met with representatives from the CMA, they said that that is how they like to work: they do not want to go to court, they want to reach collaborative agreements. I feel that that our Amendment 48 would allow some of that collaboration to work along the system before it gets to the final, final offer. Again, I am not convinced by the Minister’s response on all of that. We want to keep it out of court as much as we can but he is tying the hands of the CMA too much in the way this is worded at the moment.
I am sure I have not picked up all the points but I think the Minister gets the idea that he is not really taking us with him. I therefore hope that he will reflect on these issues again but, in the meantime, I beg leave to withdraw the amendment.
Lord Offord of Garvel
Member’s explanatory statement
This amendment ensures that transactions in which an undertaking uses goods or services of a third party have the potential to be subject to the final offer mechanism.
Lord Vaux of Harrowden
“(c) an undertaking which has received an SMS investigation notice in accordance with section 11(1), unless the initial SMS investigation has been closed in accordance with section 12 or an SMS decision notice has been given in accordance with section 14; and where such an undertaking is part of a group, any member of that group.”Member’s explanatory statement
This amendment would apply the merger reporting requirements to undertakings that are being investigated by the CMA as to whether they have strategic market status.
Lord Vaux of Harrowden (CB)
I hope that this group of amendments will not be as much of a marathon as the previous group—or indeed that performance from the Deputy Chairman. I start by apologising that I could not attend the first day in Committee, due to a combination of Avanti West Coast and Storm Isha. I would have liked to have spoken in support of amendments in the first group that day, and I entirely agree with what has been said about ensuring that we do not create opportunities for large tech firms to use their immense legal firepower to slow down the process of designating them as having strategic market status, and ensuring that the information and work already done by the CMA can be taken into account. It is fair to say that the same themes have continued today, and Amendment 59 is a continuation of them in a slightly different way.
As a number of noble Lords have already pointed out, we already know who the main strategic players are and that they are already abusing their strategic market positions, as the noble Lord, Lord Tyrie, said so clearly on day one. The noble Baroness, Lady Harding, described how the big tech players know that the regulation is coming, but they are walking backwards as slowly as they can. As she pointed out, we see that very clearly with the EU’s Digital Markets Act, in which so far every potential SMS-equivalent firm has challenged its designation through every stage of the courts that it can. So at best we are unlikely to see any SMS designations until well into 2025, and possibly much later, if they are able to spin out the process.
If I read the Bill correctly, there is actually only one immediate additional obligation that designation imposes on a company: a requirement to report possible mergers on a more enhanced basis than currently applies. But this obligation does not come into force until the SMS designation has been made.
As I said, we already know who the main players are. That is not just speculation—the CMA has already confirmed some of them in its previous work. As an example, in its Mobile Ecosystems market study report of June 2022, just a year and a bit ago, the CMA confirmed that both Apple and Google would meet the test of having strategic market status in the supply of mobile operating systems and the devices on which they are installed, in native app distribution, and in mobile browsers and browser engines. It is not speculation; we know who these people are. Why, then, would we want to wait for another year or more, allowing them to game the system during that period, before applying the enhanced merger reporting requirements on them?
Amendment 59 would apply the enhanced merger reporting requirement to companies that have been given notice that they are under SMS investigation, rather than having been designated. We do not have to wait until the designation has been made. We have heard already the fears that the large tech players will seek to spin the designation process out. Without Amendment 59, the large tech companies would have an additional incentive to game the system by deliberately prolonging the designation process so that they could complete a merger that would be reportable once designated but which is not reportable before the designation is made. I do not think that it is a good idea to give them further incentive to do that.
This is important. For much too long, the large tech companies have been able to entrench their market power through acquisitions with relative impunity. Very few have been passed to the CMA for investigation. In the 10 years to June 2023, according to Wikipedia—admittedly not the best source, but the only one I could find easily—Alphabet, the owner of Google, has completed at least 129 acquisitions, Apple 81 and Microsoft 110. In each case, that has happened across an extraordinarily wide area of activities. These big companies can afford to gamble on acquisitions, even if all they do is succeed in taking out a competitor, or potential competitor.
The enhanced merger reporting regime that this Bill will introduce is a really important step, and I very much welcome it, but we should ensure that it cannot be side-stepped by making it applicable as soon as a company has been informed that it is under SMS investigation. This does not prejudge the merits of any merger; it would simply allow the CMA to take a look while the SMS investigation is under way, rather than it going through under the radar.
I am sure that the Minister will argue that it would be unfair to apply the more stringent merger reporting rules to companies that have not yet been designated, but I do not believe that that is right. First, under Clause 9, the CMA is able to investigate an SMS firm only when it has reasonable grounds to consider that it may be able to designate an undertaking as having SMS. As previously pointed out, we know who those companies are, and we know that there are reasonable grounds for a lot of them that exist at the moment, as the CMA has already pointed out. More importantly, would not it be extraordinary if a merger that would meet the new threshold, and that therefore might impact the strategic status investigation itself, was not reported to the CMA during the investigation? That cannot make sense.
This is very simple: we know who the strategic players are, we know that they abuse their market power, including through mergers and acquisitions, and we know that they are likely to seek to challenge and prolong designation to avoid regulation—we have seen them do it. So let us at least put them under the enhanced merger reporting rules at the earliest opportunity, rather than leaving it for another couple of years.
Lord Lansley (Con)
My Lords, I am very glad to follow the noble Lord, Lord Vaux of Harrowden, who presented very well the context to both of these amendments and made a very good point about the desirability of extending the scope of Clause 57 in the way proposed in Amendment 59.
Amendment 60 stands in my name and that of the noble Lord, Lord Clement-Jones—who may be able to say something in his absence through the medium of the noble Lord, Lord Fox.
From my point of view, Amendment 60 goes back to the Furman review of 2019, which noble Lords will recall, which reflected a similar point to one that was made by the noble Lord, Lord Vaux of Harrowden. Paragraph 3.44 of the review referred to the preceding decade and said that in that preceding decade
“Amazon, Apple, Facebook, Google, and Microsoft … have made over 400 acquisitions globally”.
Under the Competition and Markets Authority in this country, in that decade none was blocked, none was notified voluntarily and none was called in for phase 1 or phase 2 investigation. There were European Commission investigations—and that might be regarded as the more appropriate umbrella as a competition authority—but it cleared Google and DoubleClick, Apple and Shazam, and Microsoft and LinkedIn. They were not blocked.
The world has moved on since Furman, and you might say that we have learned more and know more about some of the benefits that are obtained by some of those acquisitions. But the Furman review looked very carefully at whether we should regard mergers involving digital companies differently. That is, I suppose, my point.
I refer to paragraph 3.81 and subsequent paragraphs of the Furman review, which said:
“In mergers involving digital companies, the harms”—
the balance of benefits and disbenefits in relation to future competition—
“will often centre around the loss of potential competition”.
It goes on to say:
“Although potentially harmful to consumers, these outcomes are likely to be relatively uncertain at the time of the merger. This may make it hard to demonstrate that a substantial lessening of competition is more likely than not”.
I will come back to “substantial lessening of competition”, which will be a term familiar to many noble Lords. It gave the example, at this point, of the 2012 Facebook acquisition of Instagram, which at the time was a small photo-sharing platform. It said that even if the OFT had gone on from its phase 1 to a more thorough phase 2 investigation—which of course is more than a decade prior to the period it was looking at—it may have been limited in its ability to block the merger by the balance of probabilities standard: looking at a substantial lessening of competition, would it be more likely than not that there would be a substantial lessening of competition? We do not need to debate Facebook and Instagram and how it all turned out.
The Furman review said:
“The CMA should take more frequent and firmer action to challenge mergers that could be detrimental to consumer welfare through reducing future levels of innovation and competition, supported by changes to legislation where necessary”.
That was its strategic recommendation B. It went on to say, in a recommended action:
“Digital companies that have been designated with a strategic market status should be required to make the CMA aware of all intended acquisitions”.
That is indeed exactly what Clause 57 achieves. To that extent, the recommendations of the Furman review were carried through.
Interestingly, the Furman review went on to discuss the question of whether the balance of probabilities standard could be replaced by a balance of harms standard. I am not going to pursue that, because I can see that it was very difficult to vary a standard which is, in effect, not in the statute but is in the substance of the practice. What I have done instead, in Amendment 60, is to ask what it is that is lacking, or may be lacking, and should we, through the mechanism of the Bill, examine very carefully whether we can do more to strengthen the powers of the Competition and Markets Authority in relation to digital competition in particular.
Once there is a notification in relation to a potential merger, Clause 57(9) refers to the steps that the CMA may take in relation to a merger. It refers to Section 33 of the Enterprise Act 2002. It does not change it; it just refers to those steps. I have the benefit—I may not be the only one here, I am not quite sure—of having been on the Standing Committee in the other place on the Competition Act 1998 and the Enterprise Act 2002. I see that my noble friend was on the Standing Committee on the Enterprise Act—and maybe both.
We will come back to the issue, but I say to my noble friend the Minister, in parenthesis, referring to the previous debate, that trying to compare a block exemption under the Competition Act, which is ex post regulation, with an exemption applied in relation to an ex ante imposition of a conduct requirement by the regulator is, I am afraid, a false analogy. I will not go back to that, but I think it does not really apply.
What I have done in Amendment 60 is to seek to vary Section 33 of the Enterprise Act 2002—quite a big thing to do—but only in relation to designated undertakings. The amendment says that if one is a designated undertaking, not only does one have to notify but there is a difference in the structure of Section 33, so that where it says that a reference can be made in relation to
“(a) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and (b) the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services”,
I am seeking adding an “or”. So (a) would apply in all cases; (b) might apply; or (c ) would apply, which the amendment makes clear would say
“or, (c) if the relevant merger situation involves a designated undertaking under section 2 of the Digital Markets, Competition and Consumers Act 2024 the creation of that situation may be expected to result in the loss of future benefit to consumers in the provision of digital activities as a consequence of the forestalling of prospective competition”.
The drafting may be deficient, but I make the point that we need to put in the drafting what we are trying to do. That is to give the CMA explicit statutory cover to look forward—as it does in its five-year forward designation—identify a merger situation and ask, in the context of its forward-looking assessment, which it must do for designation purposes, whether there is an expectation that that merger situation would result in the loss of future benefit to consumers if it were brought into effect. That is a reasonable alignment between the nature of the designation process and its forward-looking character and the desirability of the assessment of any potential merger situation having the same characteristic.
Lord Fox (LD)
My Lords, clearly the noble Lord’s days on the standing committee were not wasted; we thank him for his incredibly cogent set of arguments. He has said some of what I was going to say, which is good, so I will not repeat it.
It is worth remembering that there is a point of scale here, and it is scale that creates the issue. Alphabet, Amazon, Microsoft, Meta and Apple, in 2022, together had revenues of nearly £400 billion. How did they get there? Of course, they had their initial offering and their services and were able to attract customers, but then there is the law of networks and then predatory acquisition. The two feed off each other; one boosts the other and gives the finances and so on. Predatory acquisitions add to the network scale, and the network scale then makes the offer.
As we have heard, there has been a huge number of such acquisitions—not mergers—across those platforms, and they have very much been part of the strategy for those businesses. Few, if any, were questioned in time because, in classic competition terms, the scale of one outweighed the significance of the other in the short term.
The noble Lord pulled out the question of the acquisition of Activision. That was a departure—it did not go to court, but it did lead to a different way of looking at an acquisition by Microsoft. It was interesting that the authorities in the EU and the US did not take the same view. It was notable that the CMA stood apart and made that decision. It is a small step, and one that will clearly need much more support in order for the aims of this Bill to be properly supported.
The Bill introduces a requirement for SMS firms to report mergers, which is a start. They have to meet criteria relating to share ownership, voting rights, relevance to the UK and transaction value. This will help ensure that problematic acquisitions by dominant tech firms do not fly under the radar, but the Bill does not give the regulator additional powers, as such, to intervene in those deals.
Existing merger control practice in the UK and elsewhere has struggled to grapple with tech acquisitions, which can appear relatively harmless in the present, as we have said, while resulting in serious competition, as was elegantly illustrated by the noble Lord, Lord Lansley. In the UK, the CMA can intervene in a merger only if it proves that the deal is “more likely than not” to result in a “substantial lessening of competition”. Of course, that was not tested with the Microsoft acquisition. To address this, the Bill should be amended to give the CMA greater scope to block or impose remedies on SMS acquisitions. The Bill should introduce a tougher merger control regime for acquisitions by SMS firms, in the sectors where they have been designated as SMS firms.
On that basis, we support both Amendment 59, in the name of the noble Lord, Lord Vaux, relating to where an investigation is ongoing, and Amendment 60, in the name of the noble Lord, Lord Lansley, to Clause 57. As we have heard, it would amend the merger regime in the Enterprise Act. We think that may be a way of reaching in and giving the powers that the CMA will obviously need.
Lord Tyrie (Non-Afl)
My Lords, I will be brief. I strongly support the intentions of this part of the Bill. What the Government are attempting to do must be right. Relative inaction on mergers by leading regulators around the world has contributed to the problems that we are now trying to address with the creation of the DMU. Killer acquisitions are a serious and enduring problem in this market.
My view is that the CMA, among other regulators, probably could and should have acted earlier. It is worth pausing for a moment to consider why it did not. One reason is a lack of boldness; a reluctance to take risks by taking action with its existing powers; a fear of losing. Although we are empowering it a good deal through the DMU, it is important to bear in mind that, unless we secure a change of mindset in the CMA, I am not sure that we will get the benefits that we are hoping for from this Bill—certainly not all of them.
A second reason why a good number of the big regulators did not intervene earlier derives from the intellectual history of the current legislation, which is similar all around the world. Over the last 30 years, in the post-Cold War world, almost all the major jurisdictions, and a lot of minor ones, put on the statute book very similar legislation. About 150 jurisdictions have done so, based on a set of ideas often summarised as the Chicago school, although it is rather a caricature, which believed that there would be no need for such an interventionist approach because it would be difficult for any platform to sustain for long a dominant position, and another technological change would supplant them. That may yet turn out to be the case, with AI and new generations of technology.
However, we now know that it has not been successful with the existing range of platforms; they have been around for a long time, and we have ample evidence of abuse of market position by some of them. That is why we need to qualify the Chicago school approach in our minds. We need the people who run our competition regulators to shed what may be a lifetime of acceptance of some of their reflexes in respect of these big deals. They should start to challenge far more, and be far less accepting of, the tenets of the Chicago school.
Perhaps I could summarise my position overall by saying that I am sympathetic to all the clauses that have been tabled, but Ministers will need to reassure us that their intentions for these clauses really will be delivered by what is in the Bill at the moment. I myself am not sure that it is enough. There may be merit in some or all of the amendments in achieving what the Government themselves say they want to do.
Baroness Harding of Winscombe (Con)
My Lords, I associate myself with the remarks just made by the noble Lord, Lord Tyrie, about recognising how important it is that we embolden the CMA to tackle these merger issues. I do not have anything like the expertise in detailed drafting that my noble friend Lord Lansley has just demonstrated, but I encourage the Government to listen carefully to his advice and review the drafting. We should see if we cannot come together with a solution on Report that achieves what I think we are all trying to achieve here.
I would also like to briefly correct the record. On Monday, as the noble Lord, Lord Vaux, said, I said that all the companies had appealed their designation of the DMA. Much to my amusement, Google was very swift to email me on Tuesday morning to tell me no, it was very keen to collaborate, so I would hate that to become a considered fact of this Committee—I owe Google that.
I support the amendment by the noble Lord, Lord Vaux, but I point out to the Committee that it is actually a very small amendment. The CMA told us in one of its briefings last week that it could undertake only two SMS investigations at any one time. We should recognise that it is a very minor amendment meaning that, while the CMA is investigating two entities, those two entities will be required to report. We should accept that that is a very small improvement that we should encourage the Government to accept.
Lord Bassam of Brighton (Lab)
My Lords, I am sure the Committee will be relieved to know that we do not have a great deal to say on this, except that we see merit in the amendments from both the noble Lords, Lord Vaux and Lord Lansley.
I thought the noble Lord, Lord Vaux, made a very good point: this is very simple. It is about providing and encouraging greater transparency in the merger process. It is straightforward in ensuring that all parties are aware of the status of the undertaking involved, and it brings clarity where the SMS is concerned.
It has to be regretted that companies might want to use mergers and acquisitions as a way of delaying SMS designation. As the noble Baroness, Lady Harding, has just said, there are delays enough in the process as it is. If the CMA is going to be able to do only two of these a year, there is hardly much reason to encourage more, greater and longer delays in the process.
The noble Lord, Lord Vaux, argued that designations could take until 2025 and delays will occur. With the sheer volume of acquisitions taking place, if companies are going to use that as a means of gaming the system then that cannot be right. It cannot be in consumers’ interests either.
I turn to the elegant amendment by the noble Lord, Lord Lansley. It seeks to ensure, where a designated undertaking is involved, that there is an assessment of the impact on consumers. The Minister has argued from the Dispatch Box that the legislation is designed by the Government to place the interests of consumers at the very front of this piece of working legislation. So, if a merger is likely to lead to a loss of benefit to consumers, it must therefore be right that market intelligence is shared, and we assume from our perspective on the Labour Benches that that must be a public good to be supported.
Viscount Camrose (Con)
I very much thank the noble Lords, Lord Vaux and Lord Fox, speaking on behalf of the noble Lord, Lord Clement-Jones, and my noble friend Lord Lansley for using these amendments to raise the very important and quite subtle issues of merger reporting and assessment in digital markets. I also thank the noble Lords, Lord Tyrie and Lord Bassam, and my noble friend Lady Harding for their thoughtful contributions.
Amendment 59, tabled by the noble Lord, Lord Vaux, would extend the duty to report possible mergers, provided for in Chapter 5 of Part 1, beyond firms designated with SMS to also include firms that are subject to a designation investigation. Firms can use anti-competitive mergers to further entrench their powerful market positions, especially in digital markets, where fast-acting damage to competition can be difficult or impossible to reverse. That is why SMS firms will be required to report certain possible mergers to the CMA before they complete. However—this may be a philosophical objection as much as anything else—it would not be proportionate or in keeping with the targeted and evidence-based approach of our regime to apply this duty to firms before the conclusion of a designation investigation.
I agree with the noble Lord, Lord Vaux, that firms under designation investigation may hold powerful positions in the market; some may even have been the subject of previous CMA scrutiny. Nevertheless, it is right that the duty to report should apply only once a firm has been found to have substantial and entrenched market power following a rigorous assessment and SMS designation. To reassure noble Lords, firms under SMS designation investigation will of course remain subject to the economy-wide merger regime. The CMA will be able to intervene where their mergers would harm competition in the UK.
Amendment 60 from my noble friend Lord Lansley—
Lord Vaux of Harrowden (CB)
Before the noble Viscount moves on to the next amendment, there seems to be a slight logical problem here, in the sense that presumably the new enhanced regime was set at the level it was because those mergers are felt to be significant for a strategic market status entity. If it were to do such a merger during an investigation, it would presumably impact potentially on whether the CMA believes that it meets the SMS, and therefore it must be important that the CMA is informed about acquisitions that could impact the investigation itself. It seems that there is a circularity here, but the noble Viscount has not addressed that.
Viscount Camrose (Con)
I do indeed recognise it. As I say, it is a difficult one because equally, one cannot treat undesignated firms as designated until the designation has taken place. I am very happy to carry on considering this with the noble Lord, because the point is a powerful and important one. Before moving on, I just point out that over the course of the necessary consultation activities, it would of course emerge that a firm was considering or evaluating a merger.
Lord Vaux of Harrowden (CB)
As somebody who spent most of his life doing mergers and acquisitions, I can say that they are not always made public.
Viscount Camrose (Con)
As I said, I am very happy to carry on with this; there is a sense of rounding up the usual suspects otherwise.
Amendment 60 from my noble friend Lord Lansley is intended to give the CMA jurisdiction to intervene in a merger when an SMS firm seeks to remove or absorb a smaller firm that could reasonably be expected to compete with it in future. I agree that it is important to ensure that the CMA can act against harmful mergers, including so-called killer acquisitions. I reassure my noble friend that the CMA can and does do so under the current legislative framework.
When reviewing a merger, the CMA can already consider whether it removes a potential future competitor. This can be seen in the Meta/Giphy case where, in its forward-looking assessment, the CMA found that the merger removed Giphy as a potential challenger and consequently ordered Meta to sell Giphy. The decision was upheld by the CAT, which I hope and think shows that the CMA has the necessary legislative cover.
It has been suggested that the CMA and other regulators have not scrutinised mergers by large digital firms enough in the past. However, since the Furman review, the CMA has undertaken a comprehensive review of its merger assessment guidelines and updated them in 2021 to ensure that they more clearly reflect the CMA’s current thinking and practice on digital markets, drawing on conclusions from expert reports, analysis and cases.
Lord Tyrie (Non-Afl)
Before the Minister leaves that point, and further to the discussion we have had about the importance of the CMA taking advantage of its powers, is he able to signal that he is sympathetic to the approach that the noble Baroness, Lady Stowell, will take later on with her proposal to give Parliament much greater powers of scrutiny of the CMA, to give us a better prospect that the CMA will continue with its more activist approach to dealing with these mergers? The risk for all of us is that there is a boost in activity for a period, with this legislation and the focus and attention that we all are giving this issue, but that, over time, the CMA slips back to the very comfort zone-oriented place it seemed to be in when it implemented a number of its statutory obligations in the past.
Viscount Camrose (Con)
I thank the noble Lord for raising that point. He has alluded a number of times during our conversations to ensuring that the working culture within the CMA is suitably postured to deal with a fast-moving regime. I can indicate that I certainly have sympathy with the intent of enhancing the accountability both to Parliament and government of the CMA—with this and other ends in mind, but to ensure that it remains assiduous in its identification of opportunities to intervene.
The Bill will enhance the CMA’s ability to act to prevent harmful mergers by SMS firms. The reporting requirement will improve the transparency of merger activity in digital markets. Additionally, Clause 127 in Part 2 and Schedule 4 will introduce a new acquirer-focused jurisdiction threshold, which provides an additional basis for the CMA to review mergers involving large firms, including SMS firms.
For these reasons, I hope that the noble Lords, Lord Vaux and Lord Clement-Jones, and my noble friend Lord Lansley will be reassured for the time being and not press their amendments.
Lord Vaux of Harrowden (CB)
My Lords, I thank all noble Lords who have taken part in this short but interesting debate. I should say that I forgot to thank the noble Lord, Lord Clement-Jones, who sadly really is not here at the moment, for supporting my amendment. He is here in the spirit of the noble Lord, Lord Fox.
We have heard some excellent points—in particular the description from the noble Lords, Lord Lansley, Lord Fox and Lord Tyrie, of how regulating acquisitions in this sector is difficult and challenging. It is a sector where even quite small and apparently insignificant acquisitions can end up having a really substantial impact; we had the description from the noble Lord, Lord Tyrie, of the change in culture that will be required at the CMA to deal with that. This is an area that the Government will have to continue thinking about. We might want to discuss this further between now and Report.
I am also grateful to the noble Baroness, Lady Harding, for correcting me on Google’s desire to co-operate with the competition authorities, which is obviously most welcome. I am grateful for her correction. She is also right that my Amendment 59 is a small one, but I think that it is important, and I very much welcome the Minister’s offer to discuss it further as the process goes on. On that basis, I beg leave to withdraw Amendment 59.
Viscount Camrose
Member’s explanatory statement
This amendment clarifies that this subsection is subject to Part 2 of the Criminal Justice and Police Act 2001 as that Part is amended by Clause 77.
Viscount Camrose (Con)
I shall speak to the amendments tabled in the name of my noble friend Lord Offord. The Government have put forward some amendments in this group to support clarity and enhance predictability. These amendments will make clear the conditions of the levy that will fund the new digital markets regime and improve consistency with information-handling under the regime.
Government Amendment 62 clarifies the safeguards that will apply to the CMA’s handling of legally privileged information when using its powers to seize information. Government Amendments 74 and 75 require the CMA to address payment of the levy in its rules—for example, setting out when levy payments are due. They also ensure that the CMA is able to charge interest on late payment of levy fees.
Amendment 78 prevents existing disclosure order restrictions in the Competition Act 1998 being undermined by limiting access to restricted information for private actions brought under the new digital markets regime. This amendment will ensure that sensitive information is dealt with consistently for private actions brought under the new digital markets regime and for breaches of the Competition Act 1998. The amendment extends the same effect of existing disclosure order restrictions. It will help to maintain the integrity of CMA investigations and ensure protections for information that the CMA receives from third parties. I hope, for the reasons I have set out, that noble Lords will support these government amendments.
I turn to Amendment 70, tabled by the noble and learned Lord, Lord Etherton, which would allow private actions relating to breaches of the digital markets regime to be brought on a collective basis in the Competition Appeal Tribunal. I thank him for his amendment, and I agree that it is vital that the CMA can take a clear lead in imposing and enforcing the requirements of the new regime. The CMA works on behalf of all consumers, so a CMA-led approach to enforcement will bring the greatest overall improvement in digital markets to the benefit of all.
It is right that harmed parties should be able to seek redress, which is why we have made explicit provision to bring private actions. However, there is the risk that lengthy and complex private litigation in the early years would create uncertainty and undermine the goals of the regime as a whole, with CMA resources diverted to engaging with lengthy private actions rather than reforming digital markets. As such, it is the Government’s position that it would not be helpful to introduce collective actions at this time.
Once again, I thank the noble and learned Lord for his amendment, but I hope he will feel able not to move it.
Lord Etherton (CB)
My Lords, I thank the Minister for his comments on Amendment 70 in my name. As he indicated, it would enable consumers to bring collective proceedings where there has been breach of requirements specified in Clause 101. The amendment would also require the Secretary of State to conduct a review to ascertain whether there are any other types of claim appropriate for collective proceedings.
Under current procedural rules of the court in England and Wales, there are very limited circumstances in which more than one person can bring proceedings, even though they may have suffered harm or loss from the same defective product or conduct. A single set of proceedings with multiple claimants could not be brought, for example, where the harm or loss was suffered on different occasions and in different circumstances. Representative proceedings—or class actions, as they are usually called—would overcome these limitations.
Chapter 7 of Part 1 of the Bill, dealing with enforcement and appeals, makes provision for individual claims in the Competition Appeal Tribunal or to a court for breaches of requirements, such as conduct requirements and pro-competition orders following pro-competition interventions. There is no provision in the Bill or elsewhere enabling consumers and businesses to make collective redress where multiple parties have been harmed by the same breach. In many cases, individual consumers and small businesses will be unable to finance proceedings. Furthermore, the knowledge of the likelihood of such a difficulty will be a disincentive to those who are subject to conduct requirements and pro-competition interventions to comply with their obligations.
Provision for collective proceedings, or class actions, is made in the Competition Act 1998, as amended by the Consumer Rights Act 2015. However, that provision applies only to breaches of competition law. The Bill provides an excellent opportunity to extend the availability of such proceedings to cases where numerous consumers have suffered from the same defective goods or conduct. The Competition Appeal Tribunal is now well used to representative proceedings in competition cases and is well aware of how best to handle them. This is an important opportunity for the Government to increase accessibility to justice to those who would otherwise not have the financial ability to bring proceedings, especially against large and well-funded entities. The Government should grasp it.
Lord Wolfson of Tredegar (Con)
My Lords, it is a pleasure to support the noble and learned Lord, Lord Etherton, in this amendment, which he has proposed extremely clearly; I can therefore be relatively brief. However, I probably have the most difficult feat of advocacy ahead of me. Normally in these circumstances one is trying to persuade the Minister to depart from the written brief in front of him, but now I have to persuade him to depart from the written brief which he has already read out, so I feel as though we know the answer to the question I am about to pose. None the less, I will proceed. I refer to my interests in the register as a practising barrister, including, as I will mention in a moment, practising in the Competition Appeal Tribunal, popularly known as the CAT.
It is a fundamental principle of the rule of law that there ought to be an effective means for legal rights to be vindicated. Having a legal right without the ability to vindicate it is not of much use. There are areas of law where a breach of legal duty may affect many consumers, but it is likely to affect each of them minimally. Although such affected consumers can in theory bring a claim for damages, it is rarely worth their while because of the small amount of each individual claim. The irrecoverable legal costs—I again declare my interest—will swamp any damages recovered, even if the claim is successful. There is also the risk of an adverse costs order if the claim fails. The real-world effect is that these claims are brought only by large claimants who have suffered large losses. That means that legal rights are not in practice vindicated. That is, in effect, a gap in our justice system.
In order to make access to justice possible for consumers in these cases, and to create a means of effectively enforcing competition law, a class action regime was introduced into the Competition Act 1998, in Section 47B. That section does not create any new rights; it creates a new process for the more effective enforcement of existing rights. It does this by enabling individual claimants to pool their claims and have them brought by a class representative. The class representative does the running in terms of preparing, funding, and bringing the action. The individual class members tend to have very little to do, other than to receive their damages when they are awarded. Importantly, there is no exposure to adverse costs orders.
This regime has been very successful. There is a high degree of expertise, both procedural and economic, in bringing such claims, and for that reason, the Competition Appeal Tribunal is the only forum in which such claims can be brought. I am instructed in such cases in the CAT, both for potential claimants, through the class representative, and also for defendants. While there are a few rough points which need to be smoothed out, as in any new jurisdiction, there is no doubt that the jurisdiction is bedding down extremely well. There are specialist judges sitting in the CAT, and there is now a range of specialist practitioners, in London and elsewhere, who appear in it.
Clause 101 creates a new data right, which is unlikely to see much use, I suggest, unless it is collectivised—in other words, brought subject to the same regime so that right can be vindicated in the same way. The main thrust of the amendment to which I have added my name is that the class action regime in Section 47B be expanded to include such claims, which would benefit from better access to justice, and, really importantly, would avoid leaving claimants with a right but with no effective remedy.
Baroness Stowell of Beeston (Con)
I wanted to intervene briefly. I do not have an amendment in the group, I have not signed my name to any, but I wanted to piggyback on the introduction of the issue of private litigation to ask a question that has been put to me by one of the big tech firms. I thought it was a reasonable question, even though it was not one I felt moved to table an amendment on. I suggest to my noble friend the Minister that he might find it easier to reply by means of a letter to me that he can put in the Library of the House, rather than taking up time.
The question is why, in this Bill, if somebody wants to bring a private litigation, there is no provision for the CMA to be required to give consent before an action can be taken by way of private litigation. In contrast, in the Communications Act 2003, Ofcom’s consent is required before private litigation is taken on a matter that refers to conditions imposed on the various companies that come under its auspices. The relevant part of the Communications Act is Section 104, where claimants must obtain permission from Ofcom to bring private enforcement claims alleging a breach of the conditions that have been set by Ofcom: they cannot simply file a claim whenever they wish. The Act says:
“The consent of OFCOM is required for the bringing of proceedings by virtue of subsection (1)(a)”.
The purpose of this is to give Ofcom a sort of gatekeeping role and prevent overlapping, or private litigation happening while something is being carried out by the regulator.
I thought it was a worthwhile question and I am happy to ask it. The other issue that has been raised with me is that in these private litigations, the contentious countervailing exemption that we discussed in an earlier group is not available to the big tech firms in the same way that it is available to them in the procedure that is set out in the Bill.
I have given the Bill team notice of these questions. I know that they have some very good answers, and I suggest to my noble friend that he asks his officials to convert that into a letter that he can put into the public domain.
Lord Fox (LD)
My Lords, the hyperactive pen of my noble friend signed up to this amendment as well. It is a great pleasure to support the noble Lords, and particularly to get cover from the noble Lord, Lord Wolfson—it is not usually like that. I am very happy to support this amendment, or the principle of this amendment: if not these words, some others.
Just to emphasise, when I was speaking to the last group of amendments, I set out a group of the major tech companies and said that in 2022, they had a revenue of nearly £400 billion, which is twice the size of the Ukrainian economy. That is the scale of the opponent that we are asking citizens to take on. To deny them the opportunity to band together, which in itself would still be a formidable challenge, is really to deny them justice. It is unrealistic to expect any individuals bar a few—and they are probably the ones who own the companies in the first place—to have sufficient resources to take on businesses of this scale. I would like the Minister at least to acknowledge that point. Perhaps we can go away and work out the best way to enable the reality of individuals being able to bring cases, because at the moment it is merely an idea; it cannot possibly happen.
Baroness Harding of Winscombe (Con)
I will just add a couple of questions to the ones that my noble friend Lady Stowell just posed, and I am sorry that I have not been organised enough to share these with the Bill team in advance. Both relate to the importance of the collaborative nature of this legislation and how important it is that the tech companies are actually incentivised to work with the CMA as they go through this process. I too have had a couple of questions posed to me, in addition to what I would describe as the Ofcom-model question that my noble friend raised.
First, should the legislation require courts to avoid judgments that conflict with the DMU’s existing decisions? Otherwise, I think there is potentially a risk that you get two jurisdictions coming to contradictory conclusions. Secondly, how can we avoid litigation undermining existing DMU resolutions and therefore just extending and delaying any implementation? In both cases, there is a risk—although I defer to the huge expertise in the Committee on the need for the civil proceedings. We have to make sure that we do not undermine the very principle of trying to incentivise the SMS firms to engage in constructive dialogue through the process.
Lord Tyrie (Non-Afl)
The CAT’s class action powers have been a success, although probably not an unqualified success—but that is for another day. I just want to pick up on one point.
Nowhere is the asymmetry of power greater than between an ordinary consumer and a platform. We must try to find ways of enabling consumers to have greater self-reliance, to have mechanisms to achieve some redress of that asymmetry. When I was in the CMA, I did quite a lot of work on this subject, not only with respect to platforms but generally with respect to big firms, and that work largely got lost.
I suggest to the Minister that he asks for some work in this field to be done by the CMA, not only with respect to platforms but across the piece, to see whether a much more comprehensive programme—taking into greater consideration the reality of the asymmetries of power that we see have now developed in the marketplace —can be put together and give consumers greater confidence that they are not being ripped off, as so many of them are at the moment, frankly.
Lord Leong (Lab)
My Lords, I apologise for not being at Second Reading; I was only recently co-opted to support my noble friends Lady Jones, Lord Bassam and Lord Stevenson in the Bill’s passage through its various stages.
I thank the Minister for introducing this group of government amendments, which we are not opposing. I also thank the noble and learned Lord, Lord Etherton, for speaking to his important Amendment 70 on collective proceedings, and all other noble Lords for their contributions. We have signed the noble and learned Lord’s amendment and support what he has argued.
I will be brief. I am not a lawyer, and I hesitate to stray into this issue to the depth that it clearly requires. After listening to the noble and learned Lord, however, and having read some background material, I am bound to say that this is an area that needs more attention. If there are not to be changes made in this Bill, for which there seems to be a case, at the very least there needs to be a review, as suggested in the amendment.
We are very grateful to the noble and learned Lord for introducing this amendment and we will listen very carefully to the Minister’s response. If he is not able to give a positive response today, I am sure that this is an issue that we will need to return to on Report.
Viscount Camrose (Con)
I thank the noble and learned Lord, Lord Etherton, for his amendment and, perhaps even more, for his articulation of it today, which was extremely helpful. I also thank other noble Lords who have spoken, including my noble friends Lord Wolfson, Lady Stowell and Lady Harding and the noble Lords, Lord Fox, Lord Tyrie and Lord Leong, for their valuable and thoughtful contributions.
I will start by shamelessly stealing my noble friend Lady Harding’s metaphor from earlier. We are looking here to achieve the Goldilocks spot when it comes to private redress. We recognise that if an SMS firm breaches a requirement imposed by the CMA, this could have serious implications for businesses and individuals. It is right that recourse to redress should be available for parties suffering harm or loss as a result of that unlawful behaviour. The right of redress is a long-standing part of common law and explicit provision is part of most regulatory regimes. Our Clause 101 makes this right explicit. Doing so will also incentivise compliance and support the credibility of the regime.
At the same time, it is also important that the CMA can take a clear lead in imposing and enforcing requirements to bring effective change in digital markets. This DMU-led approach is important in providing certainty for all parties and ensuring the regime is coherent and effective and delivers the best outcomes for consumers. We want the regime to be collaborative, but not litigious. This is why we have made provision for a public-led enforcement approach, which will ensure the CMA’s central role in ensuring the consistent application and enforcement of the regime, while still making explicit provision for parties to seek redress.
Lengthy and complex litigation in the early years of the regime in particular would run the risk of creating uncertainty for all stakeholders and could undermine the delivery of the regime as a whole, particularly where CMA resources are diverted to engage with private actions rather than focusing on reform.
The noble Lord, Lord Fox, made a very serious point about the enormous disparity in size, which I duly take seriously. Our argument is that in the formative stages of the existence of this regime, the best way to deal with that disparity in size and scale is to have public-led engagements taking primacy over collective ones.
My noble friend Lady Stowell asked about Ofcom’s role in private actions under Part 2 of the Communications Act 2003. I would be happy to write to her on this important issue, as she suggested, but I will now respond briefly to her remarks in advance of that letter.
Under the Communications Act, claimants must first seek consent from Ofcom to initiate a private action for certain breaches. We have given this model consideration but concluded that it would pose difficulties in a digital markets context. It could politicise the CMA, forcing it to make a deeply contentious decision at the outset of each private action. The decision itself would also be subject to challenge in the courts through judicial review, so it would not likely bring additional certainty or clarity. These issues are less prevalent for Ofcom’s regime, where redress is more commonly sought through the Communications Ombudsman than in the courts. For these reasons, we do not think that replicating the Communications Act mechanism would be appropriate in this regime, but, as I said, I am more than happy to write and set that out in more detail.
All of that said, I hope that noble Lords are content to accept these government amendments. I thank the noble and learned Lord, Lord Etherton, for his amendment, but I hope that he will not press it.
House of Lords
East Coast Main Line
(4 months, 1 week ago)
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Lord Beith
To ask His Majesty’s Government what discussions they have had with train operators about changes to the East Coast Mainline timetable in December 2024.
The Parliamentary Under-Secretary of State, Department for Transport (Lord Davies of Gower) (Con)
My Lords, the department holds regular discussions with its operators to ensure that they continue to respond to changes in demand, balancing capacity and reliability with value for money for taxpayers. As part of the December 2023 timetable change, the department agreed that London North Eastern Railway should provide some additional Sunday services and the Rail North Partnership agreed some reductions to TransPennine Express services to stabilise the service while it completes its driver training programme.
Lord Beith (LD)
My Lords, Berwick-upon-Tweed station, serving the Scottish borders and north Northumberland, normally has a quite good hourly train service on the east coast main line. However, now LNER has resurrected the previous abandoned plan to slash that service by half from December, so that the trains will be only every two hours and with longer journey times. Is the Minister prepared to challenge this—or is publicly owned LNER doing what the Government have told it to do?
Lord Davies of Gower (Con)
The industry is currently close to finalising its response to the east coast main line major timetable change consultation that was undertaken in 2021. While it will not be possible to address every concern raised, I am confident that the industry proposal is an improvement over what was offered in consultation. The Rail Minister is in regular contact with Transport for the North, having met with the chair and chief executive in recent months.
Lord Haselhurst (Con)
My Lords, has the Minister been able to assess the amount of spare capacity on the rail system serving both north and east of a critical place in what we call the east of England? Does he agree that there needs to be a plan for the future—maybe one that cannot be implemented immediately but that we can set our minds on to ensure that it takes place without waiting another 10 or 20 years?
Lord Davies of Gower (Con)
My noble friend will be aware that we had the Williams-Shapps review into the creation of Great British Railways but unfortunately have not had time in this Session to introduce legislation. However, I take his point, which is well made.
Lord Berkeley (Lab)
My Lords, will the Minister explain why this government-owned railway, LNER, has apparently changed all the fare structures to remove most saver and supersaver fares—presumably with the intention of reducing the number of passengers that use it?
Lord Davies of Gower (Con)
At the Bradshaw address, the Secretary of State committed to expanding single-leg pricing, on most of LNER’s network, for example. This went live on 11 June 2023. In the plan for rail, we set out our intention to simplify fares and improve the passenger experience. We are determined to find innovative ways to get people back into rail.
Baroness McIntosh of Pickering (Con)
My Lords, next year will celebrate the bicentenary of the original railway line, between Darlington and Stockton-on-Tees. Would it not be extraordinary to reduce the service from Darlington—and Northallerton—to London in what is its bicentennial year? Will the Minister use his good offices to examine the timetable which LNER is proposing for next year, to ensure that we continue to have good hourly services to these regular commuter runs?
Lord Davies of Gower (Con)
I hear what my noble friend says. I will certainly take it back and have a look at it.
Lord Tunnicliffe (Lab)
My Lords, the Minister implies that the 2024 timetable is more or less complete. That would have involved seven railway operators, Network Rail and the DfT achieving a consensus. Such a consensus would have had winners and losers. Who made the decision as to who would be the losers?
Lord Davies of Gower (Con)
With great respect to the noble Lord, I am not too sure that I understand his question. Perhaps we can have a look at it later.
Baroness Randerson (LD)
My Lords, when there was a proposal to close railway ticket offices, we saw how essential public consultation was in revealing the true impact of a planned change. In the Minister’s response, he referred to a consultation on this LNER timetable change that took place in 2021. Three years on, things are very different. Can he assure us that there has been public consultation since then and that there was full public consultation before this changed timetable was introduced?
Lord Davies of Gower (Con)
I assure the noble Baroness that the Government are committed to full consultation on the issue.
Lord McLoughlin (Con)
My Lords, I declare my interest as chairman of Transport for the North. Some of the difficult decisions that have had to be taken have been partly because of the upgrading of the trans-Pennine route, which is a huge investment as far as the Government are concerned over the next few years. Will my noble friend assure us that the planned upgrade for York station, which will allow greater capacity eventually to serve areas such as Berwick-upon-Tweed, is in the Government’s future plans?
Lord Davies of Gower (Con)
A lot of these changes to the trans-Pennine route are part of the Making Journeys Better plan, outlining how TransPennine Express under DfT OLR Holdings will work to make things better. Having completed an in-depth review of the business, these services are expected to be restored from December 2024. I will have to come back to my noble friend on his question about the railway station.
Lord Snape (Lab)
My Lords, does the Minister accept that the problems of the east coast main line, important though they may be, pale into insignificance for those of us who have the misfortune to use the west coast main line? Given the fact that Avanti trains’ punctuality levels in the last six months of 2023 plumbed the depths of 43.5%—the worst in railway history, as far as I can ascertain—can he tell the House what those improvements outlined by the Secretary of State were before it was given another nine years of inflicting misery on the rest of us?
Lord Davies of Gower (Con)
As the noble Lord knows, the department awarded a new National Rail contract to First Trenitalia to continue operating the west coast partnership in September 2023. The decision to award the contract to it was contingent on the operator continuing to win back the confidence of passengers. The Rail Minister and officials have met regularly with First Group and Avanti’s senior management to understand the challenges and hold them to account for issues within their control. In fact, I understand that the Rail Minister met with them only this month.
Lord Dobbs (Con)
My Lords, as I was coming in on a very pleasant journey from the beautiful city of Salisbury in the south-west on Monday, I went through the new schedule of train strikes that have been thrust at us again. I seem to remember that a couple of months ago we spent many long nights debating minimum service levels. I am confused, so could the Minister help me in my confusion?
Lord Davies of Gower (Con)
My noble friend is right; we did spend many hours debating this. We now have the minimum services levels Act and, frankly, the department expects train operators to make use of the legislation wherever appropriate.
Lord Watts (Lab)
My Lords, is the decision by the Government to award Avanti another contract not rewarding failure? Do we not need a regulator that will put passengers first and the companies second?
Lord Davies of Gower (Con)
I take the noble Lord’s point, but the Government do put passengers first. The Government are concerned with passengers getting value for money, and we take this very seriously.
Lord Sikka (Lab)
My Lords, in the last 10 years, £75.2 billion of subsidy has been handed to rail companies. In return, the public do not own a single engine, carriage or seat, and it is impossible to even get the machines at rail stations to tell you what a good route or fare is. How many more billions need to be handed to rail companies before we can get an affordable and reliable train service?
Lord Davies of Gower (Con)
The Government have put an awful lot of money into the railways. It is about time perhaps that some of the railways delivered back for the good of the people—the taxpayer, who has put an enormous amount of money into the railways.
Schools: Persistent Absenteeism
(4 months, 1 week ago)
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Baroness Twycross
To ask His Majesty’s Government what assessment they have made of persistent absenteeism in English schools; and what steps they are taking to address it.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
My Lords, tackling attendance and persistent absence is a top priority for my right honourable friend the Secretary of State and all her ministerial team. We have a team of specialist attendance advisers, are increasing the number of attendance mentors to support vulnerable students, are expanding our attendance hubs—supporting over 1,000 additional schools—and have launched a campaign to emphasise the importance of school for learning, wellbeing and friendships. We also now expect schools to meet termly with local authorities to agree plans for at-risk children, and our attendance data tools give schools the information they need to allow earlier intervention and avoid absences becoming entrenched.
Baroness Twycross (Lab)
My Lords, there is a link between levels of deprivation, poor mental health in children and persistent absence. The children’s mental health charity Place2Be has told me that, for every £1 invested in mental health interventions in schools, there is a social benefit of £8. What assessment have the Government made of the financial benefit of mental health interventions in schools? How are they targeting the most disadvantaged children in tackling mental health-related persistent absence?
Baroness Barran (Con)
The Government look at both the impact of mental health support on students and the financial impacts. As the noble Baroness knows, we are working with the Department of Health and Social Care to have mental health support teams, which are now covering 35% of pupils in schools and further education. This will increase to around 50% by March 2025.
Lord Baker of Dorking (Con)
My Lords, is the Minister aware that, in disadvantaged areas of the country, absenteeism could be as high as 20%, where you cannot expect parents to get their children to go to school every day of the week? The reason why they are not going is that, when they go to school, they have to study just eight academic subjects, which is the curriculum that the Government have imposed upon schools. They do not believe that they are learning anything that will get them a job. Will the Minister accept the recommendations of the Education for 11–16 Year Olds Committee of this House, which recommended that technical, practical and useful subjects, and also computer studies, should be introduced immediately into the curriculum?
Baroness Barran (Con)
I cannot accept entirely my noble friend’s assertion, because persistent absence, which the noble Baroness’s Question points to, has more than doubled since the start of the pandemic and the curriculum has not significantly changed.
Lord Storey (LD)
My Lords, when the Minister kindly replied to my Written Question tabled on 11 January, she said that there were
“335 state-funded alternative provision schools”.
But in terms of unregistered alternative schools or settings, she said that because they are unregistered, they
“do not meet the criteria to register as a school”.
So local authorities are sending children to these unregistered provision settings, yet we do not know whether a record is taken of their attendance or whether they are safeguarded. This is not a satisfactory state, is it? Can the Minister look into this to make sure that these children are safeguarded, properly educated and recorded for attendance?
Baroness Barran (Con)
I share many of the noble Lord’s concerns and am more than happy to follow up on his points.
Baroness Hollins (CB)
My Lords, we know that mental and emotional distress has increased hugely since the pandemic, that children who are distressed cannot learn, and that children who are not learning but failing at school will stay away from school. I think the Minister said that, by 2025, 50% of schools would have good mental health support, but I cannot see 50% as being enough. Can the Minister comment?
Baroness Barran (Con)
I think we have to be careful: without question, mental health and anxiety have increased from the pandemic and the disruption that children experienced but, equally, a prolonged period of absence is also likely to heighten a child’s anxiety about attending in the future. I say to the noble Baroness, and to the House, that there are schools doing remarkable things, particularly in relation to children on education, health and care plans and children with special educational needs. I was in two schools in Birmingham on Friday: Lea Forest primary and Four Dwellings secondary. Those schools have a remarkable attendance level, particularly for the vulnerable children to whom she refers.
Lord Berkeley of Knighton (CB)
My Lords, I know that the Government have looked carefully at areas where there is deprivation. In the light of the questions we have already heard, have the Government made any correlation geographically between areas that are recognised as being disadvantaged, as opposed to other areas which are better off?
Baroness Barran (Con)
Disadvantage has always been, and sadly continues to be, a major element in whether a child attends. However, we really need to look at those schools in areas of particular disadvantage or with particular challenges—for example, in coastal communities—to see which schools are beginning to break the back of this attendance and persistent absence challenge. We should listen and learn from them, which is where our attendance hubs come in. Those are schools which are having greater success in addressing attendance and sharing that insight with their neighbours.
Lord Sewell of Sanderstead (Con)
My Lords, can my noble friend the Minister tell us about some of the data analysis that the ministry has managed to work on over the last few years and how that relates to school attendance?
Baroness Barran (Con)
I thank my noble friend for his question. The data that the department is now collecting daily from about 88% of schools in the country—we are shortly going to make that mandatory, so that it will be 100%—gives us a real opportunity to have a more granular insight. Understandably, and rightly, there is much emphasis and attention on children who are described as severely absent, who are missing more than 50% of school. However, about a third of children, nationally, have between 6% and 15% absence. That is around the persistence absence threshold, and focusing on those children could make a real difference not only to them but to their teachers, their parents and their peers at school.
The Lord Bishop of Gloucester
My Lords, when a parent goes into prison, no one is notified if they have a child. The charity Children Heard and Seen, which works with children who have a parent in prison, has shown that, with its support, those children’s attendance has significantly improved. Will the Government put in place a statutory mechanism to identify and support children with a parent in prison, as this would significantly reduce school absenteeism for those families?
Baroness Barran (Con)
I am interested by the right reverend Prelate’s suggestion and the suggestion from the charity she refers to. One of the things I hear a lot in schools is the importance of a child feeling that they belong—the relationship they have with staff and their friends. I hope we would not need a statutory duty and that a school would know a child well enough, but if it would help, I am happy to meet with the charity and discuss this further.
Baroness Armstrong of Hill Top (Lab)
My Lords, I am somewhat concerned by the fact that we have now been talking about this fairly consistently for some time. In the north-east, the difference between now and pre-Covid is marked; there are many children with whom schools have now lost contact, but they are also enormously under pressure financially. There are circles to be joined, which schools and local authorities are finding incredibly difficult. There are still too many school exclusions, and the Government have not come down hard enough on places that are still excluding children, because then the perpetrators of bad things know where to find them and know where to pick them up. Will the Government seriously look much more at how they support those areas of disadvantage, where children look as if they are having their lives blighted for the next generation?
Baroness Barran (Con)
I think the essence of the noble Baroness’s question is about funding for schools; I remind her that funding for schools is the highest it has been in real terms per pupil in 2024-25. I am not saying there are not challenges, but there are also things every school can do that do not cost money that would mean more children were there, and we want to support them to be able to do that.
Gender Equality
(4 months, 1 week ago)
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Baroness Anelay of St Johns
To ask His Majesty’s Government, further to the White Paper International Development in a contested world published in November 2023 (CP 975), what steps they are taking to achieve gender equality and the autonomy of all women and girls by 2030.
The Minister of State, Department for Environment, Food and Rural Affairs, and Foreign, Commonwealth and Development Office (Lord Benyon) (Con)
My Lords, our White Paper sets the course for transformative change, including countering efforts to roll back women’s and girls’ rights. It builds on our new International Women and Girls Strategy, which commits to educating girls, empowering women and girls and ending gender-based violence. Evidence shows that these are the areas of greatest need. To deliver our ambition, we will ensure that at least 80% of FCDO’s bilateral ODA spend has a focus on gender equality by 2030.
Baroness Anelay of St Johns (Con)
My Lords, I welcome the Government’s commitment to work with new partners to counteract the rollback that certainly has happened globally on women’s and children’s rights. Can my noble friend inform the House who the new partners are, and what the proven solutions referred to in the White Paper are? Will they help, for example, women and girls most at risk in Afghanistan, where the Taliban’s inhumane policies mean that women and children there have no right to education, work and freedom of movement?
Lord Benyon (Con)
My noble friend is absolutely right. Throughout the White Paper, a theme of trying to focus our development support on women’s and girls’ projects is justified by the fact that if you are doing the right thing for women and girls, you tend to be doing the right thing across the development piece. She is right that what is happening in Afghanistan is appalling. We have repeatedly condemned the Taliban’s decision to restrict the rights of women and girls, including through UN Security Council and Human Rights Council resolutions and public statements. The UK is committed to ensuring the delivery of humanitarian assistance in Afghanistan, including the continued participation of female aid workers and full access of women and girls to humanitarian services.
Lord Anderson of Swansea (Lab)
My Lords, unsustainably high fertility rates in sub-Saharan Africa—for example up to eight births per woman in Niger—lead to poverty, desertification, conflict and emigration and are surely unsustainable. I welcome the Government’s reply so far and ask the Minister to continue to ensure that the status of women is high in our priorities and that therefore, over time, this will lead to an easing of the pressures on population, particularly if we insist that women are educated for longer.
Lord Benyon (Con)
The noble Lord is absolutely right and there are some stark statistics here. But the advantage from the global perspective is that every £1 spent on contraceptive services beyond the current level would save £3 on the cost of maternal, newborn and abortion care by reducing unintended pregnancies. Over 800 women or girls die every day due to pregnancy or childbirth complications and at least 200 million women and girls alive today, living in 31 countries, have undergone female genital mutilation. These are stark statistics and underpin the determination to address this area in our bilateral aid.
Baroness D'Souza (CB)
My Lords, the reality is that in many areas, the Taliban’s policies are deeply antithetical to women. However, there are also persistent efforts on the part of Afghans themselves, with support from external NGOs, to evade some of the most extreme policies. I know that the Minister is sympathetic to the plight of Afghan women and girls, but can he confirm both political and financial support for the cluster education schemes that are now spreading rapidly in Afghanistan?
Lord Benyon (Con)
The noble Baroness raises an area of human courage that is almost impossible to imagine—people are defying the repulsive acts of this regime by providing education in sometimes very dangerous situations. We will look at anything that helps those groups of people. Of course, she understands the difficulties we face: we cannot take action other than multilaterally and through UN resolutions, but if we can find a way of supporting those groups, we certainly will.
Lord Purvis of Tweed (LD)
My Lords, today is the International Day of Education and I agree with the Minister that education is critical to securing equality by the target date of 2030. Does he agree that it is concerning that access to education for girls, and for disabled children in particular, is getting worse? UNICEF has set an international benchmark for donor countries of 15% of their ODA being allocated to education. The UK had been at 5%; it has now fallen to 3%, putting us 22nd among donor countries. Will the Government look again at this to ensure that we are moving up to the benchmark rather than down from it?
Lord Benyon (Con)
Many of these areas will be taken into such programmes by our drive to achieve the 80% figure by 2030. A child whose mother can read is 50% more likely to live beyond the age of five —that is an extraordinary statistic—and girls living in conflict area states are almost 2.5 times more likely to be out of primary school and 90% more likely to miss secondary schooling, compared to those who live in more stable countries. We have to make sure that we are taking action now that means that future generations in these countries will have more of a chance. We know that that chance will be improved to a massive degree by education.
Baroness Foster of Aghadrumsee (Non-Afl)
My Lords, one of the most important ways to ensure that we move to equality internationally is to enable more females to become involved in public life. Will the Minister outline how we in the UK can use soft power, particularly in places such as west Africa, to ensure that more females are coming into public life, particularly peacemaking, because that is really important.
Lord Benyon (Con)
I am throwing statistics around today, but it is interesting to see that peace agreements are 35% more likely to last if women are involved in the process. We are doing a great deal in this area. The Westminster Foundation for Democracy’s programme, sponsored by the FCDO, helped to embed gender analysis throughout all aspects of parliamentary business, support women’s political leadership and end violence against women in politics. We are giving substantial sums to a variety of organisations to ensure that we are supporting women in public life and that their contribution can feed through to a lasting peace in areas where there is instability, providing a more stable community around the world.
Lord Collins of Highbury (Lab)
My Lords, I return to a subject that I have raised on numerous occasions, including with the Minister: malnutrition and nutrition. He mentioned childbirth complications, and it is clear that girls and women are disproportionately impacted by malnutrition, which affects future generations and impacts on a lot of the SDGs. This Government committed at the last Nutrition for Growth summit to follow the OECD nutrition policy marker so that we can assess the impact of our interventions, particularly on women and girls. When will we hear that that has been implemented, and see how much we are spending on nutrition-sensitive policies?
Lord Benyon (Con)
We are determined that there should be transparency throughout the drive towards hitting the target of 80% of our programmes being focused on such areas. That is why we are working with the OECD through its Development Assistance Committee gender equality markers, which rate the bilateral programmes as significant or principal, so that this House or anyone else can identify the value of these programmes and where they are going. The nutrition summit at the end of last year was an enormous success in bringing together a great many countries, organisations, faith-based bodies and civil society to make sure that nutrition issues are written into our development aid programmes.
Baroness Symons of Vernham Dean (Lab)
My Lords, it is not only women but men, is it not, who need to be educated on and helped with contraception? When I dealt with these issues a few years ago, I talked to a woman who was under 30, who had nine children. I told her about the importance everyone attaches to contraception, but she said with tears in her eyes that her husband would not let her use it. In many parts of the world, the men need educating on the importance of contraception quite as much as the women.
Lord Benyon (Con)
I entirely agree with the noble Baroness, and when we talk about the focus of our aid being on trying to increase the amount for women and girls, it is vital that we address that fundamental, often cultural difficulty. I take the point she has made. It is incumbent on us to make sure, working with our partners, that the large amounts of funds that flow to medical bodies such as Gavi are focused on tackling that fundamental part of the human relationship that causes so much difficulty.
Alan Bates and Others v Post Office Limited
(4 months, 1 week ago)
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Lord Sikka
To ask His Majesty’s Government, following the December 2019 High Court judgment in the case of Alan Bates and Others v Post Office Limited, how many Post Office directors have been charged for breach of statutory duties under the Companies Act 2006, or for conspiracy to pervert justice.
The Parliamentary Under-Secretary of State, Department for Business and Trade and Scotland Office (Lord Offord of Garvel) (Con)
I thank the noble Lord for his Question. I can confirm that no prosecutions have been brought against Post Office directors to date. The Horizon inquiry will establish the facts of what went wrong. It would be wrong to take action before we have all the evidence. Punishing people without looking at all the evidence first is how this scandal started. We should not repeat that error.
Lord Sikka (Lab)
My Lords, I remind the Minister that the Government have the sole responsibility for law enforcement. It is no good saying that they are relying on some committee to turn up evidence; they have had 49 months, and in that time little has happened. The Government need to take steps to charge people for violation of the Companies Act, false accounting, lying under oath and conspiracy. After six years, they have not even yet managed to deal with the directors of Carillion. That does not inspire much confidence that they will be able to deal with the Post Office directors. The whole thing is being kicked into the next decade. Rather than hiding behind this inquiry, will the Minister now publish a schedule showing a timetable for the Government’s actions?
Lord Offord of Garvel (Con)
I thank the noble Lord for that. I know that there is a lot of frustration in this House and the other place on the timelines. This has been going on for a very long time—almost one generation. However, we have been very clear that we have to separate the two elements of this sad story. The immediate action we are taking is to overturn convictions and give compensation. We then come to accountability. A statutory inquiry is in place, and it will look at all the facts of the matter. At that point, a cascade of actions will be taken by the various bodies concerned. We need to understand the role of directors, the ministerial oversight and the role of Fujitsu and the auditor, EY. All that will be done once the facts are established and the Williams commission has reported.
Lord Forsyth of Drumlean (Con)
My Lords, that is all very well and good, but is it not obvious that there was a catastrophic failure of governance on the part of the Post Office? This is a government-owned business. It is inconceivable that the board did not read the newspapers and was not aware of this. The Post Office is still operating. Should there not at least be a review of the standards of governance on that board?
Lord Offord of Garvel (Con)
The Post Office is publicly owned and set up as a limited company with a sole shareholder, which is the Government. Its governance is as an arm’s-length body with its own board, where the Government have a shareholder representative. It is clear that, over the years, not enough inquiry was made—particularly by non-executive directors—about what was going on. Why was it not asked why, pre-Horizon, prosecutions were between five and 10 per annum and then moved to between 80 and 100 per annum? The question is obvious: what happened here? As a High Court judge said at the 2019 appeal, the faith in the Horizon system was the modern-day
“equivalent of maintaining that the earth is flat”.
There has been a massive failure of corporate governance. Once we have the outcome of the inquiry, steps will be taken to make improvements to ensure this will not happen again.
Lord Stirrup (CB)
My Lords, is it sensible for the Post Office to even continue in business as presently constituted? Is it not now a totally and irredeemably toxic brand? I personally would not trust the Post Office if it told me that today is Wednesday. As well as holding individuals to account, as owners, should the Government not look at a fresh start with a new brand, new leadership and a new business model incorporating the appropriate ethical principles?
Lord Offord of Garvel (Con)
I thank the noble and gallant Lord. That is exactly what the outcome will be. No prosecutions have been brought since 2015. The board has been reconstituted. There is a new chief executive, a new Postal Minister and new oversight. I take issue with the view that the Post Office brand is irredeemably damaged, because I believe the Post Office brand is based on the 11,500 postmasters and, if anything, their reputation has been enhanced by this. The reputations that have been damaged are those of management, directors and perhaps Ministers.
Baroness Butler-Sloss (CB)
My Lords, did the shareholder member of the board report to government what was happening? The board must have known about the faults of Fujitsu. If that shareholder member did not, has government asked why?
Lord Offord of Garvel (Con)
I thank the noble and learned Baroness. This is exactly the issue we need to get to the bottom of. It goes back over a large number of years. We will be going back through files, ministerial appointments and meeting notes to find out exactly what notice was given and when. A ridiculous level of faith was given to the Horizon computer. Fujitsu has acknowledged culpability in this matter. Once the Williams report establishes the facts, we will be able to take necessary action to hold people accountable.
Lord Fox (LD)
My Lords, to date, all the talk has been around what happened to sub-postmasters, but we should remember that Horizon was being used in the Crown offices, the branches that Post Office Ltd managed, so it would have seen the shortcomings of this system through its own management. It is not just a question of having to read the papers, as the noble Lord, Lord Forsyth, said; it was happening to its own businesses, and it was covering it up. Is this not further evidence that things should be done now, rather than waiting for some far judgment?
Lord Offord of Garvel (Con)
I thank the noble Lord for his question. The Horizon system has been upgraded—and upgraded again since 2017—and we now have a reasonable audit that it is now working satisfactorily. It will now be further replaced by a cloud system that will run alongside the current system, so I think there is now a feeling that there is efficacy in that system. What the noble Lord refers to is why there was an unshakeable belief in the computer system that went on for so long. We need to understand exactly how that happened, what the role of Fujitsu was in that, whether this was corporate malfeasance or the role of one or two individual bad actors, et cetera. We need to get to the bottom of that, and that is what the Williams inquiry will do.
Lord Browne of Ladyton (Lab)
My Lords, the reference my noble friend Lord Sikka made to the comparative inaction in respect to the directors of Carillion is but one of a number of scandals of which the Post Office Horizon scandal is the latest. It is another example of how poorly equipped the UK is to deal with corporate abuses.
Let us look across the Atlantic to New York. At the instance of Manhattan’s District Attorney, 17 of the Trump Organization’s many corporations were convicted of criminal offences, including tax fraud. Its chief financial officer pleaded guilty, was fined the maximum in compensation, and went to jail for five months. Now, the Attorney General of New York is asking a court to ban Trump and his three eldest children from ever running a corporate business in New York again, and to fine them $250 million. Can the Minister point me to any similar type of prosecution in this country, or tell me how that could ever happen here? I believe it could not.
Lord Offord of Garvel (Con)
I thank the noble Lord for that question. The Financial Reporting Council is the UK body that deals with accounting failures. It had a considerable review following the failure of Carillion and British Home Stores—the Sir John Kingman review in 2018. A number of Carillion’s previous directors have been disqualified and other cases are still under way. The FRC is now much more effective as an audit regulator—it has had a change of personnel, and the relationship between the FRC and the audit companies has been removed at further arm’s length. There is still a long way to go, but the FRC is now in a position to take more stringent action.
Lord McNicol of West Kilbride (Lab)
My Lords, this is not a new question. Noble Lords from across your Lordships’ House have been asking it, and I first raised it in 2019 after the court case. As a sole shareholder, His Majesty’s Government have both a right and a responsibility, so I take the Minister back to those original questions. What are we going to do to hold to account the board members who failed in their Companies House and directors’ duties when the Williams report comes?
Lord Offord of Garvel (Con)
The noble Lord is right to say that it is for the members of a company to take action against directors who have breached their statutory duties. In this case, the sole shareholder is the Government. Therefore, once the inquiry has finished, the Government will be in a position to take action specifically against any directors who have failed in their duties.
Northern Ireland (Executive Formation) Bill
Wednesday 24th January 2024
(4 months, 1 week ago)
Lords ChamberRead Full debate Northern Ireland (Executive Formation) Act 2024 View all Northern Ireland (Executive Formation) Act 2024 Debates Read Hansard Text
Business of the House
(4 months, 1 week ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord True
That, in the event of the Northern Ireland (Executive Formation) Bill having been brought from the House of Commons, Standing Order 44 (No two stages of a Bill to be taken on one day) be dispensed with today to enable the Bill to be taken through its remaining stages and that, in accordance with Standing Order 47 (Amendments on Third Reading), amendments shall not be moved on Third Reading.
The Lord Privy Seal (Lord True) (Con)
My Lords, it may assist the House if I set out how the proceedings this afternoon are expected to run. Attentive Members of the House will have noticed that the Bill arrived from the House of Commons very recently. We will, therefore, commence Second Reading after the repeat of the Prime Minister’s Statement, which will follow shortly.
After Second Reading, Members will have a further 30 minutes to table amendments and should contact the Public Bill Office should they wish to do so. Once the time for tabling is over, if there are no amendments, the House will return, and I expect all further stages of the Bill to be taken formally. The House will then proceed to Committee on the Victims and Prisoners Bill. If there are amendments to the Bill, they will be debated in the Committee and arrangements for that will be advertised on the annunciator.
Built Environment Committee
The Senior Deputy Speaker
The Senior Deputy Speaker (Lord Gardiner of Kimble)
My Lords, the Committee of Selection met last week. These 30 Motions give effect to the rotation rule, which is applied each January to secure a regular turnover of Select Committee membership. I wish to thank those Members who are rotating off committees for their service and to welcome those noble Lords who will be joining the hard-working committees of the House.
There are also Motions to appoint the 2024 special inquiry committees and to give effect to the decision of the House to appoint a new Select Committee on financial services regulation. Your Lordships will note that, while the appointments of the new special inquiry committees and the Financial Services Regulation Committee are effective from today, the Motions to appoint new members to the sessional committees will take effect from Wednesday 31 January. This will allow the special inquiry committees to meet as soon as possible, which I hope will prove useful in the event of their work being disrupted by a general election at some point later this year.
I know that a number of the sessional committees still have work to complete; the prospective Motions give them the time to do so with their existing memberships. The difference of approach is for the convenience of all committees. I beg to move.
Iran (Sanctions) Regulations 2023
(4 months, 1 week ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Benyon
That the Regulations laid before the House on 13 and 14 December 2023 be approved.
Relevant document: 8th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 23 January.
Action Against Houthi Maritime Attacks
(4 months, 1 week ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Smith of Basildon (Lab)
My Lords, the principles set out in this Statement are similar if not identical to those in last week’s Statement. Perhaps that is why noble Lords are leaving—they knew that they would be much the same.
The issues are similar, but they are also absolutely crucial. All efforts must be made to resolve this issue by diplomatic means; where military action must be taken within international law, it should be targeted and proportionate; and there is a need to ensure ongoing international support and co-operation. As we have said, any potential further action should be judged on a case-by-case basis. So, in the light of Houthi attacks continuing in the Red Sea and the intelligence regarding their ongoing military capacity, we back the military action taken on this occasion. We support the ongoing diplomatic engagement as well as the principles of sanctions that were outlined in the Statement.
The Houthi Red Sea attacks are a danger to civilian shipping and a danger to life, and they bring serious economic risks, particularly to the poorest and the most vulnerable. The attacks are unacceptable and unjustified, and there is a clear imperative to protect those waters for international shipping. Again, the professionalism, commitment and bravery of our Armed Forces, both in defending commercial shipping and in the military response, are impressive and commendable, despite the pressures they face. They are so often the best of us, and we are grateful for their service.
In his Statement last week, the Prime Minister seemed optimistic that there were unlikely to be further military strikes because of the success of the operation. I appreciate that, following the attack on Houthi military sites, any assessment of the remaining capability is not immediate, and intelligence about a range of issues has to be taken into account, including any flow of resources to the Houthis. Last week, I asked the Lord Privy Seal for more information on the strategic objectives of the military response and to confirm whether the objective was to degrade or destroy the capability to launch attacks on international shipping. He confirmed that the strategy was
“to ensure and maintain the principle of free and open navigation”.—[Official Report, 15/1/24; col. 272.]
We concur with this.
However, when reporting on the UK-US military action, the Prime Minister used the term “eliminated” regarding the identified targets. Yet the Houthi attacks have continued, so we know that they retain capability. We agree with the strategic aims, as set out by the Government and the noble Lord, but it would be helpful for your Lordships’ House to understand how effective our military strikes have been in achieving these. So can the Lord Privy Seal say something about when he will be able to share any further information about the Houthis’ military capacity following this week’s action?
More broadly, the avoidance of any escalation across the Middle East obviously remains a primary objective, and collaboration with the international coalition is absolutely vital. We share the Government’s rejection of Houthi claims that their action in attacking international shipping can be justified in any way by the conflict in Gaza. There is no benefit to the Palestinian people, who desperately need a sustained and effective ceasefire and urgent humanitarian aid and support. We continue to urge the release of all hostages. The only way forward for a just and lasting peace is a secure Israel alongside a viable and secure Palestinian state. A sustainable ceasefire and humanitarian truce are needed, first, to allow the return of all hostages and the provision of urgent humanitarian relief, but also to enable progress to be made towards a two-state solution. Israel existing alongside Palestine is the only path to a just and lasting peace in the region.
We welcome that the Foreign Secretary is visiting the region today. Given the desperate need for increased humanitarian support and a path towards peace, I hope he will make a Statement to your Lordships’ House on his return, and I hope the Lord Privy Seal can confirm or give further information on that.
Finally, and crucially, the Prime Minister’s Statement set out the continuing humanitarian aid and diplomatic support to the people of Yemen. We agree and would welcome any further information from the Lord Privy Seal about what specific steps are being taken towards these ends. The people of Yemen have suffered civil war for almost 10 years, and any recent efforts to bring stability to the country risk being undermined by opportunistic action from those who would seek to encourage further conflict.
Lord Newby (LD)
My Lords, I thank the Leader for answering questions on this Statement. It is useful to have this debate, although, as the noble Baroness said, large parts of the Statement are almost verbatim what the Prime Minister said last week. I will therefore repeat what I said last week: these Benches support the proportionate military action taken against the Houthi aggression and salute the professionalism and courage of the RAF personnel involved in the raids.
The Statement illuminates the complexities of the situation in the Red Sea and the region as a whole. I hope the noble Lord will find space in government time for a proper debate on this issue, as it is very difficult for noble Lords—other than the noble Baroness, Lady Smith, and I—to engage with such a complicated issue via a single question. I believe that such a debate is happening in the Commons today; I hope we can have one in your Lordships’ House in the very near future.
The Statement says that the UK’s diplomatic efforts are being increased and that the Foreign Secretary spoke to his Iranian counterpart last week. This is extremely welcome, but it leaves us in the dark about the Iranian response to our requests for a cessation of arms supply to the Houthis. Did the Foreign Secretary feel that he had made any progress with Iran? What happens next in our engagement with it?
Next, the Prime Minister says that he plans to
“end the illegal flow of arms”
to the Houthis. How is this to be achieved? How many naval vessels have we deployed to intercept these flows and what other navies are supplying vessels for this purpose?
On sanctions, what estimate has been made of the use by the Houthis of western financial institutions to channel resources for buying weapons? Do we have the ability to freeze or cut off these resources? Which other countries, beyond the UK and the US, would need to do so for any sanctions to be effective? On humanitarian aid to Yemen, I pointed out last week that our current level of aid can feed only a small fraction of the children currently wholly dependent on it for their food. Have we any plans to increase our humanitarian aid, given the scale of the need?
The Prime Minister repeats his assertion of last week that there is no link between our actions of self-defence in the Red Sea and the situation in Israel and Gaza. This may in a limited sense be technically correct, but the Government cannot credibly argue that the Houthi attacks have nothing to do with what is happening in Gaza. It is noteworthy and worrying that this very link is increasing the popularity of the Houthis, not just in the areas they control but across the whole of Yemen. It is therefore only appropriate that the Statement proceeds as if they are linked and sets out the latest UK position on the Gaza conflict as a whole.
It is welcome that the Government are working to establish a new aid route through the port of Ashdod, and for a humanitarian pause, but progress is, to put it politely, very slow. In the meantime, thousands more men, women and children are being indiscriminately killed in Gaza. There have been reports in recent days about a possible new deal on the hostages which would lead to a pause in hostilities, and there appears to be an Arab-led initiative that would see Palestinian control of Gaza without Hamas involvement, alongside concrete moves towards a two-state solution. Predictably, this initiative has been rebuffed by the Israeli Prime Minister, but can the noble Lord give any indication of the UK’s involvement in this move and the extent to which the Foreign Secretary will feel able to put pressure on the Israeli Government to respond more positively towards it?
The situation in the Red Sea and in Gaza remains extremely volatile and dangerous. The Government need to continue to act with both determination and care. It is also important that they do so with the united support of Parliament, so I hope that we will continue to have further regular updates on what is happening in this most troubled region.
The Lord Privy Seal (Lord True) (Con)
My Lords, I am grateful for the remarks of the noble Baroness and the noble Lord. Following on from what the noble Lord said, I understand that there is a high degree of concern and interest in these matters in your Lordships’ House and outside it. The Government’s accountability to Parliament takes place partly here and partly in the House of Commons; the House of Commons is debating matters relating to the Red Sea and on Friday we will debate the situation in Ukraine, which is not being debated in the other House. That does not absolve either House from being concerned about both things, but the Government are aware of their responsibility to keep both Houses informed on these matters. We will reflect through the usual channels on what the noble Lord and the noble Baroness have said.
Of course, I am very grateful for the considered support that has been given from the Benches opposite. When there are matters of conflict and matters in which people’s lives and livelihoods are in peril, whoever and wherever they are, it is right that not only support but action should be considered, commensurate with the problems seen. I assure the House that this is very much the attitude of His Majesty’s Government. We feel fortified in that by comments opposite. I very much welcome—and I know that the Armed Forces would welcome—the comments by the noble Baroness opposite about those members of our Armed Forces involved.
I do not think the Government have ever claimed that this defensive action to defend freedom of navigation—so far as we can and intend to—was going to be resolved by the first strike. In response to this gross violation of international law by the Houthis, which is threatening humanitarian aid, among other things, the Government are seeking to degrade the Houthis’ ability to carry out their dangerous and illegal attacks. Our assessment of the first round of attacks was that they were successful and had that impact. Obviously, we are currently assessing—and, as those who have been involved in these matters will know, it takes time to accurately assess. In the present light of knowledge, it is our belief that the actions undertaken by His Majesty’s Armed Forces were successful in their objectives and have hopefully degraded further the Houthi capacity.
Since the first round of strikes, the Houthis have conducted 12 further attacks on international shipping. I am not going to come to this Dispatch Box and say that there will not be more, but I think we are agreed across the House that it is vital to take a realistic, proportionate and legal response to this—the legal case has been set out.
The noble Baroness asked about strategy, quite legitimately. These matters have to be very carefully thought through. I can tell the House that it is not isolated, individual action; there is a coalition of nations involved in the operation in the Red Sea, Operation Prosperity Guardian. As was repeated in the Statement, a number of nations have been involved in this latest action. We will continue to keep our posture under review, alongside our allies. The House will forgive me if I do not speculate on any further specific action, but we will not hesitate to ensure the security and safety of the British people, our interests and our assets. Strikes are one tool we have used in order to do this. They work alongside the deterrence and defence work in Operation Prosperity Guardian and importantly, as noble Lords opposite so rightly said, the diplomatic pressure we are seeking to apply bilaterally and in forums such as the UN.
Again, I do not wish to go into specifics, but there is work going on by the international coalition to seek to prevent weapons smuggling, and weapon parts have certainly been intercepted in these circumstances. My noble friend the Foreign Secretary, who was sitting here last week when we had the Statement, is not able to be here, precisely because he is engaged on a new round of diplomatic activity of which a major part will be to try to encourage further movement towards perhaps opening a new route through Ashdod, as the Prime Minister said in the Statement. He is meeting the Israeli Prime Minister and, I believe, the Foreign Minister. He is also going on to meet other counterparties in the Middle East. I take note of what the noble Baroness said about coming back and I will take that away and consider that with my noble friend and others, in the general light of accountability to Parliament.
On escalation, the Government and their partners, including the United States, believe that we are confronted with, as I said, a grossly illegal breach of international law in the interception of shipping. What is escalatory is the Houthis’ attempt to interrupt lawful occasions on the sea by launching missiles and drones against not only commercial ships but UK and US warships. I think Noble Lords have said that they would expect— as I would—that military action was and is a last resort, and it will continue to be a late resort. We have provided warning after warning, and the Foreign Secretary has twice said to the Iranian Foreign Minister that he hopes very much that Iran will use its restraining influence—if that term is well understood there. The Iranian regime needs to be judged by its actions and by the actions of its dependants, which have not been encouraging so far.
The fundamental point remains that the Houthis have the ability to stop these attacks. If we did not take action, it would weaken international security and damage the global economy, including—as the noble Baroness opposite rightly said—some of the poorest people in the world, who suffer from the interruption of the movement of goods by sea. As I said on the Statement last week, I totally agree with her on that important point.
As far as sanctions are concerned, the Prime Minister said in his Statement that these matters are under consideration. I hope that, if action is taken, information will be given to Parliament.
As I said, the Foreign Secretary has humanitarian matters at the forefront of his mind during his current trip to the region. We have to recognise that the Houthis, by their actions, are making it much more difficult to do the things that we all want to do to get humanitarian aid into Yemen. On the Gaza conflict, which noble Lords alluded to, we are very much focused on the need to make humanitarian aid more substantial, more proximate and more open.
If I have not answered any questions, I apologise to the House. I will look very carefully at Hansard and reflect on the matters of further engagement with the House as we go forward.
Lord Howell of Guildford (Con)
My Lords, it is surely obvious to everyone—at least, I hope it is—that the Iranians are completely behind all these Houthi operations, with their advisers crawling all over northern Yemen and Sanaa. Indeed, some of their advisers may be actively helping to launch the rockets. It is pretty obvious that the motive is that they want to assert, against the opinion of the Saudis and others, that they are the top dogs in the region. I do not think they want escalation—otherwise, they would have given the green light to their Hezbollah friends, which they have not done—but they are very determined to show that they are the leaders in the axis of resistance, looking east.
In light of that, what moves does my noble friend suggest that we can take now to contribute more effectively? That could be either through stronger sanctions than those that came into action last December or by working in closer alliance with other powers in the Middle East. How can we build up and contribute to that kind of pressure and bring even more clearly to the attention of the world stage the fact that this is a murderous regime that is highly unstable internally and well in a position to be surrounded and not cowed to in any way?
Lord True (Con)
My Lords, my noble friend quite rightly stresses the importance of the role of the Iranian Government and the Iranian regime. One must not forget that, looking at the whole span of human history back to ancient times, Iran has been a vital and greatly civilised place in the world, and it will always be a powerful force in that region, whatever the circumstances. However, it is incumbent on people who have authority, power and strength to use them with wisdom and for specific and constructive purposes. That is not, as my noble friend said, what the Iranian regime is doing at all; it is doing the reverse and is responsible for a lot of the instability in the region, including in relation to the Houthis. We have made it clear to Iran that we view it as bearing responsibility for the actions of these groups. We will continue to discuss with allies what the appropriate further actions on Iran may be.
Lord Grocott (Lab)
My Lords, the Leader of the House is clearly right when he says that it is often difficult to assess the effectiveness of the kind of action that has taken place, although the Statement says that the first assessment of the wave of strikes that took place provides
“evidence that they were successful in degrading the Houthis’ military capability”.
Surely one other, perhaps more precise, measure of the effectiveness of any strikes would be the effect on traffic in the Red Sea and through the Suez Canal. Does the Leader of the House have any precise information about the effectiveness so far on the levels of shipping in that area?
Lord True (Con)
My Lords, the efforts that we are making with Prosperity Guardian are to seek to secure, so far as we may, the most secure and most effective situation for the movement of traffic by sea. The choice of where to travel in such circumstances is a matter for those who are operating vessels. It is the case that some vessels are diverting and some other vessels are not diverting. The noble Lord is quite right to say that these matters need to be kept under careful examination. We are doing that, and our allies are doing that. The end result we wish to see is that all people operating commercial shipping feel able to continue using these waters, rather than feeling that they have to divert around the Cape.
Baroness Smith of Newnham (LD)
My Lords, in his Statements this week and last week, the Prime Minister suggested that it is wrong to accept that there is any relationship between what is happening in the Red Sea and what is happening in Israel/Gaza, and yet we have already heard from my noble friend Lord Newby and the noble Lord, Lord Howell of Guildford, that one of the key links between those two areas is Iran. What assessment have His Majesty’s Government made of the role of Iran in supporting Hamas, the Houthis and Hezbollah and of what response the United Kingdom can make? I may be a lone voice, but however persuasive the Foreign Secretary may be, conversations between him and the Government of Iran may not be sufficient to persuade the Government of Iran to take the decisions that we all need to bring about greater security in that region.
Lord True (Con)
My Lords, it is a challenge. In the international world, people in different places make their calculations on different bases. The fundamental point that I have been trying to relay, and my right honourable friend the Prime Minister has been trying to relay, is that there is an issue which this country for centuries has been concerned about, which is ensuring freedom of navigation and freedom of movement and trade on the seas. That stands as an integral, vital, independent issue. Noble Lords have referred to the complex and dangerous tapestry of activity around the region and the role of Iran. I can only repeat, without going into specifics, that we have taken action against the Iranian proxies in Yemen, the Houthis. We are on due guard to make sure that we protect our interests in the region as a whole. The British Government do not favour war; it is not the first resort of the British Government to resort to military action, but I assure the noble Baroness that we are watching very carefully the role of the Iranian Government and that they know they are being watched.
Lord Robathan (Con)
My Lords, I am glad to hear what the Leader of the House just said, because we must never enter lethal conflict lightly; we have to consider it very well not just to avoid deaths of our own service personnel but for the sake of civilians and others elsewhere. Regarding Iran, does my noble friend consider that in fact, the Iranians’ wish—the whole purpose of this—is to test the resolve of the West by attacking shipping to see whether we are actually willing to stand up? Regarding Gaza, does my noble friend agree that, if Hamas was to lay down its weapons and release the hostages and the criminals responsible for the attacks of 7 October were to flee to the Gulf and live in luxury hotels with their friends, there would be an immediate ceasefire, the possibility of a new Government in Israel and a possibility, however remote, of a decent settlement which allowed both Palestinians and Israelis to live in peace?
Lord True (Con)
I fully agree with my noble friend. The Houthis should cease their action; Hamas should never have undertaken the action it did. We are putting the Iranians under pressure, and I remind the House that we have already sanctioned 400 Iranian individuals and entities, including the Islamic Revolutionary Guard Corps, and we will continue to watch their role in weapons proliferation, regional conflict and human rights violations—all the things they are up to in the region.
Lord Craig of Radley (CB)
My Lords, the RAF operations have been widely publicised, and they have come from Cyprus. Are the Government absolutely satisfied that any necessary defence of our facilities in Cyprus is in hand and will continue to be in hand as long as we operate against the Houthis?
Lord True (Con)
My Lords, the noble and gallant Lord is quite right that the strikes were launched in that way by, in this case, four Royal Air Force Typhoons, supported by a pair of Voyager tankers. I repeat what I said: the Ministry of Defence has very much in mind the safeguarding of our assets and British nationals and British forces right across the region, and that is under constant review.
Lord West of Spithead (Lab)
My Lords, the large-scale attack we made first of all was never going to stop the Houthis making their attacks, as the Minister said; it was going to degrade only. Indeed, post then, the Americans have made a number of strikes in retaliation when weapons have been fired at them. The attack we are talking about now will hopefully degrade the capabilities of the Houthis to attack innocent shipping even more. I fear that the shipping companies seem to be showing a huge reluctance to think about getting back in the Red Sea, even though the Houthis have been degraded, and I can understand that. Therefore, this is likely to be quite a long, ongoing operation. It is quite right that we are enacting the rules of self-defence, and it is very good if you can do that immediately. In other words, when someone fires something from the shore at you, you hit where they fired at you from. That is why the Americans have been making these responses. One of our problems is that our aircraft are attacking from Cyprus, as the noble and gallant Lord said, several thousand miles away from this operation. Is the Minister surprised that we have not put an aircraft carrier there, because one could then respond immediately to these things and put that much more pressure on their ability to fire weapons at us? Having said all that, it is absolutely right what we are doing: freedom of navigation is so crucial to our nation.
Lord True (Con)
My Lords, I agree with much that the noble Lord said. We are working in a coalition here. The Prosperity Guardian operation involves 21 nations plus ourselves. The strikes, the response, the action that was taken which we are talking to, took place with the support of Bahrain, Canada, the Netherlands and Australia. This is an international response to unlawful action at sea. We always review deployment of our assets, but, for the moment, the British Government believe that the forces that the coalition has available are sufficient to deal with the threat that is currently presented.
Lord Bellingham (Con)
My Lords, I support the Minister and what the Government are doing 100% because this action had to be taken. However, to reinforce the point, it is vital that every effort is made to avoid unnecessary civilian casualties, because unfortunately the Houthi movement appears to be gaining credibility and support in the Arab world as a result of what has happened. The action must continue but can the Minister reassure me on that point?
Lord True (Con)
My Lords, in these strikes we have been very careful to take those matters into consideration. That the strikes took place at night also minimised the risk of civilian activity in these areas.
Viscount Stansgate (Lab)
My Lords, the House understands why the military action has taken place and the Prime Minister reported that it has had some degrading effect on the Houthi attacks. However, it is the nature of this situation that it is unlikely to be immediately successful and that this could escalate.
I have two brief questions for the Leader of the House. First, at what stage might the Government decide that it would be beneficial to consult Parliament, with debates and votes on what should occur in the future? Secondly, when it comes to diplomacy, a great deal of the sea traffic that is being adversely affected by the current situation comes from the Far East, especially China, and surely in diplomatic terms there is a case—perhaps it is happening—for China to be brought into play to exercise and bring to bear some pressure on, for example, Iran. Are there moves to this effect going on?
Lord True (Con)
My Lords, there is an enormous weight of diplomatic activity going on. It is important to note that China backed the UN resolution which called for this activity to stop and to enable lawful traffic on the seas to go ahead. As far as the accountability of Parliament is concerned, I have spoken about it. We also have a Question on the matter from the noble Baroness, Lady Chakrabarti, tomorrow, which may provide a further opportunity.
The Government are conscious of their duty and of their duty to protect servicepeople who may be sent into hazardous operations. There is also a balance there as to the time and nature of information that can be disclosed.
Lord Purvis of Tweed (LD)
My Lords, the UK is a penholder within the United Nations. In addition, the UK signed a development partnership agreement with the internationally recognised Government of Yemen last summer. Can the Leader of the House outline whether that agreement is still in place? Also, in the Statement he said that humanitarian assistance was central to this issue. I agree with him, but he will know that the UK has reduced humanitarian assistance for Yemen by up to 80% over the last three years. If the partnership agreement with the internationally recognised Government is still in place, what plans are there to restore the humanitarian assistance to Yemen that we have reduced?
Lord True (Con)
My Lords, these arrangements are still in place. My noble friend Lord Ahmad on the Front Bench here was whispering in my ear that he was speaking to the Foreign Minister of Yemen only last week, so we count this to be extremely important and ongoing.
It is vital that we continue, if we can, to get support into Houthi-controlled areas of Yemen. As noble Lords will know, the Houthis have said that UK and US staff working for the UN in Yemen should be ready to leave their controlled areas of Yemen in 30 days. Those kinds of statements, plus these unlawful attacks on the shipping that imperil the bringing in of aid by sea, suggest that the noble Lord should use considerable influence, as I know he does, to ensure that these malefactors cease making it more difficult to get humanitarian aid to their own people.
Baroness McIntosh of Pickering (Con)
My Lords, I think that Denmark and Germany have not yet supported the action and that Maersk and Hapag-Lloyd are sending their ships around the whole of the continent of Africa. What are the security implications for this country? I entirely support the government action against the Houthis but notice that the Foreign Office advice is that a terrorist attack in Denmark may be likely. I presume that our alert here must be at an increased level as well.
Lord True (Con)
My Lords, I do not wish a comment on the postures or action taken by other friendly nations. I again remind my noble friend that there is, not just through Operation Prosperity Guardian but through the United Nations, a very strong, broad coalition of nations, which are using diplomacy and all their efforts to try to bring this situation to an end. It is true that the economic impact of attacks could be severe if there were ongoing disruption and ships continued to divert around. There would be delays and additional fuel, insurance and shipping costs. But these are commercial decisions for people making shipments as to the course that they take. Our effort is to try to make the Red Sea a safe place for them to send their ships and the brave merchant seamen who trek the waters of the world every day.
Lord Turnberg (Lab)
My Lords, it is difficult to understand what advantage there is to be gained by the Houthis in sending their missiles into the Red Sea. The idea that it might be in support of their friends in Hamas does not seem to hold too much water. It is much more clearly the result of Iran’s sponsorship. Influencing Iran’s behaviour is extremely difficult, as we have heard from many noble Lords. One way is by encouraging in some way, perhaps surreptitiously, the poor people of Iran, who are rising up and suffering under the regime of the ayatollahs. What efforts have been made to utilise that approach?
Lord True (Con)
My Lords, that is a little beyond the scope of the question, and I would not like to comment or speculate on anything in that region. What I will do is agree profoundly with the noble Lord that this is a regime that governs in the name of God but acts in a way that seems to be in defiance of the great moral principles of the ages. Ultimately, it will be judged by its own people and by history.
Northern Ireland (Executive Formation) Bill
Wednesday 24th January 2024
(4 months, 1 week ago)
Lords ChamberRead Full debate Northern Ireland (Executive Formation) Act 2024 View all Northern Ireland (Executive Formation) Act 2024 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)
My Lords, before I move to the Bill, this is the first opportunity I have had at the Dispatch Box to welcome my noble friend Lord Empey back to his place and to pass on formally my commiserations on the loss that he suffered at the end of last year. I also wish the noble Baroness, Lady Ritchie of Downpatrick, a speedy recovery from the bout of Covid from which she is currently suffering.
As many in this House will be aware, I am an unashamed and unapologetic unionist who believes that the best future for Northern Ireland lies within a strong and prosperous United Kingdom. Over my 35 years of involvement in the affairs of Northern Ireland, defending, protecting and strengthening the union has been at the forefront of everything I have sought to do, while always recognising the legitimate interests and aspirations of nationalism. That, of course, will never change. It was for these reasons—to raise up a new Northern Ireland that works for the whole community and to strengthen the union in so doing—that I supported the agreement reached on 10 April 1998. That agreement has been the bedrock of all the progress we have seen over the past 26 years. The commitment of His Majesty’s Government to the agreement, including devolution and power sharing, remains unwavering.
The focus of this Government has always been on facilitating the return of the devolved institutions and upholding the Belfast agreement in all its parts. We want to see locally elected representatives taking local decisions, accountable through the Assembly to the people they serve. That is what this short Bill is intended to help achieve.
This House is well known for, and rightly prides itself on, its ability to scrutinise line by line detailed, complex and lengthy legislation. This Bill does not fit into any of those categories: it has a sole purpose and one main clause. The legislation will retrospectively extend the Executive formation period set out in the 2022 Act from 18 January to 8 February this year. This short extension will create the legal means to enable the Northern Ireland Assembly to sit and re-establish the Executive, which, as the law stands, expired on 18 January.
Importantly, a restored Executive will have access to the significant financial package announced by my right honourable friend the Secretary of State for Northern Ireland shortly before Christmas, worth around £3.3 billion, to secure and transform Northern Ireland’s public services. Ministers will be empowered immediately to begin working to address the needs of local people and realise Northern Ireland’s potential. Our firm desire is that this Bill will help to deliver that outcome and support the return of devolved government to the people of Northern Ireland, which, in my view, is the soundest and surest foundation for the future of the union.
On that note, I hope that, for the very last time, I commend a Bill of this nature to the House.
Lord Dodds of Duncairn (DUP)
My Lords, I am pleased to follow the Minister. It must be one of his shorter speeches in a Second Reading debate, but it beats the length of the speech of his Secretary of State in the other place, which was even shorter.
The Bill is inevitable, but putting the election back by two weeks is clearly designed to put pressure on unionists. It should include powers to get the money paid out to the public sector workers which the Government have announced they have but are withholding, for political reasons, from workers who are entitled to it.
The Minister said that he hopes this is the last time he has to do this. But as he knows, we are in this position because the current talks and process have to resolve the issue of the Irish Sea border, which is the consequence of the constitutional outrage, as it was described by one commentator this week, of the sovereignty- denying Northern Ireland protocol—or Windsor Framework, as it has been renamed—and the denial of equal citizenship to the people of Northern Ireland.
One way of looking at this is that the legislation is inevitable, since the deadline for formation of the Executive has passed. However, the interesting aspect is that the election deadline is being put back by only two weeks, so we are going through the whole process of rushing emergency primary legislation through the other place and this House in one day, to get Royal Assent, in order to push a deadline back by two weeks. One has to question what is really going on.
We want devolution in Northern Ireland. The DUP has been in a difficult position on previous occasions and took the courageous decision, when there was much opposition in the unionist community, to move ahead and restore Stormont back in 2008. We took decisions then that many people did not agree with, because we are committed to devolution and are prepared to try to move Northern Ireland forward, even though the people in power along with ourselves and other parties continue to eulogise, promote and defend terrorism. That is very difficult for many of us who were personally on the receiving end of assassination attempts; but many of the people we represented for many years had their lives destroyed through the activities of the IRA, and other terrorists from the loyalist side.
The fact is that we now have only Sinn Féin going about eulogising these people, so this is a difficult position that people find themselves in as democrats, never mind as unionists. Nevertheless, we have been committed to devolution. Some of the strongest and most sustained periods of devolution were when the DUP had the First Minister’s position. Nobody need come to us and say that we do not want devolution, but it has to be on a sustainable basis—one to which unionists as well as nationalists can give assent. It has to be on the basis of fulfilment of the Belfast agreement, as amended by the St Andrews agreement, and it has to restore equal citizenship for the people of Northern Ireland. Those are not major or surprising demands; those are basic demands—rights that we are entitled to.
On the issue of what the Government should be doing, it is really an abdication. I know that the Minister said he is a committed unionist. It really is the responsibility of His Majesty’s Government to move ahead on those areas for which they have responsibility. They are the sovereign power and under the Belfast agreement, as amended, they ultimately have responsibility for Northern Ireland’s internal government. To see a political manoeuvre being perpetrated on those public sector workers, whereby money that has been announced is being withheld for political reasons, is really unconscionable.
There is a whole list of other areas of which one could say the same. Fifty pay awards, I think—it is certainly many dozens—have been made in Northern Ireland in the period of the Assembly’s suspension. Yet when it comes to this major issue, which was the subject of strikes across Northern Ireland last week, the Government are deliberately withholding the money. They need to step up and move that issue forward.
The Minister thinks that two weeks will be enough to get out of the present position. I hope that is the case and trust that, in the next few weeks, we will get proposals that, as the leader of our party in the other place, Sir Jeffrey Donaldson, made clear, meet the seven tests and deliver on what we have been discussing with the Government for some considerable period.
There are constitutional, democratic problems, and we saw a number of examples just last week. On the Rwanda Bill, the supremacy of the protocol means that the EU’s charter of fundamental rights continues, including article 18 on the right of asylum. The issue of addressing immigration will not apply in the same way to Northern Ireland, and we already have major issues as far as that is concerned. There was animal welfare legislation last week that could not apply to Northern Ireland because of the protocol. Whatever your views, yea or nay, on the live export of animals, it could not apply there because of the protocol. On the Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill, we had the bizarre situation whereby the legislation extended to Northern Ireland but according to the Explanatory Notes, the substantive parts of it did not apply because of the protocol.
Our Select Committee looking at the Windsor Framework protocol is taking evidence on veterinary medicines. We heard evidence last week from farmers and the agri-food industry of serious concerns about the fact that we are approaching a deadline whereby essential veterinary medicines will not be able to be supplied to Northern Ireland from Great Britain, with possible knock-on effects for public health. The Government say they are working on it, but we have not seen anything come forward. There were other examples in the newspapers back home—and that was in only one week. I say to the Government: that is why it is important that these issues are dealt with in a fundamental and complete way, because when any unionist decides to accept or settle for any deal on these issues, they will take ownership of them.
That is why it is important for the people who are negotiating, for all of us within our party and for other unionists to be absolutely certain that these issues are properly addressed, now and in the future, so that we are comfortable with how Northern Ireland will be treated with regard to these constitutional, democratic and economic issues. We will not be subject any more to this unacceptable, anti-democratic and unconstitutional difference. Of course, within the Northern Ireland Assembly, when devolution is open, it is up to the Assembly to decide for itself, under its devolved powers, what it wishes to do compared with England, Scotland and Wales.
But in Northern Ireland we are the recipient, across 300 areas of law governing our economy, of laws made by a foreign polity in its interests, to which we have no input. We have no power to develop or amend and, under the Stormont brake proposal, only the power to reject—and even then, not necessarily effectively and subject to retaliation from the EU.
That is no way to govern part of the United Kingdom; it is not the basis on which the Assembly was set up. It is not equal citizenship. Therefore, I urge the Minister to take the message back to the Secretary of State and the Cabinet Office that these are the issues that are causing the problem. I share his desire that this is the last time that he has to bring such legislation, but it is really dependent on him and his Government as to whether that is the case.
Lord Empey (UUP)
My Lords, I thank my noble friend for his kind remarks. I watched very briefly the beginning of the debate in the other place, and I have to agree with the noble Lord, Lord Dodds, on the opening contribution from his right honourable friend in the other place. Indeed, I thought the shadow Secretary of State stole the show with at least some attempt to put some kind of gloss on what was before us in a very threadbare Bill.
I am entirely unconvinced as to the rationale for even having this Bill at this point, because I cannot imagine that there is any case at this stage, a few days after the last deadline ran out, for anybody to stand over a judicial review against the Secretary of State for not calling an Assembly election. For the sake of a few days, I do not think that that would survive. I hope that it is not a piece of political theatre that we are witnessing here.
Before dealing with the substance, I will follow on on the point about public sector pay. If ever there was any ambiguity over whether there was cross-party support for the Secretary of State’s actions in withholding this money, that was set aside in the Commons by the shadow Secretary of State earlier today. He made it very clear where he stood, saying that this tactic—because that is what it is—was fundamentally flawed and morally and politically wrong, and will not sustain itself even if we are forced through the fortnight this Bill provides for. I note the strikes that have occurred and the stresses that the withdrawal of significant parts of public services are putting on people. Let us imagine the parents of, say, children with severe disabilities, who are depending on a bus to arrive to take them to a day centre. Those parents do not know whether it will be coming this day or not. Do they have to make alternative arrangements? Do they have to get a relative to come in? Do they have to stay off work?
What are we putting these people through this for? We know the money is there; the Government are boasting about it. So let us sort that out; I think it would almost improve the atmosphere if it were done that way, because all we are doing is adding more stress to people who are already highly stressed. I hope that my noble friend can take that back to his right honourable friend in the other place, making it absolutely clear that there is no cross-party support for this policy. It is entirely counterproductive.
I also have to say that I feel that, when these one-day wonders come through—as they do from time to time on Northern Ireland affairs—one almost feels that this Parliament is like a legislative takeaway. You send out for a piece of legislation and ram it through both Houses in one day. People are fighting for pieces of legislation for a lifetime and yet we can stuff them through in one day. It is a terrible way to do business. I know that is not my noble friend’s choice, but it is almost always Northern Ireland stuff that is treated in this way.
The Secretary of State tells us that great progress is being made on restoring devolution. I hope that is true. In his opening remarks my noble friend talked about the Government’s commitment to the Good Friday/Belfast agreement. I point out to him that that was an all-party agreement, yet talks have been going on for two years in secrecy and none of the rest of the parties has been engaged except in a peripheral way. We all have talks with government and always have done, but this has gone on far too long. In fact, the best solutions always come when all the participants are at the table and accept the outcomes of the negotiations—otherwise we would have had no agreement. Trying to do it in a hole-in-the-corner way, with nods and winks here and nods and winks there, does not work. It does not stick. What happens if the DUP and the Government agree and come together? What about the rest of us? Maybe some of us will not agree with it when we see it: what happens then? It is a bad way to do business. Yes, people have to have their concerns addressed—I totally support that—but I think we have taken it far too far.
I do not want to rehearse the arguments that went on in this Chamber for so long over the departure from the European Union. I am no Europhile fan of the European Union. I am against the principle of a federal state: I never agreed with that. But the sort of problems that have arisen over our departure from the European Union were foreseeable, and they were foreseen in this House time and time again. A party delegation went to meet Prime Minister Cameron in February 2016 and, after that meeting, it was perfectly clear that there was no adequate plan to deal with our departure from the European Union should the people so wish.
We pointed out that a referendum has two outcomes and asked what the plans were if the people decided to leave. The answer we got was entirely unsatisfactory. Consequently, we recommended that people did not support leaving at that point under those terms and conditions. I would have to say that things are actually worse than I expected and that what we are dealing with now is the latest version of an attempt to bridge the virtually unbridgeable—which, of course, is the Windsor Framework, which is heralded as one of the Prime Minister’s most significant achievements since he has been in office.
I am quite sure that my noble friend will want to share with the rest of us what changes have been made to this agreement since February last year, and to show us the pages and the paragraphs where improvements have been made and some of the constitutional absurdities referred to by the noble Lord, Lord Dodds, dealt with. How are the seven tests that my noble friend behind me alluded to earlier today getting on? Is it going to be the case that this framework mark 2 is going to come up and we will have solutions? Perhaps the Minister can tell us what negotiations have taken place with the European Union, whether they have been successful and what mechanisms are going to be adopted and changes made to make these arrangements more palatable and more constitutionally correct—because, at the end of the day, that is what a two-year boycott has been about.
I listen to people talk about the Act of Union. We hear that some keyboard warriors have suddenly discovered that they have great skills in this area. It is a pity they were not exercising those skills when we had to deal with the Provisional IRA’s campaign against Northern Ireland over the years. Anyway, they have suddenly discovered the word “subjugation”, and I know my noble friend thinks of little else. However, can he explain to me why, if the Act of Union is the be-all and end-all and such a great thing—given that it was introduced in 1801 and it covered all of Ireland and Great Britain—there is an Irish Republic?
The truth is that this Parliament can legislate to say that apples are oranges. Important though it is, the Act of Union with Scotland would have been worthless if one more person had voted to leave than to stay. The same principle applies here. The best way to maintain the union is to maximise the amount of support on the ground so that more people want to stay in it than want to leave, and no Act of Parliament can substitute for that. In my view, we are fighting a sham fight while the people of Northern Ireland are suffering. We have heard about all the problems over health, education and industrial relations, which used to be the best in the UK. Now we are in a parlous situation.
Whatever comes out of this measure over the next couple of weeks, there at least has to be honesty, not a spin that something is something that it is not. People are sick of that. They want to know. If there are changes of substance, let us see what they are. If there are no changes of substance, people can say, “Look, we tried our best. It hasn’t worked out. We can’t go on like this. We’ve got to try another way”. Fair enough; we do not always get what we want, and not everything is successful the first time round. But the one thing I do not think people will tolerate is being led up the garden path and told something that is fundamentally untrue, so we will be watching very closely.
Lastly, I heard Sir Jeffrey in the other place saying that threats have been made against him. I totally deplore that. I can well understand it, because I know the threats that were made 25 years ago against our colleague Lord Trimble. He was tormented for years, I suspect by many of the same people who are tormenting Jeffrey today. The question is: what did they ever achieve? What did they ever get us? More misery, more deaths and destruction, and no progress. If anything is to come out of this, it is that that is not the way to go forward.
Baroness Foster of Aghadrumsee (Non-Afl)
I thank noble Lords who have already spoken. I shall kick off where the noble Lord, Lord Empey, finished. I think all of us from Northern Ireland involved in public life are shocked to hear Sir Jeffrey refer in the other place to threats. It appears that there is nothing new under the sun. These people who hide in the shadows and use the internet, in the way that we have talked about on so many occasions, seek to do damage and to push things in a particular way. I send my solidarity to Sir Jeffrey and I am sure the whole House will want to echo that in respect of the threats that he has received.
The Minister has made remarks about the union and his strong support for it. I very much welcome those remarks at the opening of this short debate on this very short Bill.
I will make three points. First, these negotiations between the Government and the DUP are essentially about the union and its operation. The union brought me into politics at a very young age, as the IRA tried to terrorise us out of the union in the late 1980s. Of course, the union is about more than trade and transactions. It is about cultural, political and social issues. It is about our shared institutions, security, safety, defence, and our place in the world; it all depends on the union. Economics and internal trade have been the focus of discussions around the protocol and Windsor Framework. It is so important that the internal market of the United Kingdom is restored and that the promise—I will use the phrase of the noble Lord, Lord Empey—of the Act of Union is fulfilled in so far that internal trade is unencumbered.
During the three years that devolution was blocked by Sinn Féin—between 2017 and 2020—civil servants in Belfast and Dublin constructed arguments for what they called the all-Ireland economy. They did this by retrofitting areas of co-operation between Northern Ireland and the Republic of Ireland—perfectly normal, practical co-operation between two jurisdictions. They used that as a way of constructing an all-Ireland economy. Very clearly, there was not an all-Ireland economy before they constructed it and there is not one now. A cursory look at the Northern Ireland economy shows the integrated nature of the supply chains between Great Britain and Northern Ireland.
This assertion, by civil servants—who by their very nature were unaccountable because devolution was blocked at that time—caused untold difficulties in the negotiations between the United Kingdom and European Union, because the assertion was just accepted as fact and was not challenged. I am pleased that the United Kingdom Government moved, after the May years, to grasp that fallacy and assert the primacy of the United Kingdom economy. That is really important. I hope that the negotiations, when they conclude, will underline the importance of the United Kingdom internal market and reject the notion—because a notion is what it was and is—that there is an all-Ireland economy, built up by civil servants. Many of them, Members of the House will be interested to know, are now political commentators on everything that goes on in Northern Ireland.
My second point relates to finance. It is so important that the finances of Northern Ireland are put on a secure footing. I welcome the funding package that has been referred to. Given that a lot of the money in that package—I think it is £538 million—is recurring expenditure, which will happen year on year and is not a one-off, can the Minister confirm the position regarding that funding? Is it an ongoing commitment? Will it be baselined into the Northern Ireland block grant or is it a one-off amount of money that has been made available? I think the Minister will agree that it is important to have stability in finances as well as in politics, because the two are often inextricably linked.
The third and final point is that we have heard a lot from Members of this House, and from outside, about reform of the Belfast agreement. There was very little talk of reform of what Mark Durkan, the former deputy leader of the SDLP, used to refer to as the “ugly scaffolding” when it was working to the advantage of others in Northern Ireland. Now it is not, the calls are very loud. Reform will come when there is an all-party and all-community consensus in Northern Ireland for it. Imposed changes will not work. It appears that there are many who want to use the parts of the Belfast agreement they agree with but change the parts they do not agree with.
I was no fan of the Belfast agreement, especially in relation to the release of terrorist prisoners and the lack of linkage to the decommissioning of paramilitary weaponry, but the Belfast agreement was endorsed fully by a referendum of people in Northern Ireland and people in the Republic of Ireland. The basis of that agreement is consensus politics between the communities—not imposition. Noble Lords should remember that when speaking about issues in Northern Ireland.
I say to the Minister that I wish the Government and the parties well as they seek to find a sustainable, workable and—God willing—durable solution to the problems of the protocol and the Windsor Framework.
Lord Morrow (DUP)
My Lords, before I come to what I want to say today, I want to remind the House that on Saturday evening I attended a memorial service at a local border school to remember its former headmaster. He was abducted by the IRA while across the border having a meal with his wife and was found the next day with a bullet through his head. The memorial also remembered three former pupils of that small border college in Aughnacloy on the Monaghan border.
There were many people there that evening who had served in the security forces, and I looked across their faces and wondered whether I would have been as brave as those men during the Troubles, when more than 3,000 people lost their lives. Some 60% of those deaths are attributable to the Provisional IRA, 30% attributable to loyalists and 10% to the security forces—but, as I have said in this House before, when you drill down into that last figure, it is something like 1%, because the 10% includes incidents where the security forces intercepted terrorists en route to shoot or blow up something.
That was a very solemn occasion and it vividly reminded me of what went on in Northern Ireland during those years. We hope that is behind us. I have three colleagues sitting on these Benches today who have the marks of those years on their bodies. The IRA tried to murder them. Today, those same people are feted as great, courageous people. I am glad that my noble friend Lord Dodds mentioned that we took risks beyond what we should have ever been asked to take to bring us to the situation we have today.
Did we need to be here today discussing this Bill? If only government had listened to us when we said the protocol would not work. But who did they listen to? They listened to the rigorous implementers saying, “Get it done—implement it rigorously and vigorously”, until government then had to acknowledge. We would not be here today had government listened to us. For two years, we pleaded with the Government: “This is not going to do the job. This will not work”. It was only when Sir Jeffrey Donaldson removed the First Minister, and then removed his Ministers, that government started to sit up, listen and take note. I hope and pray that we never have to get to a situation again where government will just turn their heads, look the other way and listen to only one side of the debate.
I commend the three speakers who have spoken before me. They have hit all the right notes and all the issues. But, in looking at the Bill, which changes the date by which the Assembly election must be called, we must be real about why we are here. We are here for one reason and one reason only: the Northern Ireland protocol—now renamed the Windsor Framework; I do not know whether it will eventually come out like that —creates an injustice that is very simple. In 300 areas of law, it subjects the people of Northern Ireland to laws by a foreign parliament.
It thus effects the partial disfranchisement of 1.9 million people. Does anyone in that House care that that is happening? We in Northern Ireland certainly do. We need to see that fixed. Until the end of 2020, it did not matter what part of the United Kingdom you resided in; we could all stand for election to make all the laws to which we were subject. From 1 January 2021, that changed. Today, when UK citizens in England, Wales and Scotland can stand for election to make all the laws to which they are subject, people living in Northern Ireland are afforded the right to stand for election to make only some of the laws to which we are subject. To date, around 700 laws have been imposed on us; that figure will continue to increase as the years go by.
I am not going to debate the Stormont brake, as it has been mentioned here before, but what does it do? It cements this injustice rather than removing it. In the first place, it applies to only some areas of imposed law, and so falls at the first hurdle. In the second instance, even if it can be made to work, which many doubt, it does not restore to the people of Northern Ireland the right to stand for election to make all the laws to which we are subject. It just gives us the demeaning second-class—perhaps third-class—right to stand for election to try to stop laws that have already been made for us by a foreign parliament applying to us. As such, it is a far more humiliating provision than Poynings’ law—noble Lords can look up what that was; I did but I will not go into it—which is now regarded as a matter of shame by many people in GB. At least under Poynings’ law, the Irish Privy Council had the power to initiate and define legislation in the first instance.
In this context, we must be clear that it would not make any difference whether or not the Government removed every check on the green lane; let us remember that that pertains only to consumer goods that have a confirmed address in Northern Ireland. The fundamental injustice that is the protocol would remain. If we are not to find ourselves back here again in a short while with a similar Bill, the Government need to take responsibility for their own citizens and explain to the European Union that our votes are not tradeable—we are not some sort of a commodity—and that the integrity of our political system depends on treating all citizens as ends in ourselves rather than as a means to an end.
The Good Friday/Belfast agreement—whatever term you wish to place on it—ended a 60-year period during which the Republic of Ireland refused to recognise the territorial integrity of the United Kingdom. Its constitution claimed the north, as it would call it; however, as a result of the Belfast agreement, the Republic recognised the territorial integrity of the United Kingdom for the first time and ceased to claim “the north”, in return for the provision of a border poll in the event that polling suggested majority support for the break-up of the UK and Northern Ireland joining the Irish Republic. The agreement also contains cross-border provisions that then became necessary to facilitate a good working relationship in the context of recognising and respecting the reality of the newly recognised border. I emphasise that at no point does the Good Friday agreement say that there can be no customs border.
There is much more that I could say, but, before I sit down, I want to say this. A guarantee was given that Northern Ireland’s constitutional position would not change without a referendum and the consent of the people of Northern Ireland. I stand in your Lordships’ House today and contend that Northern Ireland’s constitutional position has changed, but we have had no opportunity to say anything. So do I now conclude that that guarantee in the Belfast agreement—that there will be a constitutional referendum—has now been pushed aside and is no longer relevant? I am fearful, and I would like the Government, the Opposition and everyone else from any party that sits in this House to declare where they are. Our constitutional position has been changed and we have had no say whatever. I will stop there.
Baroness Hoey (Non-Afl)
My Lords, it is a great pleasure to follow the chairman of the Democratic Unionist Party, the noble Lord, Lord Morrow, and to listen to his words of real experience. I hope that some of that gets back to the Secretary of State.
Like the noble Lord, Lord Empey, I listened to a lot of the debate in the House of Commons earlier, and I was pretty horrified by the Secretary of State’s short and contemptuous speech of less than two minutes to introduce the Bill. Like others, I thought the shadow Secretary of State tried very hard to deal with some of the issues. It was as if he genuinely understood the issue and the problem. I did not necessarily agree with his final analysis, but at least he made an attempt. The Secretary of State has continued to show contempt for unionists, unionism and the very important issue of why we are here.
Let us face it; it is not about money. The DUP was perhaps rather short-sighted in getting the money aspect and the constitutional issue linked. But I agree with all those noble Lords who said that it is disgraceful that the Secretary of State, knowing that the money is there to solve and to end the public sector workers’ strike, has refused to do that and simply said no. He probably thought, “Great—all the trade unions will now blame the DUP”. Of course, from the headlines—even yesterday in one of the Northern Ireland papers—we have seen the trade unions fairly and squarely blaming the Secretary of State. So that has backfired very much on him.
The contempt shown today has been going on for some time. All the things it was said that the Windsor Framework and the protocol were going to solve have proven to be nothing: there has been no real change. Northern Ireland is in the UK customs union, they said—but then of course we have to apply the EU customs code. The noble Lord, Lord Dodds, mentioned something that happened last week. It was very nice to see the noble Baroness, Lady Lawlor, moving the amendment, which clearly showed that, once again, a Bill that we were saying extended to Northern Ireland—most people would think, “Great, Northern Ireland is part of it”—in fact does not apply to Northern Ireland. That is quite disgraceful.
Again, there is an attempt to hide things with words and flannel, almost as if the Secretary of State feels that Northern Ireland people are not clever enough to understand and see through some of these words—for example, saying the framework removed the Irish Sea border. What nonsense. That contempt now continues with the fact that there is no transparency whatever in what is going on. Even very active members of the Democratic Unionist Party probably do not know what is in this so-called deal.
I expect noble Lords will be very relieved to hear that the Public Bill Office ruled out my two amendments because this is a very narrow Bill—probably designed very carefully to make sure that we could not extend the discussion too much. However, when it comes to discussing Northern Ireland, we all find ways of hammering home some of the issues and points that so many noble Lords have not engaged with. I was trying to table an absolutely crucial amendment that was a real indictment of how the Government behaved right at the beginning of all this when they changed, in a statutory instrument, the mechanism at the end of this year for the Northern Ireland Assembly to approve or disapprove of the protocol from cross-community consent to a straightforward majority. Nothing else gets through via a majority, but suddenly, somehow, the Government felt that it was fine to change that from cross-community consent.
I was also trying to move that we should absolutely ensure that, when there is something in writing—I do not even know whether there is anything in writing being discussed—it should be published within a very short period of time. If there is any draft legislation, we need it as early as possible. We need clear answers from the Government on how long they will continue with these kinds of discussions. We keep hearing, “There’s progress and we just need a little bit more”. I have no idea what that “little bit more” is and neither do the vast majority of people in Northern Ireland—but we should know more about what is happening and what the Government are offering. Deep down, we all know that they have not been negotiating with the European Union. The EU has not been involved and, therefore, it is very unlikely that anything in the Windsor Framework will change sufficiently to satisfy the DUP’s seven tests.
So let us not try to put the blame on the DUP or say that it created the problem that we are dealing with today. This problem was created squarely by a United Kingdom Conservative and Unionist Government who decided that Northern Ireland was expendable when it came to leaving the European Union. As I say every time, we had the same ballot paper and the same discussions; it was a United Kingdom vote, but Northern Ireland has not got Brexit.
Forget talking about the Act of Union—the question for me is whether, at the end of all this, Northern Ireland will still be under EU law for substantial parts of its trade agreements. Everything coming to this House and the other place now needs additional bits about not applying to Northern Ireland. The one that is quite disgraceful, which we will discuss in a few weeks’ time, is the Animal Welfare (Livestock Exports) Bill. Hardly any live animal exports go from Great Britain to the European Union, while lots of live animal exports go from Northern Ireland and the Republic to the European Union. Yet the one area being left out is Northern Ireland, because the EU does not have the same law and we quite rightly want to keep the flow between Northern Ireland and the Republic of Ireland. The Government have now used the excuse that the WTO will not allow it. Why have they not tried even to challenge it? That is perhaps an issue for another day.
I want to say one more thing about how the Government have handled and are handling this issue. Without doubt, a former Secretary of State has been ringing round senior DUP people, senior unionists and others, making suggestions about how they might be rewarded or that they should definitely begin to think about giving in.
I think that is absolutely shocking from any ex-Secretary of State, who has probably been brought in by the current Secretary of State because they feel that he knows quite a lot about what is going on in Northern Ireland. Those kinds of threats in a nice way will not work with people. We have seen some of the things that have been done in the past by Secretaries of State who did not listen, and perhaps in the whole working of New Decade, New Approach, who handled it in a way that was seen to be more in support of the Irish Government than our own Government. That is something that I hope the Minister—who knows Northern Ireland very well—will take up.
Obviously, I condemn any threats to Sir Jeffrey, and any other threats. However, all of us who come from Northern Ireland or have relatives in Northern Ireland who are involved politically or are living there now have all had threats of different kinds. It is important that, while we condemn that, we do not think that it is just one person who is being threatened. Threats come in different ways and in different strengths and are taken very seriously by the PSNI.
Everyone says that this Bill is inevitable. It is not inevitable. The Government could have said that they were going to go along with what they have said, that if by such and such a date, the Assembly was not back, there would be an election. They do not want an election, because they know that the mandate that the unionists—the DUP, in particular, and the TUV—would get to stay out until the seven tests are met and until we are back as an absolutely integral part of the United Kingdom would be bigger. That is why they do not want an election, and that is why, in a sense, the Bill is something that could have been solved by simply having an election. However, I am afraid we may well be back in a few weeks’ time because a two-week gap is pretty ridiculous.
In the end, the Government will realise that from day one they have handled this extremely badly. They have not stood up to their commitment to be Conservatives and unionists. Probably very soon, we will see a new Government, who I hope might take a slightly different approach from the way they have been handling unionists—pro-British people in Northern Ireland.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I thank the Minister for his introductory remarks. I have no doubt whatever in his strong unionist credentials. I must say that I do not have the same confidence, perhaps, in some of the other colleagues, but nevertheless, I have no doubt in his unionist credentials.
In preparation for this important debate, I attended the debate in the other House to listen to it. I found it very informative. I did indeed hear the words of my leader, the right honourable Sir Jeffrey Donaldson, in mentioning the threats that have been made against him. That is despicable, wherever that has come from or from whomever it has come. I and some other noble Lords in this House know exactly what it is to live under threats and to have those threats carried out. I had to be driven in an armoured police car for 25 years to carry out my duties as a Member of Parliament in the other place. Indeed, as noble Lords know, I received an actual bomb at my home on my 40th birthday and the house was shot up with over 50 bullets, just as the last action of the IRA, so that I would not be here. However, I thank God there is a greater power than the Provos, and that is why I am here. I thank God for his sovereignty and his providential care.
If anyone thinks that the threats across our community have finished, we know that dissidents are still threatening people. It is not only dissidents: outside Dungiven, we saw how those people went into the GAA place with their guns and threatened the people there. They had their weaponry with them, and they said they were the IRA. Therefore, those threats still go on.
I make this clear: irrespective of where the threats come, over the years those with principles have been willing to stand by them. We will not be threatened; we will not be bullied. Whether it be by the terrorists, government or anyone else, we will not be bullied into submission or move away from the principles that we believe in with all our hearts—I must lay that down right at the beginning.
Like my noble friend Lord Morrow, I attended an event on 17 January to commemorate the 32nd year since eight young men, who were travelling home from work, were brutally murdered on the Omagh-Cookstown road. For the past 32 years, I have stood with the families along that roadside. Come hail, snow or rain, we have stood there every year at the commemoration stone, even though others have sought to destroy it with bullets, hammers, sledgehammers and other things. The stone commemorates the lives of Gary Bleeks, Cecil Caldwell, Robert Dunseath, Oswald Gilchrist, David Harkness, Bobby Irons, Richard McConnell and Nigel McKee. We still remember them, and we will continue to remember their sacrifice and the pain that is still real in their loved ones’ hearts.
As I listened to the debate in the other place, I heard impassioned speeches from some, as well as some of the usual threats from others—not from the gun, but the usual political threats—should unionists not conform. In his introductory letter, the Secretary of State said that Northern Ireland has been without a fully functioning devolved Government since February 2022 and that the Government’s utmost priority remains restoring strong, stable and locally elected devolved institutions as soon as possible. Of course, the Government and Members of this House are fully aware of why my party pulled out of the Executive at Stormont. The Democratic Unionist Party did not create the impasse. Northern Ireland was plunged into constitutional uncertainty because of the actions of this Government in entering into an agreement with the European Union, over the heads of the people, that places Northern Ireland under laws from Europe that no representative of the people had any input in, influence over or ability to change. So much for democracy—and yet we are often reminded of what democracy would demand of us in going back into the Assembly.
What is being forced on the people of Northern Ireland under the protocol and the Windsor Framework is not democracy at work. How can we have 300 areas of law forced on the people of Northern Ireland when they have no power to change them? They have no representation in the place where those decisions are being made. In fact, they are being told to suck it up and take it—that is the way.
I am sad to say that the vast majority of Members in this House, when both the protocol Bill came through and the Windsor Framework was being debated, were willing to say, “Let’s have it”. In fact, when we debated the protocol, this House said that it could not be changed in any shape or form. Members sitting in this House said that the Democratic Unionist Party can blow in the wind and that this does not matter because the protocol will not, and cannot, be changed. We know that was not true; nevertheless, that was what was said. They were then forced into the position of saying that another agreement, the Windsor Framework, was the best thing: “Let’s forget about the protocol, let’s go with the Windsor Framework”. It involves a foreign jurisdiction making laws that we in Northern Ireland must adhere to, even though they are divergent from those that apply to the rest of the United Kingdom. We are supposed to be an equal part of the United Kingdom.
The Government said out of the other side of their mouth that they now wish to strengthen the union of Great Britain and Northern Ireland and that they may bring forth legislation to do so. Did they really think we that we would believe them? Actions speak louder than words. We were told in this letter from the Secretary of State that a restored Executive would have access to a significant financial package, an extra £3.3 billion, to secure and transform Northern Ireland’s public services. That is a large amount, but when we realise that there is a major black hole in the finances at Stormont because Northern Ireland has been underfunded compared with the other devolved Administrations, and on top of that moneys have been allocated for the remuneration of public sector workers, we find that that substantial package is greatly depleted. Let nobody be under any misunderstanding: if they think that that amount of money will transform Northern Ireland’s public services, they are mistaken. There are major problems in the health service in Northern Ireland. There are major problems with education. Finances are needed across a vast area of Northern Ireland life, and yet we are told that this will solve the problem.
One of the most disgraceful and callous actions of the Secretary of State was using public sector workers who have not had a pay rise for three years and, as the shadow Secretary of State in the other House said in the debate, holding them hostages in this political game. We say that, yes, they were hostages: they were being held hostage and were pawns in his political game of trying to put the blame on the Democratic Unionist Party. Like every other Member in the other House, he has been told today, as he had already been told, to stop playing politics with teachers who provide an excellent education for our children under very difficult circumstances, stop using nurses and doctors who walk the wards of our hospitals day and night to aid our sick, stop abusing police officers who stand between us and those who terrorise the community. Secretary of State, release the money now that they are overdue. It was a deliberate decision by the Secretary of State to refuse to act. I trust that the noble Lord the Minister will take the message from across this House that that money should and must be released. Last week, my party colleagues personally put into the hand of the Chancellor of the Exchequer a demand that he release the money. I have been told that the Chancellor of the Exchequer is willing to release that money. Therefore, there is no excuse under the sun why the Secretary of State could not immediately order the payment that is due to those who keep our public services going in different spheres across the Province.
I noticed that the former Secretary of State, Julian Smith, said in the other House that what is being offered is a very good deal, that it is not perfect, but it is much better now. That is interesting, because he must have seen it. If he has seen it—and I am glad he has seen it —perhaps he could let some of the rest of us see it as well. He may have seen it, but if anyone thinks that anyone in Northern Ireland is going to take this Government at their word on trust, they are sadly mistaken. We have learned from the reality of the situation of life in Northern Ireland that we have to look at the detail and scrutinise the small print and then decisions can be made.
I notice that the Alliance Member for North Down once again threatens unionists that, if they do not give in, submit, surrender, they will be faced with Dublin’s involvement. It is sad that that Member comes from a very unionist constituency—there is a vast unionist constituency in North Down—yet, since he has come into the other place, he acts as a surrogate for Sinn Féin-speak. It is a total and absolute disgrace that he threatens unionists that if we do not bow to the diktat, we will have Dublin rule. I appeal to all unionists to stand united and strong as we face the onslaught of propaganda—and we will—and be sure not to give the enemies of unionism a bonus by turning in on ourselves. The old statement has always been: “United we stand, divided we fall”. Much has been heard about the Belfast agreement and its 25th anniversary, but we were told that the foundational principle of that agreement was cross-community consent: a majority of nationalists and a majority of unionists. It will be most interesting to see whether, whatever deal the Government finally offer unionism, a unionist Minister in the Assembly will be made to implement and enforce the Irish Sea border, as under the Windsor Framework, or has that been dealt with? Governments in the past have sold Northern Ireland short before; we are aware of that. Therefore, actions will speak louder than any pious words.
Lord Weir of Ballyholme (DUP)
My Lords, as perhaps the unelected Member for North Down, it is appropriate that I follow my colleague after his remarks. This is a very net Bill, and I understand the concerns raised by the noble Lord, Lord Empey, that this is a form of takeaway legislation. Those are valid criticisms, although I would also say that, whatever concerns we have about that, the appropriate places to discuss such matters are this House and the other House—in democratic institutions. That is why I join others from across the House in saying that any attempt to threaten or intimidate any Member from whatever source—towards whichever Member—is utterly wrong. Politics must always be decided in a democratic and peaceful manner, and had others applied that lesson over the last number of decades, we would be in a much better place in Northern Ireland.
The Bill itself is one that, given the circumstances, is, as my noble friend Lord Dodds said, effectively inevitable. As for whether an election takes place or not, I am fairly relaxed one way or the other. Perhaps, given the polls, my party would pick up an extra seat or two, but the reality is that an election would not really tell us anything different from what we already know. It would, broadly speaking, highlight where the divisions are. Similarly, we have a shift of dates, but, as have we always said, what is actually important is not the calendar but whether the conditions are met. If extra time is being provided, what the Government will do with the extra time will be the critical matter to be resolved.
In resolving the problems that lie before us, the solution does not lie in bullying or bribery through a financial package. For months, I and my colleagues in this House and the other Chamber have highlighted that Northern Ireland has been underfunded. That is not something that we have simply plucked out of the air, but the application of the Holtham formula, if it were applied to us on the same basis as Wales, suggests what the fiscal floor should be for Northern Ireland. Those figures have been worked up through the Northern Ireland Fiscal Council. We have made the case time and time again. I know that the Member for Belfast East in the other place has highlighted this.
It is useful that, finally, the Government have accepted the merits of this argument; but to tie this in with a belief that you get this only if you are good boys and accept whatever is thrown at you is unacceptable. The crassest example of this culminated last week when the Secretary of State clearly tried to use the issue of public sector pay as pressure to say, “Well, if only the DUP agreed to this, all this money would be available”. The reaction, not just across the Chamber but from the trade unions, was remarkably consistent. I saw on television a range of trade union leaders whom I know and who, frankly, would run a mile before voting for the DUP. In the advantage that we have of PR elections, they would probably vote on the ballot paper for every preference other than the DUP. Yet they consistently said, to a man and woman, “No: if the Secretary of State has the money, government should be releasing the money”. The attempt by the Secretary of State was not only ill-judged but entirely counterproductive.
What will resolve this is dealing with the constitutional issues of the Irish Sea border. From the start of this process, it has been consistently said over many decades that we will have stable government in Northern Ireland only when we have systems which both unionists and nationalists buy into. Back in 2017, the Irish Government and Irish nationalism took a very tough line on north-south trade. At one stage, to his discredit, the then and current Taoiseach raised the spectre of violence re-emerging across the border if any level of customs was put within that.
In many ways, Irish nationalism got what it wanted in terms of north-south trade, but we have not seen equality of treatment for the concerns raised by unionists. It is perfectly reasonable for the EU to say, “For trade coming into the European Union, there need to be arrangements that protect the single market”. That is perfectly understandable. What is not understandable or acceptable is to extend arrangements which interfere entirely with the internal workings of the United Kingdom. For example, goods that are never going to go within the EU are subject to a range of restrictions and pressures; democratic institutions are held hidebound because of the lack of democratic accountability. This is not simply a constitutional issue, but one which applies from a practical, economic point of view.
We have seen—and not just in a theoretical sense—some large companies already starting to divert trade away from movement between Great Britain and Northern Ireland. A question mark exists as to whether a company in Northern Ireland could produce something to the same standards as GB and sell it in its own hometown, for example. That is the level of restrictions in place. Removing that Irish Sea border is the key to unlocking this solution.
Unfortunately, I have heard at least one noble Lord—not one who has spoken in this debate—parroting the line of Sinn Féin that the real reason why the DUP is opposed to restoration at this stage is that we cannot accept a Deputy First Ministership. Well, if that is the case, call our bluff. Deal with the constitutional issues and we will either accept it or be exposed to the world. We do not seek supremacy. What we seek is equality with our fellow citizens across the United Kingdom and equality between unionism and nationalism. Only with that level of stability, of getting something that both unionists and nationalists can buy into, can we have long-term stability in Northern Ireland. We need something that is clear, transparent and does the job. Part of the problem with the Windsor Framework is not simply that it did not solve the problems created by the protocol but that it was so overspun that there is a lack of trust in anything the Government put forward. Therefore, we need solutions that can clearly be demonstrated to have solved the problem.
I hope that today, small though this piece of legislation is, can be the first step on a route map to resolving the problems—either that or we will be back in a few weeks’ time in Groundhog Day. The choice very much lies with the Government to be able to deliver on that.
Baroness Suttie (LD)
My Lords, it is a pleasure to follow that speech by the noble Lord, Lord Weir, which was one of the most thoughtful that we have heard this afternoon.
Lord Weir of Ballyholme (DUP)
The noble Baroness should not dare to accuse me of thoughtfulness.
Baroness Suttie (LD)
I also agree with what the noble Lord said, and share his sentiments, about the threats to Sir Jeffrey Donaldson. As he said, such threats, wherever they come from and whoever receives them, are never, ever acceptable.
I thank the Minister for his introduction to this short Bill and echo his sentiments in welcoming the noble Lord, Lord Empey, back to his place. We always enjoy his contributions, and we missed them when he was not around so much recently.
It is now nearly two years since the Northern Ireland Executive collapsed—two years in which civil servants have had to take decisions which should have been taken by the politicians elected to deal with the very difficult situation that faces the people of Northern Ireland on so many issues. As other noble Lords have said, the health system is in crisis, and vital decisions are not being taken on education, the economy and future financing. The people of Northern Ireland are being badly let down and, as others have already said, last week’s public sector strikes showed all too clearly the level of frustration that people now feel. Ample time has been provided to reach a conclusion. There have now been so many occasions when we had been led to believe that a decision was close, and then it does not materialise.
However, from these Benches, we recognise the huge amount of work undertaken by the Government in the last two years and that some progress has been made. We welcomed the Windsor Framework, and we welcome the financial package announced before Christmas—in particular, the separate stabilisation fund to undo some of the harm created by cuts and to tackle backlogs, and the transformation fund to allow Northern Ireland to improve its public services.
However, financial stability alone will not address all the issues. Financial stability requires political, constitutional and institutional stability. In that context, from these Benches, we sincerely hope that this latest attempt and necessary extension of the timeframe will result in a return to a fully functioning Executive and Assembly. For that reason, we will not oppose the Bill. We can but hope that this latest attempt is successful and that this is indeed, as the Minister has said, the last such Bill of this kind.
However, if this latest extension to 8 February does not result in the outcome that we all hope to see, will the Minister confirm that the Government intend to return with a more comprehensive Bill, which would not be subject to this truncated timetable? As the noble Lord, Lord Empey, said, this really is not the way to do business. Will the Minister further confirm, were such a situation to arise—which we all hope it will not—that he would be willing to consider more extensive reforms at that point?
Northern Ireland has to be governed and, however good the civil servants are, it is unacceptable—including for the civil servants themselves—to continue with the current situation. The people of Northern Ireland have been incredibly patient, but, every day that these issues are parked and the can is kicked further down the road, more and more damage is being done. Northern Ireland deserves better.
Lord Murphy of Torfaen (Lab)
My Lords, we have been here before—quite a few times. Even though that is the case, I and the Opposition support the Government in bringing the legislation forward. It will avoid an election, which I do not think anybody wants, and, because of the shortness of the period that the extension is covering—just two weeks—perhaps we are allowed some hint of optimism that something might be happening, and that there may indeed be a breakthrough or a deal before two weeks are up. We will not oppose the Government on this.
It has been an interesting debate. I certainly endorse the views of Members of the House about threats to Sir Jeffrey Donaldson and others. It is entirely improper. I know from my time in Northern Ireland that those threats sometimes became real and ended in tragedy. I am sure that that will not be the case for Sir Jeffrey, but we nevertheless sympathise with him. He does not deserve that.
I also agree with the Minister that we welcome the noble Lord, Lord Empey, back after some months away. I very much welcomed his contribution. As always, it was wise, useful, important and came right to the heart of the matter. I also regret that my noble friend Lady Ritchie cannot be here as she has Covid, because she would have put a different point of view in this Chamber. We have heard, rightly, from the DUP, the noble Baroness, Lady Hoey, and the noble Lord, Lord Empey, a unionist point of view. I sympathise with the dilemma that unionism in Northern Ireland is in—of course I do. What I do not sympathise with is, however important that is—I will come to that in a second—it meaning that Northern Ireland should be without proper government and a proper democratic Assembly for two years now.
As a consequence of that, the civil servants are taking, or trying to take, major decisions that they cannot take; we have seen a strike of 100,000 people with 16 trade unions, which is, in effect, a general strike in Northern Ireland; we have seen a real collapse in public confidence in politics in Northern Ireland; and we have seen an apathy elsewhere in the United Kingdom about what is happening in Northern Ireland. If it were happening in Wales or Scotland—or, for that matter, Yorkshire—and a part of this United Kingdom was without government for two years and a proper decision could not be made, there would be an uproar. Instead, we hear, “Northern Ireland—it always happens there”. But it does not. The Good Friday agreement and subsequent agreements were all about avoiding this happening.
I was the direct rule Minister for five years in Northern Ireland. I did not like doing it, because it was not up to me as a Welsh Member of Parliament to take decisions about the future of men, women and children in Northern Ireland. The way it is going, we will drift back into that unless there is an agreement. We will drift to the general election, because that will put people off making decisions. That cannot be right.
I come back to the points that noble Members of the House from the DUP made about the protocol. I understand the dilemma that it puts unionism in, but that constitutional difficulty arose from the simple fact that Brexit occurred. Had there been no Brexit, there would not have been a protocol. Had there been no protocol, we would not be in the position that we are in at the moment, without democratic institutions in Northern Ireland.
We should always remember that there is another side to this argument: 56% of the people of Northern Ireland, a sizeable majority, voted to remain in the European Union. I know that that is not constitutionally proper because the United Kingdom is the member state. Nevertheless, if we are to talk about what the people of Northern Ireland thought about Brexit, it was a result of a constitutional and democratic referendum. It is not as simple as that, of course: if you break that down into how nationalists and unionists and those who belong to neither voted, it becomes more complicated. But my argument has always been that you can resolve, or hope to resolve, that issue simultaneously with the continuation of democratic institutions in Northern Ireland. Now, we are where we are and that has not happened, so we have to hope that there will be progress in the next two weeks.
I endorse the views of every Member of the House who has spoken on the pay settlement for public sector workers in Northern Ireland. They should be paid because it is the right thing to do, and they deserve that increase. Their cost of living should not be made worse because of this disagreement. Of course, they should be paid, and I hope that the Minister can give us a positive answer on that. It does not answer the dilemma of how Northern Ireland receives its money. There is a case, made convincingly in this Chamber over the past two years, that the Barnett formula as it operates is unfair to Northern Ireland. That must be remedied too, but let us remember that all these things can be more properly done if there is a working Executive and Assembly.
I do not know what is going to happen in the next two weeks. Let us hope that there is an agreement. If there is, or if there is not, when that Assembly returns, and when there is a working Executive, they should turn their minds to how to avoid this situation in the future. The Good Friday agreement has to be implemented in all its forms, but that includes a consensus among all Members of the Executive and Assembly, and all politicians in Northern Ireland. The Northern Ireland Affairs Select Committee of the other place has suggested an independent review of the workings of the Good Friday agreement. As the noble Lord, Lord Empey, will know, the agreement itself said that there could be reviews of the agreement after a quarter of a century. Instability has ensued over the last number of years—not just because of what the DUP has done, because Sinn Féin did exactly the same thing—so there has to be a prospect of stability and durability about democracy in Northern Ireland. I hope that is resolved by people in Northern Ireland themselves. Whatever the problems, differences or dilemmas, all of us in this Chamber hope that this will be resolved in the next fortnight.
Lord Caine (Con)
My Lords, as always, I am incredibly grateful to all noble Lords who have contributed to the debate this afternoon and into this evening.
I, like a number of noble Lords, listened to the speech of Sir Jeffrey Donaldson in the other place this afternoon. It was a powerful contribution from the leader of the DUP, and I supported much of what he said, particularly in respect of those who—as my noble friend Lord Empey said—have tried to frustrate progress in Northern Ireland over many years and have delivered nothing. I was also moved by his comments about the threats and intimidation that he has received. I know I speak for all Members of this House when we pass on our support for him and wish him well. It was one of the Mitchell principles back in the 1990s that politicians in Northern Ireland should pursue their objectives exclusively by peaceful and democratic means. That is as sound a principle today as it was then and should be for the future.
With the leave of the House, I will try to respond to a number of the points that have been made. Inevitably, a number of speeches this afternoon strayed outside the scope of the Bill. Perhaps that was inevitable, given it has only one main clause and one main purpose, which is to move a date.
I am pleased that, at least, there appears to be broad agreement on the substance of the Bill, and I am particularly grateful to the opposition parties for agreeing to its expedited passage through this House and the other place. Our priority must be the restoration of devolution in Northern Ireland, and this is the issue on which we are completely focused. I agree entirely with the noble Baroness and the noble Lord, Lord Murphy of Torfaen, on that.
We all want to see progress within the next fortnight. As was said during the debate in the other place this afternoon, there is no deal at the moment. We hope there will be one within the space of time that this legislation provides. I say in response to a number of noble Lords who were looking for more detail that should there be a deal it will be brought before Parliament, and both Houses will have the opportunity to carefully scrutinise the details or, as my Democratic Unionist Party colleagues normally put it, the fine print. We are not there yet, and the House contains enough seasoned negotiators in Northern Ireland politics to recognise that it would be unwise, even if I were able, to go into detail at this stage about any discussions that might be taking place. In response to my noble friend Lord Empey on the rationale for the Bill, suffice it to say that we believe the next fortnight provides an optimum period for the possibility of reaching an agreement. That is where we are focused.
I say in response to the noble Baroness, Lady Suttie, that we will continue to prepare for all eventualities, and will update the House if it has not proven possible to restore the Executive by the date which is set out in the legislation, 8 February. She asked whether we would bring forward more substantial legislation. We are currently looking at all eventualities, but if new legislation comes forward, Parliament will have the opportunity to examine it carefully.
The noble Baroness mentioned the possibility of further reform, and my noble friend also touched on reforms to the institutions. The approach of the Government to this has been consistent over a number of years, and we will always look at sensible suggestions for reform. I agree with those who suggested that the Belfast agreement was never intended to be set in tablets of stone. It has already evolved, and there were changes. The noble Lord, Lord Dodds, refers to the Belfast agreement as amended by St Andrews, as there were significant changes in the St Andrews agreement, and changes in the Stormont House agreement, and so on. The test for any reforms has to be that they will command widespread support and consent across the community, and they must be consistent with the underlying and enduring principles of the Belfast agreement.
Much of the debate focused on the reasons why devolved government is not currently in place in Northern Ireland, and the principal one is the DUP’s current opposition to the provisions of the Windsor Framework. If noble Lords will forgive me, and in the interests of time, I do not intend to have a lengthy debate about the Windsor Framework, which has been debated in this House on many occasions. Suffice to say, the Government are well aware of the concerns of the Democratic Unionist Party—it would be strange if we were not given the number of times they have been expressed. We are looking at what we can do to clarify any outstanding points there might be, recognising that the substantive negotiations came to an end shortly before Christmas. We are, and always have been, willing to clarify certain points that might arise.
Another key theme of this afternoon was the union. I set out my own rock-solid support for the union at the beginning of my opening speech. I will part company slightly with some of my colleagues behind me in respect of the constitutional position of Northern Ireland. There are two constitutional outcomes provided for in the 1998 agreement, which are reflected in the Northern Ireland Act 1998: Northern Ireland is either part of the United Kingdom, or part of a united Ireland. I am very sure that Northern Ireland remains an integral part of this United Kingdom, something I wish never to see change.
The noble Baroness, Lady Foster—she is my friend—referred to the concept of the all-Ireland economy. I entirely agree with her, and the Government have made it clear, that there are two economies on the island of Ireland. One of those, the Northern Ireland economy, is an integral part of the world’s sixth-largest economy, from which Northern Ireland gains considerable strength and security. We should never forget that fact.
I hear what has been said about public sector pay; there appears to be unanimity among most of the parties in the House on this issue. I see the noble Lord, Lord Coaker, confirming that from his sedentary position. Let me reiterate, as I did at the outset, that the £3.3 billion package is very much on the table for an incoming Administration in Northern Ireland. The noble Baroness, Lady Foster, mentioned money for tackling current pressures. She will be aware that the issue of the block grant is, rightly, one for negotiation between His Majesty’s Treasury and an incoming Northern Ireland Executive, but I will take back her comments and may write to her in more detail on that subject.
In conclusion, I hope shortly to be in a position where we have the return of devolved government in Northern Ireland and no longer need to have these rather novel pieces of legislation. I agree with my noble friend that it is very unsatisfactory. All I would say is that it is certainly not the first time we have introduced novel and expedited legislation in Northern Ireland. I look forward to a time when any Northern Ireland legislation is dealt with in a proper and considered way while most of the decisions are taken, rightly, in the Assembly, by local politicians in that Assembly answerable to their electorate. On that note, I very much hope that we can make some progress in the next two weeks, before 8 February, as set out in the legislation.
Lord Roborough (Con)
My Lords, we will now have a short period to allow Members to table amendments. Members wishing to table amendments should do so by 6.43 pm, so in 30 minutes, and should contact the Public Bill Office. We will now have a repeat of an Urgent Question and then a short adjournment at the end of the tabling period. When we return, if there are no amendments, we will take the remaining stages of the Bill formally and then move straight to Committee on the Victims and Prisoners Bill.
Extreme Weather: Resilience
(4 months, 1 week ago)
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The Minister of State, Cabinet Office (Baroness Neville- Rolfe) (Con)
My Lords, I will repeat the Answer to an Urgent Question in the form of a Statement:
“First, I would like to say how sorry the Government were to hear that four people sadly lost their lives due to Storm Isha, two in this country and two in Ireland. I extend my sympathy to their families and friends. At the same time, I praise our emergency and utility workers, who have worked so hard in some very difficult conditions to help the public.
Forecasters at the Met Office raised a rare whole-country weather warning for the wind over the weekend, in preparation for Storm Isha. The warning encompassed even rarer amber and red warnings for wind in the areas forecast to experience the worst of the storm. Indeed, wind gusts reached a peak of 99 mph in Northumberland and 124 mph across the Cairngorms. Although the storm had the potential to be extremely destructive, the vast majority of the transport and power infrastructure stood up well and recovered quickly, which is a credit to the resilience of our critical infra- structure and the response capabilities of our operational partners on the ground.
Storm Isha was closely followed by Storm Jocelyn, which reached a peak of 97 mph. I am informed that it was the 10th named storm to impact our country this season. Again, the impacts from Jocelyn in England were less than feared. There were operational partners working around the clock to clear any disruption on our transport and power networks.
The forecasting capabilities of our experts in the Met Office, and the accuracy and speed at which they can warn and inform the public of incoming severe weather events, no doubt saves lives and protects our homes and businesses. My officials and those across government were working hard last week, and over the weekend, to co-ordinate the extensive preparation and mitigation measures being taken across the Government. The fact that no escalation to a COBRA-level response was required for either storm is testament to our effective response structures at local and national levels. I am very grateful for the response from colleagues in the devolved Administrations and to local resilience forums around the country. Our local authority and agency partners kept public services running and reacted to any local issues that emerged.
We are adapting to weather events not previously experienced in our country, and events such as these coming with increasing frequency and severity. The UK is driving forward cross-government action to respond to climate risks and their impacts on our economy and way of life. Our third national adaptation programme, published in July last year, sets out an ambitious five-year programme of work, driven by three themes: action, information and co-ordination.
We are ensuring a more integrated approach to climate adaptation over the next five years, through stronger government engagement and co-ordinated policy-making. As part of this, we have already established the right government structures not only to monitor progress but to tackle strategic cross-cutting challenges which will drive the UK’s resilience to climate change. This is all in line with the Government’s broader strategy, as set out in the resilience framework, which committed us to strengthening the links between our understanding of the risks that the UK faces and the action we take to prevent those risks materialising. We must continue to drive forward the initiatives that help us curb the impacts of climate change and, at the same time, build systems that help us to withstand extreme events as they arise”.
Baroness Chapman of Darlington (Lab)
My Lords, I echo the words of the Minister in saying how sorry we all were to hear of the loss of four lives as a result of Storms Isha and Jocelyn in the UK and Ireland. Our thoughts are with their families and friends. Our thanks go to the emergency and utility service workers who worked tirelessly to protect homes and lives, often in the most challenging of circumstances. The Environment Agency estimates that the number of homes at risk from flooding could double by 2050 due to the impact of climate change. The UK needs to be better prepared. Will the Minister accept that a COBRA-style flood resilience task force, as proposed on these Benches, is needed to tackle the problem?
Baroness Neville-Rolfe (Con)
My Lords, I very much echo what the noble Baroness said about the emergency services and all who are involved in this. Indeed, without the changes we have made and the effort they put in, these recent storms would have caused much more damage and perhaps more loss of life, so that is very good news.
The COBRA system, which the noble Baroness mentions, is of course already baked into standing cross-government flooding response mechanisms, as the last tier of escalation for the most severe flood events. These mechanisms are stood up to support the operational response at local level, which is obviously necessitated by the increasingly sophisticated weather warnings that we see coming through from the Met Office. We managed well across the country on this occasion and the COBRA unit in the Cabinet Office—the ministerial unit—was not needed. That does not mean to say that officials did not get together. They worked well across the country with local people and the devolved Administrations. In some sense, it is a success that it was unnecessary to have the full COBRA ministerial meeting on this occasion. I have referenced the future resilience work that we are doing. We have brought these much better co-ordination systems into the Cabinet Office and work very closely with Defra, which is responsible for building up long-term flood protection. We have also invested a lot of capital in recent years. There is £5.2 billion available for flood defence projects, which I think is a doubling on the previous period.
Earl Russell (LD)
My Lords, I thank the Minister for her Statement. I join her and the Labour Benches in offering our condolences for all those who lost their lives, and in thanking the emergency services for everything that they do. UK winters are getting warmer and wetter; there is a lot of variation year to year, but winter rainfall has increased by 27% overall since records began in 1837. The impacts of climate change are here now. The NAO report Resilience to Flooding found that the Government do not have clearly defined targets or an effective strategy in place for making the UK resilient to extreme weather. They do not even track or evaluate spending on resilience to extreme weather. When do the Government plan to publish an extreme weather strategy, to include defined targets, risk assessments, and measures of outcomes?
Baroness Neville-Rolfe (Con)
I thank the noble Earl. I am glad he mentioned the NAO report, because it did welcome the work that had been done—I know this has been welcomed across the House—on setting up the Resilience Directorate and, indeed, publishing the resilience framework in 2022. Setting appropriate targets and ambitions for the level of flood resilience—in particular, for critical infrastructure because that is a key part—is part of the Government’s broader thinking on resilience standards.
There are more than 100 risk priorities in our risk register; we are working on all of these and have committed to create by 2030 common but flexible resilience standards right across critical national infrastructure, as well as across the private sector more broadly. One of the lessons of the storms we are seeing is that it is important to work with the private sector as well. One reason that people have been less affected has been the improvements that have been made in power, transport, trains and the rest—partly having early warning, partly working together, and partly having this sense of mission that we must try to respond to the warmer, wetter winters and the arrival of a certain element of Mediterranean weather in our beautiful island, as the noble Earl said.
Baroness Stuart of Edgbaston (CB)
My Lords, I am glad that the Minister mentioned the private sector, because I would like to take it to an even more granular level—the individual household sector. Has she had conversations with the insurance industry, to make it absolutely clear to home policy owners what damage is covered and how to deal with neighbourhood disputes resulting from falling trees, falling fences and similar damage, where it may not be immediately obvious whose responsibility it is?
Baroness Neville-Rolfe (Con)
The noble Baroness makes a very good point about insurance. We do have discussions with the insurance industry on resilience. Of course, in recent years we have developed Flood Re, which is a very important reinsurance scheme that makes flood cover more widely available to households that are particularly vulnerable to flooding so that people can get insurance. Another part of the picture is the compensation schemes that are part of the flood recovery framework. In England, for appropriate events, there was £500 per affected household and £2,500 for affected businesses provided through the local authority, and some temporary council tax and business rate relief. The arrangements in the devolved nations are a bit different and, in some cases, more generous.
I think we must look at it in the round. How can the Government help? How can they prevent this? Can they communicate much better to make sure that people are not harmed and are kept safe? Where, sadly, there is damage to property, can we make sure that the insurance system helps to minimise government expenditure, which is occasionally necessary?
Lord Watson of Invergowrie (Lab)
My Lords, the Minister said in her opening remarks that the problems in the last few days were such that we had not seen before, but is that the case? This is the ninth season that the so-called European windstorms have been sufficiently serious for them to have names attached. On each occasion, we see apparently more serious effects in the UK than in other countries—electricity supply off for days on end, trains and other forms of transport severely disrupted. It is fair to ask why that should be. Do the Minister and her Government not believe that more resources need to be given to local authorities, and indeed to rail companies and other forms of transport, to enable them to prepare more effectively? These windstorms will not go away; they will increase in severity.
Baroness Neville-Rolfe (Con)
My own view on resilience is that it has to be a whole-of-society effort; I was trying to explain that point in relation to the previous question. Therefore, local authorities play an important part. Clearly, this is part of local authority funding in the broadest sense, and there has been some further assistance for local authorities, although I know that difficulties remain. We have tried very hard to focus attention on the local resilience forums; DLUHC agreed an extra £22 million three-year funding settlement for them in England. That followed a pilot, and the good news—I think it has probably been announced before—is that there will be stronger local resilience forum pilots in eight areas, going live in June. They will be in London, West Mercia, Suffolk, Gloucester, Cumbria, Greater Manchester, Thames Valley and Northumbria—so this is investment in the local effort in different sorts of areas. I am a great believer in piloting because you can then share that elsewhere and make things better.
On funding, obviously we need to spend enough on flood protection and resilience, but we also need to try to do it in a better way and with the help of all parts of society. I mentioned earlier the efforts that have been made—by power companies, for example—to improve things and get electricity out much more quickly. We have had a lot of storms; the weather is perhaps getting worse, but we are trying to learn from that and to perform better in these sometimes very tragic situations.
Northern Ireland (Executive Formation) Bill
Wednesday 24th January 2024
(4 months, 1 week ago)
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The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
My Lords, I understand that no amendments have been set down to the Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. With the agreement of the Committee, I will now report the Bill to the House without amendment.
Victims and Prisoners Bill
Wednesday 24th January 2024
(4 months, 1 week ago)
Lords ChamberRead Full debate Victims and Prisoners Act 2024 View all Victims and Prisoners Act 2024 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 31-I(a) Amendments for Committee (Supplementary to the Marshalled List) - (23 Jan 2024)
Baroness Brinton
“(aa) witnessing criminal conduct,(ab) having subsequent responsibility for care because of criminal conduct,(ac) experiencing vicarious harm due to criminal conduct”Member’s explanatory statement
This amendment aims to extend the definition of a victim under Part 1 to include people who support and provide care for victims of serious sexual and violent crimes.
Baroness Brinton (LD)
My Lords, as we start this Bill, from these Benches we are pleased to see that the first part of it relates to victims. Even though we want to improve the Bill, I thank the Minister for the meetings and dialogue we have had so far and look forward to more as the Bill progresses.
Amendment 1, in my name, starts this group on the definition of a victim. I thank Restitute, the lived-experience CIC, which supports third-party victims of crime—whether they are the parents, carers, partners, siblings or loved ones of people who have survived sexual abuse, sexual violence or other serious crimes including domestic violence and stalking. It specialises in building the service that its members wish they had received, and which professional service providers often do not spot, nor have the resources to be able to provide: namely, crisis support in the short term and, above all, someone to help them and their loved one, who is the direct victim, to navigate the new world of professionals they encounter during their case.
Why is this important? Unless you have been the victim of such a crime, you cannot understand how it affects those who care for you. Most professionals would not recognise that your loved ones may also be victims of vicarious harm due to the crime. More than that, parents may have to give up work, partners need time off and children have poor educational outcomes. Families that have previously had two incomes often see that cut in half at a stroke. Carers are not entitled to any therapeutic or emotional support. The impact on their health and well-being is devastating. That is before we even face the problems related to family breakdown.
Most of Part 1 of the Bill focuses on the rights of the direct victim of the crime, and the services that they will encounter afterwards. One of the worst examples is the impact of child sexual abuse on victims/survivors, including on non-perpetrator family members. The impacts on mothers, for example, can mirror the experience of their child. Social services can also force them to make rapid and difficult decisions at the exact moment they are coming to terms with the abuse that their child has suffered. Healthcare and the criminal justice system often do not recognise that the impact goes beyond the direct victim.
This can include siblings who are children themselves but who, under the Bill, would not be able to access any support under the victims’ code. The siblings of abused children may have feelings that they have let down their sibling because they could not prevent the incident, or may be fearful that in the future it may happen to them. These children also see distressed adult carers struggling to navigate the system, which currently does not recognise them as victims either. Without support these families struggle, and it becomes harder for all of them to recover from the incident.
Amendment 1 extends the definition of a victim of crime to include someone who is
“witnessing criminal conduct … having subsequent responsibility for care because of criminal conduct … experiencing vicarious harm due to criminal conduct”.
I have also added my name to Amendment 2, tabled by the noble Baroness, Lady Finlay of Llandaff, which would ensure that bereaved victims of homicide abroad are given the same support as victims of homicide within the UK. These victims not only face the extreme distress of losing their loved one in a horrible way but have to deal with the criminal justice systems of foreign jurisdictions.
Many years ago, my sister worked for Thomson Holidays. Her role was to deal with the immediate aftermath of death—including homicide—of her holiday- makers. Once the families had returned home, for many, having to deal with an overseas criminal justice system was even more bemusing, and they felt very isolated. We know that just being the family survivor of a homicide is hard enough.
I also support the other amendments in this group, all of which raise key questions about the definition of a victim of crime or try to establish how victims can get parity of treatment at their review—as in Amendment 8—whether they are victims of a perpetrator serving a custodial sentence or a perpetrator being detained under the Mental Health Act 1983. Amendment 3 adds in a person being killed by a family member such as a dangerous driver. Amendment 4 adds serious anti-social behaviour. Amendment 12 takes us into the debate on the content and context of the victims’ code, and states which services must be involved in decisions regarding leave or discharge for the perpetrator. Currently, the victim is far too often the last person to hear that the perpetrator has been released. That is unforgivable. Amendment 19 would ensure that victims have information to understand the justice system and relevant state agencies.
The Government will have gathered that noble Lords across your Lordships’ House believe that the definitions in Clauses 1 and 2 are too narrow and will exclude certain people who are seriously affected but not defined as a victim. I look forward to the Minister’s response. In the meantime, I beg to move Amendment 1.
Baroness Jones of Moulsecoomb (GP)
My Lords, Amendment 3 acknowledges that the definition of victim in the Bill is quite broad, and that will mean, I hope, that as many victims as possible are supported by the victims’ code and related services. However, I want to probe the Government as to whether they intended the definition of victim to be so broad as to include the close family of a person who died as a direct result of their own criminal conduct; for example, by dangerous driving or possessing and consuming illegal drugs.
Clause 1(2) defines a victim as including
“where the death of a close family member of the person was the direct result of criminal conduct”.
This appears to include where the deceased caused their own death by their own criminal conduct. This broadness is underlined by Clause 1(5), which makes it “immaterial” whether anyone has reported the criminal conduct, or if anyone has been charged with, or convicted of, an offence.
The family of someone who dies as a result of consuming illegal drugs are victims of the Government’s ideological war on drugs. The Government refuse to treat drug use as a health issue and to implement a safe, regulated market of drugs that would take the multi-billion pound drugs trade out of the hands of criminal gangs.
Can the Minister please clarify whether it is the Government’s intention that family members of people who die as a result of their own criminal conduct will be supported by the victims’ code and the associated support services provided to victims?
Baroness Watkins of Tavistock (CB)
My Lords, I draw attention to my relevant interests as outlined in the register. I support Amendments 8, 12 and 19, which seek to ensure that people who have suffered as a result of a crime committed by a patient with a mental health disorder who is detained in hospital under a restriction order are afforded the same rights under the victims’ code as victims of offenders who are held in the prison estate. This is not the case presently.
The amendments seek to extend the principle that all victims have a right to be heard in the justice process and to include the NHS and His Majesty’s Courts & Tribunals Service in the list of responsible agencies. This would bring mental health tribunal processes in line with the rest of the criminal justice system and remove a long-standing and unfair disparity in treatment for people who have experienced these crimes. The principle that everyone who experiences a crime should have the opportunity to make their voice heard in the criminal justice process is at the heart of why these amendments are necessary. Those who have experienced crimes committed by patients with a diagnosed mental health illness deserve parity of treatment with all other people who have experienced crimes.
Under the victims’ code, people have the right to make a victim personal statement before the Parole Board when the person who has offended is being considered for release. Anyone who is directly affected by violent crime should have the right to be heard, but, as the victims’ code does not extend to mental health tribunals, victims of an offence caused by somebody held under a mental health restriction order cannot make any personal statement in writing, or in person, to the mental health tribunal panel.
The VPS is the single key entitlement which allows people to explain the impact of the crime committed against them, and there is a widespread consensus that the opportunity to submit a VPS is beneficial for all victims. It can offer some catharsis, which is essential in assisting the recovery from the trauma of a crime. In addition to this being beneficial to people who have experienced crime, this process may offer the opportunity for patients with a mental health disorder to gain further understanding of the impact of their actions on other people. This is particularly important when these people return to the community and sometimes feel that it would be better not to take their medication. Understanding the risk of not doing so might be beneficial for the proportion who are able to leave hospital.
The anticipated number of victims wishing to speak directly to the mental health tribunal is likely to be small. I understand that in cases of people wishing to address the Parole Board in person, it is currently fewer than one in 10. The majority are likely to submit a written statement to the panel that explains the impact that the actions of the patient has made on their lives.
The practice of allowing statements to be made to the tribunal is established in other jurisdictions, such as Scotland and Australia. In research undertaken by the Victims’ Commissioner in 2019, a family in Scotland discussed their experience addressing a mental health panel. They attended a separate hearing where the patient was not present but a legal representative attended on their behalf instead. The family did not get the outcome from the hearing they had hoped for but, crucially, they felt acknowledged and a party to the process despite that. They said:
“We … did feel given a voice, and one of the few occasions in the whole process we felt we had a voice and able to articulate our position”.
Clearly, it should be possible to balance the rights of patients.
Of course, as a nurse, I cannot overemphasise the need to maintain the confidentiality of medical records in tribunals. None of this needs to be shared with the victim making the representation and those impacted by crimes, so why is there such a different process in England and Wales, even just north of the border? As victims of crime are not currently able to address mental health panels in writing, by video link or in person, we are left with a two-tier system in which a distinction is made based on whether somebody is detained in a prison or in a mental health hospital. It is those who have suffered from the crime who lose out in terms of being heard.
I have worked closely with the Victims’ Commissioner, who has long called for this change. I hope that the Government will look favourably on these amendments and identify any changes to mental health tribunals that may be necessary.
Lord Russell of Liverpool (CB)
My Lords, the Minister kindly came to today’s Cross-Bench meeting and talked us through the Bill from his point of view. He started by saying that we will have quite a problem defining a victim because, as evidenced by this group of amendments, there are an awful lot of groups of people who clearly identify as victims and for whom there is evidence that they are victims. Although I understand the Government’s wish to try to contain this to some extent, it is important that we have a proper discussion about all these different groups and work out whether there is an intelligent, sensible and pragmatic way for us to be cleverer about the definition than we are at the moment.
The noble Lord, Lord Blunkett, who put his name to my Amendment 4, apologises for being unable to be here to speak because of another appointment. Amendment 4 seeks to ensure that victims of persistent anti-social behaviour—we all love acronyms, and I will mostly refer to it as “ASB” from now on—are recognised as victims and provided with their own code rights. Persistent anti-social behaviour can be defined as behaviour that meets the level required to trigger an anti- social behaviour case review; this means three reported incidents of ASB over a six-month period.
Currently, many victims of ASB are not recognised under the code because the criminal threshold has not been met. The police may treat and regard some of these incidents simply as misdemeanours or disputes between neighbours. The police’s failure to recognise the reality of what these victims undergo can make it worse, so it is important that we and the police are able to look at the whole picture.
The cumulative impact of ASB can be, and is, devastating. It affects victims’ sleep, work, relationships, health and feeling of safety, even in their own home. Left unpoliced, the consequences can be absolutely devastating. In this instance, an example would be the deaths of Suzanne Dow, Fiona Pilkington, Bijan Ebrahimi, Matthew Boorman, Stephen and Jennifer Chapple, David Askew, Louise Lotz and—last but by no means least—Garry Newlove, the ex-husband of the former Victims’ Commissioner, the noble Baroness, Lady Newlove. In the case of David Askew, he collapsed and died on his own doorstep after years of torment.
Every day, victims of ASB in England and Wales are failed by the system and are unable to access the support they need and deserve. Every year, the charity ASB Help receives tens of thousands of pleas from victims trying to work out how they can find help. This is made worse because no single agency holds responsibility for tackling ASB, resulting in a not untypical diffusion of responsibility across the police, local authorities, housing associations and private landlords.
Baroness Finlay of Llandaff (CB)
My Lords, I am most grateful to the noble Baroness, Lady Brinton, for the way in which she introduced this important group of amendments. I am also grateful to her and the noble Baroness, Lady Hamwee, for their support for my Amendment 2, which seeks to ensure that victims of homicide outside of the United Kingdom receive adequate support and are provided for in the victims’ code. The distress they experience can be exacerbated by having to deal with the criminal justice systems of foreign jurisdictions and other difficulties that re-traumatise.
There are approximately 80 homicides of British nationals overseas each year. In addition, there are suspicious deaths, accidents and unexplained deaths. Families bereaved by a homicide in the UK are recognised as victims in their own right and are able to access rights under the victims’ code. Yet these same rights are not extended to those bereaved by homicide abroad, for no reason other than that the homicide occurred overseas. To lose a person you love to murder is a devastating and traumatic event wherever the crime occurs, but there are many additional problems and hurdles for British families bereaved by a murder overseas. As has already been explained clearly, these difficulties include repatriation, travel, accommodation, language barriers, lawyers, foreign judicial processes and many more.
These issues are exacerbated by the fact that these families have no right to access support to help them deal with these problems, putting them distinctly at odds with their compatriots. Bereaved families frequently have great difficulty accessing financial support for advocates and witnesses to travel abroad to attend trials. They cannot claim criminal injuries compensation because the crime occurred in another jurisdiction. Yet we know that it does not have to be this way. If the victim is killed by a terrorist, the family have a legal right to claim compensation. This clear distinction between these two cohorts of victims has no apparent rationale. It appears discriminatory because, for the victim’s family, murder is murder.
When it comes to supporting bereaved victims of homicide abroad, the responsibilities of the UK seem unclear. Of course each case is different, but it is unclear which UK agency has an overarching view of the end-to-end experience of the victims. Families frequently feel unsupported, describing falling through gaps between the Foreign, Commonwealth and Development Office—FCDO, the Ministry of Justice, the jurisdiction of the crime and our own police. The FCDO is the key body that the victims will interface with when homicide occurs abroad, but this department is not included within the remit of the victims’ code. The only document that exists to help provide a minimum standard of assistance to victims is a memorandum of understanding between the FCDO, the association for chief police officers and the Coroners’ Society of England and Wales. This memorandum is not legally enforceable, and the Homicide Service, which is contracted by the FCDO to support victims of homicide abroad, is not a signatory to it.
There is therefore a complete lack of accountability and oversight when it comes to support for victims of homicide abroad. The damage that this absence of support causes is immeasurable and often has a long-term and wide-reaching impact. There are numerous case studies of victims who have been let down by UK agencies. In one shocking example, the FCDO gave a family a list of local lawyers based in the location where the murder occurred. The family was not told whether any of the 12 names supplied had been vetted or whether they spoke English, and the FCDO refused to give advice or a steer about which lawyer to use. As a result, the family ended up with an unreputable lawyer, costing £3,000, further compounding their enormous family pain.
A harrowing example of a family having to deal with the criminal justice system of a foreign jurisdiction is illustrated by the case of Halford and Florence Anderson, a British married couple. The 74 and 71 year- olds were both murdered in 2018 near their home in Jamaica, after reporting being victims of fraud. A senior coroner in Manchester, where the couple was from, concluded that they were both unlawfully killed. However, no one has been charged with their killings. Their son, Mark, has expressed the devastation that the family is going through, with still no sign of justice and no official updates on the case. This contrasts starkly with the positive experiences of victims who receive support from the charity, Murdered Abroad, which provides valuable support, both practical and emotional, as well as putting victims in touch with reliable lawyers and providing peer support for victims through group meetings.
But the burden of support should not be solely on charities. UK agencies have a duty to British citizens and should provide support to families impacted by homicide, regardless of the geographical location of the crime. That is what this amendment seeks to achieve. I have worked with, and have the support of, the Victims’ Commissioner, which is reassuring. I know that she has been calling for this change since her last time in that office. I hope the Government will look favourably on this amendment and be prepared to discuss it further before Report.
Baroness Hamwee (LD)
My Lords, my name is on the amendment of the noble Baroness, Lady Finlay, although it was not meant to be—there was some confusion between “Sally” and “Sal”—but I am glad that it has remained there. I also commend the noble Baroness for that neat handover of the chair.
The noble Baroness introduced the amendment thoroughly, but, reading the briefing from the Victims’ Commissioner, I remembered one experience of a friend. It was nothing as extreme as a homicide, but her husband died unexpectedly on a business visit to the United States. It was hugely emotionally difficult for her, as well as practically difficult: different language is experienced even in the United States, and certainly there are different procedures and cultures. One needs signposting to the right people, who can deal with the procedures as well as support. I remember her talking about the difficulty in bringing him home.
Baroness Fox of Buckley (Non-Afl)
My Lords, I welcome this discussion and having a sense of clarification about who a “victim” is in a Bill at least half of which is about victims. I especially support Amendments 2 and 8, but I have some questions for those who tabled the other amendments. Although having too narrow a definition can be a problem, it strikes me that we could cause real problems for victims if we had too broad a definition. I am obviously thinking about resources and overstretching support. So many people can be victims of crime if you start broadening it so much.
As hinted at by the noble Baroness, Lady Jones of Moulsecoomb, in her interesting Amendment 3, it is a tragedy for the families of perpetrators too. They can also be victims, and whole ranges of people—friends, acquaintances and other people who have genuinely suffered—could say that they are victims, but are we seriously trying to put them all in scope? I want to know how we can ensure that, even if we are acting in generosity to try to broaden the definition, we do not water down a focus on the actual victims of crime that the Bill is designed to help. In other words: where do we draw the line?
In that context, I am slightly concerned about a broadening of what now constitute victims of crime. In Amendment 4, as the noble Lord, Lord Russell of Liverpool, explained, it then becomes anti-social behaviour. He gave a moving account of what it feels like to be a victim of anti-social behaviour, but we could probably all stand up and give moving accounts of being victims of something—bullying and all sorts of other behaviour that makes people suffer. I am slightly concerned that we might end up relativising the experience of victims of crime in an attempt at broadening this too much. Whether we like it or not, culturally, we live in a society in which victimhood is valorised. I do not want the Bill to contribute to that relativising experience, because there is a danger that, if we make it too broad, we could trivialise the real victims of crime. But then you could rightly ask me: who do I mean by “real victims”? I do not want it to go so far so that we lose all sense of its meaning.
Baroness Newlove (Con)
My Lords, I am delighted to take part in this Committee, both as Helen Newlove and as Victims’ Commissioner. I thank all the victims I have spoken to over the years. We are bringing their voices to this Committee, right through to the end, because we cannot be grateful enough for their bravery and their having come forward.
I have a list, but I will try to get through it. Amendment 2 is welcome and rightly looks to put bereaved victims of homicide abroad into the code. As has been said, to lose a loved one to murder is horrific and devastating—I can personally say that—no matter where the crime takes place. However, the families I have met whose loved ones have been murdered abroad have to get through significant additional financial, legal and logistical burdens in a different language and a different system—it is not as simple as we put on this script for Hansard today, believe you me.
To have to repatriate the body of a loved one is not simple, because families have to look to the coroner so that they do not harm evidence. That has to be co-ordinated with a foreign criminal justice system, where some families have sat in police stations with photographs of their loved ones, waiting for someone to pick up on that in their language. That image has never left me to this day. To feel alien in a country, knowing how you have lost a loved one, must be horrendous. It is bad enough in the system in this country, but to have that in a foreign country is very demeaning to a hurt family.
As has been said, there are only 60 to 80 such families a year, but that is enough. It is important that this small group of families has the same entitlements as those of bereaved families in this country. There really needs to be change. They are not entitled to criminal injuries compensation unless the death occurred as a result of a terror attack, as we have heard. This is particularly unjust when you bear in mind that they will have the same additional financial burdens as a victim of terrorism abroad. We all live on mobile phones; to have to pay a mobile phone bill just to get family help, when you do not have the finances, must be horrendous. We need to look at how we can balance this.
Baroness Thornton (Lab)
My Lords, it is an honour to be participating in the discussions on this important Bill. We have got off to a great start today—albeit a little later than we were expecting. I say from the outset that my noble friend Lord Ponsonby and I are very keen to work with colleagues from all parts of the House, and the Minister and the Bill team, to ensure that we end up with the best possible Bill and the best possible future of support and attention for victims in our criminal justice system, as eloquently expressed by the noble Baroness, Lady Newlove.
The amendments already show that commitment. I am thankful for the briefing that we have received from many directions, including from the victims’ commissioners of both the UK and London, the Children’s Commissioner and many other organisations, whose help and support will be important for our deliberations over the days and possibly weeks to come.
I will speak to all the amendments in this group, with particular reference to Amendment 4, to which I have added my name, and Amendments 12 and 19, to which my noble friend has added his name. These amendments address what should be included in the definition of “victim” in the Bill in Clause 1. In this debate, we are testing whether that definition is inclusive enough to cover the range of people who find themselves victims.
In Amendment 1, the noble Baroness, Lady Brinton, seeks to include people who support witnesses or victims of the most serious crimes. She explained—with great clarity—what that would mean and how that would work. Amendment 2 recognises that being a victim abroad means you are a victim and recognises the distress that that experience brings. It was movingly described by the noble Baronesses, Lady Newlove and Lady Finlay.
Amendment 3 very interestingly probes the width of the definition, as exposed by the discussion and the remarks of the noble Baroness, Lady Jones. Amendment 4 addresses the issue of anti-social behaviour victims, in the name of the noble Lord, Lord Russell. I thank both him and the noble Baroness, Lady Newlove, for the way that they have talked about this. I added my name to this amendment because, although the Bill seeks to introduce measures to help victims, we have to have confidence that the right support is available and that, if they report a crime, the criminal justice system will treat them in the way they should rightly expect.
However, this Bill misses the opportunity to extend the right to access support to victims of persistent and anti-social behaviour in cases where the police choose not to take action. We can have a discussion about why the police may or may not choose to take action, but it seems to me that our duty to put into the Bill a way in which to recognise that these people are victims and that they need support in the victims’ code. This Bill presents us with the opportunity to recognise the victims of persistent anti-social behaviour and to set out their entitlement in the victims’ code.
This is an important matter. While it is possible that this amendment may not be the right way to do it, we need to do what the noble Lord, Lord Russell, has suggested, and work out with the Bill team and the Minister how we can do that in a way that recognises the very serious issues. I was very struck by both the remarks of the noble Baroness, Lady Newlove, and by the comprehensive brief that her office provided for us about this matter. For example, in one case study, 280 incidents of anti-social behaviour were reported over 10 months, including noise, nuisance, anonymous harassment, threats and intimidation—incidents that culminated in a firebomb attack on victims’ property. The continued impact of anti-social behaviour resulted in one victim attempting suicide on two occasions, and victims eventually having to move house due to the trauma that they were experiencing. These are victims and we need to work out how we can best recognise and support them in that.
Lord Hampton (CB)
My Lords, I apologise for my lateness—I got slightly confused about the Northern Ireland Bill and when it was coming.
I will speak to Amendment 4 in the name of my noble friend Lord Russell. I follow my noble friend and the noble Baroness, Lady Newlove, so there is very little more to be said. The only thing I can say is that ASB is so important. ASB is far more common than we know and far more common than the police will say. It must be taken seriously. I have a friend whose father was the victim of ASB over many years and actually snapped. He attacked the person who was causing it and ended up with a custodial sentence himself. So you can turn victims into perpetrators with this and it needs to be defined in this Bill.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I thank noble Lords very sincerely for their most moving and constructive speeches. I will first respond to the invitation of the noble Baroness, Lady Thornton, to conduct these proceedings in as open and consensual way as possible. In the other place, my right honourable friend Minister Argar did precisely that, and I propose to follow exactly the same approach, and to discuss as widely as we can the various difficult issues that are in front of us. That is an essential function of this Chamber.
To a great extent—I think my noble friend Lady Newlove accepted this, up to a point—we have made very considerable progress in support of victims generally over the last few years. But the problems that remain are, in particular, that victims are still often unaware of their rights, that the required services are not provided, or that the relevant authorities are not accountable. So the questions in front of us are not so much points of principle as questions as to how we change the culture of a system to make sure that victims are properly supported, as they should be.
I suggest, in shorthand, that essentially we should seek four things. First, victims should be aware of their rights and entitlements under the code. Secondly, those services should be accessible. Thirdly, those responsible for providing them should be accountable. Finally, the system should be affordable; speaking on behalf of the Government, I am bound to make that point. Essentially, we have four As: awareness, accessibility, accountability and affordability. It is within that framework that I will respond to the various points that have been made, with great conviction and sincerity, about the definition of “victim” in the current draft of the Bill.
We are dealing with five questions all together. One is about carers and those who suffer vicarious harm, which is raised in Amendment 1 in the name of the noble Baroness, Lady Brinton. The second is about people who have been victims of a defendant who has subsequently been made the subject of a hospital order as distinct from another criminal sanction. Thirdly, there is the question of anti-social behaviour. Fourthly, there is the question of homicide abroad. Finally, where the criminal conduct has been caused by another family member, there is the question of whether they are still a victim; that is raised in the amendment by the noble Baroness, Lady Jones. I will take those points, and probably in that order.
As regards Amendment 1, moved by the noble Baroness, Lady Brinton, as I read it, the definition of “victim” is not confined in its present form to victims of serious sexual or violent behaviour; it is very broad, extending to all crimes. It refers first to persons who have been subject to witnessing a crime. The Government’s position is that those who have witnessed a crime are already covered fairly explicitly in the definition in Clause 1.
That takes us on to the difficult question of how far you go on the carers of victims and others who have suffered indirectly rather than directly. On that point, the Government’s present thinking is that we should have a system that serves the direct victims primarily, and that we cannot, at this stage at least, extend the definition of a victim too far. If I may say so, there is force in the points made by the noble Baroness, Lady Fox: if one makes the concept of a victim too wide, one may well finish up with a system that is not as workable as it otherwise would be. There are all kinds of people who are, in one sense, victims but who are not necessarily the direct victims to whom we must give priority. The job of a Government is to make decisions as to how to prioritise services. We are very pressed on resources on all fronts, so I urge your Lordships to take that point into account and to consider that the definition of victim in Clause 1 is already very wide. I will come to certain points made in that connection in a moment. It would not be the right approach, by statute, to extend that already broad definition any further than it is. Broadly speaking, that is the Government’s position on Amendment 1.
On the point about hospital orders in relation to Amendments 8, 12 and 19, the question is whether the victim is a person who has been subject to criminal conduct. A person may well be the perpetrator of criminal conduct but still finish up being ordered by the court to be detained in a secure hospital, rather than serve a criminal sentence. The Government’s position is that many of the victims whose perpetrator has finished up in front of a mental health tribunal are already victims under the Bill. They are covered so long as the conduct is criminal. Your Lordships may have seen the tragic case in Nottingham this week, where the defendant, who was clearly schizophrenic and should never have been on the streets, was convicted of manslaughter on the grounds of dismissed responsibility. It was criminal conduct, so those unfortunate families are victims. The point that is rightly made—
Baroness Watkins of Tavistock (CB)
If the Minister would not mind giving way, I will clarify—I am sure that this is what he meant—that there are many people who are successfully treated for schizophrenia who live in the community. I think that he is referring to an individual who was very ill and who sought the charge of manslaughter yesterday because of diminished responsibility. I would not want the impression to be given in Hansard that people cannot live their lives—quite challenging lives—with schizophrenia in the community.
Lord Bellamy (Con)
I entirely accept that point. I have in my own family direct experience of a similar situation. That particular individual had already committed a number of crimes and there was a warrant out for his arrest. That is a very specific case and that is the context in which I made my comment.
On the assumption that, in many of these cases, we have someone who is already a victim under the meaning in the Bill, the problem rightly identified is that the procedures of the mental health tribunal do not, at the moment, quite correspond to the procedures in the main courts, particularly on the right to give a victim statement. The Government’s position is that that is not a satisfactory state of affairs; they are working with the authorities in the mental health tribunal and others to operationalise how we have the same system for mental health tribunals as for the main courts system. I hope to be able to give your Lordships further information that will enable your Lordships to say that this point—which is rightly being made—is being addressed by the Government. As soon as I am in a position to give further information about that, I will. The point of principle that a number of noble Lords have made is accepted; there is no dispute about that.
We then come to the equally difficult question of anti-social behaviour. Again, the first question is whether the victim has been subject to criminal conduct. Strictly speaking, whether or not the police have taken any action is not decisive of the question of whether the conduct is criminal. It may well have crossed the criminal threshold and, if it has, the victim should be entitled to relevant circumstances.
If the conduct has not crossed the criminal threshold, that is a more difficult situation because the scope of the Bill is victims of criminal conduct, and it is quite difficult for the Government, at least at this stage, to contemplate bringing within the scope of this Bill conduct that is not criminal. But a lot of anti-social behaviour is criminal, so how are we going to tackle this? Again, I am not in a position to give your Lordships as much detail as I would wish, but there will shortly be before your Lordships the Criminal Justice Bill currently making its passage through the other place, which will tackle and address a number of legitimate concerns about anti-social behaviour by enhancing the powers available to the police and other local agencies under the Anti-social Behaviour, Crime and Policing Act 2014.
Baroness Newlove (Con)
I am grateful for any further meetings about anti-social behaviour. I get that we have three Bills coming—it is like buses; we do not have anything, then we have them all at once—so I am keeping track of those as well. On the Criminal Justice Bill, I think we are looking at Clause 71 on the ASB case review, which used to be called the community trigger. I have my eye on that, and I gave evidence about that. Again, it is about the victim being involved, but that is for another day.
I am conscious that when we talk about anti-social behaviour and the threshold, if you have it constantly it is harassment, so there are already laws for the police. We do not have to have a criminal threshold. I would welcome further conversations because you can shift the boxes around for the police to look at, but there are laws in place that will protect the victim that would automatically go under the victims’ code. When you focus on just anti-social behaviour and the police look at that as low level, they are never going to protect the victim. They have never learned from Fiona Pilkington. The victim is having to log this. I think we need to run this in parallel so that the police follow this from day one and do not leave the victim feeling that their life is worthless. Anti-social behaviour is not litter. We have heard about the level of violence—firebombs and everything else. It is quite serious.
I heard what the Minister said, and I would like to take this forward when we have a meeting with other Peers. We really need to look at the police knowing what laws they already have to help these victims instead of just focusing on the words “anti-social behaviour” because they see it as low level. We need to get that first and foremost to protect victims.
Lord Bellamy (Con)
My Lords, I entirely accept the points that my noble friend is making, and I am very happy to have a further meeting to discuss this, the interrelationship between the bits of legislation that we are dealing with, the interrelationship between the various authorities and who exactly is responsible for what.
Lord Russell of Liverpool (CB)
My Lords, to further emphasise that, I think it would be helpful to the Committee to recognise the sheer scale of anti-social behaviour. Some freedom of information requests looking at the period between 2019 and 2021 identified that, believe it or not, there were 3.5 million reports of anti-social behaviour, so it is on a similar scale to stalking on an annualised basis. Those are probably the largest two areas of cases involving victims across England and Wales.
Those statistics were done across 34 out of the 43 police forces. They demonstrate the huge variability across the country, police and crime commissioner by PCC, and police force by police force. That is the problem. Some areas are doing really well with existing resources, without needing extra money. With proper leadership, organisation and training, they are doing a really good job. Kudos to the Government and the Minister for achieving good results in some areas. The challenge for the Government is: what is the problem with taking action to ensure that is replicated efficiently and systematically right across England and Wales? The evidence is clearly that it is not. If the authorities can do it within existing resources, we are not talking about huge amounts of extra money. That is not the issue; the issue is the way they go about what they do.
Lord Bellamy (Con)
I am grateful to the noble Lord for that intervention and entirely accept the point he makes about the variability across the country. Although this evening we are not on Clause 6 and supplementary Clause 11, for example, or Clause 10, about code awareness and reviewing compliance by criminal justice bodies, one of the main drivers of the Bill is to raise the standard of victim support equally across the country; to publish league tables; to have the data; to put pressure, if you like, by almost shame and stigma on those that are not performing as well as they should so that it is publicly known; and, in extreme cases, to give directions that they need to improve and so forth.
The steps we need to think about are how we make the various parts of the legislation consistent and operational, what role the code plays in anti-social behaviour when it is criminal conduct, as it often will be, and how we operationalise the way in which particular police forces and other agencies offer consistent services across the country. That is my thought on this point.
Baroness Brinton (LD)
On this particular point about anti-social behaviour, Louise Lotz was a friend of mine. The problem was that her local police force did nothing about the earlier stages of anti-social behaviour. One of the things that this amendment is trying to achieve is that police forces just watch the pattern of anti-social behaviour; if they see it going up, their response should also start to change. I wonder whether the Minister will take that into account. I look forward to joining any meeting about that as well.
Lord Bellamy (Con)
I certainly take that into account. I again think that we collectively need to understand a little more about what the Criminal Justice Bill progressing through the other place is doing about this, because the problem of anti-social behaviour is that it exists and is not being controlled. That Bill is trying to address that problem. Here we are dealing with the victims, which in some ways is the end result, rather than the fact that it is happening in the first place, so tackling it and what is happening in the first place is probably a very important aspect that we need to understand further. I take all these points, and I think we should take it further collectively as soon as we can.
Then we come to the difficult issue of homicide abroad. I hope that nobody infers that the Government do not have enormous sympathy for those who suffer these very difficult situations, but I respectfully suggest that a crime of homicide committed abroad is in a slightly different category, as far as the victims’ code is concerned, from a crime of homicide committed in this country. Clearly, the various rights under the code —for example, the right to make a victim statement—as well as the nature of the offence, what the criminal processes are and so forth are rather different if we are talking about a crime that has been committed in South America or somewhere outside this country. The responsibility for looking after victims of homicide abroad falls primarily on the Foreign, Commonwealth and Development Office, which offers support through the homicide service. Noble Lords may well say that it is not adequate support or enough support.
Baroness Newlove (Con)
I have worked with the Foreign Office on this as well, and every time I have gone there, its first point of call is “We don’t have many resources; there’s not much money; we make the money from passports; it is only a small number of families that come through”. If we keep putting it to the Foreign Office, it will keep batting it the other way. Not only are we talking about families dealing with countries with different languages which are trying to get financial gain and who also have jobs to hold down but we have a Foreign Office that really does not do much for them and they feel lost. I appreciate what the is Minister saying, but I think it is about resource. I am not asking for lots of resources, but I want them to work collaboratively to help those families resolve the issues.
Baroness Hamwee (LD)
My Lords, I of course understand the point that the Minister is making—procedures in other countries and what is available in other countries by way of support are different—but should that stop us requiring part of the Government, the organisation in this country which has immediate, close responsibility, to take on a role of proper signposting, which may be to equivalent services? Partly, it is interpreting, but it is obvious that there is a lacuna here.
Baroness Finlay of Llandaff (CB)
If there has been a homicide abroad and those families are living here, there is a real danger that the message will be that the Government think that that homicide does not matter as much as a homicide that happened here. The Government might say that they do not have the resources. I pointed out that it is about 80 homicides per year—the numbers are not huge—but those people who are so severely traumatised, retraumatised and carry on being further damaged by the experience often become enormous consumers of resources because of mental health services, because they are unable to work and so on, and eventually they may need benefits. There are all kinds of things that they may need. It is a false economy to look at it in terms of resources to the FCDO. I hope that the Minister will meet me and others to discuss ways that the victims’ code could be asterisked where there are things that may not be as appropriate if the homicide occurred here, but it would say that the lives of British citizens are of equal value wherever they are in the world and that whether it was a terrorist attack, a homicide here or a homicide overseas, those lives are of equal value.
Lord Bellamy (Con)
My Lords, of course I am prepared to meet the noble Baroness, Lady Finlay, and any other noble Lords on this point to discuss it further. There is certainly a point about the signposting in the code, what the code should say about all this, whether we should give further additional priority to homicides abroad, and exactly what the role of the Homicide Service is and other related resource issues, as well as where the earlier point I raised about priorities comes in: we cannot do everything. This is an important topic for further discussion, and I do not rule out examining further how far we can go in response to the very legitimate concerns raised.
I hope the noble Baroness, Lady Jones, will forgive me for coming to her last, but I think her point was about the definition of a victim where the person is a victim as a result of the criminal conduct of a close family member. The obvious example would be a road incident where somebody who had been driving over the limit or driving dangerously had killed themselves, leaving behind bereaved children. On the wording of the code, those children would be victims. The Government do not think that even in those circumstances should we reduce or limit the concept of a victim. It is conceivable that somebody could be a perpetrator and a victim at the same time, because if you have driven dangerously, had a crash and killed your child, you may both be guilty of criminal conduct and a victim of your own conduct, as it were. That may be a highly theoretical and hypothetical example, but the Government are not proposing any change to Clause 1 in relation to those very tragic kinds of case.
I hope I have dealt with the main amendments proposed in this first group, and I respectfully invite your Lordships not to pursue them at this point.
Baroness Brinton (LD)
I am very grateful to the Minister for his detailed responses to all noble Lords who have spoken in this debate on a range of different issues, even though they are all part of the concern about some of the holes in the system. I thank him for offering some meetings, which I think is extremely useful, because as I think he will have heard from the debate, we all have a reasonable amount of knowledge and not necessarily the same knowledge.
On his comments on my Amendment 1, I absolutely accept that my proposed new paragraph (aa), inserting “witnessing criminal conduct”, might already be covered earlier in Clause 1. Proposed new paragraphs (ab) and (ac) are not covered at all. They are the direct consequences for a family member or person close to somebody who has had a very traumatic experience. They would have their life changed in all the ways that I described. I would also welcome a meeting on that to discuss how the Minister believes that it is already covered, because as far as I can see, it is not.
I want to make a more general point about the Bill. The Minister, uniquely, has his four As for what we should seek to achieve—the victims being aware, access, accountability by those providing services, and it being affordable. One of the points that the noble Baroness, Lady Finlay, made is that costs may not actually be so great, providing that the first, second and third categories are completely fulfilled. That is an area where—as we have said to him in private meetings already—there will be cost savings. Not all of them will be to the Home Office or the justice system, but there will be substantial savings in healthcare and in social services, particularly where children are involved, if the victims’ code is on a statutory footing and applied across the board. He is right that changing the culture is vital. The problem is that if you do not give public organisations targets, they do not work to them, and the real problem we have here is that there is no onus on the services to make sure that those are provided for. With that, I beg to leave withdraw my amendment.
Lord Ponsonby of Shulbrede
“(e) where the person is a child who is a victim of abuse and exploitation which constitutes criminal conduct.”
Lord Ponsonby of Shulbrede (Lab)
My Lords, I open by reiterating my noble friend’s point about acknowledging the way in which the noble and learned Lord wound up the previous group of amendments and about working consensually across the Committee as we progress through the Bill. My second point is simple, but I think it worth making. As noble Lords will know, I sit as a magistrate in London in family, youth and adult jurisdictions, and I rarely see victims. I see victims only in trials—they sometimes turn up to trials to give evidence—and I hear from victims only when I sentence and the victim’s impact statement is read out. Through all the rest of the processes which I routinely go through sitting in a magistrates’ court, I do not hear from victims, and I do not see them. It is a simple point, but I thought it was worth making.
The Minister also had his four As, which the noble Baroness, Lady Brinton, has just referred to—awareness, accessibility, accountability and affordability. We agree with those as far as they go, of course, but of course many of the elements in Committee will concern whether accountability should be enforceability. That will be the crux of a number of our debates in Committee.
This group deals with child victims. Amendment 5 in my name clarifies that the definition of “victim” should include a child who is a victim of abuse and exploitation that constitutes criminal conduct. I will go through the amendments in the group and then comment more widely. Amendment 6, and Amendment 10 in my name, extend the definition of “victim” to a child who is
“a victim of child criminal exploitation”.
Other noble Lords will speak to that as well. Amendments 7 and 11 seek to ensure that the explicit definition of a victim includes those who are subject to modern slavery—another aspect that we will debate within this group. Amendment 9, tabled by my noble friend Lord Hunt, is specifically about verbal abuse of children.
While the Bill makes important reference to the Domestic Abuse Act 2021 and to children as victims of domestic abuse, the same organisations that fought for that Act are now asking for the same ambition to be applied to children who have experienced abuse and exploitation. Last week, I and other noble Lords now present in the Chamber went to a survivors’ presentation organised by a coalition of charities led by the NSPCC, where we heard first-hand about survivors’ experiences and how the support organisations and criminal justice system responded to their trauma.
What was particularly telling about those survivor experiences was that, although the abuse itself was, of course, wholly negative, we did hear from one or two survivors who had had a relatively good experience of the criminal justice system—although there were other experiences that were much more negative. That contrast made those testimonies even more powerful. This morning, I, the noble Lord, Lord Hampton, and the noble Baroness, Lady Sanderson, visited the Lighthouse project in Camden. This provides a one-stop shop for child victims of sexual abuse. It is a model of how these services should be provided.
It is in that context that this group is being debated. I want to set out the scale of abuse and exploitation of children. Children—that means people under 18—make up about 20% of the population. The Centre of Expertise on Child Sexual Abuse has found that children are the victims of about 40% of all sexual offences. One in 10 children in England and Wales is sexually abused before the age of 16 and that number means that there are an estimated half a million child victims every year.
Children abused by parents or carers are almost three times more likely to experience other forms of domestic abuse as well, and it was found that 42% of childhood abuse survivors suffered more than one type of abuse. The Bill explicitly recognises children as victims only of domestic abuse and as a result fails to acknowledge the multiple forms of abuse and exploitation that children can experience. They can be subjected to multiple forms of abuse and exploitation during their lifetime. To avoid failing these children, the definition of a victim must cover all forms of abuse and exploitation, in addition to domestic abuse.
The victims’ code of practice recognises that those under 18 are vulnerable and affords them enhanced rights. The children’s coalition, a coalition of charities that are informing what I am saying now—and has no doubt briefed all noble Lords here in Committee as well—has argued that there should be consistency across all legislation, recognising as distinct victims all children, not just those who are affected by domestic abuse. The coalition urges government to ensure that the Bill reflects the code by ensuring that children who experience abuse and exploitation, in addition to those who experience domestic abuse, are in the Bill so that the entirety of the harm they experience is explicit within primary legislation.
If the definition is not amended, the children’s coalition foresees that this will have unintended consequences for the relevant authorities and those in charge of delivering victim support services. Resources will be directed to focus on the needs of children who are victims of domestic abuse above other forms of harm. The coalition is concerned that there is the potential for a hierarchy of abuse that would leave thousands of children affected by other forms of abuse and exploitation without recognition and, ultimately, without support. By not explicitly recognising children as victims in their own right, the Bill could have significant implications for the level and quality of support available.
I am told that evidence already shows that a lack of support for children following abuse and exploitation exists and that ensuring that children and the full scale of the harm they experience are explicitly in scope will act as a cornerstone for responsible agencies commissioning services to make sure that they reflect the needs of children in full. So this is a specific example where legislation will make a difference.
It is impossible to design an effective justice system response to childhood victims without understanding the scale of what we are talking about, which I set out earlier. This cannot be done without recognising all forms of abuse, but this is a specific example where the black letter of the law will have an impact on the services that are delivered to childhood victims of abuse that falls outside the scope of domestic abuse. It is in that spirit that I beg to move Amendment 5.
Baroness Hamwee (LD)
My Lords, I have Amendments 7 and 11 in this group and I want to be clear that I agree very much with the views that are behind all these amendments.
I hope that my first question—a technical question—will not be regarded as negative. Is a child a person within Clause 1(1)? That will affect amendments and how they are framed. My second question is probably a bit indelicate. It has only occurred to me this evening, while listening to the examples that your Lordships have given. It is a direct question to the Minister. Is the MoJ aware of examples of possible candidates—that is probably not a very happy term—who have been exploited or subjected to criminal or marginally criminal behaviour, which have not made their way to us? It may be possible. I possibly should not put the Minister on the spot now, but maybe we can talk about what the MoJ has considered and discarded. Amendments 7 and 11 have been brought to us by Hestia, which supports victims of modern slavery. It is concerned with ensuring that those who are born to victims of modern slavery are covered.
I know that we have Clause 1(2)(b), which refers to circumstances
“where the person’s birth was the direct result of criminal conduct”,
but it would be very unfortunate if we were to run into the weeds of whether someone is a victim of rape—in other words, what is the relationship between the mother and the offender?—or if there is a doubt as to who is the father because the woman has been subjected to forced prostitution and the object of multiple rapes, because that kind of issue detracts from the support that is needed by the children of victims of modern slavery or human trafficking, whose experience in itself requires support.
Lord Polak (Con)
My Lords, I support the noble Lord, Lord Ponsonby, on Amendment 5. The Bill offers a landmark opportunity to make a difference to victims’ and survivors’ lives and has the potential to restore confidence in our criminal justice system.
As noble Lords know, alongside organisations focused on supporting women and children, and together with many other noble Lords from across the House, we fought hard for children experiencing domestic abuse to be recognised as victims in their own right, and I am proud that that is included in the Domestic Abuse Act 2021. However, I am saddened—I think that is the word I am looking for—that we are having to make this very same case again.
Sadly, children experience multiple forms of abuse and exploitation, sometimes including domestic abuse. The Centre of Expertise on Child Sexual Abuse has found that it is common that victims and survivors experience multiple forms of victimisation in childhood. Over half of adults in England and Wales who reported being sexually abused before the age of 16 also experienced another type of abuse, whether physical, emotional, or witnessing domestic abuse. As has been said, the Independent Inquiry into Child Sexual Abuse found that 52% of victims and survivors who gave evidence spoke about experiencing at least one other form.
As the noble Lord, Lord Ponsonby, suggested, we were reminded of these facts just last week at a meeting here in Parliament. We were given the privilege, I would say, of hearing directly from the survivors of child abuse about what this opportunity means to them. At this event hosted by the Children’s Charities Coalition, they all shared the same vision: that the Bill offers an opportunity to transform our response to children affected by abuse and exploitation. Often, it is not until you speak directly to victims and survivors of crime that you truly understand the magnitude and impact of what we are discussing today. Yet their ask is very simple: recognition and support for all children who experience abuse and exploitation.
At the event, we heard harrowing experiences from survivors of child sexual abuse and exploitation. In sharing their experiences, they also shared their bravery and resolve to improve support for children today and for generations to come—which, in some cases, was so lacking when they truly needed it. We heard from David Tait, who shared his experience about the horrific abuse he faced as a child. He challenged the room and asked whether any of us felt it was appropriate that children were not specifically recognised within the Bill. The room was silent, in realisation that it is almost unthinkable that children are not specifically recognised. I offer my deepest gratitude to all those who bravely spoke out. It sharpened my own focus on how the Bill can truly make a difference for them.
The final report of the Independent Inquiry into Child Sexual Abuse gives a glimpse into what it is like for these children and why it is so important for all children who have experienced, and, sadly, will experience, abuse and exploitation to be recognised. Many victims and survivors said they were traumatised by child sexual abuse. Olivar, a survivor, described the “traumatic long-term effect” of sexual abuse:
“I’ve thought about it for over 50 years”.
Another survivor, Laurie, said that
“hardly a day goes by where I do not think about the events from 58 years ago”.
Another survivor described feeling “misery” and “bewilderment” after being sexually abused as a child. Finally, a survivor shared:
“I was never able to be nurtured … I have to grieve for the childhood I never had”.
I support this key amendment in ensuring that these children and all children are recognised. This Bill must recognise all children as victims in their own right and we must get that definition and recognition put at the heart of the Bill. Children have distinct needs and require a child-centred approach and specialist support. Let us not go through the pain that we had last time with domestic abuse, let us get children into the Bill now.
The Lord Bishop of Manchester
My Lords, as I said at Second Reading, this is a good Bill for victims. It contains many provisions that I strongly support. I hope and believe that we can make it an even better Bill by working across the House, which is the mood tonight, as it was then.
I put my name to Amendment 10 in the name of the noble Lord, Lord Ponsonby. I also support other amendments in this group, including those that my right reverend friend the Bishop of Bristol, who is unable to be in her place today, has signed. Amendments in this group seek to clarify how the Bill properly addresses the needs of children.
Amendment 10 places on the face of the Bill a short but clear definition of “child criminal exploitation”. This would include any child under 18 who is
“encouraged, expected or required to take part in any activity that constitutes a criminal offence”.
This is not widening the definition of a victim, merely giving it clarity. I learned in my teens that if I was on the receiving end of some wrongdoing, I was a child. By contrast, if I was deemed the perpetrator, I suddenly became a youth.
We have also heard too often in your Lordships’ House of the adultification of children. It is an ugly word for an ugly phenomenon, where a child is treated as a grown-up when they are caught up in wrongdoing. Moreover, we know that in the absence of a strong countervailing pressure, this is disproportionately applied to black children. This has been a long-standing concern of many civil society organisations focused on countering the exploitation of children. I hope we can begin to respond to it today.
In my own diocese of Manchester, we are still reeling from the discovery of the extent of grooming gangs exploiting children for sexual crimes, most notably—but I doubt exclusively—in Rochdale. If the children caught up in these crimes had been seen by the authorities primarily as victims, and treated as such, I believe that the gangs would have been brought to justice far sooner.
Getting a clear definition of child criminal exploitation into the Bill will, I hope and pray, not only improve this legislation but set a precedent for how we treat child victims better, both in future legislation and in practice at every stage of the criminal justice system. I hope that the Minister will either accept our words as on the Marshalled List or come back to us on Report with a suitable government amendment to that effect.
Lord Hunt of Kings Heath (Lab)
My Lords, I have Amendment 9 in this group. It concerns verbal abuse to children and, in terms of the challenges the Minister set us with the four As, it is concerned with raising awareness.
I share the view of other noble Lords that it is important to get children into the Bill, particularly in relation to this clause. My amendment seeks to make it clear that when it comes to the definition of “harm” in Clause 1(4)(a), it should include a definition that embraces children and includes verbal harm.
My amendment has been inspired by the work of an inspirational, newish charity called Words Matter, which I believe to be the first charity in the world focused solely on verbal harm to children. It aims to eradicate this damaging and underestimated form of abuse, and I pay tribute to its inspirational founder, Jessica Bondy.
We all understand verbal abuse. It can mean negative words, and language that causes harm to children. It can take the form of blaming, insulting, belittling, intimidating, demeaning, disrespecting, scolding, frightening, ridiculing, criticising, name-calling or threatening a child. It does not constitute only shouting. In fact, abuse can be quiet, insidious and subtle in tone, where volume and facial expression play a part. We have probably all personally experienced verbal abuse, certainly in the profession we are in. It can be extraordinarily damaging, particularly to young people.
We know that children’s brains are responsive to relationships as they grow up with words, tones and sounds around them. The noble Lord, Lord Polak, has just talked about the long-lasting impact on people who were sexually abused many years ago, and destructive language can have some of the same impact. If one looks at what comprises child maltreatment—physical, sexual and emotional abuse, and neglect—verbal abuse is a key attribute of many of those aspects. It can also be individually damaging to a child’s development, perhaps as damaging as other currently recognised and forensically established subtypes of maltreatment.
We believe that emotional abuse, including verbal abuse, is on the rise, and is perhaps the most prevalent form of child maltreatment. A systematic review of childhood abuse undertaken by UCL and Wingate University in the US found that verbal abuse does profound damage to a child over their lifetime, affecting their self-esteem, confidence, future potential and ability to function at home, school and the workplace, really affecting life outcomes for them.
The study commissioned by Words Matter found that this kind of abuse is pervasive in society. That study, which it recently undertook, revealed that two in five children aged 11 to 17 experience adults regularly using hurtful and upsetting words to blame, insult or criticise them—that is, around 2 million children in this country.
The real problem here is a lack of awareness, because without awareness you cannot have strategies and policies to try to deal with it or engage in the educational programmes that are needed, particularly to help teachers, parents and other adults who are in a situation to try to change their behaviour. I do not pretend that an amendment tonight would magically deal with this issue, but in the spirit of the Minister’s wind-up on previous groups, I hope that by drawing attention to it he will be able to say something constructive about how we might tackle verbal abuse and protect children in the future.
The Lord Bishop of Gloucester
My Lords, my right reverend friend the Bishop of Bristol, as has been said, regrets that she cannot be in the Chamber today but along with her, I support Amendments 7 and 11. The children of victims of modern slavery are currently underserved by support services, despite that lasting and intergenerational trauma which witnessing the crime of modern slavery can cause. We have already heard about the organisation Hestia. In 2021, it estimated that as many as 5,000 vulnerable children could be identified within the NRM as children of victims of modern slavery. I want to add that there is an urgent need to extend victims’ rights to this group, and I am glad to see these amendments.
Baroness Sanderson of Welton (Con)
My Lords, I will speak briefly to Amendments 6 and 10, which are designed to ensure that children who have been criminally exploited are seen and treated as victims rather than perpetrators. As has already been discussed, I understand the Government’s desire to keep definitions broad and to resist requests for too much specific detail in the Bill, but there is a case to be made about child criminal exploitation.
First, there is a need for clarity. The Government’s own Serious Violence Strategy says:
“In order to support different agencies and sectors working together it is important we have common definitions of the issues we are tackling”.
Yet on the issue of criminal exploitation, there is no common definition. The definition used in that strategy is the same as that in Working Together to Safeguard Children but differs from the definition in Keeping Children Safe in Education. As a result, different parts of the system are working to different understandings of what constitutes criminal exploitation. They have found the current definitions to be not only different but overly complicated.
As one police officer said in the very helpful briefing from the Children’s Coalition, which has already been mentioned:
“What is applying in Newcastle is totally different to Surrey”
and current definitions
“are too open to interpretation and this breeds an inconsistent approach”,
so we need consistency. We also need a statutory definition for criminal law purposes for, as that police officer also explains:
“We definitely need the definition to do our job. It’s a 21st-century crime we are prosecuting with outdated legislation”.
The Government should be given credit for their focus on the growing threat of serious violence, which often gives rise to criminal exploitation but, if I am honest, it feels a bit odd that they would not see that this might be a useful step. It would not only help those victims having to live with a criminal conviction, making life even harder for them in the long run through no fault of their own; it would also send an important message to the real perpetrators in all of this—the people who take away these children’s lives, forcing them to live constantly on edge and in fear. It is a fear of the people exploiting them but also a fear of the authorities, if their situation is not properly recognised or understood.
Baroness Jones of Moulsecoomb (GP)
My Lords, I support all the amendments in this group. I am interested in verbal harm because it is true that, as politicians, we get a lot of that. I have had verbal abuse from that Front Bench, in fact, but I am old enough that it has not affected my behaviour.
Amendments 5 and 6 are quite crucial here, as is Amendment 10 on child criminal exploitation. On top of all the important points made by noble Lords here about child victims, I want to ask the Minister about the Government’s role in re-victimising children and young people by deploying them as covert human intelligence sources or child spies. I have raised this issue a few times over the past few years. It is still a practice that absolutely horrifies me—that the Government would actually encourage the further criminalisation of children. In recent years, the Government have actually expanded the use of child spies, including authorising them to commit criminal offences. I do not expect the Minister to answer this this evening, but I would like a full answer, because this is an issue that fills me with horror.
The Government’s actions obviously meet the definition of child criminal exploitation in Amendment 10, as these children are being
“encouraged, expected or required to take part”
in criminal offences by the police. Can the Minister therefore outline what victim support and other help is provided to these child spies when they are being sent back into dangerous criminal situations? Will they be eligible as victims under the victims’ code—I assume they will—and can the Minister give up-to-date figures on how many child spies are currently being used by police forces? I have been consistently told that it is a very small number. In my view, any number is wrong, but if I could have that information, I would be very grateful.
Baroness Fox of Buckley (Non-Afl)
My Lords, I was quite surprised to see the amendments, and also the way they have been motivated—by the need to get children in the Bill, as though there were a lack of sympathy with children as victims, particularly of sexual abuse. That is not something that I am aware of in society, which seems to me to be more than preoccupied with that issue, and rightly so.
If anything, as the right reverend Prelate the Bishop of Manchester made clear, it depends which children you are talking about, because one of the shocking aspects of the Rochdale grooming scandal was that a particular group of children were seen to be the wrong kind of children—in the words of the perpetrators, “white trash”. If you read the many reports on this, as I have done, even the officialdom—the police, local authorities, social workers and all sorts of things—saw these children as perpetrators who could be ignored. In general, society is horrified, it seems to me, at child abuse, but it depends which children. I did not know that we needed to get the idea of children as victims on the face of this kind of Bill in order to be sympathetic to children as victims, so I am a bit confused about the necessity of that. However, I am open to being convinced.
As it happens, I completely agree with the horror of the noble Baroness, Lady Jones of Moulsecoomb, at child spies, and I share that point of view as well. But she does raise a problem that I have with Amendment 10, inasmuch as I think it is unclear what the definition of “child criminal exploitation” would be. Where it says that
“a child under the age of 18 is encouraged, expected or required to take part in any activity that constitutes a criminal offence”,
first, there would be an argument about those child spies. Other people would presumably say that that was not what was happening there.
But there is a danger, particularly when we use that wording: “encouraged, expected or required” is very loose in terms of problems we might well have with agency of young people. We have already heard about anti-social behaviour; often that is committed by under-18s. Knife crime is often committed by under-18s. There is a danger that, in our attempt at fighting genuine exploitation of children to force them into criminal activity, we end up in a situation whereby young people, who I am afraid can on occasion be responsible for crimes, are able to say that they did not do it because they were encouraged or put under pressure and so on. I am just worried about the wording there.
Finally in this group—and this is not something I like doing, because I have enormous respect for the noble Lord, Lord Hunt—I absolutely disagree with his Amendment 9 on verbal harm. One thing that is quite interesting is this idea that we have to make young people—or everybody—aware of the dangers of verbal harm. The one group of people who are very aware of the dangers of verbal harm are young people and children because they are reared in a society that tells them that words are harmful. They are so embroiled in that notion that, as we know, they will say that they are victims because of words that have been said to them. We see this played out in schools, sixth forms and universities all the time, to the detriment of free speech.
People might think that is glib, but I am constantly involved in arguing the point with young people who say that words are as harmful as fists, knives and anything else and that they should not be exposed to individuals saying certain words because they are just as harmful as criminal activity. I do not want the Bill to give even more succour to this idea that words, which are often opinions that people do not like, are harmful. Even though words can make you feel uncomfortable, we must distinguish between words and actions, in my opinion, and not encourage young people to always think that they are victims of some crime if they hear words that they find unpleasant, even though I understand that some words are unpleasant to be on the receiving end of.
Baroness Benjamin (LD)
My Lords, I support Amendments 6 and 10 in the name of the noble Lord, Lord Ponsonby. I was pleased to hear that verbal abuse is being highlighted and I commend the noble Lord, Lord Hunt, for that.
Children who are criminally exploited suffer unimaginable abuse and harm, which have long-lasting impacts and can cause physical and mental harm and trauma which can impact their development. As we know, childhood lasts a lifetime so this will go on to affect society in the long term, directly and indirectly.
The Covid-19 pandemic increased the risk of children being exploited and this has been made even worse by the cost of living crisis. Despite this, all too often children who are victims of exploitation are blamed and criminalised for their own abuse. Black and minority ethnic children and children in care are more likely to be criminalised than other children, which can be a double jeopardy for them.
There is no statutory definition of child criminal exploitation, which means that those working with children lack a shared understanding and can miss key intervention points and fail to identify victims. For child victims, this means that they are falling through the cracks of statutory support and perpetrators of this vile abuse are going unpunished.
At Second Reading, the Minister set out that a definition of child criminal exploitation already exists in statutory guidance, which is a good step in recognising the issue. However, confusion remains among those on the front line, and it is clear that a statutory definition would be welcomed by them. The Government need to use the Bill to give child criminal exploitation a statutory definition in its own right.
In 2021, Barnardo’s—I declare an interest as its vice-president—made a freedom of information request to police forces across the UK. Some 30 police forces responded, but only one force was able to provide any data about child criminal exploitation. Interestingly, many forces asked Barnardo’s about how child criminal exploitation is defined, which shows just how misunderstood it is by those working in this area. A police officer who spoke to the Children’s Society said:
“What is applying in Newcastle is totally different to Surrey, and current definitions are too open to interpretation and this breeds an inconsistent approach”.
Other police officers working on the front line have said that they would definitely value a statutory definition of child criminal exploitation, and that the definitions that already exist in statutory guidance are weaker and can be harder to prove.
Lord Meston (CB)
My Lords, I support the amendments in this group, which seek to ensure better focus on the position and needs of children and thereby provide a better framework of support for children who are victims or potential victims.
I assume that the word “person” in Clause 1 includes a child but nevertheless I think that should be emphasised in the Bill, as so many noble Lords have said. The priority to be given to children should rest on at least three obvious points. First, children are much more vulnerable than adults. Secondly, children are less able to speak for themselves; exploited and abused children notoriously lose self-esteem. Thirdly, clearly children have much longer than adults to put up with the consequences of abuse and of inadequate decisions made when the abuse comes to light.
The Government may say that it is not necessary to highlight particular types of criminal conduct, as attempted in Amendments 5 to 7, and that they are already covered by Clause 1. I am not entirely convinced of that, and if there is any doubt about it, I hope the Government will look again to ensure that the particular categories of abuse highlighted in those amendments are indeed covered.
Lord Hampton (CB)
My Lords, I shall speak to Amendment 7 in the name of the noble Baroness, Lady Hamwee, to which I have added my name digitally. We start on the thorny subject, to which I think we will return, of children. I declare my interest as a secondary school teacher in Hackney.
I am delighted to have my noble friend Lord Meston with me, because he can say it far better than I can when we are trying to persuade the Government that children should be defined separately as victims. I will speak more about that in the sixth group of amendments.
I join the noble Baroness, Lady Sanderson, in saying that we need a definition of victim, which is not contained in Keeping Children Safe in Education—there seem to be variations on that—and we need to deal with the children of victims of modern slavery. I support all the amendments in this group.
Baroness Brinton (LD)
My Lords, on these Benches we add our thanks to the Children’s Commissioner for her very helpful round table and briefing notes. We also thank Hestia. I thank other noble Lords for their amendments, which specify children in the definition of a victim. The noble Lord, Lord Ponsonby, and my noble friends Lady Hamwee and Lady Benjamin made strong arguments to include who victims of abuse and criminal exploitation are, as well as those who are victims of modern slavery or human trafficking.
The amendment in the name of the noble Lord, Lord Hunt of Kings Heath, is a salutary reminder that children can be damaged by verbal harm. Intense and repeated verbal abuse is damaging. That is somewhat different from the point the noble Baroness, Lady Fox, was trying to make, which was about young people having arguments about matters of principle and offence; that is not what we are talking about.
Some years ago, I lived next door to a family who used the most extraordinary bad language to their toddler, time after time. The example I can just about repeat in your Lordships’ House was his name, which was “Paul, you little bleeder”. It went on, from worse to worse. As he grew up, we heard his own language mirroring that of his parents. One of the reasons that the noble Lord, Lord Hunt of Kings Heath, is right to propose this is that a child like that needs help and support from other agencies, as do his parents. It can be within a house, or it can be separate, but it is very different from the argument the noble Baroness, Lady Fox, was trying to make, and I hope she would accept that.
In a later group, probably next week, we will come to a group with much more detail about the protection required for child victims. All these amendments would ensure that definitions at the start of the Bill recognise that child victims have as many needs as adults. Agencies need to remind themselves that child victims may not always present in the same way as an adult and may not always need the same services as an adult. As the right reverend Prelate the Bishop of Manchester said, the lessons of Rochdale show that too many agencies do not always see children as victims. There, I am afraid that the police and some other agencies saw them as perpetrators. That is absolutely unacceptable.
I apologise again to the noble Baroness, Lady Fox, but I am picking up on the arguments she made about the lack of sympathy from officialdom and police. She went on to argue that it is important that people recognise that these children are victims. But this is not about sympathy; it is about getting help and support for these children. Sympathy may be part of it, but these amendments are not put forward to get sympathy for children; it is to change their lives, and to recognise that they are victims and will need specific services thereafter.
I am mindful of Nicky Campbell and others who were abused at the schools he attended and how their experience of not getting support early in their lives has affected them for their entire lives. This is not just an issue about children; it is about how those children grow up and manage their own lives. As I said at the end of the previous group, one can save money in the longer run on services by ensuring that victims—in this case child victims—get support as early as possible.
Finally, I echo the points made by my noble friend Lady Hamwee in Amendment 7 on the child victims of modern slavery or human trafficking. Hestia’s briefing was very helpful in reminding us that everyone in a family unit, especially the children, is affected by modern slavery and human trafficking, the consequences of which have long-standing impacts. So it is becoming clear from all parts of the House again that we need a separate definition of child victims. Their experiences, needs and the services they seek are all different.
Lord Bellamy (Con)
My Lords, I thank all noble Lords who have contributed to this very important debate on how we assist, support, improve, validate and value children who have suffered various kinds of abuse. The question—I respectfully suggest it is a somewhat technical question—is whether we need to amend this Bill, whether we should do it through further sections of the code, and how we should approach the problem.
The Government’s position at the moment is that a child who is a victim of abuse and exploitation which constitutes criminal conduct is already a victim under the Bill. So the large numbers of children, rightly referred to, who have apparently suffered domestic abuse in the past—children who have been through the recent domestic abuse inquiry and so forth—would, in the ordinary meaning of words, I think, have been subject to criminal conduct under Clause 1(1)(a). As the noble Lord, Lord Meston, pointed out, a child is undoubtedly a person, and the Government’s position is that this is very largely covered.
The phrase “child criminal exploitation” in itself implies someone who has been exploited by criminal conduct—which is already covered. So I hesitate to recommend to your Lordships that we need to further complicate the Bill itself, or the Act as it will eventually become, one hopes, by having further definitions. I accept the point made by my noble friend Lady Sanderson that there probably is some confusion at the moment in some of the guidance out there, and there is probably a great deal of inconsistency in how it is applied by different authorities in different parts of the country. As I said earlier, one of the purposes of the Bill is to ensure a much more even and consistent approach across the country by all relevant agencies.
It is important to clarify two things—and I respectfully suggest we should do this in the code rather than the Bill. The first is that we need, perhaps, to clarify that the phrase “criminal conduct” in the Bill does not imply that there has been a prosecution, let alone a conviction. It is whether, on the facts, this is a person who has suffered from the relevant conduct. Secondly, I suggest to your Lordships—and I cannot officially commit the Government tonight because I do not have the authority to do so—that we need when revising the code to have a detailed section on children, and special reference to the particular problems that have been rightly raised tonight, so that everybody has full guidance on what they are supposed to do with child victims of various kinds. That is probably a more apt way of proceeding than trying to redefine what we are talking about in the Bill. With the greatest respect, I suggest that “child criminal exploitation” is a somewhat difficult concept to define.
I could add that the act of manipulating, deceiving, encouraging, coercing or controlling a child almost certainly amounts to a criminal offence in itself—it does under Part 1 of the Modern Slavery Act, and we have been talking about modern slavery. We also have the wide terms under the Serious Crime Act 2007, in which encouraging or assisting an offence is also an offence. So I respectfully suggest that almost all the examples one can think of are already covered by the definition of “victim” in other Acts. At the moment the Government are not persuaded that we should be tinkering further with this particular definition, but I see the force of the argument that we need to have special mention and explanation as regards children when we come to revise the code and the guidance that accompanies it, and the duties of the various agencies to provide their services.
I suggest that the same broad analysis covers the important point raised by the noble Lord, Lord Hunt of Kings Heath, in relation to verbal abuse. It is already in Clause (1)(4)(a) that “harm” includes physical, mental, emotional or economic harm. I think that most kinds of verbal abuse are covered—but, again, this is a matter that is more for the way one drafts the code than it is for the Bill itself. That would be, I think, the Government’s position at the moment.
Baroness Hamwee (LD)
My Lords, I did not quite catch what the Minister said when referring to Clause 1(2)(a). Was he saying that a child who is the child of a victim of modern slavery will fall within
“seen, heard, or otherwise directly experienced”?
I am not sure what “directly experienced” extends to. Is his argument that the child of a victim of this particular crime would fall under Clause 1(2)(a)? I am sorry; the Minister talked about it but I did not quite hear.
Lord Bellamy (Con)
My Lords, I think that is the Government’s position. In most cases the child will experience the effect of criminal conduct, that being the effect on the mother. That is a sufficiently direct nexus, as it were, to bring it within the scope of the clause.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank all noble Lords who have spoken on this group. The gist of the Minister’s summing up is that he believes that all the examples given in this short debate are already covered in the Bill. I think he said that there may be a detailed section in the code covering children; I understand that that was not a firm commitment but, nevertheless, it is a step forward.
The Minister gave a number of examples of why the Government want a more explicit recognition, but I gave a specific example where I argued that the black-letter law on the recognition of children could—and does—affect the accessibility of victims’ services. When local authorities look at how to allocate services, there is potentially a hierarchy there. We think that children should be at the top of that hierarchy, equal to domestic abuse victims; that was the specific example that I gave to the Minister.
Nevertheless, this has been an interesting debate on which I and others will reflect. I agreed with every word of what the noble Baroness, Lady Brinton, said about my noble friend Lord Hunt’s amendment. He clearly tabled it to raise awareness—one of the Minister’s four As—and he has effectively achieved that goal. I will be interested to see whether he wishes to take it further. For now, I beg leave to withdraw my amendment.
Baroness Gohir
Member’s explanatory statement
This amendment seeks to ensure that all victims can request a review of a police or Crown Prosecution Service decision not to charge a suspect including when there are multiple perpetrators.
Baroness Gohir (CB)
My Lords, I draw attention to my interests as set out in the register, particularly as CEO of the Muslim Women’s Network UK, which operates a national helpline. I will speak to Amendment 13 in my name; I also support the other amendments in this group, which I will address at the end.
The purpose of my amendment is to ensure that all victims have an equal right to have the police or CPS decision reviewed when suspects are not charged. Not all victims will exercise this right, but it must be available to all victims if their voices are truly to be heard in the criminal justice system. At present, some victims do not have the same right to review a decision. For example, when there is one suspect and they are not charged, there is a right to review the decision. When there are multiple suspects and none of them is charged, there is a right to review the decision. However, if there is more than one suspect and some of them are not charged while others are, the victim cannot ask for a review into why the other suspects were not charged. This creates a hierarchy of victims.
I will explain how I stumbled on this gap in the law. The Muslim Women’s Network helpline supported a south Asian Muslim teenager who had been groomed and sexually exploited. She was raped by a gang of men. With the support of the helpline and her family, she reported the crime to the police, which was very difficult for her as she came from a south Asian background. The culture of shame and honour could have been a huge barrier to reporting, but she did it. The police then arrested several men, but ended up charging only one of the suspects. This was a huge shock to the victim, her family and the helpline. She then decided to try to get the decision reviewed but was told that she could not, for the reasons I have stated. She lost trust and confidence in the process, which led to her eventually dropping the case against the one perpetrator, so she got no justice at all.
I do not believe that this is an isolated case. We already know that rape convictions are extremely low, even in simpler cases where there is just one suspect, so one can imagine the conviction rates in more complex cases where there are multiple perpetrators. It is very plausible that this current loophole is contributing to victims dropping cases. Although I am using rape cases as an example to highlight the gap for reviewing decisions, this can also apply to many other scenarios in which more than one perpetrator is involved in the crime, such as anti-social behaviour.
I thank the Minister for listening to my concerns. We have exchanged letters and he has committed to explore this issue further with the CPS and the police. However, I believe they will continue to follow the current legislation, which has been adopted from the EU. Unless this is changed, it is in their interests to continue with the status quo rather than to follow non-binding policies.
Bringing multiple perpetrators requires more work because there needs to be more evidence gathering. It can be easier for the police and the CPS to say, “Well, we are only charging one person and not the others”, knowing that the victim cannot appeal this decision. That will mean less work for the police.
Police forces have already been heavily criticised for the way that they treat and investigate sex abuse crimes. The loophole therefore works in favour of the police and against the victim. One explanation that has been provided for not reviewing decisions is that if some suspects are not charged, and this is then reviewed, it could delay prosecution, which, in turn, can result in witnesses and victims withdrawing from the case. However, this theory has not and cannot be tested, because victims cannot review the decisions. In fact, this very mechanism has resulted in the withdrawal of cases, such as the case study that I provided today.
Earlier, on the first group of amendments, the Minister talked about thresholds being crossed and victims having a right to certain processes. This speaks to one of the As, of accountability. Therefore, how will the victim know? That is why the victim’s right to review exists. Some victims have had their decision reviewed, the decision has then been overturned and suspects have been charged, which means perhaps that the police have not charged suspects despite thresholds being crossed.
I understand that the Minister is exploring other potential routes outside the Bill; for example, challenging decisions by going through some kind of complaints process where a senior manager can review cases, thereby allowing reviews in certain exceptional circumstances. While I appreciate that the Minister is actively considering other options, I believe that this measure would not work for the following reasons. It would be a subjective process which would vary widely across the regions. It would add another separate process and yet another barrier for the victims. The message then being sent to the victims would be, “Well, the decision would only be reviewed in exceptional circumstances, so don’t bother”. Also, we would then have to have a definition of what we mean by “exceptional circumstances”. Alternatively, we could just simplify the process with this amendment, so that all victims followed the same process. I therefore urge the Minister to reconsider his options.
I end by stating my support for the other amendments in this group. I support them because from my experience of operating a national helpline I have found that victims need more support—to be referred and signposted to specialist services that meet their needs and to restorative justice services. There is also a particular information gap when it comes to minority-ethnic victims, because service users have informed the Muslim Women’s Network helpline—when they have eventually found us—that they were not informed about the service. They were not informed or made aware of the victims’ code, nor of the restorative justice service.
I therefore look forward to the comments and response from the Minister. I beg to move.
Lord Harries of Pentregarth (CB)
My Lords, I rise to support Amendment 14. This amendment would ensure that all victims knew of and had access to restorative justice services. I am glad that it has the support of the noble Lord, Lord Blunkett, who unfortunately has a long-standing speaking engagement this evening and sends his apologies, the noble and learned Lord, Lord Garnier, and the noble Baroness, Lady Hamwee. I also add my support to the amendments in the name of the noble Baroness, Lady Bennett of Manor Castle, whose effect is the same as mine, to ensure that restorative justice services are clearly in the Bill.
I will not repeat what I said at Second Reading in favour of restorative justice; instead, I will make two very brief points. First, research has shown that restorative justice is effective. It has been a benefit in two ways: one is the impact it has on the offender, reducing the likelihood that they will reoffend; the other is the impact on the victim. For example, restorative justice has been shown to bring satisfaction to victims in reducing stress and trauma. Interestingly, victims found that apologies were more important than restoration.
RJ has proven effectiveness; however, awareness of it and its availability are not as they should be. Research commissioned by the APPG on Restorative Justice showed that there is a postcode lottery and a number of factors resulting in RJ not being taken up in the way that it might be. For that reason, there needs to be a statutory duty on authorities in the criminal justice system to ensure that it is available for those who wish to make use of it.
The Lord Bishop of Manchester
My Lords, I will speak in support of Amendment 15 in my name. I also offer my support to the other amendments, not least that in the name of the noble Baroness, Lady Gohir, which seems to be an uncontroversial proposal that simply corrects a lacuna in the Bill.
One of my abiding mantras is that there is no such thing in our society as a hard-to-reach group. What we have—and have all too often—are services that fail to make sufficient effort to ensure they reach all those they are intended to assist. It is not good enough for a service to exist; the people it is meant to support have to know it is there and be able to access it. The noble Baroness, Lady Newlove, spoke powerfully earlier this evening. I gather that she spoke at a Women and Equalities Committee oral evidence session where she emphasised that many victims are unaware of the support services available to them. I will not go any further, because I think she may want to speak in a moment; I will not steal her thunder.
The intention of the amendment in my name is to make it clear that responsibility for ensuring that victims can access services does not lie with the potential service user. We need it in the Bill because too many victims are simply not aware of what they ought to be able to look for for help—or they cannot access that help in a format that meets their needs.
I gather that in the other place the Minister claimed that the duty on criminal justice agencies to use reasonable steps to make victims aware of the code would suffice. Yet signposting is much more than enabling someone to know that a service exists. It means putting them in a place from where they can access the service. Sometimes that cannot be done by a leaflet, however good, or a few words spoken to a traumatised victim in the immediate aftermath of a tragedy. It requires enduring engagement by service providers until the message can be heard, and that may be some considerable time later.
The Women’s Aid Survivor’s Handbook provides a clear example of what practical support should be included. Such support can be a lifeline to victims of abuse who, for example, may be planning to leave their perpetrator. The ability to access thorough information on a full range of issues, with easy-to-follow guidance, is crucial. It is also imperative that black and minoritised women, deaf and disabled women and LGBT+ victims are able to access support that meets their very specific needs and is sensitive to their experiences of additional inequalities and intersecting forms of discrimination. Victims should also be made aware of the range of helplines and online support, including the Women’s Aid live chat helpline and other appropriate domestic abuse and violence against women and girls support. Simply saying that there is a code will not bridge the gap between the victim and the service they need. I hope the Minister will feel able to offer proposals to strengthen the signposting requirements in the Bill ahead of Report.
I finish by recollecting that exactly one week ago in your Lordships’ House we debated, for a good hour and a half, what makes for good signage and who is responsible for it. Specifically, we discussed changes to the requirements placed on warning signs for level crossings between private or heritage railways and farm tracks—it was more interesting than you might imagine. Surely if we can improve signage to help a farmer get his sheep across a railway track, we can properly sign victims to the services they need.
Lord Garnier (Con)
My Lords, I will not follow the right reverend Prelate down the byways of Manchester, or the sheep farmers and their signposts, but I support him and indeed the noble and right reverend Lord, Lord Harries, in the thrust of the amendments that they have introduced. I am part of a catholic gathering which supports the amendments tabled by the noble and right reverend Lord. I do it because I think it is a sensible, practical thing to do, but also because I have seen it work.
Many years ago, when I was the shadow Minister for Prisons in the other place and my noble friend Lord Cameron of Chipping Norton was the leader of the Opposition, I visited a huge number of prisons. I think I visited about 75 of the 145-odd prisons, secure training units and young offender institutions in England and Wales, and in a number of prisons, certainly adult prisons in London, in Wales and in other parts of England, I saw restorative justice in action.
It is a delicate process and one needs to be very careful that it is, as the amendment tabled by the noble and right reverend Lord, Lord Harries, makes clear, carried out where appropriate and that it is available where appropriate. Not every victim is ready to enter into a conversation with the person who committed a crime against them. I have been in the room when RJ took place between prisoners and the victims of murder, the victims of serious violence and the victims of domestic burglary. It takes a very strong person to go into a room and listen to the explanation, the apology, the regret of a prisoner who has killed your husband or your son or your daughter. You need to be very strong and very brave. Equally—I suppose to some extent it is easier because there is, if you like, an advantage to the prisoner to be seen to be behaving in a humane way—I think it is fair to say that for many of the prisoners, some of whom were not very articulate, who had not been educated and who had many social, economic and other disadvantages, it was quite brave of them to come to terms with the horrific things that they had done. So I think “appropriate” is the most important word in the amendment tabled by the noble and right reverend Lord, Lord Harries.
Also, tailoring the scheme, or the particular episode of restorative justice, to the needs of that particular victim is so important. It is not just a blanket answer: putting two people in a room with a presider, if you like, to make sure that it goes well. You need to think about it extremely carefully and treat the individuals concerned extremely carefully; it cannot be forced and it cannot be rushed.
But I believe that restorative justice is a hugely important factor in the reduction of crime and recidivism. It brings together people who have been perpetrators and those who have been victims in what can only be a traumatic experience—namely, the experience of the crime but also the experience of meeting the person who committed the crime against you or a loved one.
I am delighted that the noble and right reverend Lord, Lord Harries, has tabled his amendment, as I am that the right reverend Prelate and the noble Baroness, Lady Bennett, have tabled theirs. This is a subject which has been discussed many times but has never been properly resolved. It has to some extent been seen as a luxury add-on to the criminal justice system; it is not—it is vital and fundamental in the appropriate cases. I say this as someone who has looked at the practical effects of it not only as a shadow Minister but also as a trustee of the Prison Reform Trust, which has been well-invested in this aspect of the criminal justice system.
Finally, I thank the noble Baroness for tabling her Amendment 13. I thought I knew quite a lot about the criminal justice system, but I had absolutely no idea that the oddity she highlighted this evening existed. It needs correcting.
Baroness Bennett of Manor Castle (GP)
My Lords, it is perhaps particularly appropriate that I follow the noble and learned Lord, Lord Garnier, as a way of highlighting the fact that the amendments in this group addressing restorative justice, a number of which are in my name but have already been introduced by the noble and right reverend Lord, Lord Harries, are not party-political. This is a conviction, understanding and belief that goes right across the political spectrum and, as the noble and learned Lord, Lord Garnier, said, has arisen from practical experience. Speaking to other noble Lords in the Corridor who have seen my amendments, I have had many people who said, “I wasn’t really convinced and then I saw restorative justice in action, and now I am totally a convert to this idea”. The Government are getting a clear message from right across your Lordships’ Committee that, as the noble and right reverend Lord, Lord Harries, said, what was said in the other place—the idea that “Oh, we can put something in the code”—really is not going to do it; we need this in the Bill as a step forward.
I went through this at Second Reading, so I will not repeat it all, but if we look at what the Government are offering now, in their wording is a suggestion that restorative justice is nice when we can find the resources, so you might be lucky enough that there might be the resources available in your area or you might not. That is simply not good enough.
Briefly, I agree very much with all the amendments in this group and echo the comments about Amendment 13. The noble Baroness, Lady Gohir, has found something that the Government can surely pick up, because it so obviously needs to be sorted out.
Baroness Newlove (Con)
My Lords, I support all the amendments in this group. I want to say a few words about restorative justice but, before I do, I give my support to the noble Baroness, Lady Gohir, on what she has just said. I am happy to help and assist in whatever way I can.
I acknowledge that this does not apply to all victims, but for some victims, restorative justice can be a transformative tool that can empower victims to move forward. Over the years, I have met many victims who have given me their true thoughts on restorative justice. In my last term as Victims’ Commissioner, I published two reports on restorative justice and was satisfied from my findings that the majority of victims that I spoke to who had participated in it had found it to be a positive experience. However, the ONS crime survey for England and Wales in 2019-20 found that just 5.5% of victims were given the opportunity to meet the offender. Between 2010 and 2020, this percentage has not increased above 8.7%, while 26% said that they would have accepted an offer to meet the offender if it had been made.
Funding for RJ is no longer ring-fenced by the MoJ. Police and crime commissioners make the decisions on how much they spend on RJ from their victims budgets. This has led to a wide variation across England and Wales in the provision of services, as we have heard. In 2023, the Why me? charity published a report showing that the lowest reported spending by a PCC on such services was £6,250, while the highest was £397,412. The type of crime where RJ is available varies, as do the conditions of service provision.
Data collection on the provision of RJ is poor, preventing effective monitoring of what is happening on the ground if national criminal justice agencies are unsure as to what they are required to do. For example, the HMPPS guidance issued last year states:
“When a victim … requests information about restorative justice services, the VLO must provide it within ten working days”.
This is not in line with the victims’ code of practice, which includes the right to receive information about RJ and how to access RJ services. It does not depend on whether the victim has requested it. In short, access to restorative justice has become a postcode lottery.
I hope, therefore, that these amendments and the debates that we have heard across the Chamber will prompt the Minister to give this House reassurance that such concerns about the provision of RJ are, and must be, seriously addressed. Lots of money has been spent, and it would be so sad not to carry on when victims would like to have that option.
Baroness Hamwee (LD)
My Lords, I also support the importance of providing for restorative justice. I had a look at the current code of practice to see what it has to say. I was a bit surprised that a paragraph referring to RJ, which is obviously deliberately separated from the right to access support services generally, starts:
“If you report a crime to the police, you have the Right to be referred to a service that supports victims, including Restorative Justice services”.
I do not know whether this is a real point or a non-point, since the offender has to be involved by definition and, by definition, the offender would have been reported to the police, but it seems to me to be inconsistent with Clause 1(5) and the whole ethos of the Bill. I was not clear either whether paragraph 4.5 in the code is dependent on being entitled to receive enhanced rights—ER—for victims who are considered vulnerable or intimidated, the victims of most serious crime or persistently targeted.
The debate is, to an extent, that crime has been defined at different levels: it has been for serious crime, but I argue that it is not only the most serious crimes for which RJ is appropriate. I was glad that the noble and right reverend Lord mentioned reducing reoffending because, looking at the whole picture, that is a very serious and important aspect. My name is to his amendment, and the noble Baroness’s amendments appeared without giving me time to do that.
In this group, I have Amendment 17, to provide for a single point of contact—a “victim care hub” was the term used by the London victims’ commissioner, who was particularly keen that we should address this, as you would expect from her own experience.
On the usual issue of timely and effective communication, there are other amendments dealing with another aspect of this, which is that justice agencies are struggling to deliver victim care with awareness and in compliance with the victims’ code, which the London victims’ commissioner said was at seriously low levels.
In the 2019 review into the code, the Victims’ Commissioner for London recommended a victim hub model. We have had reference this evening to the Lighthouse in Camden, and she also refers to the lighthouse model in Avon and Somerset—a single point of contact to help a victim throughout the process. Such a model would secure more effective compliance with the code, which was discussed by many noble Lords at Second Reading.
In June 2022, the office of the Victims’ Commissioner launched a victims’ survey. The noble Baroness, Lady Newlove, is nodding. This dealt with experiences as a victim of crime, ran for eight weeks and gathered 489 responses from self-selecting individuals. All this bears out what we have been referring to: a lot of dissatisfaction, and a lack of confidence in the system. I understand that less than a third of respondents were aware of the victims’ code. In London, a user satisfaction survey for one quarter in 2022-23 showed only 25% of victims being made aware of the code.
What would a hub do? Such a service would provide a single point of contact, key updates on case progression, information and advice; answer questions; refer on to specialist support—signposting by another name, although perhaps referring is more than just signposting—and ensure and monitor that entitlements under the code are being delivered. This would not replace existing support services but would be a navigator; perhaps that is close to signposting. It would also provide information on what to expect and clarity, and simplify the whole thing.
I am conscious of the time, so I will not go through all the case studies in the briefing, other than to make a few quick references. The commissioner refers to good practice in Quebec, where I understand there is a similar model: the support worker—I do not know if that is the right term—is embedded in police stations and courts, which gives them access to computer systems and, hence, to victim records. I found the case studies quite shocking. I should not have, because from what noble Lords have said, we should all be expecting to hear shocking stories, but that is why we have the Bill. To me, to have a victim care hub seems blindingly obvious.