Grand Committee

Wednesday 30th July 2014 Grand Committee

Wednesday, 30 July 2014.

Arrangement of Business

Wednesday 30th July 2014 Grand Committee

Announcement

[The Deputy Chairman of Committees (Baroness Stedman-Scott) (Con)]

Good afternoon. If there is a Division in the House, the Committee will adjourn for 10 minutes.

The Bilateral Agreement for the Promotion and Protection of Investments between the United Kingdom and Colombia

Wednesday 30th July 2014 Grand Committee

Motion to Take Note

Moved by

[Lord Stevenson of Balmacara]

That the Grand Committee takes note of the Bilateral Agreement for the Promotion and Protection of Investments between the United Kingdom and Colombia (Cm 8887). 3rd Report from the Secondary Legislation Scrutiny Committee.

[Lord Stevenson of Balmacara (Lab)]

My Lords, the UK-Colombia bilateral investment treaty, or BIT, is designed to provide important protections to British investments in Colombia. My purpose in raising the issue today is to draw attention to the fact that these protections are controversial. Without putting down this Motion there would have been no chance to discuss these issues, which many people inside and outside Parliament would like to see raised. These concerns include a feeling that the balance of the treaty may be wrong, in that it gives excessive protection to investors while limiting the ability of the host country to regulate the FDI, and a question about whether the treaty deals with business and human rights, in the light of the growing impact of the UN’s generally accepted principles on business and human rights.

However, it is important to note at the start of the debate that UK business does not appear to need this agreement to encourage investment in Colombia. Colombia is one of UKTI’s 20 high-growth markets and the UK is already the second largest foreign investor, much of it in the extractives industry. Between 2009 and 2012, UK exports of goods and services to Colombia rose by 126%, the highest level of any of our major markets. Over the next four years, it has been predicted that Colombia will invest £50 billion in oil and gas and, over the next eight years, around £60 billion in infrastructure.

I am extremely grateful to the noble Lord, Lord Livingston, for providing some background information about the treaty, which has been very helpful to me in preparing for this debate. From this I note also that he has been active in working on various other things. I think that we all got these documents this morning and it is very good to see them, following a discussion where we felt that more could be done to try to proselytise for TTIP and other work in this area. I am glad to see that these documents have come round. However, the background information supplied suggests that the BIT was actually negotiated during 2008-09 but that ratification has been delayed as the treaty of Lisbon, which transferred exclusive competence for FDI to the European Union, entered into force before the agreed text was signed.

In view of this, some people have argued that the text of the treaty is out of date and should instead reflect the direction of travel as envisaged in more recent treaty negotiations, such as TTIP. It is also the case that during the time that has elapsed since the treaty was negotiated, the UK has embraced the UN Guiding Principles on Business and Human Rights and is one of the first countries to produce an action plan, which we certainly welcome. However, we accept that the debate on how future BITs should be structured to ensure a satisfactory balance between protection of investments and the right of local Governments to regulate in the public interest is not new. We also accept that the text of the current treaty departs substantially from previous UK practice, although I suspect that some of the changes made are not necessarily going to be made more acceptable as a result.

It is interesting to note that the BIT was ratified by the current Colombian Government in 2013 and that they have subsequently been pressing the UK Government strongly, at both ministerial and official level, to complete their ratification process at the earliest opportunity. This suggests that the Colombian Government view the entry into force of the BIT as positive, bringing benefits to Colombia through helping attract new foreign investment, and have considered that these benefits outweigh the risks of investor claims and impacts on public policy. But in the unlikely event that anyone thinks that these are hypothetical risks, Colombia’s neighbours Ecuador, Peru and Mexico have been the subject of 14, three and 10 claims respectively. I am told that $81.4 million is the average compensation paid to investors over the 83 known ISDS awards in favour of the investor to July 2013. Indeed, last year’s award of $1.17 billion to Occidental from Ecuador was the equivalent of the country’s entire education budget.

I am sure that the Minister will seek to persuade us, when he comes to respond, that despite the time that has elapsed the Government believe that the signed text reflects the current public debate and is fit for purpose in that context. However, some substantial concerns remain and I hope that the debate will help persuade the Government of the need to reflect carefully on whether the treaty correctly balances providing protection for investors and giving the Colombian Government the space they need to regulate in the wider public interests.

Other noble Lords, I am sure, will raise other points around this topic. I will therefore limit myself to two examples. The first is land reform. The treaty includes a form of investor-state dispute mechanism—narrower, as we are told—which will allow Columbia to be sued in an international arbitration tribunal. These tribunals take place behind closed doors and grant investors the right to sue democratically elected governments. However, neither the host government nor communities affected by such investments have rights to challenge that investment. As the Minister knows, land issues have been at the heart of the Colombian internal conflict, and nearly 6 million people have been forcibly displaced, so many people think land reform is the key to the peace discussions with FARC, which are currently taking place in Havana.

Will the Minister explain why the treaty will not prove challenging to the Colombian Government in pursuing land reform issues? Will he also reassure us that it will not put at risk implementing the land and victims law passed in 2011, under which land is due to be returned to victims of the recent conflict? Will he also comment on the suggestion that the solution to the problems posed by ISDS mechanisms would be to enact proper domestic legislation to protect FTI investors, as is happening in South Africa?

Secondly, on human rights, because of the long period of gestation of this treaty, it was drafted before the emergence of the UN’s Guiding Principles on Business and Human Rights. Rightly, the EU is committed to signing treaties only with countries that meet its values of democracy, the rule of law and respect for human rights. The Colombian Government have made good efforts to strengthen the rule of law, to condemn human rights violations and take action against illegal land appropriation, and there are now significant legislative and public policy initiatives in the field, which we welcome. However, there is more to come and we need to make sure that we support and get behind these initiatives.

Equally, the UK has made significant commitments recently in its action plan to implement the UN’s Guiding Principles on Business and Human Rights. In particular, the UK has undertaken to ensure that,

“agreements facilitating investment overseas … incorporate the business responsibility to respect human rights, and do not undermine the host country’s ability to meet … its international human rights obligations”.

I do not see that wording in the treaty. When the Minister responds, will he point to where the text reflects that sentiment, and explain how the UK will ensure that this treaty does not undermine Colombia’s ability to meet its international human rights obligations?

Will the Government not go further? Given that the situation on the ground is still developing, and bearing in mind our commitment to the UN guiding principles, does the Minister agree that it might be appropriate if he prepared an annual monitoring of the treaty in terms of its human rights impacts, with the results of this monitoring perhaps incorporated into the FCO annual human rights report?

Finally, when this treaty was considered by the Secondary Legislation Scrutiny Committee, the instrument was drawn to the special attention of the House on the grounds of policy interest. The committee had some reservations about the effectiveness of the protection for the investors because of the way the treaty is worded, and picked up on the difficulties these arrangements may create in relation to the human rights of certain groups within Colombia.

The committee’s report goes on:

“We have offered the Government the opportunity to respond and, if received, we will publish the response in our next report”.

I checked the other day and no response had yet been submitted. Will the Minister say whether the Government intend to respond to the Secondary Legislation Scrutiny Committee and if so, when this might be received? I beg to move.

[Baroness Hooper (Con)]

My Lords, as someone with a strong interest in Latin America and as a member of the European Union Select Committee, it is important to question the Government on this bilateral agreement. I congratulate the noble Lord, Lord Stevenson, on having spotted the need and opportunity for this debate, and on setting out the background so clearly.

There are three main areas of concern, which have already been referred to and no doubt will arise in other contributions. First, the treaty excludes important reforms currently being considered at European Union level in relation to the Transatlantic Trade and Investment Partnership between the European Union and the United States, on which the European Union Select Committee has reported. These are designed to mitigate some of the serious problems associated with investor-state dispute settlements.

Secondly, it does not contain human rights obligations on investors in spite of the Government committing to this in our recent national action plan on the United Nations Guiding Principles on Business and Human Rights. Thirdly, it creates legal uncertainty and could undermine the land reforms referred to by the noble Lord, Lord Stevenson, which are vital to the peace process in Colombia. In that, the treaty is inconsistent with other areas of government policy which seek to support human rights and peace in Colombia.

However, I would go further. Although this is a general point which could affect all trade treaties, it has particular significance for Colombia. If we think that United Kingdom companies operate to high levels and standards in other areas which have not been emphasised, we should seek to replicate those standards and levels in our international trade treaties. For example, corporate social responsibility could and should be encouraged, and referred to in these agreements. A company’s involvement in social issues in its neighbourhood and community are well appreciated and are now the norm in the United Kingdom. UK companies equally should feel obliged to follow similar standards in their operations overseas.

By the same token, environmental interests and concerns should be taken into account. I am interested to see that the department’s leaflet referring to the EU-US trade treaty refers to the fact that the high environmental standards and targets which we now have in place in this country are non-negotiable. I believe that in order to encourage that there should be a system of green points for those companies which commit to action in this area. For example, a project in Colombia with which I have become involved focuses on the Media Magdalena valley, an area which during the difficult terrorist periods was completely closed. People moved away and, therefore, flora and fauna had a wonderful time getting on without human interference.

Now that the peace process is proceeding, people are beginning to go back. Illegal gold mining is already taking place, which introduces mercury into the river and waterways, and into the food chain for animal life. This project is being co-ordinated by Neil Maddison, head of conservation at Bristol Zoo. Its aim is to help to preserve wildlife, flora and fauna in general, and to encourage people who go back to live in the area and companies which intend to invest in the area to observe the highest possible standards. That does not go quite as far as a national park regime—it falls a little short of that—but it would gain those companies green points. I believe that that very much is the way forward.

This is an important issue and it is a very good opportunity to ask the Government to comment on not only this trade treaty and any possible changes that could be made to it but to further push our high standards in our overseas commitments.

[Lord Alton of Liverpool (CB)]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Hooper, whose knowledge of Latin America is probably unparalleled in your Lordships’ House. She and I are both members of the All-Party Parliamentary Friends of CAFOD, for which I serve as treasurer. A few months ago, with the Labour Member of Parliament, the right honourable Tom Clarke, who chairs that group, I met a group of Colombian human rights advocates, indigenous Colombians and Afro-Colombians, who were in the UK as guests of that charity. CAFOD is also part of the coalition ABColombia, which is an alliance of CAFOD, Christian Aid, Oxfam, SCIAF and Trocaire. I was profoundly moved by the commitment of those who have put their own lives at risk in working for peace and human rights in Colombia, but also shocked by the scale and nature of some of the egregious violations of human rights which they described. I promised them that, if the opportunity arose, I would try to draw Parliament’s attention to the dangers that they faced. Therefore, I am particularly grateful to the noble Lord, Lord Stevenson of Balmacara, for moving this Motion today, which gives us the opportunity to raise questions and to do just that.

12:15

Although there has been some improvement in the political and economic situation in Colombia, guerrillas and successor groups to paramilitaries have continued to be involved in significant acts of violence. Human rights defenders, trade unionists, journalists, indigenous and Afro-Colombian leaders and IDP leaders regularly face death threats, intimidation and other abuses. Although the Administration of President Juan Manuel Santos have consistently condemned threats and attacks against rights defenders, in a culture of impunity, perpetrators are rarely brought to justice. After decades of internal conflict, with 220,000 people killed, the Government are now in peace talks with the FARC guerrilla group but, with the exception of Syria, Colombia, with a phenomenal 5.7 million displaced people, has the highest number of internally displaced people in the world. As the advocate whom I met explained to me, the displacements have frequently come about as a direct consequence of corporate investment, when land is wanted for agriculture, oil exploration or coal mining.

In 2011, the Colombian Government introduced a welcome law to restore to victims some of the 2.2 million hectares of the 6.8 million forcibly taken from them. To date, according to Colombia’s comptroller general, less than 1% of that land has so far been restored. The continuing conflict has also seen some victims, to whom land has been returned, once again violently displaced. According to the Colombian constitutional court, 34 groups of indigenous peoples are currently at risk of extinction. The court identified forced displacement as the major cause. Colombian indigenous peoples’ land is generally in areas rich in natural resources. To safeguard the people and the land, Colombia will need to legislate to protect them from the huge influx of multinational corporations. As I will argue, instead of protection, the UK has created in this trade treaty something that will benefit British businesses but harm exploited and vulnerable people.

It is not just the people who are at risk—it is also the people who try to protect those at risk. What happens to people who challenge rapacious business interests, international conglomerates or the warlords and guerrillas who have profiteered at the expense of the poor? I would like to give the committee an illustration. In May, Colombia’s Senate enacted an important Bill that is a major step in aiding and protecting sexual violence survivors, especially those who are raped or assaulted by guerrillas, paramilitaries, Colombian forces, or others in the context of the country’s decades-long conflict. Colombia’s new law stipulates that sexual violence can constitute a crime against humanity under the standards provided for in international law. But it is indicative of the country’s lawlessness that Ana Angelica Bello, one of the most vocal advocates of this law, died of a self-inflicted gunshot wound under circumstances that still remain unclear. Angelica, from rural Colombia, was forced off her land by armed groups. She was raped by men she believed to be former paramilitaries as punishment for her subsequent advocacy and activism.

Today’s welcome debate, triggered by the noble Lord, Lord Stevenson, should ring alarm bells about human rights in Colombia and particularly alert us, as the noble Baroness, Lady Hooper, said, to the dangers faced especially by women such as Angelica and by lawyers and human rights defenders. Professor Sara Chandler, on behalf of the UK members of the International Caravana of Jurists points out that the bilateral investment treaty with Colombia ratified on 10 July is in danger of worsening the situation of human rights’ defenders. She particularly draws attention to an issue raised by the noble Lord, Lord Stevenson, about how we are going to monitor how this treaty works out in practice in future. The Caravana is comprised of international lawyers and includes judges, solicitors, barristers, academics and law students. At the request of its counterparts in Colombia, it has visited the country since 2008 and has gathered first-hand accounts of lawyers who have faced daily threats of violence, kidnapping and death just for undertaking their professional duties. Since January 2012, it has recorded 37 threats directed towards lawyers or human rights defenders operating as legal representatives, with 18 killings during that period. Incidentally, it will be returning to Colombia next month.

Caravana points out that the United Kingdom has significant leverage, as Britain, as we have heard, is second only to the United States in foreign investment in Colombia and that new investment treaties and fair trade agreements such as the BIT offered the opportunity—sadly, not taken—to include safeguards to ensure that British businesses investing in Colombia will never be complicit in serious human rights violations. It also points to the serious imbalance between the significant protection afforded to investors, compared to the lack of protection and resources available to the indigenous people and local communities affected by development, and states that that disparity places the United Kingdom Government in a position of direct inconsistency with their commitments under the United Kingdom action plan Good Business, which implements the Ruggie UN Guiding Principles on Human Rights.

The action plan contains a commitment that,

“agreements facilitating investment overseas by UK or EU companies incorporate the business responsibility to protect human rights, and do not undermine the host country’s ability to meet its international human rights obligations”.

The bilateral treaty with Colombia remains, ominously, completely silent about those responsibilities. Why is that? This is one of the first tests of whether the sentiment and rhetoric will be matched by the reality. Therefore, it does not bode well. Are we to be simply what John Ruskin once described as a “money-making mob”?

Specifically, in the peace talks in which the Colombian Government are engaged in, they have committed themselves to the land reforms to which the noble Lord, Lord Stevenson, referred. Have the Government discussed what impact the treaty will have on the Colombian Government’s ability to return land and to implement the Havana agreement on land reform? Will the Minister, the noble Lord, Lord Livingston of Parkhead, also confirm that the largest UK investments in Colombia are in mining, with all the land requirements which mining entails? Will he also tell the Committee how much of the land violently seized and confiscated in Colombia’s conflict is in areas rich in natural resources and on land owned by indigenous peoples, Afro-Colombians and peasant farmers who are waiting for their land to be restored—the people I referred to at the outset of my remarks? Will he explain to the Committee how restoration is compatible with pursuing Britain’s mining interests, and which will take precedence—as if we do not already have a hint as to the answer? Will he also say how we will guarantee the rights and obligations to which I referred of indigenous peoples in respect of their free, prior and informed consent, their right to self-determination and to their own development, which are guaranteed in United Nations International Labour Organization Convention 169 and the Declaration on the Rights of Indigenous Peoples?

Are we simply to be a money-making mob, or will the Government insist that human rights which we expect for ourselves will be applied in situations where our monetary clout gives us influence and leverage? It is really unacceptable that we have created a self-serving agreement which incorporates a disparity in providing considerable—some would say, excessive—protection for British investment while the ability of the Colombian state to regulate that investment is restricted. The investor-state dispute settlement provisions could have been used as an opportunity to incorporate human rights provisions and to enable a third party, such as an NGO, to make representations in the dispute process. As things stand, the UK-Colombia BIT has no such safeguard. We could do a lot worse than emulate the EU-Canada free-trade agreement, CETA, which incorporates safeguards affirming the right of states to regulate in pursuance of legitimate public interest objectives.

In another context, the House of Lords EU Committee has expressed doubts about including an investor-state dispute settlement that gives investors the right to challenge measures adopted—in this case, by the UK—in the public interest. The committee recommended that before including an ISDS clause, a number of safeguards should be in place, including to,

“improve transparency around ISDS proceedings, for example by making hearings and documents public, allowing interested third parties to make submissions”.

Those safeguards do not seem to form part of the bilateral investment treaty with Colombia.

To conclude, I therefore ask the Minister: what plans the Government have to incorporate safeguards to the investor-state dispute settlement provisions in the treaty to enable the UK to ensure that its foreign investments do not make us complicit in serious human rights violations? At the very minimum, will the Government consider creating a system of annual monitoring of the treaty in terms of its human rights impacts and impact on the peace agreements, with the results to be incorporated in the Foreign and Commonwealth Office annual human rights report? What plans are there to incorporate safeguards to the investor-state dispute settlement provision, to ensure that the United Kingdom complies with its human rights obligations and commitments made in Good Business on implementing the UN Guiding Principles on Business and Human Rights?

Colombia is listed as one of the countries of concern in the annual FCO human rights report. Instead of promoting policy changes to improve human rights, the bilateral agreement could obstruct Colombia’s ability to promote policies that achieve improvements in human rights. Given the record levels of UK investments in Colombia, there was simply no need for this treaty in the first place. Ministers should give further thought to the consequences of its ratification, along with the ethical implications of its promotion.

[Lord Monks (Lab)]

My Lords, I start by declaring an interest. I am vice-president of Justice for Colombia and play an active role and take an active interest in that country. I also thank my noble friend Lord Stevenson for having the wit to initiate this debate on something that should not go through Parliament quietly in a way that has hitherto been the case. I share the concerns about this treaty expressed by all previous speakers. I am first rather puzzled about why it is so necessary, especially in view of the EU-Colombia trade talks which have been going on. In a previous life, when I was general-secretary of the European trade unions in Brussels, I was involved in making sure that social and environmental concerns were properly covered in that arrangement.

This rather more liberal agreement—liberal in the economic sense—sits oddly with the EU trade treaty. As has been said, Colombia remains a dangerous place for many of its citizens, including many from the trade union world. Until recently, it was the most dangerous place in the world to be an active trade unionist, at risk from one or other groups of paramilitaries. In 2013, 78 human rights activists were killed, an increase over the previous years. The Colombian Government are active in saying that things are getting better—we hope they are—but the past year has seen a lot of trouble, with mass unrest and big strikes across the country. These have been particularly in the agricultural sector, where there have been serious clashes with the police, with 27 dead just last summer.

I want to see the Colombian peace talks do well in Havana. The peace process there draws some useful lessons from our experiences in Northern Ireland. However, as the noble Lord, Lord Alton, said, Colombia has the largest number of displaced people in the world, according to the UNHCR, largely the result of land-grabbing by various paramilitary-backed forces. This brings me to the new treaty protecting foreign firms which invest from the danger of expropriation or other changes which might damage their investment. What could sound more benign than that? Except that Colombia is not a benign place—it is still in turmoil and this need, in terms of the peace process, to restore at least 2.5 million hectares of land to people from whom it has wrongly been taken seems to sit awkwardly with the provisions of this treaty. The treaty could make it a lot harder to restore land to those who originally owned it: for example, where stolen land has been sold to a Western company. What does the treaty have to say about that? Where is the balance of advantage and whose interests will predominate in those circumstances? I would be very interested to hear the Minister’s views on that problem.

The risk that this could limit the application of the peace agreements is considerable. Everyone needs to remember that paramilitaries continue to operate, even though the peace talks are under way. The implication in this of putting British investment interests above human rights and possibly even above that peace process sends a very serious message. I hope that the Government will find ways, as has been suggested by my noble friend Lord Stevenson and others, to reflect on the application of this agreement, even if it is too late to change it.

12:30

[The Lord Bishop of Sheffield]

My Lords, I shall speak briefly to support and echo the excellent remarks of the noble Lord, Lord Stevenson, and the points made by other noble Lords on the dangers posed by this treaty, in three specific areas.

First, on the protection of land ownership rights, as we have heard, this is no small issue in Colombia. A concern for the common good of the international community must surely include ensuring the ability of Colombia to continue to regulate in the interests of its own people, especially on this key issue. Such a concern would clearly preclude the binding of the Colombian people to corporate rather than national interests. We must therefore work to achieve greater reciprocity in the balance of protections afforded to investors, the Colombian Government and the wider citizenry, including the indigenous peoples in respect of land ownership rights. To this end I, too, urge the Government to incorporate safeguards to the investor-state dispute settlement provision to ensure that the UK complies with its human rights obligations and commitments made in Good Business: Implementing the UN Guiding Principles on Business and Human Rights.

Secondly, I wish to echo the excellent remarks of the noble Lord, Lord Stevenson, on the dangers posed by this treaty to the protection of the human rights of the Colombian people. Assurances are needed from the Government that the necessary changes will be undertaken to ensure that the treaty does not undermine Colombia’s ability to meet its international human rights obligations. This is particularly necessary with respect to upholding the indigenous peoples’ right to free, prior and informed consent, and their right to self-determination and their own development, as guaranteed in the United Nations ILO Convention 169 and the treaty on the rights of indigenous peoples.

Thirdly, I strongly urge the Government to establish an annual monitoring system for the treaty, to measure the impact of this agreement on both human rights and peace agreements. In the interests of accountability, as has been suggested, such monitoring ought to be incorporated into the annual FCO human rights report.

[The Minister of State, Department for Business, Innovation and Skills & Foreign and Commonwealth Office (Lord Livingston of Parkhead) (Con)]

My Lords, I thank the noble Lord, Lord Stevenson, for proposing this debate and I thank other noble Lords, particularly on the last day of the session, for their contributions. I know that many in this House take a close interest in Colombia, the progress that that country has made and the challenges it has faced over recent years. As I think noble Lords will be aware, this matter has also been debated in the other place.

I make it clear at the outset that the Government believe that the UK-Colombia investment treaty will benefit both countries. It will encourage increased levels of investment that will contribute towards economic growth, which I believe is in everyone’s interests. This view is shared by the democratically elected Colombian Government. They ratified this treaty in 2013 and have been pressing since then for the UK to ratify it as soon as possible. They have stated that they believe it will stimulate investment flows, guarantee the transparency and protection of investments within the standards recognised by international law, strengthen Colombia’s commercial ties with the rest of the world and guarantee equal treatment to Colombian investors in the UK.

In the next few years, there will be significant investment opportunities in Colombia in sectors where British companies are world leaders, including infrastructure, extractives, education, science and innovation. With the investment treaty in place, I believe that British companies are more likely to invest in projects which will help to deliver the right answer for Colombia. Colombia has investment treaties with many other major trading partners, including the US, China, India and Spain. They have also recently reached an agreement with France and it is right that UK investors should enjoy similar protections.

A number of concerns have been expressed in this debate and in other fora. I believe that some fears are exaggerated, but I understand them. First, it is suggested that the treaty will harm Colombia by impacting on the ability of the Colombian Government to regulate because of the risk of having to compensate investors who may bring compensation claims under the agreement, particularly through the ISDS clause, which has been mentioned.

Before I deal with individual questions, some facts are useful. For example, the UK has 94 such agreements. In aggregate, if you add them all together, they have been in existence for more than 2,000 years. There have been two cases and neither of them have been successful. The point about ISDS clauses is that they kick in only when there is not sufficient domestic process to deal with such matters. ISDS clauses are instead of adequate domestic processes. In that context, it is worth pointing out that I do not believe that Colombia has ever faced an ISDS claim.

However, despite the fact that history tells us that that is not a route for corporates to override domestic policy—a view that many have expressed—we have sought to modernise the ISDS clause to protect the state. Several noble Lords have mentioned TTIP and CETA. Although this agreement was made before they were, it contains many of the items raised in relation to TTIP. We cannot replicate the TTIP clause—not least because the TTIP clause does not exist. In fact, there is some debate in the EU whether there will ever be an ISDS clause in TTIP. I think that there may well be.

I would like to go through some of the protections in the treaty. First, it excludes shell companies from investment protection. That is important because some of the more egregious uses of ISDS clauses between third-party countries have been through the use of shell companies. There are also measures to prevent vexatious or frivolous claims. The scope of what is deemed to be fair and equitable treatment is limited; that is important. Indirect expropriation is explicitly defined; I will mention that later in relation to public policy matters. Investors must pursue resolution through the domestic legal system first for six months before submitting the claim. Having read through the treaty again, it aims to cover many of the issues raised.

Taken as an overall package, this is designed to discourage speculative claims. The Colombian Government and the UK Government negotiated it at some length. Investors should rightly have grounds for a claim if they have suffered discriminatory and genuine mistreatment. It has been used in other countries in that manner. By prioritising domestic resolution, ISDS itself would represent a last resort.

The noble Lord, Lord Alton—and, I think everyone else—raised issues about human rights. Of course, in Colombia, this issue is complex and difficult. The Government recognise the progress that the Colombian Government have made in tackling human rights issues, but clearly they are not there yet. There are still challenges and more that can be done to improve the situation in Colombia, especially for human rights defenders, victims and land restitution claimants and to prevent sexual violence. The UK Government will continue to discuss the matter and raise it with the Colombian Government.

The continuing armed conflict is one of the major issues—

[Lord Alton of Liverpool]

Before the Minister leaves that point about monitoring the situation, several noble Lords suggested having a formal mechanism in the department and within the Foreign and Commonwealth Office to log each year our assessment of human rights in Colombia and how they are being impinged on by business interests. Will he do something more formal than simply saying that it is an issue that concerns the Government?

[Lord Livingston of Parkhead]

I was going on to talk about the FTA, which covers a number of human rights issues and discussions. I will discuss with my colleagues in the Foreign Office the monitoring and reporting of human rights in Colombia as a more general issue. It is clearly one area of the world—regrettably, there are many—which has been a challenge.

The armed conflict is one of the main sources of the problems in Colombia. Like the noble Lord, Lord Monks, I support the efforts of the Colombian Government to find a solution through a negotiated peace process. Three or four months ago, I was in Colombia and had discussions with the Colombian Government. I do not doubt their genuine approach to finding a peace solution. In many cases, they will have to take some of the people of Colombia with them during this process. Some have made the corollary with some of our efforts in Northern Ireland and there is, of course, a lot of hurt over the years to make up. I hope that they make progress, which would lead to a number of better solutions.

The UK Government take a balanced approach. We realise that there are problems. It is very important to recognise the progress and effort of this Government in Colombia. They have made significant progress and we will continue to urge them to make further progress. We will also raise specific issues, and will urge that appropriate investigations take place and that protection measures are afforded.

The noble Lord, Lord Alton, and others raised land reform. We do not agree that the treaty presents a threat to Colombia’s land restitution programme. As noble Lords know, under the programme, businesses can lose their land, or have to pay compensation, if they cannot prove they undertook due diligence to ensure that the previous occupants were not forcibly displaced. However, in practice, the risk of a business owned by a UK investor losing land or having to pay compensation appears to be small. Very few businesses appear to be losing land and we are not aware of any claims against British businesses under the programme.

I support the concerns expressed by the noble Baroness, Lady Hooper, and the noble Lord, Lord Alton, and others that it is very important for British companies to observe international standards, such as those set out by the UN and the OECD. That is reflected in the EU-Colombia FTA, signed in 2012, which is much more the current state of the art. It contains significant commitments relating to human rights, labour rights, environmental protection and sustainable development. The Government also have an existing dialogue with the Colombian Government on these matters.

In view of this, reopening the treaty negotiations would be somewhat superseded by the EU-Colombia FTA. It would lead only to an unnecessary delay in bringing the treaty into force. I must stress that the treaty would be good for Colombia as well as for the UK. I do not believe that reopening the negotiations would add value on human rights. I am also unclear whether an investor could make a claim under the treaty that is in a way detrimental to human rights. The Government are not aware of any cases involving UK investors under any of our 94 treaties.

On the contrary, it is arguable that any state actions which may breach an investment treaty by harming an investor are more likely to damage local communities given the economic benefits, including employment and generating tax revenues, which stable, responsible—I believe that UK companies are responsible—foreign investment delivers.

Environmentally, Colombia is one of the top ecological hotspots in the world. I think that the noble Baroness, Lady Hooper, also mentioned Brazil. I thought that there would be nothing better perhaps than to read the clause relating to the environment in the bilateral agreement, which states:

“Nothing in this Agreement shall be construed to prevent a Party from adopting, maintaining, or enforcing any measure that it considers appropriate to ensure that an investment activity in its territory is undertaken in a manner sensitive to environmental concerns, provided that such measures are non-discriminatory and proportionate to the objectives sought”.

That seems like a reasonably balanced approach to environmental concerns.

In a similar way, on public interest concerns, the same issues have been raised in relation to TTIP. In relation to indirect expropriation, which usually is the basis on which people worry about these clauses, the agreement clearly states:

“For the purposes of this agreement, it is understood that … non-discriminatory measures that the Contracting Parties take for … public purpose or social interest … including for reasons of public health, safety, and environmental protection, which are taken in good faith, which are not arbitrary, and which are not disproportionate in light of their purpose, shall not constitute indirect expropriation”.

I am struggling to understand some of the claims that have been made regarding this treaty. It is a modern addition to historic bids and ISDS. As I said, it was debated between the individual parties. While events in some ways have overtaken it with the FTA, the UK-Columbia investment treaty is still an important milestone in the development of our wider trade and investment relationship. The growth and success of Columbia on a wider scale will be important. It was negotiated and supported by the democratically elected Government of Colombia. It will encourage UK investors to do further business in the region that will be to the benefit of the Colombian people. It will contribute to Columbia’s economic development through the benefits that increased levels of investment will bring. I strongly believe that we should welcome it and the benefits and safeguards that it will bring to the people of both countries.

12:45

[The Deputy Chairman of Committees]

The Question is that this Motion be agreed to—

[Lord Stevenson of Balmacara]

I think that we might have made a small technical error in procedure. I want to say a few words in response and draw a few things together. I am sorry if this is confusing. I am new to this as well as everyone else, and I am looking round for somebody with expertise in this area .

If I may, I shall make a short statement. Let us restart: it is like being in the film “Groundhog Day”, when we keep coming back to the same point, except that we have not. I thank all speakers for their contributions. The knowledge and expertise that has been displayed has been very good and appropriate for the debate. I also think that it is important to recognise that we had Conservatives, Labour Members, Cross Benchers and Bishops representing us, so all aspects of the House have been recorded. The unanimity in what was being said was remarkable. I acknowledge that we are in a situation that is slightly perverse in the sense that the treaty has already been enacted and we are not in the position of asking the Government to reconsider it.

However, some points might be taken forward for future debates and I want to come back to that at the end. We are all very concerned about the way in which human rights need to feed into these treaties nowadays. There are reasons why it did not happen at this stage, but I do not see why that should necessarily be the case going forward. It is also the case that the FTA contains a significant proportion of human rights issues, but that was an EU treaty and not an individual country-to-country one. Therefore, the message is there for the Minister to take back that in future this House might expect to see a stronger and tougher section on human rights.

I thought that the point about corporate social responsibility and the need to build on that was very well made by the noble Baroness, Lady Hooper; we should record that as something that should go forward. Specific important issues in relation to this treaty were touched on in terms of reporting and because of the current situation with FARC. The noble Lord, Lord Alton, made a good point when he said that the sentiment and rhetoric on display today should be matched by concrete words. That is an important point. The Government are not quite in the same place as the sentiment in the House in relation to how we reflect concerns about ISDS and human rights.

The noble Lord, Lord Monks, was right in saying that the wording is rather awkward in relation to the situation that we see on the ground, particularly in relation to the number of people who are dispossessed from their historic rights to land. The only response we got from the Minister was that he understood our fears but thought they were overstated. I do not think that that cuts it. If he is going to rely on the fact that ISDS is merely a fall-back, and that the right solution to disputes arising from these treaties is to strengthen the domestic legislative processes, we also need to know what the Government are doing to help that. He did not say that, and it is an important point.

Although, as I have said, human rights issues were not in play in such a position in 2008-09, when this treaty commenced, they certainly are now. It seems a curious logic to say that there will be sufficient other activity going on when the wording already exists in the FTA and could be used in future. I hope the Government will give us a firm commitment at some point in the appropriate way to take this issue forward, so that we have a set of words which mean what they say in relation to our commitments—shared around the House—to human rights in these areas. This is especially where there are particular circumstances that are being discussed with FARC.

Having said that, this Motion was an attempt to get a debate and discussion, which it has succeeded in doing.

Motion agreed.

Channel Tunnel Security Regime

Wednesday 30th July 2014 Grand Committee

Question for Short Debate

12:51

Asked by

[Lord Berkeley]

To ask Her Majesty’s Government whether they have plans to set up an independent review of the Channel Tunnel security regime to consider whether it is proportionate and appropriate to current threats and risks.

[Lord Berkeley (Lab)]

My Lords, I am grateful for the opportunity to have this debate on Channel Tunnel security. I make no apology for it. Although subjects such as the threats and other security issues should probably be confidential, the issues of implementation, proportionality and others that I shall speak about can benefit from some debate. As background, I declare an interest as chairman of the Rail Freight Group and I worked on the development and construction of the Channel Tunnel. It opened 20 years with airline-type security arrangements, which at the time was probably the only model around. Now is the appropriate time to review this, because new operators and services want to start but are often held up because of security, immigration or technical issues. All these need discussing, but I shall concentrate today on security.

I welcome the fact that the UK and French Governments recognise the need to formalise the security arrangements so that all operators know what to expect. I was pleased to attend a meeting in Paris two weeks ago to discuss this idea with the two Governments’ representatives, who were about to publish something called a declaration of intent. It is useful that they are consulting the industry but they are not really looking at change. They are seeking views on whether they should carry on with the same thing they have done for 20 years and although they talk about proportionality and necessity, they do not always get there.

For background, the traffic through the tunnel comprises: Eurotunnel’s own shuttle services for cars, lorries and coaches; rail freight, with two operators at present; and through passenger trains by Eurostar, with planned services by the London Sleeper Company and German Railways. The two Governments state in their presentation of this declaration of intent that security measures must be practical, proportionate, effective and sustainable. I would agree with them on that but when you get into the detail, it is not what is happening at the moment and I do not think that it is what they intend to happen in future. They are rightly seeking to protect the infrastructure of the tunnel and the people using it but seem to be ignoring proportionality as well as the commercial reality for operators which, faced with very high costs, often decide that they are not going to try to run services at all—because they are just not viable with these costs.

The declaration of intent discussed various threats, and I shall concentrate on two—bombings and what they are pleased to call “marauding active shooters”, meaning people with guns. Some of these affect infrastructure, some people, and some both. I suggest that the level of checks between the different modes of transport through the tunnel, and compared with other rail tunnels, is very inconsistent and certainly not proportionate.

Regarding damage to the infrastructure, when I was helping to build the Channel Tunnel we worked out that it would need a 40-tonne bomb to make a hole big enough to get the sea in. You cannot carry that in a suitcase. If that is what they are trying to protect, there is no point in checking every suitcase because you are not going to catch that bomb. That kind of a bomb would have to go in a lorry shuttle or a freight train. So it is odd that only one in three lorries are checked before they get in the tunnel, whereas freight trains at the moment have 100% checks twice—that is, six times more checking than lorries get. What is the justification for the difference? I think we should be told. We then move on to people—or small bombs and shooters, as they call them. Why are 100% checks done on all the passengers and luggage on Eurostar, when one car in five is given a cursory check on the shuttle? Do we really believe that Eurostar passengers are more likely to have a shoot-out than those on a car shuttle?

I would look at proportionality even more closely in comparing the Channel Tunnel with the trains on the Métro and Underground. We were told in Paris that there was a big difference between trying to shoot one coach full of Eurostar passengers and one coach full of shuttle passengers. That seems pathetic to me; it is the same nasty result. But when you compare it with the Underground or the Métro, when was the last shooting on either of those? There was a shooting incident on the Paris Métro on 20 July, when the police chased somebody. In the UK, there was that very nasty incident when the Metropolitan policemen shot a Brazilian in the Tube. We have not had any in the Channel Tunnel. We could be told that that is because of security, but should we really accept that? The logical consequence is that everyone on the Underground should be checked 100%. Of course, we are told that it is not practicable to do it on the Métro, because it would stop people using it, but that it does not affect passengers much on the Channel Tunnel so we will do it anyway. That is the problem: it does affect passengers and the economy of the businesses. I have not had an answer as to why passengers in the car shuttles should be treated differently from Eurostar passengers. If you carry a gun in a car shuttle, presumably you will not be checked.

The key for me is the viability of the longer distance services, with German Railways coming from Frankfurt—I have talked to them often—as well as the Eurostar from Amsterdam and Marseille. The London Sleeper Company is planning to go to Frankfurt, Zurich or Milan overnight, with a high-speed, double-deck sleeper. However, you cannot introduce those security regimes for people coming back into the UK at every one of the stations that the trains might stop at. The solution adopted so far is that when you are going out to Marseille or Amsterdam, or wherever, you get checked at London and that is no problem. But coming back in, at the moment, the only solution is for everyone to get out of the train at Lille or Brussels. They hump their suitcases upstairs through security and board another train one and a half hours later. All that time is lost in their journey, which results in many more people booking tickets going out than coming back, but that is not the answer. For rail freight, additional stopping at + for a second check probably costs well over £1,000. That is disproportionate.

The worst thing is that this regime requires even catering trolleys on the train to be within a secure environment. But there is no secure environment for catering trolleys on First Great Western trains going through the Severn tunnel. They still go through a tunnel. I am sure that all operators look after these things but why do we have to have this enormous bureaucracy of checks? Is it proportionate? It is having serious and adverse effects on the provision of new and existing services, on the costs to the operator and on the hassle factor for passengers.

In commercially damaging the operators, we are cutting ourselves off from the kind of high-speed rail travel that is seamless across the rest of Europe. Governments, and this Government in particular, like high-speed rail—except, apparently, when they try to make it as inconvenient and difficult as possible through the tunnel. The bureaucracy is stopping competition and is anti-competitive. I hope that the Government will recognise that this is all a bit embarrassing for them. A sustainable expansion to the international rail market is not being supported. This raises questions about whether the precautions are proportionate and what can be done in the future. What new ideas are there?

The Channel Tunnel apparently is seen by the Government as of high value for terrorists. They cite loss of life and the economic damage that the tunnel closure would cause, as well as the PR value. But one must remember that the Channel Tunnel has been closed, either in part or fully, several times since it opened—not for terrorism but because of fires, breakdowns and so on. The sea will not come in, although there may be damage to the infrastructure from the kinds of bombs and things that we are talking about. But it would not be closed for more than a few days—not even for that long, I hope—which is the kind of thing that would happen if the Victoria line was closed.

In preparing for this debate, I talked to many experts in the industry. Their worries concern why the Government are engaging with them for new ideas as to what needs to be done and how. The general feeling is that the threat posed by terrorists to the infrastructure and rolling stock in the tunnel is much overstated. Therefore, it is reasonable to ask fairly basic questions. Are the current security measures really necessary and proportionate? Is it necessary for a regime to be as secure as it is? It is not in the long Swiss tunnels, some of which are even longer. Can the security measures, if needed for international rail, be achieved in a different way? There are many ways of doing it. Does the present regime provide a real-world security benefit? While agreeing that the regime needs to ensure passenger safety and the integrity of the tunnel, many in the industry believe that it has parts which are superfluous. There is a lack of critical assessment on the security regime from the industry, which questions its motives—so do I, as I hope that it is not jobs for the boys—and the impact on growth and on alternative proposals.

While the present declaration of intent is a good start, its vision is much too narrow. It does not involve the operators to any real extent; it just tells them what is to happen. It does not provide any justification for applying different rules, compared with metros, the Underground, Channel Tunnel shuttles and through services, or look separately at the threat to infrastructure and people. It does not really seek to justify its requirement; it just pays this lip service to proportionality to provide some justification for what it wants to do anyway.

The key must be to involve the industry in a meaningful way. You can hide behind the need for confidentiality; I said at the beginning of my speech that of course this is necessary for intelligence information. There is also a need for that to be assessed independently to avoid the criticism of creating policies for job creation. However, when it comes to dealing with the threats in different ways, the involvement of the industry is surely critical. The current regime adds costs and therefore makes the UK less competitive. This applies to passengers and freight traffic. It stops better high-speed connections for London and beyond and makes rail less competitive with road and air, which contravenes both government and EU policies.

In conclusion, I urge the UK Government, along with the French Government, to set up a joint independent inquiry into Channel Tunnel security to answer the questions that I have posed and assess the need for proportionality and the options for change, so that the UK economy is no longer adversely affected by unnecessary controls and costs. It should be independent of the current structure and involve operators, customers and others in its deliberations. Finally, it is worth reminding the French Government that the tunnel is very important for the UK economy—it is very much less important for the French economy—and that any issues to do with competition, anti-competitive practices or rules for the sake of reducing traffic should be avoided.

13:06

[Lord Bradshaw (LD)]

I am pleased to speak in support of the noble Lord, Lord Berkeley. I am very concerned about the competitive issues involved in this debate. I am not given to being anti-European or anti-French but it seems that this is one case where the British Government have tried to get some sort of inquiry going—one that I hope, as the noble Lord, Lord Berkeley, said, will take in industry views—but have been met with, shall we say, a slightly straight bat by the French to the extent that nothing is happening.

The Channel Tunnel is now getting on in years, like me, and it is time that the operating regime, whatever it is, was reviewed. A number of people in the passenger and freight industry want to run trains to Europe. Unfortunately, France has created what one could almost call a cordon sanitaire or moat around their end of the tunnel, which makes it extraordinarily difficult to negotiate for the operation of the necessary through trains. Those of us in the industry who went to St Pancras about two years ago all saw a beautiful new German train that people in the industry wished to introduce into service from Frankfurt, Cologne and Amsterdam, et cetera. There is no doubt that there is a market there, but that market is being considerably obstructed.

Who is making that obstruction? I can say only that it is the Anglo-French bureaucracy. It is not, I believe, about valid security considerations; as the noble Lord, Lord Berkeley, has demonstrated quite cogently, those considerations are considerably overplayed. Eurotunnel, which I think is almost all French-owned now, seems to apply a different set of rules to the shuttle services that it operates, which convey lorries and people in their cars through the tunnel, from what is applied to railway services, which are mostly operated by other people but which the French could operate if they wished. They do not seem to have the commercial imperative to make the railway business in France competitive and are losing market share in many segments.

I am sorry to end on a slightly sour note about Anglo-French relations, but it really is time that someone did something about it. Let me make a suggestion that will be very unpopular. We are about to launch a franchise competition in this country in which Keolis, which is wholly owned by the French state, will bid to run one of our major passenger franchises. I do not see the logic of allowing free competition in that respect—although I actually support it—if there is no reciprocation on the part of Paris. It really is time that we got a move on.

13:10

[Lord Rosser (Lab)]

My Lords, first, I thank my noble friend Lord Berkeley for providing this opportunity to discuss the Channel Tunnel security arrangements. My noble friend raised some serious issues about the balance between security needs and the need not to dampen the growth of traffic through the tunnel. I will refer to the issues that he raised, but I also want to take the opportunity to raise other issues concerning Channel Tunnel security with the Minister.

The Channel Tunnel’s current security arrangements are governed by the Channel Tunnel (Security) Order 1994. That requires passenger and infrastructure operators to put in place a security regime, including the searching of passenger and freight trains before they enter the tunnel, and it empowers the Secretary of State to order additional searches and checks. The operators are responsible for the day-to-day delivery of security, but the Department for Transport’s compliance officers ensure that the statutory security arrangements in place meet the statutory requirements and standards. They do that through regular monitoring and testing.

The current approach to land transport security in the UK as a whole is regarded as being risk-based, with any security measures deployed being proportionate to the current threats to which each transport sector is exposed. In evidence to the House of Commons Transport Committee, the Association of Train Operating Companies said that three factors needed to be balanced: cost versus benefits of security measures; the practicality of security measures that are both workable for the industry and acceptable to the travelling public; and the balance between technology and human activity. ATOC also said on assessing risks that, ultimately, the rail industry took its guidance from the security services on where the risks are greatest and what form they take. As I understand it, the risk-based approach also applies to the cross-border Eurostar and Eurotunnel operations and thus, presumably, in respect of the Channel Tunnel security regime. No doubt the Minister will clarify that point in his response, in the light of the comments made by my noble friend Lord Berkeley and the noble Lord, Lord Bradshaw.

The Channel Tunnel’s general security regulation is overseen by the Joint Security Committee of the Channel Tunnel Intergovernmental Commission, which is advised by the Channel Tunnel Safety Authority. The UK and France jointly nominate the members of all three bodies. Passengers travelling through the Channel Tunnel on Eurostar are currently subject to Home Office passport controls both in this country and at the start of their journey in France or Belgium. In 2011, the BBC, I think it was, reported that some passengers were exploiting a security flaw, which I think went under the name of the Lille loophole, whereby passengers could book a ticket from Brussels to Lille and then travel on to the UK without being subject to passport checks.

Passport checks were adversely commented on by the chief inspector responsible for border and security arrangements. He indicated that some progress was being made in dealing with this loophole. I believe—though I may be wrong—that we have now reached the situation where the Lille loophole has been plugged. Passengers travelling between Brussels and Lille now do so in a sealed carriage, I believe. I understand that this arrangement came in from the middle of this year—that is, about the present time. However, it would be extremely helpful if the Minister could confirm the situation about this loophole and whether it has been sealed. Even if this is the case, will the Minister explain why it apparently took the best part of three years to close it? What measures have been put in place to ensure that any similar loopholes can be dealt with more quickly once they are discovered?

The lessons learnt from this affair should be applied to any future international services. In that regard, Deutsche Bahn has long-standing plans to run trains from St Pancras to Amsterdam and Frankfurt, which would give passengers a choice between two international passenger operators. Two years ago, the Government said that the UK and France were working well with Deutsche Bahn to ensure that comparable security measures would be in place in the Netherlands and Germany. Will the Minister indicate what has been achieved on this issue over the last two years?

The Land Transport Security Division of the Department for Transport is responsible for counterterrorist security in a number of areas, including the Channel Tunnel and international rail services. In its response last year to the House of Commons Transport Select Committee’s report on land transport security, the Department for Transport said that a new body, called the All States International Forum—ASIF—had been created to bring together ministries responsible for transport security from all states that already host Channel Tunnel services or are likely to in future. The purpose was to facilitate intergovernmental liaison on matters relating to the security of the Channel Tunnel and services that might operate through it.

As I understand it, ASIF met for the first time in March 2013 and included representation from the UK, France, Belgium, Germany and the Netherlands. Will the Minister give an update on what has been discussed and determined at ASIF meetings, indicate how many times it has met since last March and say what the value of our involvement has been to the UK? Does the Minister agree that one of the lessons from the Lille loophole is that close co-operation should be maintained with the police and immigration authorities of other nations, not just the transport operator? If he agrees, is the All States International Forum geared to delivering this?

Earlier, I referred to the Independent Chief Inspector of Borders and Immigration. He has been critical of the lack of fingerprinting of illegal immigrants in Calais, for example. The chief inspector said that he found it surprising that people caught attempting to enter the UK concealed in freight vehicles—the figure runs into thousands—were not fingerprinted by the Border Force, since gathering biometric information such as fingerprints could assist in the decision-making process if such individuals were ultimately successful in reaching the UK and went on to claim asylum. What is the Government’s position on the issue of fingerprinting in the light of the chief inspector’s comments?

In the coalition agreement, the Government committed themselves to introducing exit checks by the end of this Parliament through the e-Borders system. In April 2012, the then Policing Minister said that the system was very close to covering 100% of flights coming from outside the European Union. However, the head of the UK Border Force has now told the Home Affairs Select Committee that the project has been terminated. Can the Minister confirm whether that is the case and, if it is, say when the ministerial announcement was made to that effect, what the cost was of terminating the e-Borders project, how exit checks will now be implemented by the end of this Parliament and whether they will cover international rail passengers travelling through the Channel Tunnel?

As I understand it, freight is not planned to run on HS2, but the Government’s recent response to the HS2 growth report was to say that they had ensured that the design of HS2 does not exclude its use for freight traffic. If HS2 was adapted for carrying freight, have the Government given any consideration to what additional security measures would need to be put in place at depots if operators wished to run freight services via HS2 and then the Channel Tunnel?

In the Government’s response published on 31 March this year to the House of Commons Transport Committee’s report on land transport security, reference is made in paragraph 13 to a wider review of the national rail security regime. It appears that that wider review commenced in January of this year. It is not clear from the Government’s response to the Select Committee report whether this wider review is confined to the important issue of security training for staff or whether it covers all aspects of security and security regimes. Therefore, will the Minister say something about the review, its terms of reference, who is carrying it out and when it is expected to report? Is it looking at the issues and concerns raised by my noble friend Lord Berkeley? The Secretary of State has reportedly said that a decision on the inclusion of “international facilities” at HS2 stations has been postponed until the conclusion of the study into the options for improving the connections between HS2 and HS1. Will the Minister say whether that is the case, as it is obviously relevant to the points raised by my noble friend Lord Berkeley?

To conclude, the Channel Tunnel is an important national asset, but it remains underutilised. Two years ago, the Department for Transport said that it was essential that any security measures deployed across the transport sector were proportionate, practicable and sustainable. With that objective in mind, the Government need to ensure that existing security measures are effective and properly enforced and that there are no unnecessary or excessive barriers to the growth of passenger and freight traffic.

13:23

[Lord Popat (Con)]

My Lords, I am pleased to address this Question for Short Debate which the noble Lord, Lord Berkeley, has secured on whether the Government have plans to set up an independent review of the Channel Tunnel security regime to consider whether it is proportionate and appropriate to current threats and risks. I am grateful to him and to the noble Lords, Lord Bradshaw and Lord Rosser, for their thoughts on this very important issue.

Security is a delicate issue to debate, as there are matters touching on the precise nature of the security regime that covers the Channel Tunnel that cannot be discussed in too great detail for obvious reasons. It might be helpful, however, if I put into context, as far as I can, the very serious threat we continue to face in the UK and the West generally from international terrorism.

We know from sad experience through events such as the 9/11 attack on the World Trade Center in New York, the Madrid train bombings, the London Underground suicide attacks and the liquids plot associated with transatlantic flights, that terrorism exists not just in the UK but internationally. We know also that al-Qaeda and its affiliates have aspirations to cause mass casualties and economic damage that have political and psychological impact. We also know that transport systems are attractive targets for the terrorist because they fulfil those aspirations. As a result, Governments have had to make a variety of adjustments in transport security regimes to reduce the risks of attack and to protect the travelling public, but with each adjustment comes a desire from the terrorist to be ever more innovative. New methods of attack designed to circumvent the systems in place are clearly demonstrated, with the recent changes to aviation security. For example, in America there is now a requirement to see mobile phones as well as laptops.

Twenty years ago, when the Channel Tunnel, one of the most costly and ambitious civil engineering projects of the 20th century, was opened, the main terrorist threat came from the IRA, whereby we had to contend mainly with protecting against vehicle bombs and hidden devices. Islamist terrorism has since emerged, with perpetrators willing to die for their cause; hence we have seen suicide bombings on the London Underground and 9/11, where aircraft were used as missiles, as well as the marauding active shooters in Mumbai and Nairobi. We have also seen terrorists attempting to use more subtle and novel methodologies to achieve their aims, including by liquid explosives and the shoe bomber, to give a few examples.

The Government have to be able to counter in a proportionate way all relevant risks and attack methodologies. Hence we take intelligence-based advice and analysis from an independent body, the Joint Terrorism Analysis Centre, and tailor security regimes to address new and emerging risks, as well as making sure that existing risks are mitigated. The threat from international terrorism continues and currently the threat to the UK is assessed as substantial, meaning that an attack is a strong possibility. We, as a responsible Government, must take note of the intelligence picture, standing ready to protect our citizens and infrastructure.

The security measures in place are tailored to the mode of transport operating through the Channel Tunnel, which explains why there are differences between Eurostar, passenger and freight shuttles and rail freight. That requires balancing convenience to travellers and business against security. It is not an exact science but, as there have been no successful attacks associated with the Channel Tunnel, we can take that as an indication that the security regime is sufficiently robust to deter and prevent acts of violence. In view of that, the measures would seem to be proportionate and appropriate, but we cannot be complacent.

It has been argued by some that there is no difference between the Channel Tunnel and London Underground, where security is less pronounced. Contrary to that view, the Government believe that there are a number of significant differences. Following the 2005 attacks on the Underground, Government considered the introduction of security screening measures to protect the travelling public, but found it nearly impossible and impractical do so for mass transit networks. As we saw in 2005, there were many alternative routes and modes available for travellers. Furthermore, any incident in the Channel Tunnel could potentially be 25 kilometres from the exit, making quick assistance difficult in the event of a bomb attack. That is further complicated in the event of a hostage or firearms attack, when intervention would be necessary. Unfortunately we know from experience the impact and disruption a fire in the Channel Tunnel can cause—that was without any casualties—and the psychological trauma an incident underground and below the Channel would have.

I also remind the Committee that the matter of the Channel Tunnel’s security is not just a UK responsibility. The fixed link straddles British and French territory. For that reason, both countries share responsibility for its defence and security. We must work together to protect the fixed link and the measures should reflect the terrorist threats that are relevant to both our countries. In that pursuit, the two Governments liaise regularly on issues relating to its continued protection. The security regime cannot be effective without joint consideration and comparable security measures on either side of the tunnel.

I am conscious that the noble Lord has an ambition for the tunnel to be utilised to its full potential and to make sure that our security is proportionate. We do not see security as a barrier to having other operatives operate within the Channel Tunnel. If we look at the figures, they do not support an argument for a review of the security. With traffic numbers on the increase, the Government recognise that economically, growth in this area is very important to the UK. We keep security measures under constant review to ensure that they remain proportionate and encourage growth. We have actively engaged with new operators on security to ensure that they understand what is expected of them. In those discussions, we have recognised the need for a flexible approach in the security requirements but they must be able to offer a similar level of protection as exists now.

The noble Lord, Lord Bradshaw, spoke about Anglo-French relations. I am pleased to say that we have regular discussions with our French colleagues and operators. Earlier this month, through the Channel Tunnel joint security committee, the UK and French Governments invited stakeholders—including the noble Lord, Lord Berkeley, in his capacity as chairman of the Rail Freight Group—to preview a joint document that updates previous guidance on security and is referred to as the declaration of intent. This sets out the security requirements considered necessary by both Governments to protect the Channel Tunnel and those using it. It is an important document which recognises the need to be flexible in future, with the potential expansion of the rail passenger network beyond France. It would not be appropriate, for instance, with single services per day, to insist that permanent infrastructure be provided or that specific security equipment be used. We support proposals to use new technology that can improve the passenger experience and provide similar levels of security. At the meeting, stakeholders were given an opportunity to make some initial comments about the declaration of intent and the plan is to issue the joint document for formal consultation. The two Governments will of course make adjustments to it, where they see that there is merit to do so.

The Government must take security very seriously: this includes any terrorist threat to transport, including the Channel Tunnel. By keeping the threat and security measures under review, and planning jointly to consult stakeholders on revised guidance later in the year, the Government’s view is that the security regime in place is both appropriate and proportionate, providing the correct balance between protection and ease of use. The Government therefore see no need to carry out an independent review of the Channel Tunnel security regime.

A number of questions were raised during the debate. Let me first cover the issue raised by the noble Lord, Lord Berkeley, on whether the security measures are proportionate, practical and necessary and about the options for change, since nothing has really happened in the last 20 years. I say to the noble Lord that the requirement for passengers’ vehicles and goods to be subject to security and screening measures is an appropriate and proportionate response to the nature of the threat. The noble Lord, Lord Rosser, also raised the issue of balancing the inconvenience to travellers and business against security and costs. The current measures are necessary to ensure the safety and security of the travelling public and to provide an effective deterrent, together with other safety and security measures, to those who may seek to undertake an attack against passengers or infrastructure. The terrorist threat levelled at all modes of transport infrastructure remains under regular review. We review that on a regular basis and have discussions with our French colleagues.

The noble Lord, Lord Rosser, raised the risk-based approach as applied to Channel Tunnel services. It is best if I write to him. He raised a number of issues, including trains to Amsterdam and the security measures that there will be, and co-operation between the police and immigration officers.

[Lord Rosser]

It is perfectly acceptable for the Minister to write to me on the questions that I have raised.

[Lord Popat]

I will certainly be happy to write to the noble Lord on a number of his concerns, including, in the light of the police commissioner’s comment, what the Government are doing about fingerprinting. We should take that seriously, although it is an issue for the Home Office rather than for the Department for Transport. I will ask officials to take this matter to the Home Office, which will give an appropriate response.

HS2 is an exciting project for the whole Government and the whole country. The noble Lord, Lord Rosser, referred to freight traffic tracks and I will address that. Freight traffic is an expanding business and we want to make sure that we have the right capacity to help to have increased freight traffic.

[Lord Berkeley]

I thank the Minister for his comments. Perhaps he would also write to me in response to some of my questions. He compared an incident in the tunnel with an incident on the London Underground, as well as the fear of passengers in the tunnel compared with the fear of those on the Underground. The Channel Tunnel Safety Authority is looking at evacuation from the Channel Tunnel into a separate service area. When considering people in the deep Tube having to get out one by one and climbing down into a dark tunnel and onto the track with four rails, I suggest the Channel Tunnel is a great deal safer than the Underground. I do not think that that is an argument for saying that there should be a different regime. Perhaps the Minister will write to me on that.

[Lord Popat]

Certainly, I will write to the noble Lord, Lord Berkeley. We cannot compare the Channel Tunnel with the Underground, other than that they both take passengers. Where the security threat level is raised, the security response can be increased. With the number of people using the Underground, it is very difficult to set the security standard that is necessary. Current security measures for the Channel Tunnel are considered to be proper and proportionate, so the Government see no need to have an independent review. Having said that, I certainly will take the noble Lord’s questions into account and will give an appropriate response.

Music Education for Children with Physical Disabilities

Wednesday 30th July 2014 Grand Committee

Question for Short Debate

13:38

Asked by

[Lord Lipsey]

To ask Her Majesty’s Government what steps they will take to encourage music education for children with physical disabilities.

[Lord Lipsey (Lab)]

My Lords, I remind noble Lords that I chair the All-Party Group on Classical Music and that I am chair of the Trinity Laban Conservatoire of Music and Dance. I thank noble Lords from all four quarters of the House for having stayed on, eating deep into their well deserved Recess, to show that they recognise the utmost importance of the subject that I am raising, albeit for a relatively limited number of people.

The pianist Paul Wittgenstein—brother of the philosopher—had an arm amputated in World War I. He subsequently approached all the best contemporary composers seeking works that he could play. That is why we are blessed with Ravel's Concerto for the Left Hand. By a remarkable coincidence, that wonderful concerto figures in the BBC Proms tonight, played by Alexandre Tharaud, although it is perhaps unfortunate that he is a two-handed pianist and the concert is introduced by the British professional one-handed pianist Nicholas McCarthy.

This is by no means the only piece of left-handed piano music. There are, for example, Godowsky's 53 transcriptions of the Chopin études for the left hand. Hearing is believing. I recently heard the extraordinary Goan-born pianist Karl Lutchmayer in Alkan's fantasy for the left-hand. It is to Karl that I owe the insight that in one way the piano is better played left-handed as the top fingers in the left hand are strong fingers—the second finger and the thumb. In the right hand, they are weak fingers—the little finger and the fourth finger—which do not sing out as clearly as the stronger fingers would.

Sadly, the piano is one of the few instruments that can be played left-handed. My wife, who has only one functional arm, is confined to singing, as she does with gusto, in a choir—perhaps she should join the noble Lord, Lord German, in the Parliament Choir—but she could not play an instrument even if she wished to because she has the use of only one arm.

The lack of instruments excludes from music any youngster with disabilities affecting the arms in particular, although there are other disabilities that need to be catered for. The Government grandiosely declared in The Importance of Music: a National Plan for Music Education in 2011 that every child should have the opportunity to learn an instrument and progress to musical education. Perhaps he had not read about this debate, but only last week, Nick Gibb, the responsible Minister said:

“No children should miss out on the inspiration and excitement that music can bring to their lives”.

Amen to that, but the people who penned those sentences had not really given any thought to children with disabilities, who are wholly or mostly excluded from this.

This is a curious omission. No one doubts the importance of music in education for people facing mental challenges. Examples abound of children with profound learning difficulties where music provides a vibrant way of connecting them. They respond to it like nothing else on earth. We would not tolerate for an instant an education system that said that children with disabilities should be excluded from sport—certainly not in the light of the Paralympics and what they see from Glasgow this week. However, nobody seems to give a thought to physical handicap and music.

Clearly, one obstacle is the lack of musical instruments which can be played with limited arm capacity. The violin, for example, provides obvious difficulties. I want to draw attention, as mine was drawn, to the work of a wonderful small charity, the One-Handed Musical Instrument Trust. Among other things, it runs a competition for inventors of one-handed instruments. For example, in 2013 it was won by the toggle-key saxophone built for a stroke survivor. This has the full facility of a saxophone but is played with the fingers of one hand. There are one-handed recorders. I think there is a one-handed flute and I read somewhere that there was a one-handed French horn player somewhere. The OHMI is also collaborating with researchers on electronic musical instrument developments to ensure that disabled musicians can take part in a full range of music-making. Maybe one day there will be a one-handed violin, although it will be a digital one-handed violin.

Such instruments can be expensive, although not as expensive as a Stradivarius, I may say. A toggle-key saxophone costs about £15,000. First, not many people would need those instruments, so we are not talking about a huge expense. Secondly, as the number ordered goes up, the price goes down. Indeed, I think that that is happening with one-handed recorders, for which there is a certain demand. We need to invest a bit in teachers. I know that HMI is developing a plan for a national teaching project in the use of those instruments.

So an attempt is being made at progress, but the real problem behind all the concrete problems that I have identified is one of awareness. If no one knows or thinks about the problem, nothing much will be done about it. We know that music education faces serious challenges. Following the admirable Henley report and the emergence of music hubs, there was a surge of optimism, but provision has turned out to be patchy, at best. Needless to say, and without being a cracked CD disc, cuts in money are real obstacles. However, the £18 million extra for music education announced by the Government last week is very welcome, and a small fraction of that could do wonders for young, disabled would-be musicians.

That is not the only way that Ministers can help with this unique challenge. I am not asking the noble Lord, Lord Nash, for a blank cheque, nor for promises of legislation, nor even for a White Paper or a consultative document; nor that the new Education Secretary casts aside her responsibilities to tour the country crusading on behalf of this single objective. However, I ask the Minister to affirm that this is something of which the Government are aware; I ask for a strong statement that the Government recognise its importance; and I ask for a commitment by Ministers and their officials to raise it as part of their work in propagating music education.

If there is one thing worse than wrestling with an intractable problem, it is wrestling with an intractable problem when the world does not seem to know or care. The Minister has an opportunity to put that right today.

13:47

[Lord Jenkin of Roding (Con)]

My Lords, I am delighted to follow the noble Lord, Lord Lipsey. I am sometimes inclined to refer to him as my noble friend, because we work together on a number of issues, not least the all-party group to which he referred. I will refer to what he said, but I must begin by congratulating him on the timing of this debate. As he pointed out, it was only last week that the Government announced a substantial increase in the funds for musical education. He made the point that part of that fund might be used to provide for handicapped children.

As was reported by that admirable body, the Incorporated Society of Musicians, the Department for Education has dedicated £75 million to support music education hubs in 2015-16, an increase of £17 million from 2014-15. Against the background of the general atmosphere of austerity, that is a remarkable achievement, and I congratulate the Government on it.

The noble Lord referred to one-handed instruments. I am lucky enough to share a room with my noble friend Lord Colwyn, who, as I think we all know, is a formidable trumpet player. He has a friend who plays a trumpet with one hand. That friend’s problem is that he always has to have someone else to turn over the page, but it can be done. I will cite another example in a moment.

I draw the Minister’s attention to two of my own experiences of dealing with handicapped musicians. At school, I was lucky enough to be able to learn both the piano and violin, and when I reached secondary school, I found that the head of music there, a Dr Douglas Fox, had only a left arm. He had set out to be and would have been an absolutely outstanding concert pianist, but his right arm was shot off in World War I. He proved to be an inspiring music teacher. Not only did he teach me to play the piano—not very expertly, but I got enormous enjoyment out of it—but he conducted the school orchestra and choral society. Years later, as president of the school, I had a very interesting talk with the then music director and asked him what he was doing with choral and orchestral works, telling him what we had done back in the 1940s, and he said, “There is no way we could do that now”. I doubt that—but the fact of the matter is that Douglas Fox, despite his one arm, had a huge influence on literally thousands of pupils that passed through the school while he was music director. It is an object lesson of what a handicapped person can achieve. The noble Lord, Lord Lipsey, mentioned Ravel’s “Piano Concerto for the Left Hand”, which he performed at concerts several times, up and down the country. As he was a brilliant pianist, it was absolutely suited to his abilities and talents, and we were all very proud of him. I cite that as an example of what can be achieved.

Douglas Fox made one very bad error. In my house I was not the only violinist—there were three others—but none of us was very expert. We had a house music competition, and when we looked for something that we might perform he said, “What about the Bach passacaglia for four violins?”. I will draw a veil over what happened. It was a disaster—four teenaged boys trying to play what is really a very difficult Bach passacaglia. Nevertheless, the ambition was there; we were inspired to try, and that in itself is worth while.

The other aspect to which I would like to draw attention, again mentioned by the noble Lord, Lord Lipsey, is that of children with severe learning difficulties. My daughter is a professional singer and has sung with the parliamentary choir and as a soloist. She had a friend who had a little girl very severely affected with learning difficulties. Jessie was a child to whom it was extremely difficult to get through with ordinary speech and normal parental emotion, but they discovered that she could respond very positively to music, which provided a bridge to the rest of the community for that child. She did not survive long but, in her memory, her parents set up what is now called Jessie’s Fund to provide resources to help to educate parents and teachers on what can be done through music to help even the most severely impaired children. It is an inspiration. If anybody wants to know anything more about it, there is a website called jessiesfund.org.uk.

I hope that those two examples will show how, in one case, a disabled teacher was able to have an enormous influence on many hundreds—indeed, thousands—of his pupils and, in the other, how music can help even the most seriously affected child with learning difficulties when other approaches have failed. I hope that they underline the importance of giving as many children as possible, even if they suffer from handicaps, the chance of playing in an orchestra, singing or whatever it may be—a musical education. I look forward very much to my noble friend’s reply.

13:55

[Lord German (LD)]

My Lords, I thank the noble Lord, Lord Lipsey, for this debate and particularly for his skill in ensuring that the promenade concert programme was organised around the timetable of the House of Lords.

I am sure that it is quite clear to all of us here today that music education for children with physical disabilities presents great opportunities, because it removes barriers to helping people with their own esteem. The good news is that the capacity for change exists. The challenge, however, is getting the necessary support and funding in place. I, too, welcome the increased funding for music hubs in England; I wait to see what happens in Wales. The extra funding needs to help bring forward the right equipment and, more importantly, to ensure that there are properly trained staff engaged to make real progress.

The figures that we have from Ofsted show that between 2008 and 2011, only 6% of students with disabilities were involved in learning a musical instrument, compared to 14% of students without a disability. That is a clear disparity. There was also a consultation by Drake Music in 2012, which revealed that there are still a number of barriers to overcome with regard to effective music education for disabled children. There need to be improvements in the areas of organisation, training and equipment provision. Nevertheless, the capacity to have change and a music education for those with disabilities exists. I am sure that many noble Lords will, like me, have seen the schools which support children with special needs and where music is part of the curriculum. There have been some outstanding examples of providing effective and professional music teaching. The benefits coming out of the schools where we can see that work are an exemplar that we can translate to the education system across all schools.

I have no doubt that all colleagues would agree that music education leads to a more fulfilling life for disabled children. It uses musical experiences to provide better physical and mental health. A number of studies have assessed these applications but there is now overwhelming evidence to show that there are benefits. As we know, disability is highly complex, but physical and mental disabilities are interconnected. The problems of physical disability are intertwined with the communicative difficulties experienced by those who are mentally disabled. In order to encourage the better use of music education, we should therefore consider the benefits for those who are both physically and mentally disabled. I hope that the noble Lord, Lord Lipsey, will not mind if I address mental disabilities as well.

A number of studies from those dealing with physical disability have shown that playing an instrument improves joint function, co-ordination and strength for those who are physically impaired. It also provides rehabilitation for those children who are struggling to involve themselves in standard group activity because of pain, fear, or anxiety. It therefore has the therapeutic potential to enhance the lives of the physically disabled. I want to look at the benefits in addressing mental disability. The studies that we have before us today, including the briefing from the Library, show that music education has the ability to improve social interaction, both verbal and non-verbal. It also involves an improvement in emotional understanding and greatly increases the quality of relationships, not just between child and child but between a child and their friends and family. The evidence is clear: music therapy offers an alternative form of education, which shows increases in communication and social skills that are superior to standard care.

I pay tribute to the Nordoff Robbins charity, which is probably the largest music therapy support agency in this country, for the work that it has done and for some advice that it has given me. It tells me that complex disability—physical, cognitive, behavioural and communication skills—can isolate an individual from everyday interpersonal activity. As a result, social and personal relationships can falter. Music therapy enables people with complex needs to get an alternative understanding of themselves through the shared experience of music-making with others.

All around us, we are using new technology in music. I doubt that a day passes when we do not experience a new technology being used in a musical way around us. It becomes less and less important, perhaps, for people to have the physical ability to be able to manoeuvre and manipulate instrumentation, with the new technologies available to us. Just as our mobile phones allow us to do things that we would never have thought of five years ago, the new technologies allow us that as regards music. Even those with the most severe disabilities now can operate musical machinery, perhaps with the movement of only a finger or an eyelid, or by using brain-computer music interfaces. It becomes possible for people to make music with others. As complex as it all becomes, the need for keyboards—just as we have a keyboard with our computers—becomes less apparent. New technologies can make a huge difference in this area. As we know, music breaks down barriers. You can communicate with music even if you do not understand the language, and new technologies in music allow that to happen.

The Paralympics provided a very special platform for athletes with disabilities. Will the Government consider establishing and developing a national, or an international, paramusic competition for us to create yet another very special platform to provide opportunity and self-esteem for young people with disabilities? I welcome the extra funding, but I hope that the Government will use some of the extra funding for music to provide some of those opportunities for those with disabilities.

14:02

[Lord Aberdare (CB)]

I am delighted to speak in this short debate and I congratulate the noble Lord, Lord Lipsey, on obtaining it and on introducing it so well. A number of the points that I was planning to make have already been made, so I will try to adapt my remarks accordingly. The Government’s national plan for music education, which was launched in November 2011, provides an excellent blueprint for maintaining and building on this country’s strong position in the world of music and the many advantages that that brings for our economy, culture and national well-being.

As we have heard, delivery of the plan is the responsibility of the music education hubs, which have four key roles. They must ensure that every child has the opportunity to learn a musical instrument; to make music with others; to learn to sing; and to be able to progress to further levels of achievement. In England, the bulk of funding for these hubs has been provided by the Department for Education, totalling £171 million for the three years 2012-13 to 2014-15. In addition, hubs are expected to draw in further support from local authorities, cultural organisations, businesses, trusts, foundations and philanthropists. I believe that they have been quite successful in doing that.

As we have heard, until last Tuesday, there was considerable concern over the future of government funding for the hubs beyond 2015. In addition, a consultation document issued in March suggested that local authorities should not be using any of their education services grant funds to support music activities. Since support from local authorities amounted to more than £14 million in 2013-14, these two issues cast a worrying shadow over the future prospects of the national plan.

I join other noble Lords who have spoken in welcoming very strongly the announcement last Tuesday that the department’s funding for music education hubs would be increased for 2015-16 to a total of £75 million. At the same time, the advice to local authorities not to use education services grant for music services was withdrawn, not least because of the efforts of the Protect Music Education campaign led by the Incorporated Society of Musicians, which was responsible for the great majority of the responses received. It would be wonderful, of course, to have some commitment on the level of funding for a longer period, say up to 2020, but I appreciate that, with a general election coming up, that might be unrealistic to expect.

The focus of today’s debate is to ensure that the national plan indeed extends to all children, as it aspires to, specifically including children with physical disabilities—although I would add children with special educational needs or in other circumstances of disadvantage.

The helpful briefings that I have received, including from the House of Lords Library and from the One-Handed Musical Instrument Trust, which my noble friend Lord Lipsey mentioned, have highlighted many impressive and often inspiring and heart-warming musical education initiatives for children with special needs. I have watched moving videos about the delivery of Drake Music’s introduction to music course at Treloar school for physically disabled children in Hampshire, and about singing activities at the Stephen Hawking School for children with severe learning difficulties in Tower Hamlets. According to the DfE, nearly 80,000 disadvantaged and more than 30,000 special needs students took part in instrumental ensembles and choirs in 2012-13.

However, it seems—for example, from a 2012 Ofsted report—that students with disabilities or special needs or who are eligible for free school meals are considerably less likely to be involved in musical activities than others. Some of the reasons cited include shortage of teacher time, absence of suitable spaces and facilities in schools, low expectations of what such students can achieve musically and lack of suitably adapted instruments and technology. Perhaps some of the extra funding from the Government could help the hubs to address those needs, as the noble Lord, Lord Lipsey, mentioned.

I believe that a smaller proportion of special needs children take music GCSEs. The national plan raised the issue of whether music technology could help to address that issue. Perhaps the Minister will comment on whether there have been any developments in that direction.

On its website, the One-Handed Musical Instrument Trust lists a remarkable range of resources to help children and others with physical disabilities to take part in musical activities, including specially adapted instruments, such as those which the noble Lord, Lord Lipsey, mentioned, electronic aids, organisations providing help in this area and performers with disabilities. The latter provide some quite remarkable role models to demonstrate what levels of music-making can be achieved by people with disabilities, such as Nicholas McCarthy, the only one-handed pianistic graduate from the Royal College of Music and the extraordinary horn player Felix Kleiser, who has no arms but plays the French horn to world-class standard entirely with his feet. The website does not state who turns the pages for him.

My question today is: how can the Government built on their very welcome provision of extra funding for the national plan to support and extend those activities and others like them so that it achieves its laudable goal of being available to all schoolchildren, whatever their circumstances and abilities? What can they do to monitor and increase the participation of children with special needs in musical activities and to assess its effectiveness? How can they help schools to obtain the special instruments needed; have access to technological solutions for music learning or composition; raise awareness of what can be and is being achieved for and by children with disabilities; share good practice through facilitating production of the sort of videos that I have been watching; train teachers to work with such children; or provide opportunities for young people with disabilities to experience live music?

I have another question. In March 2012, the Government set up a monitoring board for the national plan, which was to meet three times a year to review the overall performance of the plan and of the hubs. Have those meetings been taking place and, if so, what have been the views of the board on the progress of the plan so far, particularly in relation to disabled and special needs students?

There are some excellent organisations doing fine work in this field. The Government have already given a lead by setting up the national plan and giving commitment to its funding. What more will they do now to help to join up the work that is going on, to leverage its effectiveness and to ensure that young people with disabilities or other disadvantages are at the forefront of those taking part in and benefiting from the plan?

14:08

[Baroness Nicholson of Winterbourne (LD)]

My Lords, I thank the Minister very much for the opportunity for us to discuss such an important topic as music and children with physical disabilities. I see music and differently abled children as going together like the proverbial horse and carriage. As a Music Therapy trustee, I recall a boy with an immovable body and just one flailing arm. A music therapist sat beside him—an elderly lady—and went tap, tap, tap with a tiny drum and she watched his arm. She came back several times a week to sit beside him. She tried to follow his flailing arm with the tapping of the drum and after weeks of external pursuit by the musician of drum-arm co-ordination, with the drum determinedly chasing the formless jerking of the wandering arm, the boy’s mind had taken in the principle and the arm began to lead the drummer. Many months on, his arm was steady, controlled and he began to be able to take food to his face and his face regained control. After a while he found himself and he could eat, masticate and swallow. His life was transformed by music therapy.

I recall another boy who was completely unable to control any of his limbs and was confined to a wheelchair at the age of 11. He became a pupil. Little by little the clear rhythm of music, played live beside him, focused his mind and body. Time passed and all his limbs and his trunk as well became responsive to the music. That boy learnt to walk and his wheelchair was permanently discarded. Music has powers that other taught subjects cannot replicate. All babies are born with perfect pitch and unknowing of any of their specific personal disabilities. Each one is thus innately musical. All disabilities can be helped by carefully tailored musical training.

One in 1,000 children in England and Wales under three years of age are profoundly or severely deaf. The figure rises to two children in 1,000 between the years of eight and nine. Music can help them too: to speak, lip read, listen more effectively, increase their vocabulary, write better, enhance their sport and physical performance, and socialise. The Mary Hare School for deaf children puts music at the heart of its curriculum. The Mary Hare Foundation’s purpose-built Arlington arts centre houses, among other specialties, the Nordoff Robbins Mary Hare music therapy unit, which teaches pupils individually, from primary to sixth form.

A lively school orchestra with all instruments learns and performs across the music spectrum—an early favourite was something called “Dirty Custard”—and new instruments are sought and found. The recent and beautiful samba instruments were given by the EMI foundation. Volunteers from Vodafone locally often fundraise. Choral singing and individual instrumental performance are regular occurrences for outside audiences. These are profoundly and severely deaf children in the category that I have defined.

I should add that Mary Hare is a non-maintained school, so pupils are funded by the local authorities where they live. Fundraising is therefore essential to help families to send children to that school from around Britain and abroad. Early this year, the then principal, Tony Shaw, learnt that a no-notice inspection by Ofsted was about to begin. It did, in an hour and a quarter. The resultant report declared:

“Exceptional personal and academic opportunities ensure that the school makes an enormous difference to the lives of its Pupils”.

It also said:

“Behaviour is impeccable … Attendance is excellent … Pupils value their school and quickly make friends”.

As the departing principal commented:

“Mary Hare is more like a family, and I know that is a key factor in the success we achieve”.

I spoke to him and I am confident that this success will continue to be delivered under the new principal, Peter Gale, with whom I anticipate working to develop a strong partnership and a transfer of knowledge for the benefit of deaf children in Romania, especially through musical education and performance.

There is one special difficulty that deaf children face, not just in Romania, but in Moldova, Armenia, Ukraine and other countries in the region. Deafness is thought to equal physical dumbness: not just through acquired dumbness, but through some unknown physical deformity or acute illness that has happened to the larynx at birth. In other words, if you are deaf, you are born dumb also. That is physically understood and is taught by teachers to be so. There is therefore no speech at all and no lip reading. Communication is only through sign language.

Sign language is undoubtedly useful. I recall that at the Mary Hare grammar school for the deaf, our patron visited. She was sitting in assembly on the school stage looking rather unhappy. The Duke turned to her and said something silent. The hall rocked; the children could lip-read, and he had said, “Cheer up, cabbage”. So yes, sign language is useful, but lip-reading is a great deal more so. Sign language has massive defects for learning and for the acquisition of speech.

So, after life in special schools in Romania, who understands? Who will communicate? I serve as High Representative for Romanian Children. I chair the Asociatia Children’s High Level Group. I work with the Minister for Education, Remus Pricopie. We tackle all disabilities, physical and other, with musical instruments, sharing, training, singing and dancing, and the results are amazing. At the moment we have 105,000 volunteers from mainstream schools and high schools, with 59,000 beneficiaries from special schools, day centres and small family-type homes—all pupils and all handicaps. They meet three times a week in school time, with two hours of integrated teaching each time, mainly child-to-child and teacher-to-teacher. We do dance and music competitions nationally, singing, dancing and doing drama countrywide. You can see the children—their stiffness goes, their circulation improves and they begin to be able to move, speak, listen, talk and socialise. There is new family life. The teachers, the parents, the church and state are all involved. I recall so well the wheelchair girl triumphantly lifted and circled in the air above the heads of her steady-handed, sure-footed boy volunteers, dancing with her as one world and all getting golds.

The link most generously offered by the Mary Hare School will enable us all to create a bridge of learning, with music central to it, to enable speech, singing, lip-reading and total communication, to start in two pilot schools in Craiova and Bucharest. Thousand upon thousand of hitherto silent children will benefit from the careful expertise developed here in Britain by the Mary Hare School, aided by my old college, the Royal Academy of Music.

I would welcome the Minister’s support for this initiative. I would appreciate a word or two with him at some suitable moment to introduce him to the Romanian Minister for Education when he is here. This may be a way in which Britain’s expertise can be developed and spread more widely still.

14:17

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am very grateful to my noble friend Lord Lipsey for securing this debate and for his continuing diligence in championing the cause of music education. He has enabled us to have a fascinating debate and to hear some moving examples of how music can be transformative for people with physical disabilities.

As a number of noble Lords have pointed out, the national plan for music education has a clear aspiration of ensuring that children from all backgrounds should have the opportunity to learn a musical instrument, to make music with others, to learn to sing and to have the opportunity to progress to a level of excellence. It also determined that all schools should provide high quality music education as part of a broad and balanced curriculum. These provisions, combined with the parallel entitlements for children with special educational needs and disabilities to have access to the same quality and standards of education as their peers, ought to have ensured that children with physical disabilities receive quality music education. However, we know that this is not the case, and it is worth exploring some of the barriers to that.

At the outset, we have to acknowledge that music education as a whole in the UK is not in great shape. For example, the numbers taking the subject at GCSE have been dropping, with only 41,500 taking the subject in England in 2012, which is down from 43,100 in 2011. Part of this decline can be explained in retrospect by the rather disastrous decision of the Secretary of State to introduce the EBacc system, which excluded music from the list of subjects to be measured. Despite the change of heart in 2013, which widened the league table subjects to eight, we are being told that music has continued to be squeezed within the overall curriculum. Even more worrying is the evidence that the top-performing schools for music GCSE are overwhelmingly in the independent sector. Therefore, music is in danger of becoming an elite subject, or one that is the preserve of parents who are prepared to pay for lessons, rather than one that is open to all, as was originally intended. That point about access was raised by the noble Lord, Lord Aberdare, and other noble Lords.

We therefore need to consider what more can be done to make the aspirations of the national plan for music education a reality, particularly for children with disabilities. That is important, not only because children with disabilities have the right to equal access to this learning but because it offers another sensory route to expression and communication for children who are denied that through their disability. As the noble Lord, Lord German, pointed out, at its basic level, playing a musical instrument can help develop movement and motor skills. At a higher level, it can offer a unique form of self-expression and engagement—and we have heard some examples of that this afternoon.

First, I concur with the view of a number of noble Lords in the Room that music hubs appear to be working well. The recent government announcement of an increased grant of £75 million to support those hubs is obviously to be welcomed. However, we need to ensure that proper monitoring is in place to ensure that the money is spent wisely. I was collared the other day by some music teachers, who complained to me that the staff employed in the music hub had given themselves rather inflated salaries, at the expense of the music that was meant to be happening in the school. Can the Minister explain how that expenditure is audited and overseen to make sure that the money is being spent properly?

Secondly, we need to ensure that the music hubs collaborate and share resources with the specialist organisations and individuals working in this sector. This afternoon we heard about the One-Handed Musical Instrument Trust, which is obviously doing some very innovative work. I was particularly impressed by the work it is doing to create competitions to design accessible musical instruments, which is very much to be lauded. When I was researching this debate, I was struck by the large number of impressive charities that work in this field. However, they all seem to be struggling to fund their work. What funding is being made available? Are we sure that we take adequate notice of the contribution the voluntary sector can make? Perhaps the Minister could comment on that.

Thirdly, we should consider making it a specific requirement of Ofsted to assess the music provision in schools when it carries out an inspection. For example, its own report Music in Schools identified that music hubs sometimes found it difficult to engage with schools that were not providing high quality music education. Surely, if that is the case, and it is a problem, we should know about it. Fourthly, we need to address the failings in initial teacher training for primary school teachers. Weaknesses in primary school music were identified in the Henley review of music education but the training module that was developed was never fully rolled out or funded. Perhaps the Minister could update us on the plans for that.

Finally, as the noble Lord, Lord German, pointed out, we should encourage and support the expansion of music technology and the innovative uses we could make of it to open up new opportunities for children with disabilities to create music. Contemporary music technology can recreate the sounds of musical instruments as well as creating exciting new sounds, and can unite children’s enthusiasm whether or not they have SEN or a disability. I would be interested to know whether the Minister thinks that there is a bigger role for using technology in music to supplement the importance of learning to play an instrument. We have had a very interesting debate today and I have certainly learnt a lot. I very much look forward to hearing the Minister’s response.

14:24

[The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)]

I thank all noble Lords for participating in this debate and in particular I thank the noble Lord, Lord Lipsey, for securing it. When this debate first came on the agenda, I was concerned, not so much because of its timing, but because I do not know a great deal about the subject matter. However, I have greatly enjoyed reading myself into this debate and listening to the eloquent speeches, which I found extremely interesting. I have been frankly humbled to learn about how much is going on in this area and how powerful music education can be, particularly for children with physical disabilities.

The Government have the same ambition for children with disabilities as they have for all children. We want pupils to achieve well at school, lead happy and fulfilled lives and have choice and control. I have no doubt that music is a key way of achieving this, particularly for pupils with disabilities and SEN. Several noble Lords attested to that today. I remember vividly that when I was doing research into the academies programme I visited a KIPP charter school in a particularly deprived area of New York City where every child is in an orchestra which travels across the United States to perform. It is renowned for its success.

Music has been confirmed as a statutory subject for children between the ages of five and 14 in the new national curriculum, which comes into force in all maintained schools from September. The revised programmes of study for music have an increased focus on the need for activities to be undertaken musically, with reference to all children learning to play a musical instrument. The new, slimmed-down curriculum provides greater freedoms for teachers to use their creativity and professional judgment in how they teach to meet the needs of the pupils in their class. At key stage 4, the arts are one of four entitlement areas within the national curriculum. Maintained schools must provide all pupils with access to at least one course in the arts entitlement area, which includes music, art and design, dance, drama and media arts.

The Equality Act places a duty on all schools to support disabled children and young people. It includes making reasonable adjustments to prevent them suffering discrimination and supplying additional aids and services. Schools must have also accessibility plans which set out how they will improve access to the curriculum, improve the school’s buildings and environment to enable disabled pupils to take better advantage of the school and improve the availability of accessible information. This includes academies and free schools. Additionally, to make sure that all teachers know how to adapt teaching to respond to their pupils’ needs, part 5 of the teachers’ standards requires teachers to,

“have a secure understanding of how a range of factors can inhibit pupils’ ability to learn, and how best to overcome these”.

To support and encourage all children to experience excellent music education, the Government have set up 123 new music education hubs. Since August 2012, these hubs have been working to drive up the quality and consistency of music education across the country, with an emphasis on forging new partnerships. Hubs are required to develop four core roles, which include ensuring that every child aged five to 18 has the opportunity to learn a musical instrument through whole-class ensemble teaching and providing opportunities for them to play in ensembles and perform from an early stage. They are also expected to ensure that clear progression routes are available and affordable to all young people, and to develop a singing strategy so that every pupil can sing regularly in a choir or other vocal ensembles in their area. In addition, hubs may provide other services, such as professional development for teachers.

In answer to the question asked by the noble Lord, Lord Aberdare, about participation, I am pleased to say that 5% of pupils who participated in instrumental ensembles or choirs in 2012-13 had a statement of special educational needs, compared to 2.8% nationally.

There are some excellent examples of hubs working with children who have disabilities. Telford music education hub offers a bespoke version of its whole-class ensemble tuition programme for special schools. Camden hub integrates pupils from local special schools into the Camden music festival and Surrey music hub, with partner Rhythmix, has run a sound and motion lab looking at how digital technologies can aid music-making for children with movement impairment at the Orpheus residential centre for children with disabilities. In Telford, the hub’s Kreative Kidz programme offers specialist out-of-school arts and music sessions for young people with severe physical needs, under the short breaks duty introduced to local authorities in April 2011. The Staffordshire and Stoke-on-Trent hub’s strategic partner, Make Some Noise, runs training and mentoring programmes for musicians and teachers wishing to improve their skill set and confidence in delivering music activities for children with SEN and disabilities, through the use of assisted music technology specialists and equipment. Bradford music education hub offered training events for teachers of children with SEN and disabilities between November and March last year, covering topics such as song-writing, composition and developing choirs.

As my noble friend Lord German mentioned, schools are also demonstrating innovative practice in this area. At Great Oaks, a special needs school in Southampton, all students learn to use mobile devices to make music. In October 2013, the school held a mobile device concert for students to perform arrangements of popular music songs independently in iPad bands. Bradford music has also established a singing choir at Hanson secondary school, drawing on specialist expertise and advice from Music and the Deaf, a unique charity based in Huddersfield that helps people suffering hearing loss to enjoy music. In Ealing, a partnership on music and autism with the Orchestra of St John’s led to securing funding to develop a series of workshops and performances, led by members of the orchestra, in all the borough’s specials schools.

In response to the comments of the noble Lord, Lord Lipsey, I am delighted to say that the Government appreciate the benefits of the music and this type of work. I am very happy to make that statement. The Department for Education will look to publicise work of this type, whether it is led by music hubs, charities or schools, to help to give due recognition to these extremely worthwhile projects, and it will encourage other organisations to emulate this good practice in their work.

I am grateful for the comments from the noble Lord, Lord Lipsey, the noble Baroness, Lady Jones, and my noble friends Lord Jenkin and Lord German about the announcement on 22 July that our music budget will increase by £18 million in 2015-16, with most of this money going to the hubs. This will bring the total that this Government are spending on music education for the period between 2012 and 2016 to more than £390 million.

Other programmes include In Harmony, which we sponsor alongside Arts Council England and others. In Harmony is transforming the lives of children through community-based orchestras for music-making in six areas of exceptional deprivation. Again, we are aware of excellent inclusion practices. For example, in a participating Nottingham school, a child with muscular dystrophy has had a half-size guitar adapted so that it can be tuned to the correct pitch, enabling her to carry out pizzicato alongside her classmates. In Newcastle, In Harmony has helped a child with a very severe speech disability to excel on bassoon. He has performed solo at Newcastle’s Literary & Philosophical Society and is now attending the Sage Gateshead centre for advanced training.

Our funding for Music for Youth is also enabling children with disabilities to attend and perform at regional and national festivals at world-class venues. Sixteen children and young people with additional needs from Beacon Hill Academy in Essex, a specialist college for sensory and physical needs, performed in a mass ensemble showcase performance at the Royal Albert Hall for the Schools Prom in 2013. This was part of an exclusive music project in Essex, delivered by Music for Youth in partnership with three music education hubs.

I thank the noble Lord, Lord Lipsey, for drawing our attention to the achievements of one-handed musicians and the extraordinary and pioneering work of the One-Handed Musical Instrument Trust. The Government have been clear that all pupils, whatever their individual needs, should benefit from an education in music, and through our work with the Arts Council and others we will continue to make sure that providing opportunities with SEN disabilities is essential to the work.

I enjoyed the comments of my noble friend Lord Jenkin about Douglas Fox and his wonderful work. I also thank him for highlighting the commendable work of Jessie’s Fund in helping seriously ill and disabled children through the therapeutic use of music. Through its Soundtracks programme it is running creative workshops in more than 80 schools for children with special needs. It is doing excellent work in supporting children to take part in the musical process.

I am grateful to my noble friend Lord German for his comments about the benefits of music as therapy and its ability to break down barriers. This is evident in the work of programmes funded by the department. In Cambridgeshire, there is an established music therapy programme providing clinical interventions, while Telford and Wrekin’s In Harmony programme has a specialist nurture group.

I noted comments about establishing an international paramusic competition, and I will discuss it with DCMS, as it seems like a very good idea. Technology is also crucial. I have already pointed to the innovative work with mobile devices at Great Oaks School in Southampton.

The noble Lord, Lord Aberdare, and the noble Baroness, Lady Jones, emphasised the importance of making sure that the money we have provided is well spent and reaches students with disabilities and SEN. We have been working with the Arts Council to support and challenge hubs. We have introduced a new requirement for hubs to develop school music education plans. They must clearly demonstrate how they are connecting with all the schools in their area and how they are planning to provide targeted support to schools where necessary. We have also set up a new hubs advisory group, which is providing strategic advice to the DfE on the effectiveness of hub networks. Members are drawn from organisations with an interest in the performance of hubs, including representatives from schools, music hubs, Ofsted and other music stakeholders. There is an SEN teacher on the hubs advisory group.

The Arts Council also analyses the data from hubs to ensure that children and young people with SEN and disabilities are engaged. Several hubs are currently undertaking specific research and activity with children and young people with SEN, and we will share this across the network as appropriate. The Arts Council runs a flagship Artsmark programme to enable schools and other organisations to evaluate, strengthen and celebrate their arts and cultural provision. Artsmark is nationally recognised as demonstrating excellence in arts and cultural provision, and any school, college or young justice organisation can apply. It is open to SEN schools. A specialist leaders in cultural education course has been developed by one of ACE’s bridge organisations and this is open to special schools.

The noble Lord, Lord Aberdare, asked about the national plan for music education’s monitoring board and whether this will continue. It continues to meet termly as the cultural education board, chaired by Ministers from DfE and DCMS, and Darren Henley. I will ask my officials to investigate the use of technology in music GCSEs and will write to the noble Lord on that issue.

I am very grateful to my noble friend Lady Nicholson who spoke so powerfully about the power of music for deaf children. She highlighted the excellent Mary Hare School for the deaf. I was very impressed to hear about the school and its arrangements in Romania. Schools with real expertise can make significant contributions by sharing their knowledge internationally. I would be very pleased to discuss this with my noble friend. I should be grateful if she could keep me informed and would be delighted to meet representatives from Romania when they are here.

The noble Baroness, Lady Jones, made the point that top-performing schools in music are often independent schools. Sadly, that is true. As we all know, the top-performing schools in this country absolutely, and in many areas, are disproportionately represented in the independent sector, which is why this Government are so determined to increase the performance of the state education sector.

I believe that the policies and programmes that I have described demonstrate our desire to ensure that no child is excluded from receiving a high-quality music education due to a physical or other physical disability. I am sure that noble Lords will agree that the impact of our programmes on disabled young people is evident from the examples that I have given throughout the country.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, that concludes business in Grand Committee this afternoon. The Committee stands adjourned and I take this opportunity to wish all noble Lords and others a very pleasant recess.

Committee adjourned at 2.38 pm.