Grand Committee
Care Act 2014 and Children and Families Act 2014 (Consequential Amendments) Order 2015
(9 years, 9 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, this order, while detailed, has a simple overarching purpose: to make amendments to primary legislation in relation to England consequent to new laws already passed by Parliament, primarily the Care Act 2014, but also to a small extent the Children and Families Act 2014, as I shall explain.
Part 1 of the Care Act 2014 is a crucial step in delivering the commitments in the Government’s White Paper Caring for Our Future: Reforming Care and Support. It takes forward the recommendations of the Law Commission to consolidate 60 years of fragmented law into a single statute, refocusing the law around the person, not the service.
The order before us today is part of the final step in this process, disapplying current legislation for England which is to be replaced by the Care Act, and changing references to that legislation in other Acts to reflect the Care Act. For example, many of the core entitlements to social care services included in the National Assistance Act 1948 are disapplied for England by this order because they are to be replaced by the overarching duty and power to meet care and support needs included in Sections 18 and 19 of the Care Act 2014.
The Department of Health and the Department for Education have worked together to ensure that carer provisions have been extended in key areas. Part 1 of the Care Act introduces improved rights for adult carers caring for adults, including to assessment and support. Sections 96 and 97 of the Children and Families Act 2014 amend the Children Act 1989 to introduce significant new rights for young carers and parent carers respectively. These new provisions will work alongside those in the Care Act 2014 for assessing adults to enable services to co-ordinate their approaches to assessment and support for young carers and the people they care for.
This consequential order therefore makes some amendments which are in consequence of the new provisions introduced by the Children and Families Act 2014. Because the previous legislation relating to carers is being replaced by a combination of provisions in these two Acts, it makes sense to deal with the necessary consequential amendments in a single order.
The order also includes some savings provisions which are necessary for the purposes of transition from the old system to the new one. Essentially the amendments in the Schedule to the primary order “turn off” the old law in England but, in respect of those currently in receipt of services, the order enables services to continue under the old law until those people move over to the new system. These savings provisions will work with separate transitional provisions, to be made by another instrument, and will ensure a smooth transition for those currently in receipt of services under the present law.
Lastly, I briefly outline how this order fits into the broader context of statutory instruments under the Care Act. Subject to parliamentary approval of this order, we will, as I have mentioned, be making a further transitional order that will complete the temporary legislative framework for local authorities and partners to move from old legislation to the Care Act. Also subject to approval of this order, we will make a commencement order to formally commence the relevant provisions in the Care Act from 1 April 2015.
We have also laid before Parliament the Care Act 2014 (Consequential Amendments) (Secondary Legislation) Order, which makes similar amendments to secondary legislation as the order before us makes to primary legislation. This is subject to the negative procedure.
I hope that this standard exercise of ensuring legislative coherence will not prove controversial, so I commend this statutory instrument to the Committee.
Baroness Wheeler (Lab)
My Lords, I thank the Minister for his comprehensive introduction to the order. As we have heard, it is part of the final steps of implementing the Care Act and related aspects of the Children and Families Act in respect of transition for disabled children into adulthood and on parent and young carers. Contrary to previous form on such Care Act SIs, I do not intend to raise many issues. The SI is very much a technical instrument, potentially complex and involved. However, read in connection with the 2014 statutory guidance to local authorities on implementation and transition to ensure that current services can continue under the old law until the new legal framework applies, it becomes clearer and more intelligible, even to non-lawyers such as myself.
The key imperative, which we strongly support, is for local authorities to be able to manage the transition for existing people receiving care and support services and carers before 1 April 2015 in a practical, case-by-case way. Assessments, care plans and funding arrangements and services agreed under the previous legislation continue unless circumstances have changed, and in accordance with the established review procedures to ensure that arrangements comply with the new Acts.
The Minister knows that we share local authorities’ continuing concerns over capacity and resource issues to ensure effective implementation, and I would be grateful if he could update the House on the latest stock-take survey of local authorities’ readiness and their continuing areas of concern. I understand that the joint LGA/Department of Health/ADASS programme office will continue to monitor and evaluate implementation, as well as co-ordinating the consultation on phase 2 of the Care Act implementation on the care costs cap. I hope that regular updates and information on implementation can be provided over the critical April/May period, and I would be grateful for the Minister’s reassurance on that—even if only up until 7 May.
As the Minister said, the separate transitional order setting out the detail of the circumstances in which the new order is to apply is to follow shortly, so this is especially important. The Department of Health has undertaken to circulate the draft next week via its local authority and other networks before it is formally issued, to confirm the approach for both phase 1 and phase 2 of the Care Act implementation so that it can address some of the recent detailed queries and concerns from local authorities. That is to be welcomed, as I am sure that we all agree that the local authorities need all the help and support that they can get on what is a huge and complex implementation programme.
The department has also undertaken to share the draft with us, and I am grateful for that. However, publishing the final transitional order so close to the date on which the Care Act comes into force will cause considerable difficulties to local authorities. The Minister will know that the order cannot be published until after this SI has been passed in the other place, which will take place next Wednesday. Even if it is published immediately after Commons agreement, that is exactly a week before the changes begin to be implemented and there will be no real opportunity for parliamentary comeback on such a detailed and important implementation document. I recognise that much of the order content will have already been discussed with and communicated to local authorities, but receiving the final authorisation so late in the day presents even greater implementation challenges than already faced. What steps are the Government taking to mitigate that very difficult position?
Two other key issues arise from the statutory instrument. The first is that it formally sets out the position in respect of Wales concerning the Social Services and Well-being (Wales) Act 2014 in relation to adult social care law and to children. The enforcement date of that is currently intended to be 1 April 2016, but that is rightly up to Welsh Ministers. The SI provisions underline that any provisions disapplied in England to make way for the Care Act and the Children and Families Act continue to apply in Wales until such time as Wales brings in the Welsh Act. The Explanatory Note has reassured us that full consultation has taken place with the devolved Administrations in both Wales and Scotland. It also underlines that the order does not contain any provision which changes the current law as it applies to Scotland or Wales, and we welcome those assurances.
The second issue in the SI is in the detail of the Schedule setting out the consequential amendments to existing legislation on the provision of care and support to carers in England resulting from the implementation of the Care Act and the Children and Families Act. That has obviously been a major exercise in cross-government departmental working, and we fully recognise the scale and extent of the task that the department has had to undertake. It is to be congratulated on this work. It is also timely to remind ourselves of the pioneering work described in the Law Commission’s 2008 report, which set out the agenda for the reform of social care law. We have always strongly supported the need to update, consolidate and modernise social care legislation and the key principles of the Care Act, and have been committed to working closely with Members from across the House to ensure improvements and amendments to the Act.
Can the Minister update the Committee on the issue arising from the recent report from the Joint Committee on Statutory Instruments in respect of the drafting of paragraph 95 of the Schedule? The committee has said that the amendments to the Personal Care at Home Act 2010 made by this paragraph are not comprehensive and that consequential amendments are needed. This is an important issue and the department has undertaken to remedy this omission, so will the Minister ensure that the amendments are communicated to all interested parties and organisations as soon as possible?
Earl Howe
I am grateful to the noble Baroness. She asked about the local authority stock take. The results of the recent stock take in relation to implementation of the Care Act for January and February reported a positive picture overall regarding local authority preparedness. Specifically, the stock take’s headline findings reported that 99% of councils say that they are very or fairly confident that they will be able to deliver the Care Act reforms from April 2015, compared to 97% of councils in stock take 2 and 90% in stock take 1. Of the four authorities which reported low confidence in stock take 2, three are now fairly confident and one is very confident; one authority has gone from fairly to not very confident.
Seventy-five per cent of councils say that they are on track in 2015-16 in their preparations for the Care Act, the remainder being slightly behind. Confidence has increased on six out of 10 proxy measures from stock take 2 to stock take 3. The exceptions are self-funders, carers’ assessment costs and information, advice and advocacy.
We have already invested more than £5 million in developing a suite of support materials, learning modules and other tools to help councils implement the Act. This is in addition to £23 million of investment in regional and local support that we have provided this year.
The noble Baroness referred to the transition order and regretted the fact that, in her view, it had been published rather late in the day. We set out the approach to transition in the statutory guidance published last October. The joint implementation programme of the Department of Health, the Local Government Association and ADASS has supported transition conversations with local authorities since that time. We do not think that anything in the transition order will have come as a surprise to local authorities.
The noble Baroness referred to the JCSI report, which pointed out that a particular consequential amendment had been omitted from the order. We accept that paragraph 95 of the Schedule to the 2015 order should have amended Section 1(2) to (5) of the Personal Care at Home Act 2010. Failure to do so was an oversight. Those subsections make some prospective amendments to Section 15 of the Community Care (Delayed Discharges etc.) Act 2003. The issue here, however, is that the 2010 Act is not yet in force and there are currently no plans to commence it. The department will ensure that if the provisions of the 2010 Act are commenced, the necessary consequential amendments to Section 1(2) to (5) will be made in the same order using the consequential amendment powers in the Care Act 2014. In summary, while we regret the missed amendment, the omission has no practical effect, and we will have ample opportunity to correct it if the relevant legislation is ever commenced.
False or Misleading Information (Specified Care Providers and Specified Information) Regulations 2015
(9 years, 9 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, before I go into the detail of the regulations, I will briefly set out the background for why this offence was set in statute and why the regulations are required.
The report of the Francis inquiry into the events at Mid Staffordshire NHS Foundation Trust made clear the need for clear and reliable information about the quality of care and organisational performance. The inquiry found that inaccurate statistics about mortality rates obscure the true picture of care and can allow poor care to continue unchecked. The creation of a culture of openness and honesty is vital in improving care in the NHS and in empowering staff to challenge poor care where and when it occurs, and this Government have taken great strides to ensure that this is the case.
The provision of accurate information is central to the safe functioning of the NHS. It provides the intelligence on which commissioners and regulators form judgments about the quality of care. Where that information is wrong, it can result in delays in taking action to protect patients and service users. Deliberately falsifying such information is a serious matter that can frustrate attempts to provide safe care for patients and service users.
Care providers, which are directly responsible for the standard of services, have a clear responsibility to ensure that the information they supply is accurate and gives a true picture of the standards of care that they provide. The Care Act 2014 put in place a new criminal offence that will apply to care providers that supply, publish or otherwise make available false or misleading information. The offence will apply to the misreporting of information that is required to comply with a legal obligation. I wish to emphasise that last point: this offence applies only to providers of care, not regulators or commissioners of care.
Where a provider is found to have committed the offence, which could be as a result of deliberately supplying false or misleading information or as a result of neglect, the provider can be fined by the courts. In addition, the courts can require the provider to take action to address the failings which led to the offence occurring and make publicly known the action it is taking.
The FOMI offence can also apply to senior individuals within a care provider but only when the care provider has been found guilty of the offence. Senior individuals can also be found guilty of the offence where they have consented or connived in the publication or submission of false or misleading information, or have been sufficiently neglectful in their duties to allow false or misleading information to be published. An individual found guilty of the offence could face imprisonment of up to two years, a fine or both.
Of course, misreporting of information can be the result of genuine error and it is essential that such mistakes do not result in a criminal conviction. The Care Act 2014 therefore allows for a defence against the offence where a care provider is able to demonstrate that it took all reasonable steps and exercised due diligence to avoid the misreporting of information.
The primary legislation contains a regulation-making power that allows the types of care providers and the types of information to which the offence applies to be specified in regulations. The regulations before the Committee specify that the offence will apply to NHS trusts in England, NHS foundation trusts and other persons who provide health services from a non-NHS hospital,
“pursuant to arrangements made with a public body”.
For clarification, this means that the offence can apply to independent providers delivering services under an NHS contract, but only if they are also required to submit or publish the information included in the regulations.
The information to which the FOMI offence applies is focused on the issues raised by Robert Francis, such as mortality figures, and is supplied by providers of NHS secondary care. This is a short list, but one that represents a significant quantity of data provided by the NHS and forms the foundation of the information used to assess NHS performance.
The regulations include other key information supplied by providers of NHS secondary care, including cancer waiting times, maternity data sets, many of the core commissioning data sets and NHS quality accounts. The latter is an important inclusion, as Sir Robert Francis specifically recommended that:
“It should be a criminal offence for a director to sign a declaration of belief that the contents of a quality account are true if it contains a misstatement of fact concerning an item of prescribed information which he/she does not have reason to believe is true at the time of making the declaration”.
All the information listed in the regulations is that which providers are or will be required to publish or submit because of a statutory or other legal obligation. This is a requirement of the primary legislation of the Care Act 2014 and an important part of the legislation for a few reasons.
First, it means that a provider cannot opt out of submitting or publishing information just because it wants to circumvent the false or misleading information offence. Secondly, as this is information that is already required to be published or submitted, we are not requiring providers of NHS secondary care services to undertake any additional work—only that they should ensure the information they provide is accurate and not misleading. Finally, providers of NHS secondary care services publish or submit on a voluntary basis a great deal of information which is incredibly valuable to improving the delivery of services and developing a greater understanding of the nation’s health. We do not want to dissuade providers from submitting or publishing such information, which is why the offence cannot be applied to information of that type.
In summary, the offence will apply only to the providers listed in the regulations and only where the offence occurs in relation to the provision or publication of the information listed. When the Department of Health consulted on the regulations in 2014, it was noted that the application of the offence was quite complicated. We have addressed this concern through guidance on the application of the FOMI offence which sets out how this law works.
The FOMI offence puts in place an important new sanction against providers of NHS-funded secondary care that mislead others about the performance of their services. As this offence is new, the regulations have been developed to focus the application of the offence so that it covers important data sets and data that can be robustly interrogated to determine if a provider has committed the offence. Designing the regulations this way will enable us to better understand how the offence operates in practice and allow us to make changes to the regulations in a targeted way in the future. I hope that noble Lords will support this rationale and will therefore agree to these regulations being commended to the House. I beg to move.
Lord Hunt of Kings Heath (Lab)
My Lords, I am very grateful to the noble Earl for introducing these important regulations, which the Opposition are very happy to support. It is clearly unacceptable for anyone or any organisation in the NHS to knowingly publish false or misleading information. We are fully behind the Government on this. The noble Earl will probably remember that during the passage of the Care Act we tried to strengthen the clause that the regulations emanate from by tabling an amendment which would have made it an offence to withhold information with the intention to mislead or misdirect. That was not accepted by the Government.
I come back to the point that the Minister ended with. He emphasised that this applies only to NHS trusts, foundation trusts and those providing services. He will know from our discussions on the Bill that we wanted to expand this to cover other organisations, including local authorities and clinical commissioning groups. I would be grateful if he could respond on why the Government still think this should be confined to those who provide services.
I put to him that the Francis report into Mid Staffordshire, and indeed the more recent report by Bill Kirkup looking at the very worrying incidents that happened in Morecambe Bay, do not just put responsibility for what happened at the door of the providers, though I fully accept that in the end the board of the Mid Staffordshire NHS Foundation Trust and the board of the trust that ran Morecambe Bay must take primary responsibility. However, a number of other organisations were listed—organisations that would not be defined as providers. There are circumstances in which clinical commissioning groups, or part of NHS England, ought to be covered by the same rules and law because one depends on honesty and openness throughout the system. I would be interested in the Minister’s comments on that.
This is part of wishing to develop a culture of openness and transparency. People in the health service are very cynical about these proposals because they do not see the same transparency and openness and, to be frank, honesty emanating from the Minister’s own department. If my noble friend Lord Brooke were here, he would remind the Minister about the lack of publication of the interim risk register. I point to the report by the noble Lord, Lord Rose, on management capacity. It is one thing to have a legal provision, but it is another to ensure that everyone in the system actually operates according to the spirit of what the Government intend. I myself believe that that should apply as much to the Minister’s department and NHS England as it does to the providers in the health service.
Earl Howe
My Lords, I am grateful to the noble Lord for his support for these regulations. He returned us to an issue that we debated during the passage of the Care Act: the question of why this offence is restricted to providers and does not extend further to either NHS or local authority commissioners. We took the view that, in determining the scope of the offence, the focus should be on information that is closest to patient care, where inaccurate statements can allow poor and dangerous care to continue. This type of information is required by law from providers of NHS secondary care, such as hospital trusts, and to be frank we have not yet identified information that would warrant extending this offence to commissioners or other providers of information. The scope of the offence is therefore determined by the information to which it applies.
The noble Lord referred to the need for openness throughout and across the system. I agree with him, of course, and I contend that over the past five years this Government have done more than any other to promote transparency in the health service and indeed from the department itself. The particular case of the risk register is one that we have debated on a number of occasions. He may recall that while the decision was taken by the Cabinet not to publish the transition risk register, nevertheless I laid before the House the essential elements contained within the register to enable noble Lords to understand the broad content of the risks that the transition addressed. The approach to risk registers in general is one that was taken under the previous Administration in a number of departments.
The report prepared by the noble Lord, Lord Rose, on NHS leadership is being looked at in the light of NHS England’s five-year review. The five-year review was published during the time that the noble Lord, Lord Rose, was preparing his report and the possibility of extending the report to take account of the review is being considered. We look forward to seeing the conclusions of the report once it is ready.
Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations 2015
(9 years, 9 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, these regulations restrict children’s access to electronic cigarettes. I am glad that we have the opportunity to debate these regulations, as they are the final element of the package of measures the Government introduced in the Children and Families Act aimed at protecting young people from tobacco and nicotine addiction and the serious health harms of smoked tobacco.
The provisions in the Act give Ministers regulation-making powers to introduce an age of sale requirement for electronic cigarettes and we have taken the decision to do so. The market for electronic cigarettes—which are also known as e-cigarettes—has developed rapidly in recent years. There are many different types and brands now available. Some of them are designed to look and feel like conventional cigarettes; others have a tank or reservoir which is filled and refilled with liquid nicotine. E-cigarettes can be disposable or rechargeable.
Most of the e-cigarettes on the market are flavoured and some of these flavours, such as cherry cola, bubble gum and gummy bear, may be appealing to children. The use of e-cigarettes is also increasing. Action on Smoking and Health estimates that 2.1 million adults in Britain currently use them. This is an increase on the estimated 700,000 users in 2012. Use of e-cigarettes by people under the age of 18 is not currently widespread in this country; however, international evidence suggests that this may increase. The emerging evidence suggests that awareness of e-cigarettes by British children is high. A Public Health England report found that two-thirds—66%—of 11 to 18-year olds had heard of e-cigarettes. Some 7% had tried e-cigarettes at least once and 2% reported using them sometimes or often. E-cigarettes are widely promoted through social media. They are sold in a wide range of retail outlets, including supermarkets, newsagents, specialist shops and pharmacies, and are often prominently displayed and promoted in store.
It is clear that more research is needed before we can determine whether e-cigarettes are acting as a gateway into tobacco use. While e-cigarette use by children is currently associated with existing tobacco smoking, research published by the Welsh Government provides tentative evidence that e-cigarette use may represent a new form of childhood experimentation with nicotine. The Chief Medical Officer has raised concern about e-cigarette use by children and the World Health Organization has recommended that they should not be sold to minors.
Nicotine is highly addictive; it is five to 10 times more potent than cocaine or morphine, and young people can rapidly develop nicotine addiction. Research shows that adolescents are more sensitive to the rewarding effects of nicotine and this may be a reason why many people start to smoke during adolescence. We are aware that responsible e-cigarette manufacturers and retailers do not sell e-cigarettes to children at the moment. However, we have decided to introduce an age-of-sale requirement; we consider that concerns about the increased awareness and use of these products by children make this an appropriate step to take. The age of sale requirement will also provide clarity and consistency for retailers and enforcement officers.
Proxy purchasing occurs when a person over 18 buys an age-restricted product on behalf of someone underage. Young people are known to approach strangers outside shops or ask friends, neighbours or, in some cases, parents to buy tobacco for them. That is why we introduced a new offence of proxy purchasing of tobacco in the Children and Families Act. The regulations extend this offence to cover e-cigarettes.
I shall briefly set out what the regulations will do. The first set of regulations defines a “nicotine inhaling product” as any device which is intended to enable nicotine to be inhaled through a mouthpiece. The definition encompasses e-cigarettes, including disposable and rechargeable types, and certain component parts such as nicotine refill cartridges and nicotine refill substances, often called “e-liquids”. It does not cover component parts such as batteries or charging devices. The regulations do not apply to tobacco products, because we already have age of sale laws for tobacco. The regulations include exemptions for products that are licensed as medicines and so are subject to separate regulatory rules. There are exemptions for nicotine inhaling products that are a medicine or medical device made available in accordance with a valid prescription by a pharmacist. The regulations also exempt the sale of any nicotine inhaling product licensed as a non-prescription medicine—that is to say, available for general sale—and which the licensing authority has determined is indicated for use by children under 18. In such cases, the seller need not be a pharmacist, as such medicines can be sold in other types of shops including newsagents. This means that those under 18 years trying to quit smoking would still be able to access e-cigarettes as well as products such as nicotine patches or gum.
The regulations also extend the proxy purchasing provision in the Act to make it an offence for an adult to buy, or attempt to buy, a nicotine inhaling product on behalf of a child aged under 18 years. The penalties for these offences are set out in the Act: a person making a proxy purchase may be issued with a fixed penalty notice or could be referred to court; and the adult making the purchase would be committing the offence, not the retailer. A retailer guilty of selling nicotine inhaling products to someone under the age of 18 could be fined up to £2,500 on conviction. Local authority trading standards officers would be responsible for enforcing the regulations, as they enforce much of the tobacco control laws.
The regulations bring the age of sale offence for nicotine inhaling products within the scope of primary authority. This arrangement allows businesses to form a statutory partnership with one local authority, which then provides advice for other local regulators to take into account when carrying out inspections or addressing non-compliance.
We are also debating a second set of regulations, which set the amount of the fixed penalty notice for the proxy purchase provisions at £90; this is reduced to £60 if it is paid within 15 days. This provides consistency for retailers and enforcement officers as it will bring the proxy purchase of tobacco and nicotine inhaling products in line with the equivalent offence for alcohol.
The regulations will apply to England and Wales and have been agreed by the Welsh Government. They would come into force on 1 October 2015. We have decided to use the October—rather than April—common commencement date to allow time for the training of enforcement officers and to raise retailer and public awareness.
There will also be further negative statutory instruments to complete the enforcement regime. One will set out the fixed penalty notice form for the proxy purchase of tobacco and nicotine inhaling products in England, and one will add age of sale and proxy purchasing to the list of offences for which enforcement officers can carry out directed surveillance, subject to existing safeguards; for example, to allow test purchasing operations.
The Department of Health held a six-week public consultation on the draft regulations and received 81 responses. The consultation responses confirmed that many responsible manufacturers recommend that their products are for use by adults only and responsible retailers already voluntarily restrict children from accessing e-cigarettes. Almost all respondents supported the policy aims and the specific proposals set out in the regulations. Retailers, e-cigarette manufacturers, local authorities, enforcement officers and the public health community have all been absolutely clear that they want these regulations in place.
The regulations are business-friendly and a number of retail organisations have told us that putting the age of sale in law will help those responsible retailers that already refuse to sell e-cigarettes to children, by ensuring that they are not at a competitive disadvantage by doing so. The cost of the regulations is estimated to be very small indeed and will be mainly on businesses that currently profit from selling e-cigarettes to children and young people.
Many consultation respondents emphasised that this is a fast-moving market in terms of product development as well as patterns of consumer use, and that research evidence into the effectiveness of e-cigarettes in smoking cessation and potential long-term health harms is still emerging. I agree that these are all important aspects of this policy area and we have therefore included a duty to review the regulations within five years of them coming into force.
As I said earlier, I am very pleased to be able to present these regulations to the Committee. They represent the final stage in the implementation of the important public health measures in the Children and Families Act. In recent weeks, we have also introduced legislation to end smoking in private cars carrying children, and earlier this week noble Lords debated the regulations that will introduce standardised packaging for tobacco products. They are all part of our comprehensive approach to tobacco control and make an important contribution to our vision of a tobacco-free generation in the future. I commend the regulations to the Committee.
Baroness Finlay of Llandaff (CB)
My Lords, I thank the noble Earl for introducing these regulations and welcome the way in which they have been drafted. Clearly, a great deal of care was taken in the drafting, and they seem eminently sensible.
It is most reassuring to know that the Association of Convenience Stores welcomes these regulations and the clarity that they provide. It says:
“We support strong enforcement against proxy purchasing of tobacco. We need to see these properly enforced, something that is lacking with the same powers that are in place for alcohol proxy purchasing”,
and that the penalty for proxy purchasing on e-cigarettes puts everything consistently in line. Indeed, it has welcomed the age restriction.
I was glad, too, to hear the reference to the Welsh study because it was the data from Wales that really began to make me personally concerned about these products. There is evidence of increased use among under-18s. I know some people will say that data from ASH are biased, but ASH has been fairly neutral in its view on electronic cigarettes because of the way that they have helped people quit ordinary tobacco cigarettes. It has found that the number of 11 to 18 year-olds who have tried an electronic cigarette increased from 5% in 2013 to 8% in 2014, although it did put the caveat around those figures that the use is closely linked with smoking behaviour.
One piece of research which is really important to have on the record is the work from Counotte and colleagues, published in Developmental Cognitive Neuroscience in 2011, which found that,
“nicotine exposure during adolescence can disrupt brain development bearing long-term consequences on executive cognitive function in adulthood”.
These are new products, with high levels of nicotine in them. We know that the propensity for the developing brain in the age group up until 25 years to develop addictions of all sorts, right across the board, and addictive behaviour is greater than in the older brain. There is a concern that exposure in the young leads to a much greater propensity to develop nicotine addiction.
I have been concerned at the way that these products are marketed, especially to the young, and about their appeal almost as a fashion accessory. When I have looked at those shops which specialise in selling these products, they have made me feel as if I was probably a bit too old to go and buy one. They seem to be marketed very much to a young, vibrant population, which I find alarming. If they are shown to be as addictive as they might be, this will create a long-term market for them in the future.
I have been to several meetings about electronic cigarettes, including one held here in your Lordships’ House at which I was concerned at the almost aggressive way in which vaping was being pursued by some people present, which set alarm bells ringing a bit in my head over the process. These regulations are proportionate, timely and welcomed by those who have the responsibility for selling these products. I am glad that they appear to have universal support.
Lord Hunt of Kings Heath (Lab)
My Lords, I welcome both sets of regulations. The Opposition fully support them. Like the noble Baroness, Lady Finlay, I was very impressed by the evidence from the Association of Convenience Stores and its support for the regulations. It is very persuasive in relation to the introduction of a minimum age of sale and I commend the ACS for the responsible briefing that we were sent ahead of these regulations.
The noble Earl referred to the research, such as the Welsh data and the evidence we have received from ASH, and mentioned the CMO’s concerns. Essentially, although one can certainly see that these products can have a beneficial health impact for many adult smokers, there is this issue about whether children go to smoking through these e-products. Is the noble Earl satisfied that enough research is being undertaken at the moment, either through the traditional research areas such as the MRC and Wellcome or perhaps through Public Health England? I do not know if he has information about this, but clearly it would be good to know that his department is keeping a continuing watchful eye to ensure that enough research is being done. Particularly relating to children, there is enough uncertainty around to make us want to ensure that there is ongoing research on this.
I have another question for the Minister, raised by the evidence that ASH submitted to his department when it was consulting on the regulations. ASH says that there is real confusion about the relative risks of electronic cigarettes compared to smoking, not just among the general public but among health professionals. It quotes from newspaper articles saying that smokers have been given advice by medical people and have had the impression that it is nicotine rather than tobacco smoke that is harmful. ASH quotes a study presented at the UK National Smoking Cessation Conference; it was some years ago so the profession may be more up to date now, but in one study presented at the conference a substantial proportion of GPs incorrectly asserted that nicotine in cigarettes caused CVD, strokes and lung cancer.
The point that ASH makes is that at the same time as regulations are introduced, the Department of Health should promote better understanding of the relative harm of electronic cigarettes and other nicotine products, including those authorised as medicine and their potential benefit to smokers. I understand that with regard to children there are areas where we are uncertain, but there are areas where we are more certain as well. I would be interested to know whether any advice or guidance accompanying the regulations is to be given to medical practitioners in particular.
I welcome the proxy purchasing offence, which is something that we very much support. The Minister quoted cases of young smokers having their cigarettes bought for them by another person, and outlawing this will help to crack down on it and send a wider public message that this is wrong. The other point comes back to the issue raised by the ACS regarding the e-cigarette issue: introducing the offence will give greater power to responsible shopkeepers not to serve people who they know, or strongly suspect, are going to pass cigarettes on to children. Overall, we are glad to see these regulations and to support them.
Earl Howe
My Lords, I welcome the support that the noble Baroness, Lady Finlay, and the noble Lord, Lord Hunt, have given to these regulations. I shall respond to the questions and points that they have raised. The study mentioned by the noble Baroness, Lady Finlay, was referenced in our consultation document. It was an important study, showing the impact of nicotine on the adolescent brain, and it influenced us considerably in informing the policy.
E-cigarettes are not risk-free. We do not know enough about the long-term health effects of adults using them, let alone children. There have as yet been no long-term studies to examine whether e-cigarettes serve as a gateway to tobacco use. Therefore, we cannot be certain at this stage whether there is a gateway effect from the use of e-cigarettes into tobacco smoking. Further research is needed to answer the question definitively. However, we know that nicotine is highly addictive, and we wish to protect children from the risk of nicotine addiction and the impact that nicotine can have on the developing adolescent brain.
The noble Baroness expressed a fear, which I share, about the aggressive marketing of these products. It is worth noting that the revised European tobacco products directive, which will apply from 20 May next year, includes a ban on advertising e-cigarettes, with a cross-border dimension—that is, advertising through television, radio, newspapers, magazines and sponsorship of sports events.
On the point made by the noble Lord, Lord Hunt, about what are sometimes seen as mixed messages around e-cigarettes, there is no doubt that, looked at in a certain context, e-cigarettes could be seen to have a role in enabling smokers to quit where they have tried other methods and not succeeded. We recognise that e-cigarettes are used by some smokers in that way. That is why the Government are working towards a regulatory framework that ensures that these devices meet basic standards of safety, quality and efficacy. We are clear that e-cigarettes must be accompanied by sufficient information to enable users to make informed choices.
The noble Lord asked about research. I agree that these matters must be kept under the policy spotlight going forward. The National Institute for Health Research recently commissioned a large, randomised control trial to examine the efficacy of e-cigarettes compared with conventional nicotine replacement therapy when used within UK stop smoking services. That research study is inevitably quite long-term. It is envisaged that the project will end in 2018, but the NIHR is confident that it will improve our current understanding considerably.
Proxy Purchasing of Tobacco, Nicotine Products etc. (Fixed Penalty Amount) Regulations 2015
(9 years, 9 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Energy Efficiency (Domestic Private Rented Property) Order 2015
Baroness Verma
That the Grand Committee do consider the Energy Efficiency (Domestic Private Rented Property) Order 2015.
Relevant documents: 23rd Report from the Joint Committee on Statutory Instruments, 27th Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Baroness Verma) (Con)
My Lords, I am pleased to open the debate on the order and the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015.
The energy-efficiency regulations will drive improvements in the least energy-efficient privately rented properties in both the domestic and the non-domestic sector, and provide domestic tenants with a right to ask for consent to cost-effective energy-efficiency improvements to their property. The energy-efficiency order is designed to ensure that those tenants living in the majority of domestic agricultural properties can benefit from the energy-efficiency regulations, in addition to those tenants already defined under the Energy Act 2011. As the order is relatively straightforward, I propose to focus my introduction on the regulations themselves.
I will first give some background on the private rented sector to provide context to these regulations. There are around 1.2 million non-domestic rental properties, which make up approximately two-thirds of the non-domestic property market. Around one in five of the non-domestic private rented stock falls within the lowest two energy-efficiency bands, which have an F and G energy performance certificate rating. In the domestic sector there are around 4.6 million private rented sector properties in England and Wales, making it the second largest tenure after owner-occupation, at around one-fifth of the total domestic housing stock. Around 6% of all domestic properties have an F or G EPC rating, but the percentage of F and G-rated properties in the privately rented sector is almost double this at around 10%.
Although newly built properties in the domestic privately rented sector tend to have higher energy-efficiency ratings, there remains a stock of older properties, many of which have poor energy efficiency and are difficult and costly to heat. The high proportion of older, untreated properties results in lower energy efficiency. This means higher tenant energy bills, and, for domestic tenants, the likelihood of living in fuel poverty. Living in private rented accommodation is an independent risk factor that significantly increases the likelihood of a household being fuel poor, so much so that around a third of all fuel-poor households in England live in the private rented sector, despite the sector accounting for only around a fifth of all households in England and a seventh of the households in Wales. Put simply, the PRS has a disproportionate share of the UK’s least energy-efficient properties and fuel-poor households. That nearly one in five non-domestic properties falls below an E EPC rating also shows the huge potential for energy and carbon savings that remain untapped in our country’s non-domestic stock.
Much of the reason for the slower change and poor energy efficiency in the private rented sector is the split incentive, where the costs of installing energy-efficiency measures traditionally fell to landlords while the benefits of lower energy bills and a warmer property usually fell to tenants. Various approaches have been tried in the past to improve the energy efficiency of the private rented sector. These include voluntary approaches, information services, tax breaks for landlords and subsidies for the installation of energy-efficiency measures. The success of these actions has been limited. The Government have therefore concluded that well designed regulations targeted at the very worst properties, and signalled to the market well in advance of coming into effect, will help drive action to improve the building stock and benefit the wider UK.
The regulations are game-changing and have been hailed by the UK Green Building Council as,
“the single most important piece of green legislation to affect our homes and buildings that has been introduced in the whole of this Parliament”.
This is the first time the Government are directly targeting energy efficiency in the existing private rented sector building stock.
I turn to the key aspects of the energy-efficiency regulations. The regulations fulfil a duty in the Energy Act 2011 to implement regulations so that by 1 April 2016 private domestic tenants have a right to request consent for energy-efficiency improvements where that consent may not be unreasonably refused by the landlord. By 1 April 2018, privately rented domestic and non-domestic property which falls below a minimum energy-efficiency standard, based on the energy performance certificate rating, cannot be let.
The regulations will reduce the UK’s carbon emissions, which is essential to meet the UK’s statutory domestic carbon budgets and the long-term 2050 goal set by the Climate Change Act 2008. By targeting the worst properties, they will improve the state of some of UK’s least energy-efficient building stock. By reducing the winter peak demand, the regulations will also improve the UK’s energy security, but not at any cost. The regulations have been shaped with significant input from the sector to work with the grain of existing practice. They will encourage cost-effective investment in energy efficiency. But the regulations will not demand landlords reach an E EPC at any price. In the domestic sector, a landlord will not be required to reach an E EPC by installing measures which are not cost effective. Provided that a landlord has carried out all the energy-efficiency improvements to the property that could be funded through a Green Deal, under the energy company obligation and any available grant funding they may continue to let their property. My department’s analysis suggests that 73% of domestic F and G EPC-rated properties will be able to reach an E EPC using measures that meet the Green Deal’s golden rule, and another 10% can make some improvement, even if they cannot reach an E.
Non-domestic landlords are provided with similar protections; they will be required to carry out all the energy-efficiency improvements that can be funded through a Green Deal if it becomes available, or that cost the same or less than their expected energy savings over a seven-year period. My department’s analysis suggests that 85% of non-domestic properties can be brought up to an E EPC using measures that meet the Green Deal’s golden rule.
We are also taking care that the regulations do not drive inappropriate interventions, or force landlords or tenants to take decisions that are not in their best interests. The regulations set out specific exemptions for not installing improvements in listed buildings, where they will negatively impact on the value of the property by more than 5%, and where a landlord cannot get third-party consents, such as planning consent. Landlords will also be able to claim an exemption from installing wall insulation where it could negatively impact the fabric of the building.
We have made the regulations fair and the key message simple to understand: landlords will need to get their properties to an E energy performance certificate rating where they can do this cost-effectively, safely and in accordance with existing legal obligations. Tenants have the right to ask for consent for energy-efficiency works, and for that consent to be not unreasonably refused. Clear regulations, signposted in advance, mean higher compliance rates, and less need for enforcement. We will work with tenant groups, landlord groups, local authorities, local weights and measures authorities, and estate agents to ensure that all parties are aware of their rights and responsibilities, and we will endeavour to use innovative channels to warn tenants and landlords. However, where landlords choose to ignore their responsibilities, we have designed an enforcement regime that we believe will be clear, simple and effective. Landlords will either need to reach the minimum standard, or register an exemption on the central PRS exemptions register—a database to be set up and maintained by my department. Local authorities and local weights and measures authorities can choose to take action to enforce compliance.
The economic case for these regulations is also clear. They will provide overall benefit to the UK of £2 billion in net present value terms over the life of the policy. By encouraging co-investment, and decreasing search costs to install ECO measures to eligible householders, the minimum standards will also reduce the cost of delivering the energy company obligation. They will facilitate the delivery of the third and fourth carbon budgets at lower cost, and with greater certainty, by providing over 1 million tonnes of carbon dioxide savings between 2018 and 2022 and nearly 2 million tonnes of carbon dioxide savings between 2023 and 2027.
Furthermore, compliance with the minimum level of energy-efficiency provisions of the regulations will provide significant benefits to non-domestic SMEs, providing them with over £2 billion net bill savings, and over £3 billion net bill savings to the non-domestic privately rented sector overall.
In conclusion, these regulations will drive significant change to the energy efficiency of the worst properties in the private rented sector, improve the lives of tenants living within them, reduce the UK’s carbon emissions, and provide a net benefit to the UK economy of around £2 billion in present value terms. I commend the order and regulations to the Committee.
Baroness Worthington (Lab)
My Lords, I am grateful to the Minister for introducing these regulations. Here we are, one week before the end of this Government’s term in office and here we find, finally, the one piece of energy legislation that they can be proud of. All I can say is: what has taken so long?
This is a very sensible piece of policy. It is a crying shame that so many people still live in very poorly insulated, unhealthy homes—those F and G properties—with such poor energy-efficiency ratings. It is high time that we took action to address this and I am therefore very pleased to see these regulations being brought forward. I particularly welcome the fact that tenants will now have some legal back-up when they enter into negotiations with their landlords so that they will not be able to turn down measures. For a long time this split incentive has been a real barrier to change and it has trapped people in a cycle of fuel poverty where they do not have the means to improve their own situations. This is a very serious and welcome intervention.
Of course, as was outlined, the measure has not just fuel poverty benefits but economic benefits for the country, and indeed carbon benefits in terms of us meeting our climate change objectives. Perhaps the only point on which we differ is that we think we could go further and we would like to see a commitment from the Government to further increase the requirements on landlords to move properties out of the E category into the C category. In the document that we published at the party conference last year, Caroline Flint launched a comprehensive set of policies to wage war on cold homes. Within that, we committed to phasing in a much higher standard for properties by 2027. We think that that is what the industry needs. We need to send a long-term signal that this is not just a stop-start process; this is going to be an ongoing process of improvement, and we will force those people currently profiting from the rent of substandard properties to keep improving those properties so that everybody can benefit from the measures available.
The one thing we will need to keep under careful review, as we always do with these policies, is the extent to which the exemptions that are provided are tied to the Green Deal. We have had discussions about the success or otherwise of the Green Deal. We hope that more and more people are taking measures to improve their homes but we are not convinced that that policy is completely fit for purpose. We would like to explore the rationale for allowing exemptions based on Green Deal availability. There may be some things that fall outside the Green Deal’s current offer that landlords and tenants may wish to pursue and we would not want to limit unnecessarily the efficacy of these regulations by tying them to another policy too strictly.
However, that is a small point compared to the bigger point, which is that finally we have a very good piece of regulation coming forward from the Government, which addresses a critical issue. We support these regulations.
Baroness Verma
My Lords, I thank the noble Baroness, Lady Worthington, for her full support for these regulations. Of course, I do not agree that this is the only piece of legislative work that has gone through this House in the past four and a half years that the coalition Government can be proud of. Much of the legislation that I have delivered has been to ensure that we have more efficient homes, lower energy costs and energy security, as well as looking very much at reducing carbon emissions. So I think she was being slightly disingenuous about the progress we have made. Given that we have spent many, many hours during the past four years or so, particularly in this Room, discussing the work that this Government have undertaken, we dispute that we have not achieved a great deal.
Of course, as with all things, we want to make sure that those who need more efficient homes, particularly vulnerable people in the private rented sector, are able to enjoy a much better living environment. The noble Baroness referred to a C rating. Of course everyone is ambitious, and we are equally ambitious to get the properties to be far more efficient than they are today. We have achieved a lot but there is a lot more to do. My consistent line to the noble Baroness has always been that we must not do this at any cost; there has to be a cost-effective way of being able to deliver what I think, and the noble Baroness has agreed, is the key policy of being able to help to improve our homes. There is a lot of work to be done and I look forward to debating for many more hours, particularly in this Committee.
Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015
Baroness Verma
That the Grand Committee do consider the Energy Efficiency (Private Rented Property) Regulations 2015.
Relevant document: 25th Report from the Joint Committee on Statutory Instruments
Contracts for Difference (Allocation) (Amendment) Regulations 2015
Baroness Verma
That the Grand Committee do consider the Contracts for Difference (Allocation) (Amendment) Regulations 2015.
Relevant document: 25th Report from the Joint Committee on Statutory Instruments
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Baroness Verma) (Con)
My Lords, we are today considering an instrument which amends the Contracts for Difference (Allocation) Regulations 2014, which came into force last summer, implementing electricity market reform. The powers to make this secondary legislation are found in the Energy Act 2013.
This reform, as noble Lords will be aware, is designed to encourage the necessary investment in secure low-carbon electricity generation through contracts for difference, or CFDs, which provide long-term price stabilisation to low-carbon plant, allowing investment to come forward at a lower cost of capital and therefore at a lower cost to consumers. In brief, a contract for difference is a private law contract between a low-carbon electricity generator and a Government-owned company that provides the generator with greater certainty and stability of revenues, resulting in lower borrowing costs. This saving is passed on to consumers in the form of lower support costs to low-carbon generators.
As the Committee may be aware, the result of the first CFD allocation round was announced on 26 February. Twenty-seven contracts were offered to projects aiming to deliver 2 gigawatts of low-carbon energy capacity across England, Scotland and Wales. Together, these projects have the ability to power 1.4 million homes. The competitive CFD auction has successfully driven down the costs to consumers, resulting in the capacity costing up to £110 million per year less than it would have in the absence of competition.
Before we commence the debate, I will briefly describe the amending instrument. The draft Contracts for Difference (Allocation) (Amendment) Regulations 2015 amend the instrument that came into force last summer which governs the way in which applicants to the CFD are treated for the purposes of contract allocation. These amendment regulations, which the industry has been consulted on, implement a non-delivery disincentive to the CFD scheme. The amending provisions are aimed at preventing gaming and speculative bidding behaviour in CFD allocation, ensuring that only projects that intend to deliver and are capable of it participate in CFD allocation rounds.
The amending instrument sets out a consequence in relation to the site of the main generating structures of a generating station where either an applicant has been offered a CFD and fails to sign or a CFD was entered into but was terminated on a date less than 13 months from the date when the CFD notification in respect of that CFD was given. Applications in respect of such a site will be temporarily excluded for a period of 13 months from the date on which the relevant CFD notification was given. Unless an exemption applies, an applicant will not be able to make a CFD application in respect of the same site during that temporary exclusion period. This will help to ensure that only legitimate projects which are able to deliver low-carbon energy capacity participate in a CFD allocation round.
The amending regulations also set out a process for granting exemptions. This process is to be administered by the Secretary of State in accordance with the time periods set out in the regulations. The amending regulations also set out the grounds on which an exemption to the temporary site exclusion may be available. These are as follows—first, when an applicant can demonstrate that an application is in respect of a site that is not materially the same as the site to which a temporary site exclusion applies. Materiality limits are specified in the amending legislation. Secondly, it is when an applicant can demonstrate that it held a relevant property interest in the site prior to 14 October 2014, the date when stakeholders should have been aware of the detail of the NDD policy. This ground also requires that the applicant is not, and is not corporately associated with, the person who caused the temporary exclusion to apply by not signing or having their CFD terminated. Thirdly, it is when an applicant can demonstrate that it agreed a relevant property interest with a landowner prior to 14 October 2014. This ground also requires that the applicant is not, and is not corporately associated with, the person who caused the temporary exclusion to apply by not signing or having their CFD terminated. Fourthly, in relation to a non-signature case only, an exemption may apply when an applicant can demonstrate that relevant court proceedings, as defined in the instrument, are ongoing at the time of signature and the applicant’s ability to comply with the terms of the CFD would have been materially adversely affected. Relevant court proceedings include a judicial or statutory review of a planning consent applicable to the relevant project. The final ground on which an exemption may apply, which applies only to a non-delivery case, is when an generator’s CFD contract is terminated as a consequence of a qualifying change in law or relevant construction event, as defined in the CFD itself.
When the Secretary of State is satisfied that an exemption applies, an exemption certificate may be issued by them to a prospective applicant, allowing a CFD application in relation to that site to be made by that prospective applicant in the next allocation round. Once these amending regulations are in force, the Low Carbon Contracts Company will maintain and update a publicly available list of any excluded sites setting out the site, the name of the person who caused the temporary exclusion to apply by not signing or having their CFD terminated, and the period for which a temporary exclusion applies to each site. Implementation of the non-delivery disincentive into legislation will inspire further confidence in the robust CFD allocation process, which has already demonstrated an ability to drive down prices and deliver value for money for consumers. I commend the regulations to the Committee.
Baroness Worthington (Lab)
My Lords, I am grateful to the Minister for presenting these regulations. Given that this might be the last time we meet over the Dispatch Box after what has been an interesting four and a half years of energy policy development, these regulations give us an opportunity to take a step back and reflect on how things are going with the energy market reforms introduced in the Energy Bill.
Here we have what seems to be quite a technical, small regulation that is being implemented, but at the heart of it is something quite significant; that is, that we have moved into a world where, rather than the private sector having overall responsibility for the delivery of projects and the decision-making processes, as you would have in an open and liberal market, by and large it falls on the Secretary of State to cause investment to happen in low-carbon energy.
That is quite a fundamental shift and one that has quite a few challenges attached to it, one of which is that, in the interests of containing price rises, we have introduced a levy control framework that sets a nominal budget for how many low-carbon projects will be signed and then, I hope, delivered. This is not an easy task, and these regulations hint at some of the complexities. It might well be that in the nice confines of Whitehall we are able to sit down with a plan and try to estimate how much low-carbon energy we need, which projects are the best and how we go forward with those that we deem to be cost-efficient, but out in the real world there can be unforeseen circumstances that cause things to change. The difficulty will be having all that responsibility resting on the shoulders of the Secretary of State and the Civil Service. Are we confident that we have the right information and skill sets and a sufficient degree of detailed understanding of the energy system to ensure that we do not pursue projects, or seek to have projects come forward, that ultimately are not delivered?
I suspect it is clear what I am hinting at here: the ongoing concern over the Hinkley Point nuclear power station. If the Minister will forgive me, I have a series of questions relating to that contract. Part of the impetus for introducing energy market reform in the first place was a desire to see nuclear power stations once again being built in the UK. The decision was taken by the Secretary of State that we would pursue contracts for difference as the means to make that happen. That is what lay behind the entire Energy Bill: a desire for the confidence for investors to make a large-scale capital-intensive project like Hinkley possible in the UK. We heard an awful lot about it and discussed it at length, and yet in the Chancellor’s Budget yesterday there was not one mention of the project. Why is that? Why is such a huge project—let us be honest about this, it is massive; it is a huge infrastructure project with a huge budget attached—not something that the Chancellor felt it wise to mention, and indeed simply glossed over? He referred instead to a tidal lagoon project in Swansea Bay that does not have a CFD and is only just entering into negotiations. The one project that has been central to all government thinking on energy policy has been Hinkley, yet it gets scarcely a mention. I worry about why that is. It concerns me that we have a system set up that is now not sufficiently subject to market forces, and we might find ourselves taking decisions and picking apparent winners that turn out not to be the winners that we thought. That is at the heart of this new system.
On a positive note, one of the side-effects of the intervention to make Hinkley happen has been the introduction of competitive auctions for renewables. The department should be commended for bringing forward the timetable for those competitive auctions, and we have seen those auctions deliver cost savings in the strike prices that we were anticipating for established renewables. So there is some good news, but almost as a by-product of what the original intention was. I am concerned about the silence, and I have questions. How are we doing regarding the timetable that the department expected the Hinkley project to follow? When do we now expect to see a contract signed, and when will it ultimately deliver low-carbon electricity, which of course is the end that we want to achieve? Will that be in time for the closing down of some of our older capacity in the early 2020s? The concern was always that we were going to lose some thermal capacity as a result of tightening air quality standards, and we needed new, clean, large-scale nuclear to bridge that gap. Indeed, some of the nuclear will be going off in that timescale too. Where are we at? When will we know whether that contract will be pursued? It was my understanding throughout our debates that it would be a fairly quick decision and that we would see EDF go ahead with the build and the signing of the contract early this year, with the NAO poised to scrutinise the contract, yet we have seen nothing.
Why is all this relevant to the regulations? It is because here we have regulations designed to prevent companies gaming or occupying the space under the LRF that would then preclude others from bidding in. I am not accusing EDF of gaming—far from it; I do not think that this is a premeditated attempt to pretend that it can do something that it cannot—but it is subject to circumstances outside of its control. It represents a huge chunk of that LRF and the signs are that it is not now on track for the delivery schedule that it anticipated. It is a significant issue, not just because of the need for capacity but because of the scale of this one project. If it were not to go ahead, we would have to rethink our strategies for other technology groups and projects and hope to bring those forward to replace the gap that would be created. That is why I am interested in what the non-delivery disincentive is for those big projects.
Do the regulations apply to Hinkley? I suspect, on some of the grounds outlined by the Minister, that they do not. There is a reference under ground 4 to “relevant court proceedings”. Austria is pursuing a court case, which I understand Luxembourg has now joined, in which it is challenging the state aid rulings for the Hinkley Point decision in the EU. Does that count as “court proceedings”? Does it mean that the Hinkley project would be exempt from the disincentives? The Minister referred to those projects bidding in to the auction rounds, but the Hinkley project was a bilaterally negotiated contract. Do the regulations cover bilaterally negotiated contracts? If they do not, what measures is the department considering to avoid this cuckoo-in-the-nest problem whereby the expectation is that the arrangement will deliver, yet circumstances beyond the control of government mean that it ultimately will not, putting significant pressure on departmental structures and the energy system?
Perhaps we should have considered these instruments in the opposite order because then we could have ended on a high. Throughout our debates, we have raised our concerns about the degree to which interventions change the balance between government control and the market’s ability to find the right solutions. We obviously want new nuclear power stations to be built in Great Britain but we need some early clarity from government on the status of the project, and a definitive answer on whether it is going ahead and when it is likely to start delivering us the low-carbon energy that we will need to keep the lights on. I look forward to the Minister’s response to those questions.
Baroness Verma
My Lords, I hope that we end on a happy note. The noble Baroness and I have had wonderful discussions at the Dispatch Box, which have ended with us agreeing that the interest of the country is more important than our political spats.
I will first give a general overview, because the noble Baroness took the discussion slightly away from the regulations in front us, and then draw her neatly back to her question. On coming into office in 2010, it was obvious that 20% of our energy would be going offline by 2020 and that we needed to take certain measures to fill that gap. We also knew that we were being dictated to by a very small group of operators, so that choice and competition were lacking. That needed to be realigned and redressed. Since 2010, with the measures and the legislation that we have introduced, we have seen greater competition. We now have not just six generators, but a great number of smaller, independent generators that have driven competition into the marketplace, which is a uniquely good point for the UK consumer.
The second thing we needed to ensure was energy security. That is crucial if we do not want the lights to go off: we have to make sure that we take all the various measures and meet our emissions obligations, which are very important to all of us. We all signed up to the Climate Change 2008 and the principle that we should have a wide range of energy sources. Nuclear energy at Hinkley Point C of course plays a part in that.
On the noble Baroness’s question about Hinkley Point C, the non-delivery disincentive measure will prevent speculative bidding. That is what we are trying to ensure here. However, it will not apply to CFDs that are bilaterally negotiated with the Secretary of State. Neither of these requirements of a non-signature case—the requirement for an offer to lapse in relation to a successful application or, in a non-delivery case, a requirement linked to a CFD notification being given—relates to a bilaterally negotiated offer. Hinkley Point C is, uniquely, a bilaterally negotiated CFD. The noble Baroness talked about the uncertainty of the response. The Commission has given state aid approval, but as the noble Baroness is fully aware, the processes at Commission level take time. They are not driven by one country but by a great range of 27 other countries. We are waiting for responses on that.
Let us look at the wider picture. The noble Baroness mentioned Austria, but we have not yet received a legal challenge from Austria. All the information and detail that the Commission wanted was provided and the case was therefore approved. Now we just have to wait, as always with these processes, which take a little time. However, the fact that we have investors wanting to come to Moorside and to Wylfa, that we have seen over £45 billion of investment in the energy sector, particularly around renewables, and that we have seen an increase in the jobs in the sector gives us reasonable confidence that our measures have resulted in the energy sector being in a much better place than it was when we came into office in 2010. That is my starting point in rebutting some of the noble Baroness’s commentary.
Going forward, we have to take into account that we cannot be held to ransom by external forces. It is crucial that we focus on ensuring that our own home-grown supplies are supported but that we are mindful that the huge impact this may have on the consumer is not at any cost. This is the argument that I have led through the House throughout my time in this role. This is about the important balance of making sure that we have a fair, competitive marketplace, which is not open to gaming or speculation, and a firm response to give certainty to investors on one side while justifying our commitment to the consumer on the other. The noble Baroness obviously wants to raise another point.
Baroness Worthington
Maybe the noble Baroness cannot answer this directly, but my main concern is that we are given information as early as we can about when we can expect Hinkley Point C to be signed or not signed, so that if we get a no, or decide not to pursue it, we can pursue other alternatives. The noble Baroness is completely right that there are other nuclear projects that are more developed now than they were when we started this process and which might be able to replace the capacity almost as quickly. We cannot just let this drift. My reference to the budget was to make the point that we cannot just keep chasing these shiny new projects, such as the lagoons. Last year it was fracking; the year before that it was Hinkley. We have to see some of these things be grounded in reality. It worries me when we do not talk about these projects. We need to get a yes or no, and then we can move on.
Baroness Verma
I wish the noble Baroness could see how much determination there is in the department to speed up processes in relation to Hinkley Point C. However, certain processes have to be followed. As soon as we know the outcomes, I will make sure that the noble Baroness is the first to get that information. However, she also has to agree that we have been consistent in this regard by looking at fracking as another potential source of energy for the country. It is not that we keep finding shiny new energy sources, but we have to look at different sources in the round so that we do not become dependent on any one of them. During the passage of the Infrastructure Bill, the noble Baroness took us through a gruelling procedure with regard to fracking. If we are to have a reasoned, sensible debate on these things, we have to be responsible for making sure that the legislation passes smoothly through both Houses of Parliament when it comes before us. I agree with the noble Baroness that sometimes we want to respond more quickly. The Government work incredibly hard to respond in a timely fashion, but ultimately the response has to go through the proper processes and channels.
Bank of England Act 1998 (Macro-prudential Measures) Order 2015
(9 years, 9 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Newby
That the Grand Committee do consider the Bank of England Act 1998 (Macro-prudential Measures) Order 2015.
Relevant document: 23rd Report from the Joint Committee on Statutory Instruments
Lord Newby (LD)
My Lords, this Government have undertaken the most fundamental programme of financial reform this country has ever seen. The Bank of England sits at the heart of this new system, with clear responsibility for maintaining financial stability. The Bank is supported by the firm-level supervisors: the Prudential Regulation Authority and the Financial Conduct Authority.
A key element of the new system is the Financial Policy Committee. The FPC is responsible for identifying, monitoring and addressing risks to the system as a whole. This macroprudential regulation was entirely absent from the system we inherited.
The FPC works to improve financial stability in two ways: first, through recommendations, which can be made to the regulators, industry, the Treasury, within the Bank and to other persons; and, secondly, through directions that can be given to the PRA and FCA. The FPC’s direction power is limited to macroprudential measures set out in orders like those currently before the House. The regulators must comply with a direction, but they will have discretion over its timing and implementation method.
The FPC has recommended that its powers of direction be expanded so that it may effectively tackle systemic risks within the financial sector. The Government agree with those recommendations and have brought forward the instruments that we are discussing today. These instruments will provide the FPC with powers of direction with regard to the UK housing market and a leverage ratio framework. I will discuss these powers in turn.
Owning a property is an aspiration for many people in the UK, and one which this Government support. However, we cannot be blind to the risks that can emerge from the housing market. More than two-thirds of previous systemic banking crises were preceded by boom-bust housing cycles, and recessions following property booms have been two to three times deeper on average than those without.
To solve this issue, we need to be clear about where the risks arise. They arise when people borrow too much and leave themselves vulnerable to changes in circumstances. Excessive debt can create serious difficulties for households and, given that mortgages are the single largest asset on bank balance sheets, it can result in significant vulnerabilities in the banking system. We all know from the experience of the financial crisis how important it is for the banking system to be resilient to all shocks, including those from the housing market. Excess debt can also force households to cut back on spending which can, in aggregate, create difficulties for the economy as a whole.
Let me be clear: there is no immediate cause for alarm. The FPC has itself stated that since taking action in June, there has been no increase in financial stability risk from the housing market. However, not to prepare for such events would be dangerously complacent. So we need to ensure the FPC has the tools at its disposal to deal with these risks should they arise, which is why we are giving the FPC far-reaching new powers over owner-occupied mortgages. Specifically, if the FPC judges that some borrowers are being offered excessive amounts of debt, they can limit the proportion of high debt-to-income—DTI—mortgages each bank can lend or, in extremis, simply ban all new lending above a specific ratio. Similarly, if the FPC is concerned by the risks posed by a housing bubble, it could impose caps on loan-to-value ratios. These additional powers over the housing market are commonly held by central banks in other countries, and the experiences of Korea, Singapore and Hong Kong confirm that DTI and LTV limits are efficient tools to address risks in the housing sector.
I now turn to the other instrument that we are considering today. The recent financial crisis revealed serious weaknesses in the existing framework of internationally agreed standards of capital adequacy. Banks in most jurisdictions were only required to meet risk-weighted capital requirements and were not subject to leverage requirements. In the lead-up to the crisis, some banks’ balance sheets expanded significantly while average risk weights declined. Firms’ leverage ratios were a useful indicator of failure during the last crisis, and the period immediately preceding the crisis was characterised by sharp increases in leverage. Firms with high leverage ratios have greater amounts of capital to absorb losses which materialise and have less reliance on debt financing.
There is international agreement that the leverage ratio is a crucial complement to risk-based capital requirements. The usefulness of the leverage ratio as a regulatory requirement has been recognised by the Basel Committee on Banking Supervision, which has included proposals for a 3% minimum leverage ratio in the Basel III agreement. Countries such as Canada and the US already impose leverage ratio requirements and have also committed to going beyond the Basel III requirements.
In the UK, both the Independent Commission on Banking and the Parliamentary Commission on Banking Standards have recommended that banks should be subject to minimum leverage ratio requirements. On 26 November 2013, the Chancellor requested that the FPC undertake a review of the leverage ratio and its role in the regulatory framework. In light of international developments, the Chancellor judged that it was an appropriate time for the FPC to consider all outstanding issues relating to the leverage ratio, including whether and when the FPC needed any additional powers of direction over the leverage ratio, and whether and how leverage requirements should be scaled up for ring-fenced banks and in other circumstances where risk-based capital ratios are raised.
On 31 October last year, following almost a year of work and extensive consultation with stakeholders, the FPC published its response, The Financial Policy Committee’s Review of the Leverage Ratio. The review recommended that the FPC be given new powers of direction over the leverage ratio framework for the UK banking sector. The Chancellor agreed with these recommendations and, following a consultation on the implementation of the proposals, brought forward the instrument that we are considering today.
The instrument will grant the FPC powers to set: a minimum leverage ratio that all firms must meet; additional leverage ratio buffers for systemic firms, linked to their systemic risk-weighted capital requirements; and a countercyclical leverage ratio buffer for all firms, linked to the countercyclical capital buffer that is also set by the FPC. These powers will allow the FPC to ensure that firms are not allowed to take on excessive levels of leverage, that the most systemically important firms are more resilient than other firms and that resilience is built up for all firms when times are good. I beg to move.
Lord Tunnicliffe (Lab)
My Lords, I thank the Minister for introducing these two orders. The Minister and I meet like this quite regularly, just the two of us. I thank the noble Lord, Lord Ashton of Hyde, for making the government side look a bit more multiple, but only two of us are going to speak. Often we discuss rather minor orders, but I do not think that these are minor; they are absolutely fundamental to the work that we have done in the Chamber with the various financial reform Acts and in the creation and designing of powers of the FPC. These are probably the key ones that have come before us. I thought that they were the first, and possibly I am wrong about that, but I certainly do not remember any as important as this. I do not want in any way to suggest that we are other than supportive of the orders, but I have a few queries and the odd complaint.
The Lords Secondary Legislation Scrutiny Committee commented on what it saw as the inadequacies of the Explanatory Memorandum. It particularly pointed out the very trivial summary of the consultation. I agree with the committee in the sense that the explanation of these orders needs quite a narrative. I would have appreciated it if that narrative was in the EM, but in fact one has to go into the impact assessment—and then, really to understand, I found that I had to go back into the minutes of the Financial Policy Committee and its interesting review of the leverage ratio. As a Committee, our considerations would have been enhanced if we had been led down that path rather than having to discover it. In the middle of this process, I realised what a different world it is, because 10 years ago without the internet I would not have had the faintest idea what we were talking about. It is really very complicated to get at if you cannot get back to those source documents.
The one thing that I did find in the Explanatory Memorandums from the Treasury was a name and telephone number. I have to say that my experience of ringing those numbers has been very impressive under previous orders. This time, because his name came up first, because it is attached to the second order, I publicly thank Christopher Woodspeed for spending 40 minutes taking this amateur politician through the intricacies and giving some signposts as to where to go.
I shall be slightly repetitive for the Minister, to set the scene. In creating the FPC and the other institutions, we said to the FPC that it could have two toolkits—a recommended and a directional toolkit. The recommended toolkit is a “comply or explain” toolkit, while the directional toolkit is a “do it” toolkit. As I understand it from going back into the minutes of the Financial Policy Committee of 17 and 25 June, written up as one, the committee discussed the world and particularly alighted on the UK housing market. I do not suppose anybody reads what we say, so it does not matter, but I commend whoever produced the minutes of that meeting, because I found them very readable. They are a good read; they fit together and are pleasantly discursive.
When discussing the housing market, in paragraph 11 of the minutes, the FPC reminds itself what its job is—which I thought was quite clever to put into its minutes. It states:
“Under its primary objective, the FPC was required to ‘remove or reduce systemic risks with a view to protecting and enhancing the resilience of the UK financial system’; legislation defined one source of systemic risk as ‘unsustainable levels of leverage, debt or credit growth’”.
Then the minutes describe a debate, which seems to have been a proper and interesting one. The paragraph that sums up where the committee got to says:
“Taking this evidence together, the Committee assessed that there was the potential for a large and diverse impact on aggregate demand from household indebtedness, with this risk more marked in relation to borrowers with higher levels of indebtedness. The Committee judged that the size of that impact on aggregate demand was sufficient to warrant intervening now”—
that is, in June—
“in the mortgage market, given current conditions and the potential upside risks to the FPC’s central view of the possible future path of the share of mortgages extended at high LTI multiples and hence to overall indebtedness”.
So the MPC had this conversation and produced a couple of recommendations. One was a stress test—about 3% over a period of years, and so on, which all makes sense—and the other is that:
“The PRA and the FCA should ensure that mortgage lenders do not extend more than 15% of their total number of new residential mortgages at loan to income ratios at or greater than 4.5”.
Then there is a de minimis bit of it, and so on. As I understand what the Minister has said, those recommendations did their work. My understanding from reading the various documents and from what he said is that there is not a concern with the housing market at this moment, and I do not think it is seen as a concern in the future. I do not know whether I can confess this, but I actually read the Daily Telegraph this morning—it happens. In an article, Roger Bootle, chief executive of Capital Economics and, as far as I know, pretty politically neutral, says:
“Time and again governments take measures that boost the demand for housing without doing anything to increase supply. The result is higher house prices without accommodating a single extra family—hard-working or otherwise”.
I would like the Minister to confirm that the increased demand that the Budget put into the housing market is not expected to create any destabilising effect.
So we think that the FPC has stabilised the market. However, in October 2014—no, sorry, that was the other stuff; perhaps it was September 2014—the committee determined that it wanted to move its powers from the recommendation toolkit to the direction toolkit. Does the Minister feel that that is because the FPC envisaged instability; is it just going to take the directional power and put in the same figures as in the recommendation, to tidy things up; or is it going to do neither of those things but simply put it in a drawer, with the marketplace knowing it is in a drawer and that it can be drawn out at any time to direct the marketplace away from an unstable path? I would be interested in which of those three options the Government envisage the FPC using these powers for.
I turn to the other order. I read lots of stuff on this but found one document particularly useful. The Minister has the advantage of me as he works in the Treasury; for my part, I end up understanding a bit of this legislation for about a day and a half before we discuss it and then it goes out of one’s mind. The nice thing about the Financial Policy Committee’s review of the leverage ratio is that it takes you through all the background so you can see how all the bits fit together.
As I understand it, the second order, which creates the leverage ratio concept, rules and “calibration”—the word that the FPC used—will not bite with most firms because the capital buffer, if that is the right term, derived from the risk-weighted analysis is in most cases greater than the leverage ratio buffer that will be recommended. In that sense, the new leverage ratio sits there as a floor rather than something that is biting and acting on firms. But I understand, or at least I hope I do—this will be a confirmation of whether or not I have understood it; please forgive me, but I think it is quite important—that some firms, particularly ones that have high-quality assets with low risk, may in fact be caught by the leverage ratio, and that particularly includes building societies.
My next question is: are any problems envisaged from the tightening of the market, for want of a better way of putting it, that the biting of this leverage ratio on those particular institutions is going to lead to? Will there be any adverse effects on housing finance as a result of these ratios being introduced? Finally, as I understand it, a firm could respond to the leverage ratio constraint by changing its asset mix; by moving between different levels of risk, it would change its risk-weighted buffer and come down to this buffer. It is an invitation for firms to look at their asset portfolios.
What I did not understand is the impact that this is going to have on lending to SMEs. I think there is a political consensus that SMEs need to be encouraged and funded in this country. I am curious about the extent to which it is envisaged—I got mixed messages when trying to understand it from the documentation—that this will impact on SME borrowing.
The two orders have the potential to have an impact on growth. The impact assessment has some worked-out examples. They are not forecasts, I accept that, but they illustrate scenarios where there may be some impact on growth through the use of the ratios. The leverage ratio could have a similar effect—a reduction in lending and hence some impact on growth.
It was a particular joy to read the Daily Telegraph this morning. I rather assumed it would be wall-to-wall praise. I take the Guardian to think but I take the Telegraph for therapy—that is one way of looking at it—and it is free at the club. The front page of the business section reads: “Osborne’s bank raid” and concludes that he has done a bank raid of £9.28 billion. The article refers to the OBR report. I have not a chance to read the OBR report—I am saving that for my holiday; I am covering everything in sight today, am I not? But I think it is an incredibly well constructed document which has developed well over the years, and I now find that it is genuinely worthwhile reading as one of the best documents to give you a feel for the economy as a whole. The article says:
“The OBR said in its review of the Budget that the higher levy could ‘affect banks’ ability to meet capital requirements … the measures could affect the supply of credit and therefore GDP growth’”.
So you have on the one hand the Budget with the high levy and on the other these leverage ratios, which if they bite could have an adverse effect. Given the central scenario—by that I mean the scenario that the OBR uses for its next five-year plan—are these orders expected to have any adverse effect on growth? You can read stuff that suggests they do not but it does not definitely say that they do not. Given the central scenario that the Government are using—that is, the OBR scenario for the next five years—are these orders expected to have an adverse effect on growth and, if they do, did the OBR take account of that adverse effect in its documentation or would that need to be added?
This is the end of the Parliament. I am not going to say much about the next order because it is so reasonable I cannot find anything to say about it. We have had a lot of encounters and we are in a situation which I do not know how to remedy but I somehow feel is wrong. We have here some incredibly important orders but I am not sure that we are using the correct mechanism to do them justice. There are just the two of us discussing them. The noble Lord will have studied these orders carefully and been fully briefed and no doubt will hopefully have put his staff under some pressure in this respect, and I have put quite a lot of effort into it. However, I worry about the value of these encounters. I have been trying to think through the value of this encounter. One of the things you can do with an affirmative order is to resist it by voting against it. Realistically, that happens two or three times a Parliament. Very occasionally, you vote it down. In my recollection, that occurs once or twice a decade, so it is hardly our central business. You can seek clarification which sometimes tends to verge on a bit of a blood sport where you are trying to catch the Minister out. I would not try to do that because I know the Minister is so well briefed.
The real issue is scrutiny. One of the problems with scrutiny is that it is so difficult for the Opposition to evidence the fact that they have put effort into scrutinising the legislation and making sure that it does not contain any faults. The value of scrutiny lies usually not so much in scrutinising the order but creating an atmosphere so that back at the ranch—back in the Treasury—people know that the orders that they bring forward are going to be carefully examined, and therefore they are encouraged to be that much more careful and thoughtful. In a sense, all one can do is stand up and say, “We have scrutinised the order”. These orders are particularly unhelpful in that regard, as I cannot find anything wrong with them. As far as I can see, they are well crafted. They sensibly add to the FPC’s powers. As I say, I am disappointed that I cannot find anything wrong with them.
I then glanced down at the first page of the report, which happens to list the membership of the FPC as being the Governor, four deputy-governors—for reasons I do not understand, three were there because they should be there and one was there because she was there; that is roughly what it says on the front page—the chief executive of the FCA, a man from the Treasury and four non-executives. They spent a year doing this work and, if they cannot get it right, we are in trouble. I think that they have got it right.
In summary, I thank the FPC for its efforts and commend it on the results.
Lord Newby
My Lords, I am extremely grateful to the noble Lord for taking such trouble over these orders. He raised a number of points. He asked whether it was the first time that we had used the macroprudential powers. We previously legislated to grant the FPC a power of direction with regard to sectoral capital requirements. This was done through a similar order in 2013. The debate in your Lordships’ House was on 26 February 2013. The FPC was also granted the power to set the UK rate of the countercyclical capital buffer under the CRD IV in the normal way.
The noble Lord was concerned about the lack of detail in the Explanatory Memorandum. The full consultation response document was published on the government website, but I take his point. Those of us who sat through the many weeks and months of consideration of the background policy to these orders when we were putting the Financial Services Bill through your Lordships’ House, had it in our water almost that this was going on. For people who did not do that, which of course is the vast majority of people, it is very important that the accompanying documentation is as comprehensive as possible. I am sure that my colleagues in the Treasury will have noted that, although I am of course very pleased that the noble Lord found the experience of seeking advice from the Treasury so positive.
The noble Lord asked about the extent to which there was concern at the moment about housing and whether this was a precautionary measure or the powers were going to be used immediately. The FPC is clear that these instruments are necessary to tackle financial stability risks that could emerge in the future rather than any risks that we are facing at the moment. As it said in its 2 October statement, the recommendation in relation to these powers,
“relates to the FPC’s general ability to tackle risks that could emerge from the housing market in the future. The Recommendation does not reflect any FPC decision about the current state of the housing market”.
This is a recognition of the importance of the housing market in relation to financial stability, but there is no concern at the moment that the housing market is in such a position that these powers are needed immediately.
The noble Lord asked whether, as a result of the Budget, there was likely to be a further problem with house prices and these powers might be needed sooner rather than later. The key thing here is that we are not just introducing new measures for first-time buyers, for example, but are taking, and have taken, significant steps to boost housing supply, including the new planning policy framework and the most ambitious affordable housing programme for 30 years. Everybody accepts that we need to do more on housing, but when the FPC looked at the Help to Buy scheme in October last year, which people are questioning as a potential problem in terms of financial stability, it came to the conclusion that it did not represent a material risk to financial stability, that it had not been a material driver of recent house price growth and that its key parameters remained appropriate.
The noble Lord asked about the SME lending proposals. The Government and the FPC do not expect leverage requirements to have a material impact on lending to the real economy. At the margins, firms that are bound by leverage ratio requirements may be incentivised to increase SME lending relative to other types of lending, as SME lending often attracts a higher return than other assets that have lower risk weights, as the leverage ration is not risk-weighted. However, we do not expect this effect to be significant.
The noble Lord asked how the leverage tool would affect companies with low-risk assets, particularly building societies. As he pointed out, the key capital constraint for banks and building societies is the risk-weighted capital requirements rather than the leverage ratio. The FPC’s impact assessment suggests that only two of the seven building societies in its sample would need to raise capital to meet leverage ratio requirements. The majority of building societies in the UK use standardised risk models, which means that their average risk weights are above 35%. An average risk weight above 35% means that risk-weighted capital requirements will bind—take effect—before the FPC’s proposed leverage requirements.
Bank of England Act 1998 (Macro-prudential Measures) (No. 2) Order 2015
(9 years, 9 months ago)
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Lord Newby
That the Grand Committee do consider the Bank of England Act 1998 (Macro-prudential Measures) (No. 2) Order 2015.
Relevant document: 23rd Report from the Joint Committee on Statutory Instruments
Mortgage Credit Directive Order 2015
(9 years, 9 months ago)
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Lord Newby
That the Grand Committee do consider the Mortgage Credit Directive Order 2015.
Relevant document: 24th Report from the Joint Committee on Statutory Instruments
Lord Newby (LD)
Noble Lords might find it helpful if I start by outlining the background to the legislation. In February 2014 the mortgage credit directive—MCD—was agreed, giving member states until 21 March 2016 to ensure that it is implemented. The MCD has two broad aims: to protect consumers by setting minimum regulatory requirements that member states must meet and to promote the creation of a more harmonised European mortgage market.
However, the UK already has a strong regulatory framework in place to protect consumers in the residential mortgage market. Under this framework, the independent regulator, the FCA, has the authority to put in place, supervise and enforce a range of rules to ensure that firms act responsibly when conducting residential mortgage business. Since this framework was put in place in 2004, the FCA has been able to make incremental changes and develop a regime with strong consumer protections, tailored to the specifics of the UK market.
The MCD does not offer many additional benefits to UK consumers beyond those already provided. However, it does have the potential to increase the burden on business. In recognition of this, the UK’s approach throughout the negotiations on the MCD was to try to align the directive’s requirements with the existing UK regulations, in order to minimise the impact on UK industry and consumers. This strategy proved highly successful and the Government were able to secure a good outcome for the UK.
Once the directive was agreed, the Government set out an approach to implementation that was an extension of the earlier negotiation strategy. We decided to build on the existing UK regulatory regime, minimising the impact on the UK market, avoiding disruption and ensuring that the gains made from improvements in regulation over the past 10 years were not squandered unnecessarily. This approach means that implementation of the MCD will be achieved primarily through adjustments to existing FCA rules. However, there are areas where UK legislation has to be changed, and that is the purpose of the draft order under consideration today.
There are two main areas where the draft order makes a significant change. The first is to the regulatory framework for second charge mortgages. These are loans secured on property that is already acting as security for a first charge mortgage. The terms first charge and second charge refer to the priority of securities held by the lenders, where the second charge is subordinate to the first. Typical uses for this type of loan include debt consolidation and home improvements. Currently, the scope of FCA mortgage regulation is limited to first charge mortgage lending, with second charge lending regulated as part of the FCA’s consumer credit regime.
The Government previously committed to move second charge mortgage lending into the regulatory regime for mortgage lending on the basis that it is more appropriate to regulate lending secured on the borrower’s home consistently. This proposal was welcomed by the industry. However, it was decided that this move would be postponed to coincide with the implementation of the MCD and reduce the number of regulatory changes that firms would have to ensure compliance with. As a result, this draft order will ensure that, as of 21 March 2016, the FCA will be able to regulate the vast majority of secured lending under one regulatory regime.
The second area where this order will make a significant change is with respect to buy-to-let mortgages. Existing UK legislation excludes buy-to-let mortgages from the scope of FCA regulation. This approach is driven by two key considerations. The first is that, unlike lending to an owner-occupier, the borrower’s home is not at risk. Second is the acknowledgement that buy-to-let borrowers tend to be acting as a business.
The Government are committed to introducing FCA regulation only where there is a clear case for doing so in order to avoid putting additional costs on firms that would ultimately lead to higher costs for borrowers. However, while the MCD allows member states to exempt buy-to-let from the detailed requirements of the directive, it requires that member states using this option put in place an appropriate framework at a national level for buy-to-let lending to consumers. The Government have decided to use this option to put in place the minimum requirements needed to meet the UK’s legal obligations, as they are not persuaded of the case for the full conduct regulation of buy-to-let mortgages.
The order under consideration today sets out these rules and gives the FCA the power to register, supervise and enforce them in line with its existing statutory duties. This draft order has been prepared in close co-ordination with the FCA, industry and consumer groups. The overall approach we have taken has had broad-based support from all these groups and it has been extremely pleasing to see how we could work together to achieve a positive outcome for the UK. By delivering on our key objective and putting this legislation in place well in advance of the transposition date, we will give the mortgage industry the certainty it desires and the best chance possible of a smooth transition to the new regulatory framework.
The net cost of this draft order is expected to be £11 million in total over a 10-year period. However, it is also worth noting that the cost of taking a copy-out approach in this instance was estimated to cost £48.7 million more per year over the same period.
I hope I have persuaded the noble Lord that this statutory instrument will ensure compliance with the EU mortgage credit directive in a manner that minimises the impact on industry, retains the strengths of our regulatory framework for mortgages and ensures that consumers experience limited change as a result.
Lord Tunnicliffe (Lab)
My Lords, I thank the noble Lord for introducing this order. He has persuaded me that it is perfectly sensible and that it achieves the objectives.
My sole comment relates to the tone of the description of our relationship with the EU in this matter. I would love to have heard a tone that said we were concerned about the health of the EU in these markets—because, in all probability, this is a good EU directive, taking the EU as a whole—and that we had secured appropriate freedoms to build on our own well developed market regulation. It is just a matter of tone, but one has to remember that the idea of having these unified directives is to clean up—though that is too hard a term—or to codify European markets as a whole; and, in general, that is a good thing. As far as the order itself goes, how it was created and how it has been evaluated, I am content.
House of Lords
Introduction: Lord Kerslake
School Curriculum: PSHE
(9 years, 9 months ago)
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Baroness Massey of Darwen
To ask Her Majesty’s Government whether they have any plans to make PSHE a statutory part of the school curriculum.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, high-quality PSHE education has a vital role to play in preparing young people for life in modern Britain. However, making it statutory is not the simple answer. We believe that all schools should teach PSHE in a way that is appropriate for their pupils, and we outline this expectation in the introduction to the new national curriculum. We are working closely with the PSHE Association to quality-assess resources and establish a new charter mark for schools that demonstrates robust evidence of high-quality PSHE provision.
Baroness Massey of Darwen (Lab)
I thank the Minister for his response. Does he agree that personal, social and health education is not—or should not be—a one-off topic in schools, that it is more about developing social and emotional skills, not just imparting information, and that such skills can improve behaviour and academic performance, as many schools have found?
Lord Nash
I agree entirely with the noble Baroness. As the Secretary of State said last week, high-quality PSHE should offer people a curriculum for life as a planned programme of learning that is supported by a whole-school ethos covering all the knowledge and skills that young people need to manage their lives. I do agree with the noble Baroness’s point about character, which is why we have launched a £5 million innovation fund. Under our highly successful free schools programme, we have schools majoring on character development, such as the outstanding Dixons Trinity Academy in Bradford and those in the Floreat group. I recommend that all noble Lords from across the House visit some of those schools before they jump to conclusions based on inadequate information.
Baroness Walmsley (LD)
My Lords, in the light of the fact that deaf and disabled children are three times more likely to be sexually abused, and four times more likely to be physically or emotionally abused, than other children, will the Government make sure that schools ensure that these children receive their PSHE education in an appropriate form of communication that they can understand and are not withdrawn from PSHE classes for one reason or another because it is the easiest class to take them out of?
Lord Aberdare (CB)
My Lords, the Government argue that schools should have the flexibility to determine their own curriculum outside core subjects, but the result is that most schools are not teaching essential skills such as first aid, which not only gives students valuable life skills and confidence but would save many lives, as shown by countries where such training is mandatory. Does the Minister not agree that making PSHE statutory, including subjects such as first aid, and indeed citizenship, would result in students emerging much better prepared for their lives as citizens?
Lord Nash
The national curriculum creates a minimum expectation for the content of a curriculum in maintained schools. Quite deliberately, it does not represent everything that a school should teach. It would not be possible to cover all that when there are so many groups wishing things to be included in the curriculum, but many schools already choose to include CPR and defibrillator awareness as part of their PSHE teaching. We will work with the British Heart Foundation to promote its call push rescue kit to schools, including through our social media channels and the summer term email.
Baroness McIntosh of Hudnall (Lab)
My Lords, what work is being done with teacher educators to ensure that there is a good supply of properly qualified teachers to take this agenda forward, particularly in view of what my noble friend Lady Massey said about it being a whole-school enterprise and not a specialist subject?
Lord Nash
The noble Baroness is quite right in her observations. High-quality professional development for teachers is an essential part of raising standards in schools. The PSHE Association has some excellent resources, which we signpost for schools. They include an online CPD course, which explores assessment policy writing, creating schemes of work and SRE education. Teachers can of course benefit from the national PSHE CPD programme.
Lord Northbourne (CB)
My Lords, does the Minister agree that every child, as they pass through adolescence towards the world of work and raising a family, needs to acquire what are often called the soft skills: self-confidence, an ability to communicate, character and caring about other people? Can he make it clear whether these things are to be taught, are supposed to be taught or are being taught through the PSHE syllabus or somewhere else in schools, and whether the Government are concerned to ensure that every school provides a learning environment in respect of soft skills?
Lord Nash
The noble Lord makes a very good point. These skills are particularly important for underprivileged children. The noble Lord, Lord Giddens, made a very good point recently: that in order to have social mobility, you need social immobility. We need to give particularly children from disadvantaged backgrounds these soft skills, which is why we have such a big focus on character education. We would expect this to be inspected by Ofsted as part of SMSC and as part of a broad and balanced curriculum.
Earl Attlee (Con)
My Lords, what is Ofsted doing to ensure that schools properly cover PSHE?
Lord Nash
As with other areas of the curriculum, PSHE and citizenship are not explicitly covered in the school curriculum inspection framework. However, in reporting, inspectors must consider how the school is meeting the needs of the range of pupils and pupils’ SMSC and cultural development to help to prepare them for life in modern Britain. Inspectors will also look at how effectively schools engage with parents in the development of their SMSC policy.
Baroness Jones of Whitchurch (Lab)
My Lords, the Education Select Committee, as the noble Lord will know, recently reported that PSHE requires improvement in 40% of schools, that the situation appears to have got worse over time, and that young people are consistently reporting that the sex and relationship education that they receive is inadequate. Surely the Minister is showing a large degree of complacency about this. Perhaps making PSHE statutory is, indeed, a simple answer.
Lord Nash
The noble Baroness feels very strongly about it, but the Labour Party had 13 years to make it statutory and did not do so. We are currently considering the findings of the Education Select Committee report. We have launched a communications campaign to promote the selection of high-quality resources via our social media sites. They include PSHE Association programmes of study, “Sex and Relationships Education for the 21st Century” and various other products.
The Earl of Listowel (CB)
Will the Minister praise the previous Government’s success in reducing teenage pregnancy to its current low, while recognising that compared to the continent we are still well behind? Will he keep a very open mind about this issue of a statutory requirement for PSHE? After all, the Education Select Committee in the other House recently recommended in its report that there should indeed be statutory provision in this area.
Electoral Register
(9 years, 9 months ago)
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Lord Kennedy of Southwark
To ask Her Majesty’s Government what action they are taking to maximise the number of people on the electoral register before the deadline of 20 April by which people must register to vote in the General Election on 7 May.
Lord Wallace of Saltaire (LD)
My Lords, the Government have invested £14 million over two financial years to support activities to maximise the number of people on the register. In 2014-15, this includes £6.8 million divided among electoral registration offices across Great Britain according to levels of underregistration. Up to £2.5 million will be used to fund wider activity, including working with national organisations to reach underrepresented groups, such as young people, students, Armed Forces personnel and overseas voters.
Lord Kennedy of Southwark (Lab)
My Lords, I declare an interest as the chair of the All-Party Parliamentary Group on Voter Registration. I hope the noble Lord’s response to my Question will move beyond the “We’ve all got a role to play” response that I often get from him. My Question asks specifically what action the Government are going to take in the next month to address the 7 million of our fellow citizens who are not on the register. How can we get those people on so that they can actually vote in the general election?
Lord Wallace of Saltaire
My Lords, it is up to all of us, not just the Government, to make sure. I was with the noble Baroness, Lady Royall, and the noble Baroness, Lady Perry, at UCL the other week. We all three made the point that it was extremely important that students both register and vote, and we should all be repeating that message each time we go to a college, university or school. The noble Lord will have seen the Electoral Commission’s announcement of its pre-election campaign earlier this week. That is another dimension of this. There will be advertising online and in the media. The Government are very happy that in February a million new applications came in to register. We expect there to be a similar surge in the last few weeks before the closing date, as there was in 2010. We are not at all complacent, but as the election gets closer, we expect interest to rise and we expect the 2.7 million applications which have come in since last December to be added to by, we hope, another million.
Lord Cormack (Con)
My Lords, as there are penalties for not registering, can my noble friend explain to me—he has failed to do so in the past—why we do not move towards compulsory registration?
Lord Wallace of Saltaire
My Lords, the noble Lord, Lord Maxton, has also asked me this question on a number of occasions. We would be moving towards a different relationship between the citizen and the state. In Denmark, Finland and Germany, there is a national population register. If you are on a national population register, you are automatically also on a voting register. It is also used for welfare, taxation and a range of other questions. That takes us down the road towards national identification numbers and national identity cards. We will have to have that debate in the next Parliament. It is not the tradition in this country.
Lord Roberts of Llandudno (LD)
My Lords, I congratulate the Minister on the backing he has given for organisations such as Bite the Ballot, of which I am the honorary president. I hope that the new voters exercise their vote on 7 May. After 7 May, it will be important to have a proper analysis of exactly what went wrong with individual registration as against the previous form. I am told that many constituencies have many fewer registered voters than in the past. Whichever Government are in office, will they urge the Electoral Commission to come to grips with this question very soon?
Lord Wallace of Saltaire
My Lords, after the election, the Electoral Commission, which is an excellent organisation, will of course examine the successes and weaknesses of the transition to individual electoral registration. We have guaranteed that this will come back to Parliament—there will be a report to Parliament on how the transition to individual electoral registration has gone. I emphasise that this has not been a failure. Applications are still coming in. Two-thirds of applications since last June have been online. We are doing everything we can to ensure that more people who have not yet registered, or who are registered in the wrong place, register before 20 April.
Lord Wills (Lab)
My Lords, the Electoral Commission has said that between March and December last year 920,000 people disappeared off the electoral register. This is clearly going to have an impact on the outcome of the general election. Will the Minister say what impact he thinks it will have?
Lord Wallace of Saltaire
My Lords, I have just emphasised that nearly 3 million have applied to register since December. There is movement on and off the voting register all the time, as the noble Lord well knows. We are doing everything we can to make sure that movement in the next few weeks, as over the past three months, continues to be positive.
Lord Grocott (Lab)
My Lords, since this is all about establishing the identity of people who are eligible to vote, at this stage in the Parliament, five years in, will the Minister acknowledge that one of the numerous mistakes this coalition Government have made—it would take too long to list them—was the early decision to get rid of national identity cards, which would have solved this and many other problems relating to migration and other matters about which this Government have made such a mess?
Lord Wallace of Saltaire
I thank the noble Lord for his normally generous comments. The sheer heavy weight of the Labour Government’s ID proposals seemed to me and many of my colleagues to make it an unavoidable failure. There is a debate about the shift to a digital relationship between the citizen and the state, which we will have to have, and about convenience against privacy, which we need to have as we move forward. My right honourable friend Francis Maude and others working on the Government Digital Service have made a good deal of progress in that regard.
Lord Lexden (Con)
Does the Minister have any information about the growth in the number of 18 to 21 year-olds on the register?
Lord Wallace of Saltaire
Since 1 December, some 700,000 16 to 24 year-olds have applied to register. We do not have an exact figure on what proportion that is because the figures on how many 16 year-olds will be eligible to vote in the election are not exact because we do not have all their birthdays.
Lord Greaves (LD)
My Lords, do the Government have an estimate of the extent to which the reduction in the number on the electoral register as reported last December is due to a reduction in multiple registrations?
Lord Wallace of Saltaire
My Lords, it is highly likely that that is the case, particularly with students not being registered both at home and at university. That is one of many difficulties in assessing the completeness and accuracy of the register.
Syria and Iraq: Daesh
(9 years, 9 months ago)
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Lord Avebury
To ask Her Majesty’s Government what is the strategy of the United States-led coalition for clearing the Daesh out of the territories which they currently occupy in Syria and Iraq.
The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con)
My Lords, we are part of a global coalition with more than 60 members committing to defeating ISIL. We support inclusive governance in Iraq and Syria, work to counter ISIL’s vile narrative, its access to finance and foreign fighters, and provide military support to Iraqi forces fighting ISIL. The UK also provides humanitarian assistance to those affected by ISIL’s brutality and will contribute to the Syrian opposition train and equip programme.
Lord Avebury (LD)
My Lords, the FCO website makes reference to a global strategy for combating the global threat of ISIL, which allegedly was agreed at a meeting in Paris on 15 September last year. However, the text of the agreement is not on the FCO website, and I cannot find it anywhere else using Google. Can the Government leave a parting message in Washington before next Thursday to say that we need a mechanism to co-ordinate military strategy among the armed forces of active coalition stakeholders and with the Syrian armed forces on retaking Raqqa?
Baroness Anelay of St Johns
My Lords, I can reassure my noble friend that there was a meeting at the beginning of this year in London at which the coalition of more than 60 countries against ISIL agreed that there should be a small working group. The strategy of the global work is now being refined into a practical system and we have agreed to the formation of five working groups: military operations, foreign fighters, counterfinance, stabilisation support, and countermessaging. The UK is represented on all groups and we are co-chairing the countermessaging group with the UAE and the US. I will be delighted to discuss the detail further with my noble friend, who is right to draw attention to the importance of activity around and in Raqqa by ISIL.
Lord Howell of Guildford (Con)
My Lords, the Question refers to the “United States-led coalition”, but does my noble friend agree that this is far more than just a western issue and that the great powers such as India and the People’s Republic of China have a major interest, as do all civilised countries, in containing this barbarian infection, which threatens them all? Does she further agree that nations such as Egypt are also closely involved? Does my noble friend therefore accept that the coalition we need to build effectively to contain this horror has to be global rather than purely western? If it is purely western, there will be bad reactions, which we will have to overcome.
Baroness Anelay of St Johns
I entirely agree with my noble friend. That is the very nature that underlines the formation of the five working groups, where non-western countries not only co-chair groups but are prominent members of them.
Lord West of Spithead (Lab)
My Lords, does the Minister not agree that finally to defeat Daesh—to take it out—we would have to have forces on the ground in Iraq and Syria, which I hope will be Iraqi, Kurdish and local forces? One can understand, militarily, how that can be done in Iraq, but going into Syria means that we would have to look at our relationship with Assad. Without stamping out Daesh on the ground in Syria, we will not achieve success.
Baroness Anelay of St Johns
My Lords, there are three points there. First, with regard to Iraq, it is clear that the Government of Iraq have said that they do not wish to have our forces on the ground in Iraq, but they welcome the use of surveillance and airstrikes. With regard to Syria, we are of course assisting the moderate opposition, but let us be clear about Assad’s record. He responded to peaceful protests with violence, used chemical weapons against his own people, and continues to conduct air attacks on defenceless civilians. We must not fall into the trap of thinking and accepting what Assad wants to believe—that he is the only alternative to extremists and terrorists. He is not.
Baroness Warsi (Con)
My Lords, do the Government have a cross-government agreement on how they refer to Daesh? If they do not, would they consider that? I suggest that they seriously consider using the word “Daesh”.
Baroness Anelay of St Johns
I sympathise entirely with my noble friend. I am aware from when I talk to my Foreign Minister counterparts throughout the region that they find it puzzling that in this country the media and therefore the Government continue to use the term “ISIL”. They prefer “Daesh”, and I understand the significance of that. However, at the moment we find that if we talk about Daesh the media become puzzled. I take my noble friend’s point, and we will indeed consider how we can discuss that further.
The Lord Bishop of Winchester
My Lords, even if the current operations to clear Daesh prove successful, the ancient religious and ethnic minority communities in Iraq have an uncertain future. Does the Minister agree with the statement recently submitted by the Holy See to the United Nations Human Rights Council? It said that a future without these communities in Iraq and the Middle East risks,
“new forms of violence, exclusion, and the absence of peace and development”.
Therefore, what steps are being taken to secure the future of those communities, and in particular their human right to religious freedom?
Baroness Anelay of St Johns
I can respond first by saying that the motion before the Human Rights Council was presented by the Vatican jointly with Russia. We are a signatory to that and fully support it. The work that we are doing with regard to humanitarian aid and our work with the International Committee of the Red Cross is fully aimed at supporting all minorities. The Christian church is clearly an important part of that. I pay tribute to those who use the £800 million of aid we provide in Syria to provide support to keep communities safe in the future and to keep them able to stay there. But it is bleak at present.
Lord Bach (Lab)
My Lords, does the Minister agree that whatever happens after ISIL is defeated in Iraq—let us hope that it is soon—it will be for the Government of Iraq to take the lead on the necessary measures? Does she agree—I am sure that she will—that those measures should or might include more power sharing, encourage tolerance, and work towards a free, open and unsectarian society?
Baroness Anelay of St Johns
I agree entirely with the noble Lord, Lord Bach. Those views underpinned all the work I did when I was at the Human Rights Council in having bilaterals with other Ministers. I am sure that the Government of Iraq will be pleased to hear his comments and my support for them.
Burma: Policing of Demonstrations
(9 years, 9 months ago)
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Baroness Kinnock of Holyhead
To ask Her Majesty’s Government what assessment they have made of the recent actions by police in Burma in response to student demonstrations in Letpadan.
The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con)
My Lords, we are deeply concerned by the use of force by police in Letpadan on 10 March, and by the use of irregular security groups in Rangoon on 5 March. These incidents undermined an otherwise disciplined approach to policing student protests and demonstrate the need for further policing reform. We support the EU’s call for a full investigation and call on the Government of Burma to release all the remaining demonstrators.
Baroness Kinnock of Holyhead (Lab)
I thank the Minister for her reply and ask her whether, in the light of the violent attacks and arrests of students in Burma last week—and, I have to say, other abuses of human rights in that country—we can now anticipate that the British Government will thoroughly review the support and assistance they currently provide to the Government in Burma. Otherwise, how can we be sure that the UK financial and technical assistance is not now actually supporting the institutions of an authoritarian regime that has made no real progress towards the civilised objectives that the people of Burma and the international community were promised?
Baroness Anelay of St Johns
My Lords, we continue, of course, to review how our work is undertaken with the Government of Burma. The noble Baroness will be aware that our contribution with regard to police training was via the EU instrument of a stability-funded project in support of police reform, following a request from not only the Burmese Government but Aung San Suu Kyi. That contribution remains under review. However, it is important to mark the fact that the Government of Burma have made progress, although they have a long way to go. We are always happy to discuss these matters with noble Lords and MPs. We have offered such meetings across both Houses to individuals with an interest in these matters and have had quite a lot of uptake. I understand that at the moment the noble Baroness, Lady Kinnock, has not accepted the invitation to meet our most senior official on this matter. I warmly offer that invitation again, and hope that she may accept it.
Baroness Cox (CB)
My Lords, is the Minister aware that I recently visited remote hill tribe areas in Chin state, where I am pleased to report that local people appreciate some significant reforms, including improvements in relationships with the army and police, cessation of forced labour, and investment in infrastructure? However, we of course remain deeply concerned by the Burmese Government’s violations of human rights and military offensives against the Rohingya, Shan and Kachin peoples. How are Her Majesty’s Government achieving an effective balance in encouraging genuine reforms by the Burmese Government, while applying appropriate pressure to end gross violations of human rights in other areas?
Baroness Anelay of St Johns
My Lords, I pay tribute to the work of the noble Baroness, Lady Cox, and her courage over so many years in the work that she has done in Burma. It is a balance, whereby one needs, as she said in her report, to recognise progress but to be ever cautious about the huge amount of work yet to be done. I read her report with interest. The stories of the community health workers were very touching indeed.
The Burmese Government have released political prisoners, discharged child soldiers—not all of them—ratified the Biological Weapons Convention and endorsed the declaration to end sexual violence in conflict, but we have seen an increase in the number of political prisoners, conflict in Kachin and in Shan, arrests of journalists and continued discrimination in Rakhine state. I shall be discussing these immediately after Questions with the United Nations special rapporteur, Yanghee Lee.
Baroness Falkner of Margravine (LD)
My Lords, as recently as November when I met Daw Aung San Suu Kyi, her main point for the West was that we must not become complacent that the constitutional reform process is sufficient. With elections coming up in November, she is extremely concerned that there is a regression on the part of the military. That is what we have seen, in terms of the Question asked by the noble Baroness, Lady Kinnock. Could the Minister tell the House what meetings the Government are having with the military Government to press them to bring about constitutional reform—it was meant to be announced but has not been yet—so that they can embed that before the election period begins?
Baroness Anelay of St Johns
My Lords, my right honourable friend Hugo Swire visited Burma last year. He has met representatives of the Burmese Government and discussed the range of progress that the Burmese Government need to make. As my noble friend said, the elections this year are critical for Burma. It is the first time that Burma has had the opportunity to have democratic elections and make real progress. It must not let that slip.
Lord McConnell of Glenscorrodale (Lab)
My Lords, the long-term solutions to the conflicts between the central authorities in Myanmar and the ethnic armed groups active in many parts of the country will undoubtedly be assisted if the work of ASEAN—the Association of Southeast Asian Nations—to become more involved in peace and security across the region is supported by the international community. Will that work by ASEAN and those sorts of regional initiatives be a priority for the new stabilisation fund that comes into place in April?
Baroness Anelay of St Johns
The noble Lord makes an important point. I will look very carefully to see what kind of stress has been put on that. I would like to consider that and see whether it has been properly reflected.
Baroness Berridge (Con)
My Lords, although the Rohingya Muslims remain one of the most persecuted people on the face of the planet—I declare an interest as chair of the All-Party Group on International Freedom of Religion or Belief—they had a vote in the first national elections. At that point in time, temporary ID cards were sufficient to give you a vote. In fact, they elected Mr Shwe Maung, who I think is the only Rohingya Muslim member of the Parliament there. Could my noble friend the Minister outline what representations Her Majesty’s Government have made to the President of Burma following his executive order on 11 February this year, which basically invalidates those temporary ID cards and will deprive the Rohingya Muslims of their vote in November’s elections?
Baroness Anelay of St Johns
My Lords, representations have been made with regard not only to that but to the method by which information is collected in that state about one’s ethnicity. As I understand it, one is forced to put down that one is Bengali, rather than one’s real ethnicity. These are matters that must continue to be discussed.
Barts Health NHS Trust
(9 years, 9 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I will now repeat in the form of a Statement an Answer to an Urgent Question tabled in another place and given by my honourable friend the Minister for Public Health on the subject of Barts Health NHS Trust. The Statement is as follows:
“The NHS Trust Development Authority announced on Tuesday 17 March that Barts Health would be placed into special measures. This followed a report by the Care Quality Commission that rated services at the Barts Health site at Whipps Cross as ‘inadequate’. As a result of this decision, the trust will receive a package of tailored support to help it to rapidly make the necessary improvements for patients. This will include the appointment of an improvement director and the opportunity to partner with a high-performing trust.
The Chief Inspector of Hospitals has highlighted the scale of the challenge ahead and this is an opportunity to ensure that the trust has the extra support it needs to meet this challenge. Barts Health has already announced that it has begun to strengthen management arrangements at Whipps Cross, in response to concerns raised by the CQC.
We make no apology that, under the new rigorous inspection regime led by the Chief Inspector of Hospitals, if a hospital is not performing as it should, the public will be told. If a hospital is providing inadequate care and we do not have confidence in the ability of its leadership to make the required improvements without intensive support, it will be put into special measures. It will remain in special measures until it is able it to reach the quality standards that patients rightly expect.
While the trust is in special measures, it will receive increased support and intensive oversight to help it address its specific failings. This process is publicly transparent so that patients and the public can see and track for themselves, online through the NHS Choices website, the progress that their trusts are making. Any changes or additional support required for the trust leadership are put in place early on in the improvement process, as has already taken place at Barts Health.
The expectation is that an NHS trust or foundation trust will be reinspected by the CQC within 12 months of being placed in special measures. It is the job of the Chief Inspector of Hospitals to recommend when a trust is ready to exit special measures. The NHS Trust Development Authority or Monitor will then formally decide to take the trust out of special measures when they consider that the trust is able to sustain the quality of care at the level that patients expect.
A total of 21 trusts have been put into special measures over the past 20 months as a result of this new approach to poor care. Six trusts have exited the regime and there has been progress at nearly all the others. The willingness to recognise poor care has been critical in starting a journey to improvement and we make no apology for upholding the high standards of care that are rightly expected of the NHS”.
My Lords, that concludes the Statement.
Lord Hunt of Kings Heath (Lab)
My Lords, I am sure that the House is grateful to the noble Earl, Lord Howe, for repeating that. It is a worrying report about the largest trust in England, which is directly managed by his department through the NHS Trust Development Authority. Why have these problems been allowed to get worse over the past two years? Does he agree that the report has identified that the root cause of the problem was the reorganisation of the trust in 2013? Can he say why Ministers overruled the Co-operation and Competition Panel, which advised against the proposed merger and warned of the adverse consequences for patients?
Earl Howe
The decision to create Barts Health was taken following a report that analysed the options open to the department at that time. As the noble Lord knows, there was, effectively, a merger of several trusts to create Barts Health. The advice received by the Secretary of State at the time was that none of the three trusts subject to the merger with Barts was sustainable as a stand-alone organisation. The appraisal of the options identified the three-way merger as the most beneficial and strategic solution for the system as a whole, taking into account a wide range of clinical, financial and government issues.
Baroness Finlay of Llandaff (CB)
My Lords, in looking at the non-viability, I have been concerned that the PFI deals that Barts Health is saddled with amount to £115 million a year. I wonder whether the other trusts that went into special measures have also had this albatross of PFI deals around their necks that has pulled them down over the years. Why have the Government been unable to address the problem of the burden of previous PFI deals?
Earl Howe
Early on in the Government’s term of office, we analysed all the trusts that were subject to PFI liabilities. The worst affected trusts were singled out to be given ongoing financial support by the Department of Health. Barts has a very large PFI debt of about £1 billion, and I have asked whether it is considered that this in itself has proved to be a deciding factor in the trust’s financial stresses. The advice I have been given is that it is not seen as a particular cause of the difficulties now being experienced.
Baroness Donaghy (Lab)
My Lords, I want to ask a question about a trade union representative who was dismissed from the authority two years ago for raising some of these very issues. She was a member of UNISON, and I declare an interest as a former member. I wonder whether, in working closely with trade unions, a better step would be to look after the interests of all the staff and to be not afraid to listen to some of the difficulties. The authority fought that case tooth and nail. She won at an employment tribunal but did not get reinstatement. Can the Minister give us a reassurance that in future there will be a more constructive relationship with the trade unions?
Earl Howe
My Lords, I cannot disagree with the philosophy expounded by the noble Baroness. It is very important that not just the trade unions but members of staff generally feel involved and have a sense of ownership of the organisation for which they work. I hope it is of some reassurance to the noble Baroness that staff and health partners will be fully involved in the development and implementation of the improvement programme and that a staff representative will be a member of a new improvement board at Whipps Cross.
Baroness Masham of Ilton (CB)
My Lords, it was stated in the press that there had been bullying at Whipps Cross and that people had been denied food and fluid for far too long. What is being done about those people who bullied patients?
Earl Howe
The noble Baroness is right. The CQC found that there was a culture of bullying at Whipps Cross. They had concerns about whether enough was being done to encourage a culture of openness and transparency—something on which, as she knows, we place great emphasis in the light of the report on Mid Staffordshire NHS Foundation Trust. I can only say to the noble Baroness that this is one of the issues that will be top of the list for the new improvement director at Whipps Cross.
Baroness Manzoor (LD)
My Lords, the culture within the NHS appears to be changing, and not for the better. Is the Department of Health looking at that, as well as at the issue of PFI across the NHS, and is it doing so not in a piecemeal fashion whereby things are identified only when they go wrong?
Earl Howe
It is precisely because we have wanted to confront the issue across the NHS that so much has been done following the report of Sir Robert Francis into Mid Staffordshire NHS Foundation Trust. All the recommendations flowing from that report should resonate with every part of the NHS. The recent work done by Sir Robert on whistleblowing can be put into the same category. There are lessons and messages for the NHS as a whole, and I believe that progress is being made, as it needs to be in particular quarters.
Lord Campbell-Savours (Lab)
My Lords, I declare an interest as a financial sponsor of research into cancer at St Bartholomew’s Hospital in central London. Can we be given an assurance that the work done at St Bartholomew’s is in no way under criticism in the Statement made by the Minister?
Earl Howe
The Statement related to Whipps Cross specifically, but the Trust Development Authority took the decision to place the entire trust into special measures. That was a slightly unusual step to take but I think that it reflected the concern that it felt about the management of the trust generally. However, the TDA also singled out some areas at Barts for particular praise. It is important to stress that patients will receive the good care that they have known about at Barts in the future.
Inquiries Act 2005 (Select Committee Report)
(9 years, 9 months ago)
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Lord Shutt of Greetland
That this House takes note of the report of the Select Committee on the Inquiries Act 2005 (Session 2013–14, HL Paper 143).
Lord Shutt of Greetland (LD)
My Lords, I invite the House to take note of the report of the Select Committee on the Inquiries Act 2005. I received several wry smiles while undertaking the chairmanship of the committee, when people asked what I was doing in the House of Lords and I said I was inquiring into the Inquiries Act. I believe it has been a useful piece of work to do.
We are privileged in this debate today to hear the noble Viscount, Lord Tenby, give his valedictory speech. We will all be able to say that we were present when the last Lloyd George—for the present, at any rate—concludes service in Parliament. We look forward to his contribution and wish him well in his new life.
I thank my colleagues who served with me on the committee. We had members who have set up inquiries and members who have chaired inquiries as well as those who have been scarred by inquiries. But we also had an abundance of lawyers. We have been well served by our clerk, Michael Collon, assisted by Emily Greenwood and our special adviser, Professor Carol Harlow. I also thank the witnesses who have given their time and talents, both in written and in oral form, to assist in our work.
I believe that the committee has produced a thorough piece of work, based on much evidence. We have also had the benefit of our own visit to the only inquiry that was taking place at that time—the Al-Sweady inquiry. We were concerned to take evidence and meet not only people who had chaired inquiries and had been counsel or panel members but also secretaries, solicitors and assessors, co-participants, academics, legal specialists, interest groups and others. We endeavoured to look at all participants in the inquiry process.
Inquiries are usually set up because of an overwhelming concern at an event, or a series of events, in the public domain that has gone wrong and something serious must be done for confidence in that area of work to return. One of our witnesses, Robert Francis QC, now Sir Robert, set out his summary of the reasons for holding a public inquiry. He concluded that the reasons include:
“establishing the facts leading up to a matter of concern; determining the explanations for and causes of things which have gone wrong; identifying those responsible for deficiencies or performance failures; establishing the lessons to be learned from what has happened; making recommendations intended to correct the deficiencies for the future”.
In our post-legislative scrutiny of the Act we have tried to see how objectives such as those can be achieved.
Our report contains 33 recommendations which come very much from our consideration of the evidence. These recommendations follow the sequence of the report, and, of course, some are more vital than others. I want to highlight three of the main recommendations.
The first is that, although we recommend some improvements, the Inquiries Act 2005 is a good Act and should be used. We were surprised to find that, on so many occasions, Ministers had set up inquiries other than under the Act. All our evidence was that, except in circumstances concerning security matters, the Act should be used. We note that since we reported back in March 2014, two new inquiries have been announced under the Act. Perhaps a lesson has been learnt a little, but we hope to learn more about that.
The second of our recommendations that I would like to speak about is recommendation 12, where we recommend the setting up of a unit. We suggested that it should be under Her Majesty’s Courts and Tribunals Service and serve as the centre of excellence and expertise for all the practical details of setting up an inquiry. It is the existence of the unit that is important; it may be appropriate to put it somewhere else in government, but we suggested that particular department. The unit would be responsible for making clear the location of premises that could be used for inquiries, their infrastructure and the necessary IT. We heard many stories of inappropriate IT procurement and cost. The unit should also look at staffing and work closely with the chairman and the secretary of each inquiry. We heard much evidence from people responsible for setting up the administration of inquiries. They said that when they had started, it was a matter of reinventing the wheel, as if there had never been an inquiry before. We also believe that the unit should be a place where lessons-learnt papers should be placed so that best practice can be distilled and updated. Indeed, the unit could retain vital contacts for future involvement. We were shocked that that information, which is supposed to be kept somewhere, was just not kept.
Recommendation 25, which is the third matter that I want to raise, relates to warning letters. The evidence led us to recommend that inquiry Rules 13 to 15 of the Inquiry Rules 2006 should be withdrawn. Several chairmen raised this issue with us and we became aware that the use of these rules prolonged inquiries by several months, with the consequent delay in publication of the inquiry report. We must always remember that when we have inquiries, people are desperate to learn their results and do not want to wait and wait. I am sure that other members—and I am delighted that nine of the 12 of us are listed to speak today—will highlight other elements of the report that they believe are particularly important.
The report was published on 11 March 2014, now over 12 months ago. I understand that the government response was due within two months. I was asked if the Government could have more time to respond. Being of a somewhat generous disposition, I acquiesced to that request. The response was published on 30 June but, sadly, we found it somewhat disappointing. In his foreword to the report, the right honourable Simon Hughes, the Minister of State for Justice and Civil Liberties, said:
“The Inquiries Act potentially touches upon every department of state, and the Government has given careful consideration to the Select Committee’s 33 recommendations, agreeing with the majority of them. We will implement changes as soon as practicable and, where primary legislation is needed, when parliamentary time allows”.
That was not correct arithmetically. I reckon that 10 recommendations were accepted; four were “accepted, but”; 14 were rejected; and five were “rejected, but”. However, we should really look at the weight in terms of importance, and the weight was very much on the rejection side.
With the good will of the by then former members of the committee and our clerk, the committee met again and sought a meeting with Simon Hughes, which was readily agreed to. We met on 29 October and had a full and frank discussion. The Minister asked that he be given a month to see what he could do about our concerns, particularly the three issues I raised earlier. We have been waiting. Very many inquiries have been made. I was told on one occasion that the Ministry of Justice had concluded its work and matters rested with the Cabinet Office. If there is a government turf war, that is very sad. The latest inquiry, made yesterday, brought news that the noble Lord, Lord Faulks, will be addressing concerns today. We look forward to his response. It occurs to me that I am right to ask the noble Lord, Lord Faulks, in the circumstances we find ourselves in, if he will provide a supplementary written response after today.
I have one further thing that I think it is important to raise, not necessarily for the Minister, but for the Chairman of Committees and the Liaison Committee. Our experience leads me to suggest that once a Select Committee has produced its report, as we did in March 2014, the committee should not be laid down but retained in light dormancy in order to respond to further developments and, indeed, not completely laid down before a final meeting after the report has been debated. I have been reading the Hansard report of a debate I witnessed a week ago on the report of the committee of the noble and learned Lord, Lord Hardie, on the Mental Capacity Act 2005. It seems that that committee faced very similar circumstances. It did better than us in that it got a written response from the Minister the day before the debate. Again, it was the noble Lord, Lord Faulks, and he said that the Government were taking a slightly different view—a better view as far as the committee was concerned—from that taken in the government response which had been published earlier.
It has been a privilege to do this work and I commend the report to the House. I beg to move.
Lord Trefgarne (Con)
My Lords, I had the privilege of being a member of the committee which the noble Lord, Lord Shutt, chaired and I pay tribute to him for his chairmanship and, above all, for his patience, not only with the members, who, no doubt, irritated him from time to time, but, of course, with the response from government departments, which, while not malevolent, was lethargic to say the least. It was disappointing that it was not possible to get more positive observations from the Government, as my noble friend has described. I, too, am looking forward to the valedictory speech of the noble Viscount, Lord Tenby. I am jolly sorry that he has decided to leave the House. I have known him for as many years as he has been here, I think, and will miss him, as we all will, very much.
I agreed with virtually all of the committee’s report and all the conclusions which my noble friend described, but if noble Lords look at paragraph 234, they will see that there is reference to one member of the committee who disagreed on one matter. That one member was me and I shall tell noble Lords where my concerns arose. It related to the representation of witnesses by counsel when they appear before a public inquiry. I spoke from a little experience. I was one of the witnesses before the Scott inquiry, 20-odd years ago now, chaired by the then Sir Richard Scott, who is now, of course, the noble and learned Lord, Lord Scott. That inquiry had a counsel for the inquiry called Presiley Baxendale, who became pretty famous in her time, and who adopted a very confrontational attitude with the witnesses. She was, of course, trying to get the best information she could for the benefit of the noble and learned Lord, Lord Scott, or Sir Richard as he was then, in reaching his conclusions, but she did choose to be very aggressive.
I was, I think, the only witness before that inquiry who was represented by counsel. Most of the witnesses were still civil servants or serving Ministers. I had just left the Government at the time and actually said that I would not appear unless I was represented by counsel because that inquiry did not have the power to summon witnesses by order, so to speak. I was represented by the then Sir Patrick Neill, who is now of course the noble Lord, Lord Neill of Bladen. In fact, I was treated entirely courteously and I hope that my evidence was of some benefit to Sir Richard, as he then was, in reaching his conclusions.
However, some of the witnesses before the Scott inquiry were scarred, as my noble friend has described, by the examination and cross-examination to which they were subjected by Presiley Baxendale. That, I think, is regrettable. By scarring witnesses and treating them in that way, you do not get better evidence. The witnesses are not there to be tried for some offence; they are there to give the best information they can. I believe that Ms Baxendale did not serve the inquiry well by treating some of the witnesses as she did, and who turned out to be permanently scarred. At least one or two of them retired from their work shortly afterwards and, frankly, that was not satisfactory. I must say to the noble and learned Lord, who is sitting in his place, that he should have intervened to stop some of that, and I and the rest of us regret very much that he did not. I believe firmly that that did not improve the evidence he was given and is very much to be regretted.
That is really the main point I want to make. I think that witnesses who are compelled to appear before a public inquiry ought to be entitled to have counsel that is paid for by the inquiry, if they so wish. That would enable them to be protected in a way that some witnesses on other occasions have not been protected, and I hope that it can be further considered on some future occasion.
The inquiry we are now discussing, chaired by my noble friend Lord Shutt, did a good job. I was proud and pleased to be a member of the committee. We were well chaired by the noble Lord, if I may say so, and well served by the officials, led by Michael Collon, who also attended upon us. I am grateful to them for that, and I support the report which has been submitted for your Lordships’ consideration today.
Lord Richard (Lab)
My Lords, it was indeed a privilege to have been a member of the committee. The whole issue of public inquiries is now very much coming more to the fore in this country. Day by day we read of someone demanding an inquiry or an inquiry being set up, either a total inquiry into a particular issue or a partial one. It is a topic that is certainly current and of interest to a large number of people in this country. The Inquiries Act 2005 clearly needed post-legislative scrutiny to ascertain how it has been working and what amendments, if any, should be made to its operation. The committee heard a variety of evidence and came to some stern conclusions.
If I may say so, it was as good a committee as I have served on. I echo the tributes that have been paid to the chairman, the noble Lord, Lord Shutt, who chaired the committee with determination and good humour. He kept us at it and in the end we produced a unanimous report, save for the one slight qualification which the noble Lord who preceded me has referred to. It is a good report. We were extremely well served by Michael Collon and his staff, and by our special adviser, Professor Carol Harlow.
One has only to look at the list of witnesses who came before the committee to see the quality of the evidence that they gave. I do not propose to read the list out because it is set out in the report, but if any Member looks at it, he will see included in it a number of people of distinguished lineage and great experience who have either set up inquiries, or participated in them, written about them, dealt with them, have been subject to them or have given evidence to them. It is an impressive list.
Before I turn to the recommendations made by the committee, given that background, I must say a word or two about the attitude of the Government. It has been contemptuous and peremptory, and is indeed a good example of how Governments should not behave when faced with a powerful parliamentary committee report. It would be difficult, I think, to find a better instance of that. I would not wish to divert this debate into consideration of the Government’s behaviour, but it really was deplorable. Despite our efforts, and particularly those of our clerk, we were unable to obtain the attendance of a senior Minister. The Minister who actually gave evidence, Mr Shailesh Vara MP, the Parliamentary Under-Secretary of State for Justice, had, to put it kindly, only a nodding acquaintance with the subject. I make no great criticism of him and he did his very best to assist us with what we were trying to do in our inquiry, but he really was not the right person for the Government to have fielded on an issue of this importance before a committee of this sort.
The government response to our report, which was presented to Parliament in June last year by Mr Simon Hughes, was extraordinarily negative and unhelpful. Clearly, whoever was responsible for that response could not have properly read the evidence that was given to the committee. The response was, quite frankly, so dissociated from the mass of evidence that the committee received that it was difficult to see how they could have come to the conclusions that they did. Such was the feeling of the committee that, although it had formally ceased to exist, we asked for a further meeting with Mr Hughes, which, as Lord Shutt has told us, took place on 29 October. After listening, he undertook to review the Government’s position and let us have a written response by the end of November. That response has never been received.
Indeed, as members of the committee know, on 18 March this year the Ministry of Justice responded, saying that,
“the Ministry of Justice and Cabinet Office are working together”—
that is nice to know—
“on the points you and Lord Shutt have raised, and they will be addressed by Lord Faulks in Thursday’s debate”.
Frankly, this is farcical. If the Government have changed their view, we will not be in a position to comment upon it because the noble Lord, Lord Faulks, will be speaking at the end of the debate. The Government have elevated obfuscation to an art form in the way in which they have dealt with this report.
On the merits of the report, I would draw the particular attention of the House to paragraphs 81 and 82. If I may, I will read them:
“We recommend that inquiries into issues of public concern should normally be held under the Act. This is essential where Article 2 of the ECHR is engaged. No inquiry should be set up without the power to compel the attendance of witnesses unless ministers are confident that all potential witnesses will attend”.
In the next paragraph, we said:
“We would not however remove the possibility of an inquiry being held otherwise than under the Act, for example where security issues are involved, or other sensitive issues which require evidence to be heard in secret. Ministers should give reasons for any decision to hold an inquiry otherwise than under the Act”.
I also draw the attention of the House to the evidence given by Mr Vara. He was asked whether there should be at least a presumption that, if an inquiry was being set up, it should be under the Act. Mr Vara replied:
“I see no reason for not having that presumption … certainly the Act is there and it is there to be used … it is a first port of call”.
I was very content with that answer. Unfortunately, he subsequently went back on it in further evidence, telling the Committee that:
“To the extent that I may have led the Committee to believe that there is a presumption, I am saying that I do not know the answer. I am not aware of the word ‘presumption’ being used in the Guidance”.
I find this evidence extraordinarily disappointing. The 2005 Act was passed after very considerable parliamentary scrutiny. That there are some aspects of its operation which need amending is undoubtedly true but, by and large, and particularly if it were to be altered in accordance with our recommendations, the Act should stand as the normal way in which public inquiries are conducted. The fact is that the powers of compulsion under the Act are always helpful. Even if rarely used, they act as a useful weapon to persuade witnesses to attend and give truthful evidence. I can see no reason why that presumption should not be accepted by the Government. Of course there are the exceptions that I just referred to but, prima facie, if a public inquiry is to be set up, then it ought to be set up under the Act that Parliament passed dealing with the issue of public inquiries and which we have now inquired into.
We pointed out various amendments that should be made to the Act. I do not propose to refer to those in detail today, but they are set out from page 89 and Members of the House can read them if they wish to. Suffice it for me to say that they provide a comprehensive analysis of the terms of the Act and of the ways in which it could be improved. One defect we pointed out, which has already been referred to by the noble Lord, Lord Shutt, was in relation to the rules, particularly on warning letters. We pointed out that if that could be dealt with, it would make the operation of inquiries under the Act quicker and less stressful for those carrying them out. We recommended that rules 13 to 15 should be revoked and a rule substituted giving the chairman discretion as to the circumstances in which a warning letter should be sent.
Finally, I believe that this report is a significant analysis of the way in which the 2005 Act operates. It was a serious piece of work, taken seriously by all those who took part in the committee, and deserved better treatment than it has received from the Government.
Lord Woolf (CB)
My Lords, I begin by disclosing the matters in the register, particularly those with regard to my having conducted inquiries. I also echo as warmly as I can the comments made about my noble friend Lord Tenby. Both when I was Lord Chief Justice and made only very occasional visits to this House, and since I have retired and so have been able to spend more time here, I have found him a great source of wise advice. I always found him willing and generous with his time to give that advice. I know how many of the Members of the House, like me, will miss him as a result of his retirement. I would like publicly to give him my very best wishes.
I also join in the things said about our chairman in respect of this inquiry, which was a rewarding experience to be part of. As the register shows, I was previously involved in another inquiry into inquiries. This recent inquiry was a model of its sort. The first inquiry in which I was involved is coming up to its 25th birthday on 1 April. That was the Strangeways inquiry, which is perhaps worth mentioning only to the extent that it involved prisoners and prison staff from six prisons across the country—indicating the sort of problems that can arise in an inquiry—and the fact that inquiries are of very great importance to satisfy public concerns. They may not always get it right but they are certainly a way in which the public can be involved in the process of achieving justice, which enables many people to feel that justice has been done.
If we are to continue to perform that process, it is very important indeed that the process continually evolves. It is very easy for an inquiry to go wrong on the process—the way in which the matter is handled. That is why I particularly recommend that we pay the closest attention to the idea of having a specialist unit within the Courts and Tribunals Service that will be a repository of the critical information that one inquiry can provide for later inquiries. I can say only that I would have valued that in the Strangeways inquiry. Irrespective of what has happened since, I do not believe that any proper machinery has yet been devised to perform that purpose which has been put into practice by any Government.
The important thing about the proposal in the report in that regard is that it would enable the running of inquiries to appear to be separate from government. Many inquiries involve government, and the difficulty with the Cabinet Office being the repository is, first, that the functioning of the Inquiries Act is a matter of very small importance to the Cabinet Office, although I suggest that it should be high in a table of significance, and, secondly, it means that the inquiry has a link in its management to something absolutely at the heart of government: the Cabinet Office. That differs, of course, from the decision whether there should be an inquiry, which is a matter I fully accept that the Government must be involved in, but the running and management of inquiries is a different matter.
The quality of the Courts and Tribunals Service is that it is used to being attached to an independent body, which is a separate part of government: namely, the Courts Service. The Courts Service is a peculiar service within the Civil Service. We should build on the advantage that we have in having it as a possible repository. Because of that, the noble Lord, Lord Shutt, appropriately inquired whether the courts would be happy to take on that responsibility. Subject, of course, to their being properly financed to do so, they recognised that that is something that they should do. With respect, I say that that is a matter that the Government, or a Government, should look at again, because it would help to give credibility to the inquiry.
I do not want to take up too long a time, but I would like to touch on one or two other recommendations. From my experience, I regard counsel to an inquiry as critical. The great thing about counsel to the inquiry is that he can help to shorten the process. I know of at least one inquiry taking place at this time where the absence of counsel to the inquiry may be very significant in the delays that have occurred.
I should also like to say a word about Salmon letters. One of the witnesses from whom we heard with regard to Salmon letters made it clear that they have a place to play in inquiries, but we do not want rigid rules that they have to be served in all circumstances. In many situations, it is an unnecessary additional procedure to impose upon inquiries to have Salmon letters. Where they help to achieve justice, they have to be served, but where there is no special reason for serving them, in the ordinary process of legal proceedings we do not have Salmon letters, and I can see no reason why we should have them in inquiries unless, if they were not sent, there would be an injustice in relation to a particular witness. Otherwise, we are just prolonging the process of the inquiry.
There is also a danger of not taking advantage of the full use that inquiries can provide to future legal proceedings. There is a recommendation in the report that the evidence at an inquiry and its inclusion should in effect be admissible in subsequent legal proceedings. I confess that it is a great advantage to be followed later by the noble and learned Lord, Lord Cullen of Whitekirk, who probably has the most unique experience of conducting inquiries. He gave evidence before us on that matter and I suggest that he can speak to that matter as well.
Finally, the way we use inquiries in this jurisdiction is exceptional. Other common-law jurisdictions are nervous about the deployment of the judiciary, because that seems to be outside their normal process. We should recognise that our approach, which has worked so well in the past, is going through a particularly difficult period at the moment, but that the value of inquiries is immense and that we should continue to build on what we have learnt already.
Lord Trimble (Con)
My Lords, I was also a member of the Select Committee which produced this report. Like other Members, I want to thank the noble Lord, Lord Shutt, for his chairmanship of the report and in particular for the way in which he has followed matters up in the interval since we made our report. I will come back to that later.
I had intended to start by quoting paragraph 14 of the report, in which we express our disappointment at the contribution that we had from the Government, but the noble Lord, Lord Richard, has done that in pungent terms and I merely endorse what he said.
I then thought of referring to paragraph 19, in which we challenged the Government. I will be interested to hear what the noble Lord, Lord Faulks, says about this when he replies. In that paragraph, we refer to how we recommend in the report a number of amendments to the Inquiry Rules 2006 and point out that the power exists to make those amendments by order. We suggest that this is so simple a procedure that there is no reason why the Government cannot make these amendments to the Inquiry Rules “within three months”. The Government’s response accepts the recommended changes in the rules but I am not aware of any order coming forward to implement them.
A lot turns on the question of the type of inquiry that one has. I want to touch on that for a moment, first, by referring to the Royal Commission on Tribunals of Inquiry back in the 1960s. It made a number of important recommendations, the sixth of which was:
“No Government should in future set up a tribunal of the type adopted in the Profumo case to investigate any matter causing nation-wide public concern”.
That inquiry was not established under the 1921 Act. It was a non-statutory inquiry and the judge conducted it entirely in private. Witnesses were not permitted to hear the evidence of other witnesses and there was no opportunity for any witness to test the evidence of another witness. Naturally, we described this in our report as unsatisfactory but I much prefer the terms of the royal commission in saying that no such tribunal should be set up in future. I wish that that had been before the Northern Ireland Office when, a few months ago, it decided to establish a private inquiry into the on-the-runs letters. The description of the Profumo inquiry fits pretty well the way in which that inquiry was conducted, which was unfortunate.
However, the main issue is whether the Act should be used or non-statutory inquiries should take place. The starting point here should really be: what was the intention of the 2005 Act? The genesis of the 2005 Act appears to have been in a recommendation made by Sir Anthony Clarke—now the noble and learned Lord, Lord Clarke—in the Thames safety inquiry in 2000. He commented:
“The time has in my opinion come to set up a statutory framework for inquiries generally to replace the various statutes which govern them at present”.
That language was echoed in the Explanatory Notes to the 2005 Bill, which said that the object was,
“to provide a comprehensive statutory framework for inquiries”,
and the Minister introducing the Bill virtually repeated those words. That language points to the Act being used for inquiries generally. It does not say that the Act is optional. It does not say, “We have enacted this Act and you don’t have to pay any attention to it. You can ignore it if you like”. That would be a rather novel proposition for legislation. I know that the practice has developed of non-statutory inquiries and it is perhaps late in the day to challenge that now. However, I suggest that it is not really within the original intention of the Act, which is why we made the recommendations we did in the terms that have been mentioned.
Another issue is perhaps more significant. It is the question of the compliance of the inquiries with the requirements of Article 2 of the European Convention on Human Rights. It is fairly clear that non-statutory inquiries are not compliant with the ECHR. I will refer to what we said in paragraphs 69, 70 and 74. I will not go through them in detail but the Edwards case is mentioned, as is a subsequent case in which the court directed the setting-up of a number of inquiries and went on to say that steps would have to be taken to ensure that the persons conducting those inquiries had the powers to compel witnesses and the disclosure of documents. I am not quite clear as to how that has happened in practice and whether anything has been done. Again, perhaps the Minister might enlighten us when he replies.
On this matter, the Government say in paragraph 32 of their response that inquests are,
“the main way in which the Government fulfils its responsibilities under Article 2”.
Three comments come to mind with regard to that. First, Article 2 goes wider than inquests. It is not just a matter of unlawful killing but of ill treatment and unlawful killing, so you cannot say that you regard inquests as meeting the requirements of Article 2 when it goes wider than the subject matter of inquests. Secondly, inquests are limited compared to inquiries. I will not go into detail on that. We set that out in paragraph 83 of the report, which shows that it may not be desirable to use inquests to fulfil the requirement of Article 2.
However, there is a more general point to be made because while we have the particular terminology of Article 2 in the ECHR, the general principle nowadays goes further. The second report of the Turkel commission, which I was attached to as an international observer, said:
“The general principles for an ‘effective investigation’ can be found in various international human rights law sources, including binding conventions (such as the Convention against Torture); interpretations of the International Covenant on Civil and Political Rights by the Human Rights Committee and its decisions in specific cases; and resolutions adopted by the General Assembly of the United Nations”.
It then goes on to refer to the ECHR. If this has migrated into a general obligation on human rights law, it reinforces the point that inquiries should be done on the basis of the statute and with the powers that the statute gives.
In chapter 6 of the report, we deal with another aspect, namely the independence of inquiries. We refer there to the reservations that the Joint Committee on Human Rights had with regard to the various powers that the Government have to influence the conduct of the inquiry, which led the Joint Committee to think that those powers in themselves rendered the inquiries not in compliance with the convention.
We make a number of recommendations in paragraphs 206 to 210. I notice that the Government accept one of those recommendations but reject three of them, particularly the power that they have, as it were, to close down the inquiry. I notice that in their response, the Government say in paragraph 72 that they wish to “retain the flexibility” given by this provision. I think that “flexibility” is not the right word. The word that should have been used is “power” and the power should not be utilised in the way that the existing legislation permits.
My last statement is by way of a digression. I referred to the commission to which I was attached as an international observer. Following the example of the noble Lord, Lord Shutt, in following up matters, he might be interested to know that some months after he took that initiative here, I got together with the other international observer who is domiciled in Australia but who comes to this part of the world from time to time. We both went back to his room to raise the issue with the Israeli Government as to whether they were implementing those recommendations. I suspect, though, that I will have to go back again.
Lord Cullen of Whitekirk (CB)
My Lords, the committee’s report is sound, thorough and constructive. I have an interest in the subject matter of the report in the sense that I have chaired a number of public inquiries, the first being the inquiry into the Piper Alpha disaster, and I gave evidence to the committee.
I welcome the Government’s acceptance of the committee’s recommendation that the Inquiries Act should be amended so that a Minister who wishes to appoint a serving judge should first obtain the consent of, and not merely consult with, the appropriate senior member of the judiciary. I recall that some 10 years ago, during the passage of the Inquiries Bill, the noble and learned Lord, Lord Woolf, and I were the senior judges of our respective jurisdictions at that time and we spoke in favour of such an amendment. However, it was not to be. It was opposed by the then Government and did not become part of the Act.
The committee’s recommendation on this point is supported by a number of important considerations. It is surely a matter for the senior judge in each jurisdiction to decide, for example, whether a judge should be deployed from the available resources, whether a particular judge is in fact suitable for the task and, perhaps most important of all, whether the subject of the inquiry is one for which the involvement of a judge is appropriate. Where the subject is sensitive in political terms, there is a risk of damage to the high regard in which judges are held and, in particular, their reputation for independence and impartiality. A judge who is invited to take an inquiry but has good reasons for declining, despite his sense of public duty, should know that he can have the backing of the senior judge in his jurisdiction. I trust that, whatever the complexion of the next Government, they will support the amendment proposed and recommended by the committee.
I now turn to other matters. I am less than happy with the Government’s treatment of other recommendations by the committee and propose to mention two of them. The first concerns the appointment of counsel to the inquiry—an appointment which is likely to be needed in almost every inquiry under the Act. The role of counsel to the inquiry is of crucial importance: overseeing and preparing evidence; questioning witnesses, if necessary robustly; advising the inquiry; and potentially representing it in the event of its being challenged. In my experience, it is essential for counsel not only to be competent for the job but to have a close working relationship with the chairman, interpreting and fulfilling his aims and enjoying his respect and confidence. This is even more important today when counsel to the inquiry has an increasing influence on the scope of the questioning of witnesses and hence on how the inquiry is perceived. I also agree with what the noble and learned Lord, Lord Woolf, has said about the important assistance which counsel can give to the parties.
The rules define counsel to the inquiry as,
“the qualified lawyer or lawyers, if any, appointed by the chairman to act as counsel”.
The committee considered that it should be put beyond doubt that the Minister had no say in the appointment, so it recommended that solely the chairman should appoint counsel to the inquiry. The Government rejected that recommendation, because,
“Ministers will want to retain control of such issues which affect departmental budgets and the terms of reference of an inquiry”.
What does this exactly entail? Does it mean that, where the chairman and the Minister are not in agreement about an appointment, the Minister should have the right to override the chairman and direct him as to who should be appointed, or at any rate veto the chairman’s choice? Either way, that is a poor foundation for what should be a confident and productive relationship. If the Government are concerned about the cost of leaving the choice of counsel to the chairman, one has to bear in mind that, under Section 17(3) of the Act, the chairman has to act with regard to avoiding any unnecessary cost. It was also one of the committee’s recommendations that the chairman should consult the Treasury Solicitor in order to ensure that counsel is appointed on terms which give good value for money. As for the Government’s reference to the terms of reference of the inquiry, I find their relevance to the choice of counsel obscure and, in any event, unconvincing.
Secondly, I turn to warning letters. One might expect that the chairman of an inquiry should judge what warning should be given, as a matter of fairness, to a person—that includes a body corporate or incorporate—that is liable be criticised in the report of the inquiry. Nevertheless, the Inquiry Rules prescribe what must be done. To put it briefly, rule 13 states that the report must not include any “explicit or significant criticism” of a person without sending that person a warning letter and giving the recipient the opportunity to respond. The rule has to be read along with rule 15 which prescribes the content: it must state the criticism; the facts which substantiate it; and the evidence supporting those facts. Since my inquiries were before the Act came into force, I have not had any direct experience of working under these rules. But I can readily envisage the difficulties, which were clearly illustrated during the course of the evidence given to the committee.
First, the rules take no account of the considerable differences in the nature of various inquiries and the events or conduct with which they may be concerned. It has often been said that every inquiry has to adapt the procedure to meet its own circumstances. No doubt there are some cases in which there is a need for a detailed warning, for example in the case of a person who is faced with very serious allegations, or a person who has not been represented at the inquiry. However, at the other end of the spectrum, the position may be entirely different. Parties who are represented throughout the proceedings will have heard the evidence and the submissions, and will also have taken steps to challenge them. They are already aware of the issues—as it were, they know the score. Yet rules 13 and 15 require the inquiry to issue detailed warning letters, as defined, and to take into account responses which may simply repeat, or seek to embellish, what they have already said during the inquiry proceedings.
Secondly, literal compliance with the rules and the handling of responses can prove so complex, demanding and time-consuming as to add greatly to the time taken by the inquiry to produce the report. It would be a mistake to think that a warning letter would set out what was required in a few pages. I understand that a warning letter and its response can amount to hundreds of pages. No doubt an inquiry team would be anxious to avoid overlooking what could be a “significant” criticism, but where should it draw the line? Sir Robert Francis, whose name has been mentioned already and who chaired the inquiry into the Mid Staffordshire NHS Foundation Trust, gave evidence that in his experience warning letters could cause quite unnecessary alarm and a lot of time was spent on people responding to things that were not in fact on the mind of the chairman. He said that the process of warning letters and responses to them extended his inquiry by at least six months.
I also see from the committee’s report that Sir Brian Leveson explained to it that, in his inquiry into the conduct of the press, the prescription set out in rule 15 led to his adopting a different approach in which he ventilated possible criticism by means of a generic letter. He said that, had he sought to comply in terms with the requirements of rule 15,
“I need never have finished because they were all very specific”.
Even so, his leading counsel Robert Jay, now Sir Robert Jay, spoke of that rule causing,
“huge grief and a huge amount of work and incurring of public expense”.
The committee’s recommendation with regard to these rules has been mentioned in earlier speeches. I am not saying that what the committee recommends is a perfect solution. Others have suggested that it might be practicable to modify the rules to set out what should generally be done, giving the inquiry chairman some discretion, without courting the risk of judicial review.
The Government’s response to the committee’s recommendation was to reject it. Having referred to the structure of rule 13, it merely stated,
“The Treasury Solicitor's Department has advised that the drafting of rule 13 is not defective”.
It said nothing about rule 15. It did not address the committee’s concerns as expressed in its report in the light of the evidence before it. I urge the Minister the noble Lord, Lord Faulks, and his colleagues to think again and to give serious consideration to introducing flexibility and proportionality to the rules so that fairness can be achieved without loss of common sense.
Lord Morris of Aberavon (Lab)
My Lords, I note that the noble Viscount, Lord Tenby, will speak after me in a valedictory speech. I have been privileged to be associated with many members of his distinguished family for a very long time—in fact, for more than 50 years. During our service with the Royal Welch Fusiliers, I shared a tent with the noble Viscount. We were guarding the shores of Pembrokeshire. I came to no harm, and neither did he. His friendship and his contribution to this House will be greatly missed.
The Select Committee did an effective, workmanlike job under the wise guidance of the noble Lord, Lord Shutt, who deserves our warm thanks, as do the staff. Before I express my disappointment with some of the Government’s responses to the committee’s recommendations, I will mention one matter that with hindsight we might have spent some time discussing. Because of the very nature of the independence of an inquiry, there is a real danger that an inquiry can get out of control. I was involved as Attorney when the Londonderry inquiry under the noble and learned Lord, Lord Saville, was set up. No one ever dreamt that it would get so out of control that it could have bankrupted any non-government organisation carrying out a similar investigation into facts. I hope the figures will be better as far as Chilcot is concerned, but again the delay is disgraceful and shameful. It seems that that inquiry is master of its own procedures and that there is no power in the land to get it to publish its report. Six years and more after the event, it may have lost many of its original purposes.
I suggest that Parliament should have another look at this aspect of public inquiries. The first question is: how is the independence of an inquiry to be safeguarded without imperilling proportionality in the time it takes to report and its cost to the public purse? Secondly, should a Minister who finds himself powerless not report to Parliament to reconsider its consent to the setting up of the inquiry and its terms of reference and perhaps to put a ceiling on costs? In short, should considering pulling the plug be out of bounds?
All the inquiries I have been ministerially involved in have been non-statutory inquiries. I will not go through them. I went along with the committee in its preference, now that we have an Inquiries Act, for a statutory inquiry rather than a non-statutory inquiry, with a degree of reluctance. From my experience, a non-statutory inquiry can be a very effective tool. I would therefore not quarrel with the Government in their response on this aspect. Although the evidence of the junior Minister from the Ministry of Justice did not have a great deal of depth, he was doing his best with a very bad brief. Perhaps, as the noble Lord, Lord Richard, indicated, the Government should have fielded a more senior and more experienced Minister.
There are two issues where the Government’s responses are particularly unpersuasive. The first is to our recommendation 12:
“that the Government should make resources available to create a unit within Her Majesty’s Courts and Tribunals Service which will be responsible for all the practical details of setting up an inquiry, whether statutory or non-statutory, including but not limited to assistance with premises, infrastructure, IT, procurement and staffing. The unit should work to the chairman and secretary of the inquiry”.
While agreeing with the spirit of the recommendation, the Government go on to reject it completely and prefer the status quo of leaving it in the hands of the propriety and ethics team of the Cabinet Office to continue to co-ordinate matters, despite the fact that these arrangements have manifestly failed so far. The Government provide no evidence to support their rejection of our recommendation. When a Minister and his officials have to respond to the clamour for a public inquiry, as I have, they have no effective body with any sense of continuity behind it to turn to for advice and guidance on how to proceed.
The committee was able to parade a string of most telling evidence that something must be done. It heard significant evidence of the difficulties faced by each new inquiry team in setting up an inquiry from scratch, despite the numerous inquiries held before. It was apparent that despite current government policy, lessons learnt from previous inquiries had not been requested or retained. The witnesses proved beyond question that lessons had not been learnt.
The evidence of the Hamill inquiry finance officer and of secretaries Lee Hughes and Alun Evans was impressive, as were the recommendations of Michael Collins, Judi Kemish and Ashley Underwood QC, who thought that,
“a dedicated sponsoring department for inquiries would be invaluable”.
Alun Evans and Lee Hughes were between them secretaries to five inquiries. Alun Evans talked of trying to,
“prevent having to re-create the wheel at the start of each inquiry”.
Lee Hughes said that,
“it is very dispiriting two or three years down the line to do another inquiry and find that everything you set up before has been dismantled and you have to do it all again”.
The Government propose instead the strengthening of the existing machinery in view of the infrequency of setting up inquiries and the diversity of the departments concerned. With six Permanent Secretaries in the Cabinet Office at the last count—when I sat on the Constitution Committee—it would be a show of some willingness to take the criticism seriously if the existing machinery was made directly answerable to one Permanent Secretary as part of his published duties.
My second point concerns Rules 13 to 15, which have already been referred to, regarding the sending of warning letters to those who might be criticised. Of course there must be fairness in what is now called Maxwellisation, but the requirement in the regulations, as opposed to discretion, can result in a shocking waste of time. Robert Francis QC, as he then was, told us on this aspect that,
“in practice I think my inquiry was extended by at least six months”.
Robert Jay, as he then was, also said:
“Rule 15 caused us huge grief and a huge amount of work and incurring of public expense. I think literally thousands of hours of work went into the generic letter”.
In paragraph 251 of our report we take the criticisms on board, recommending that Rules 13 to 15 should be revoked and suggesting a simplified substitution without the shackles of the existing rules. The Government have rejected that recommendation on the grounds that it was the pre-2005 practice to send warning letters, and therefore that because it was the practice before the Act, it must be right. That is the best justification that they can muster. It appears that Francis and Jay spoke in vain.
I invite the Government to think again about the regulation and to reconsider our recommendations in the light of the evidence. The remarkable thing is that the Government’s responses on both these recommendations are not evidence-based.
Viscount Tenby (CB) (Valedictory Speech)
My Lords, I thank noble Lords for the many generous remarks made this morning about someone I do not recognise. As a Welshman and a Lloyd George, I find myself almost lost for words—which, I think noble Lords will agree, is a pretty kettle of fish.
I begin by apologising to the noble Lord, Lord Shutt, and to the Minister for gate-crashing an important debate on the Inquiries Act. In an ill informed bow to the subject of this most important Select Committee report, I merely observe that with the ever-increasing need for inquiries, it must make sense to have some central body or “unit”—to quote the noble Lord, Lord Shutt—to oversee all the issues; and, without being too restrictive, a set of generally agreed requirements which would make such inquiries more cost-effective and less time-consuming.
I imagine that intruders into the parliamentary timetable are no more welcome than gate-crashers at a teenager’s birthday party—but, in their wisdom, and with some sensitivity, the authorities have decided that such a privilege should be available. Indeed, Lord Jenkin of Roding, who has served his country with such distinction in both Houses, memorably took the plunge last December. As an inadequate token of appreciation, I will undertake not to take too much of the House’s time. In other words, I will not repeat two of my pet aversions over the years: a long Second Reading speech on Report, or starting by saying, “I had not intended to speak in this debate”, before making a beautifully crafted speech lasting at least 10 minutes.
After I made my maiden speech some 26 years ago on alternatives to custodial sentencing, I thought, “Well, that’s one terrifying experience I won’t have to go through again”—but how wrong I was. It has been an immense pleasure to have participated in the work of the House over these past years. During that time I have been both proud and privileged to have served five outstanding Convenors of the Cross Benches, who happily are all now with us save for the much missed late Lord Weatherill, with whom, in a junior role of course, I was able to play some small part in the first stage of Lords reform. I pay tribute and give thanks to all of them, and to my fellow colleagues and friends.
My retirement will bring to an end—almost to the day—125 years of continuous parliamentary representation in my immediate family. Perhaps due to family interest in the subject, I was a member of what may well have been in recent times the earliest committee to turn its attention to Lords reform back in 1995, and I like to think that some of our commentaries and suggestions then have stood the test of time. I have been fortunate in being able to continue that interest, not least as a long-serving member of the campaign for an effective second Chamber—I see certain distinguished members of that group in their seats today. We seek to bring clarity and common sense to the discussions on the future composition of this vital revising Chamber, which does not make laws and which—rightly, in a democracy—gives way to the elected Chamber.
As a personal experience, I will say how rewarding it was to be a member of a House that helped to bring in legal and criminal justice Bills—it seems like every year; I think it was—while at the same time being able to judge their efficacy as chairman of a Bench of over 100 magistrates. It should be noted, in any future composition of a second Chamber, that election is not necessarily an all-embracing panacea. I hope that any future House will contain a large number of Members appointed for their knowledge and experience, so that the close examination of legislation may continue to be professional and thorough.
However, the principal reason I welcome the chance to speak here today is that it enables me to thank most warmly the very many splendid servants of this remarkable place: secretaries, officials, clerks, officers, attendants, the post room, the Printed Paper Office, all the catering and banqueting staff, the Library, accounts, the information office, police and security—I could go on and on, and I apologise to those I have inadvertently omitted. Together, ladies and gentlemen, you are the life-blood which makes this House what it is, and I thank you one and all, most sincerely, for your unstinting help over the years.
In my early days here, I enjoyed the friendship and advice of a noble Lord now sadly long-departed—the late Lord Allen of Abbeydale, for whom the evocative phrase “Civil Service luminary” might well have been coined. Often, if I was making a set-piece speech, I would go to him for advice. In his later years, when ill health prevented him from attending the House, he would ring up to find out how the day had gone. I would always give him the same reply: “Well, at least my trousers didn’t fall down”—which invariably seemed to satisfy him. Fortunately, mine still seem to be in place today, so, without wishing to press my luck to destruction, I wish your Lordships the greatest good fortune and constitutional success in the years to come. I thank you one and all. I have enjoyed my time here immensely.
Lord Pannick (CB)
My Lords, on behalf of all noble Lords I thank the noble Viscount, Lord Tenby, for his distinguished service to this House since 1983. We wish him a very happy retirement. Noble Lords will know that his grandfather, David Lloyd George, famously described this House as,
“a body of 500 men chosen at random from amongst the unemployed”.
I cannot believe that the noble Viscount has ever not been employed on some worthwhile task. It is especially appropriate that he has played so valuable a role in the discussions on the role of this House and how to move this House—now composed of rather more than 500 men and women—to the next stage of reform.
Unlike the noble and learned Lord, Lord Morris of Aberavon, I have never had the pleasure of sharing a tent with the noble Viscount, but I am one of many noble Lords who have benefited enormously from his advice about matters relating to this House. That advice has been valued by all of us because it has been based on knowledge, wisdom, kindness—a much underrated quality—and humility, as your Lordships have again heard today. The noble Viscount, Lord Tenby, will be much missed on these Benches and around the House.
I join other noble Lords in welcoming this impressive and stimulating report. I want to focus, as other noble Lords have done, on paragraphs 243 to 251 of the report, which address warning letters. As the noble and learned Lords, Lord Cullen, Lord Woolf and Lord Morris of Aberavon, have mentioned, those paragraphs address the need under the current rules to send letters to those who are the subject of criticism in a draft report, giving them an opportunity to comment before the final report is drawn up and published—an obligation that adds a very substantial amount of work for an inquiry, and a very substantial delay before publication. The committee is correct at paragraph 251 to recommend that these rules need to be replaced by a discretion for the chairman as to whether to give a person who is to be criticised in a report an opportunity to respond. Given that the Inquiry Rules do not apply, as we have heard, to many inquiries, including Chilcot, the practice needs to change as well.
This issue requires consideration of a little history and a little law. The noble Lord, Lord Trimble, mentioned the Profumo inquiry. When Lord Denning inquired into the Profumo case in 1963, he acted, as he said in his report, as,
“detective, inquisitor, advocate and judge”,
hearing all the evidence in secret. This led to the 1966 Royal Commission on Tribunals of Inquiry, chaired by Lord Justice Salmon, as he then was. He understandably concluded that future inquiries should do more to ensure justice for those involved. That led to the practice of witnesses being given a “Salmon letter”, setting out before they give evidence matters of interest and concern. The process has become increasingly legalistic in the worst sense of that word. Some advocates even argued on behalf of their clients that one party to the inquiry should be able to issue a Salmon letter to another party, seeking to transfer culpability—a practice that became known as a “smoked Salmon letter”.
The practice also developed whereby if an inquiry intends to criticise an individual in the final report, that individual has to be given the relevant sections of the draft report in order that he or she can comment before publication. This process is known as Maxwellisation, and is now enshrined in Rules 13 to 15 of the Inquiry Rules. It is ironic indeed that the law and practice so commemorates Robert Maxwell because he brought a case against Department of Trade inspectors in 1974, complaining about a report critical of his business practices. The complaint was that he had not been shown the draft report before publication. The Court of Appeal rejected that complaint: Lord Denning, sitting with others, said that Maxwell was not entitled to see the draft report. Why not? It was because he had been fairly treated during the inquiry. He had had a proper opportunity to comment during the inquiry on the allegations in the case, so fairness did not require yet another opportunity at the end of the process.
This general legal principle was also stated by Lord Diplock in the Appellate Committee of this House, also in 1974, in the case of Hoffmann-La Roche. Lord Diplock pointed out—this point was made today by the noble and learned Lord, Lord Woolf—that even in a court of law, once a fair hearing has been given to the witnesses, the rules of natural justice do not require the judge to present a draft judgment on which the parties are then entitled to comment before the judge hands down the final decision. If that is right in a court of law, it is all the more so when we are talking about the report of an inquiry—which, however important, imposes no criminal or civil liability on anyone. So it must be right, as the noble and learned Lords, Lord Woolf, Lord Cullen and Lord Morris, have all suggested, that Rules 13 to 15 must go. They are far too absolute, and there should be a discretion for the inquiry chairman because exceptionally there may be cases where fairness indeed demands that at the end of the process the chairman goes back to a specific witness on a specific point—because, for example, a significant new piece of evidence has emerged or the witness had not previously had an opportunity to comment. However, subject to that, fairness during the hearing suffices.
There is one other matter. The noble Lord, Lord Trefgarne, complained in his speech that at the Scott inquiry, counsel to the inquiry, Presiley Baxendale QC “permanently scarred”—the noble Lord’s words—witnesses by the ferocity of her cross-examination. I know Miss Baxendale well. She was, before her retirement, a member of my chambers, Blackstone Chambers. A more polite and more reasonable person it would be difficult to find. I have to say to the noble Lord, Lord Trefgarne, that an inquiry is there to find the facts. To do so depends on counsel to the inquiry fearlessly and without favour asking difficult questions of witnesses who may be reluctant, for a variety of reasons, to tell the full story. It is undoubtedly not a pleasant experience to be cross-examined, but Miss Baxendale was not there to make friends. She did her job. So did this Select Committee. The House is very grateful to the noble Lord, Lord Shutt, and the other members of the committee.
Baroness Buscombe (Con)
My Lords, I join other noble Lords in congratulating the noble Viscount, Lord Tenby, on a wonderful valedictory speech. All I can say is: some gatecrasher! He will be sorely missed.
As a member of the committee I begin by saying that we had an excellent chairman in the noble Lord, Lord Shutt, and a wonderful clerk to the committee, Michael Collon, together with his team and special adviser. It is a good report and we have been right to express concerns, given the Government’s response to it. That said, the Government have accepted some of our recommendations, although I do not propose to spend any time on those today.
While our primary focus has been to concentrate on the Inquiries Act 2005, our terms of reference went considerably wider and required us to consider more generally,
“the law and practice relating to inquiries into matters of public concern, in particular the Inquiries Act 2005”.
We therefore used the Act as a basis for a broader and more topical inquiry. I believe that this approach allowed us to benefit in our thinking and assisted us with regard to taking evidence from a broad spectrum of individuals with different experiences concerning inquiries over many years. Indeed, as noble Lords have already said, the quality of the evidence given by those who attended our committee was exceptional.
I can attest to the committee arguing and debating at considerable length, ably chaired, as I have said, by my noble friend Lord Shutt, before making our recommendations. I shall follow other noble Lords in focusing on two areas: the task of setting up inquiries—as it turned out, we learnt, from scratch—and warning letters. I may have something to say on progress on that issue.
We were very clear that for an inquiry to proceed expeditiously, expediently and effectively, focusing on the terms of reference and ensuring the best questions were asked to elicit the truth—paramount for having an inquiry in the first place—from the right witnesses in a timely manner, it would be necessary to have, and to some degree we assumed that there would be, experience to draw from, and expertise and officials, when setting up an inquiry. Unfortunately, we quickly learnt that inquiries do not in large part follow an established system. There is no memory bank. The new chairman and team must essentially start from first base, without the benefit of the experience of others who have been through the process before, beyond, as our committee discovered, a dusty draft guidance held by the Cabinet Office and some notes written by a chairman following just one inquiry, offering some advice to future inquiry administrations. That is a shocking revelation, in my view and that of the committee, that obviously contributes to a waste of time and of public money.
Witnesses giving evidence to our committee spoke of the difficulties in commencing an inquiry without experience, reference to proper financial oversight and ongoing assessments of whether the terms of reference were being adhered to, or whether those terms of reference might in practice be proving too broad and thereby ineffectual. In response to numerous witnesses expressing real concern about a lack of sensible experience to draw from when setting up an inquiry, which affects the due process and possibly the outcome, we made a recommendation to set up a small dedicated unit—a central inquiries unit—to be responsible for all the practical details of the inquiry, whether statutory or non-statutory, including assistance with premises, infrastructure, IT, procurement and staffing. Indeed, I personally would extend that role to continuing objective oversight of whether the inquiry is on track to serve its purpose.
It is important to keep in mind in considering our recommendations the extraordinary timescales involved and the sometimes frankly incredible sums of money that are spent in conducting these inquiries. As I kept thinking through our deliberations, in almost all cases these inquiries cost many people’s lifetime contribution to the tax system—whether any of this is proportionate to the purpose. I have to say I think the Government’s response to this recommendation for a small, bespoke unit does not appear properly to consider the enormity of the task.
We have heard from other noble Lords the committee’s concern regarding warning letters and of the meeting held with Simon Hughes MP. The Minister asked me to write to him with a very personal experience. Here I declare that I gave evidence to the Leveson inquiry; indeed, I was the subject of a warning letter. The Minister asked me to write to him following the meeting about my experience and why it had led me to believe strongly that an amendment to Rule 13 should be seriously considered to clarify intent and thereby remove any inference that warning letters are a mandatory part of the process. As the noble and learned Lord, Lord Woolf, said, we do not want rigid rules.
I will not delay the House by reading out the whole contents of my letter, but in effect I made reference to my personal experience but also made clear, I thought, what we were asking for. I will read a short extract from that first letter:
“In the course of obtaining evidence during our consideration of the Inquiries Act, several witnesses, including Sir Robert Francis, Sir Brian Leveson and Sir Robert Jay, all explained that they thought there was a mandatory requirement for an Inquiry Chairman to send out Warning Letters, however unnecessary, expensive and time-consuming this might be. This led our Committee to unanimously agree that the drafting of Rule 13 might not be defective, as the Government’s response said, however, the content was”.
I waited some time for a reply, which, I have to say, I found most unsatisfactory. Indeed, I went as far as responding to the right honourable Simon Hughes:
“I was disappointed by your response to my letter dated 9th November 2014 and frankly do not believe that you wrote it!”.
Why should I be surprised? What I went on to do was explain again why the committee felt that it was important to address this point, so I explained:
“Perhaps I need to spell it out in more detail: if you read beyond paragraph (1) of Rule 13 which begins: ‘The Chairman may send a warning letter to any person’ you would then find in paragraph (3): ‘The inquiry panel must not include any explicit or significant criticism of a person in the report, or in any interim report, unless … the Chairman has sent that person a Warning Letter and … the person has been given a reasonable opportunity to respond to the warning letter.’
So, in the event a Chairman, when drafting his Report, might wish to make any reference to a witness which could be construed as a criticism, there is no discretion; the Chairman must first send a warning letter. A Chairman may, when drafting his Report, develop his thinking and be inclined to mention many individuals in which case, he may be compromised in so doing, if he hasn’t first issued a warning letter in case a ‘mention’ of a witness is construed as a criticism by someone. How can that make sense?”.
So, we suggested,
“surely a simple amendment to clarify intention to make it clear that warning letters should be issued to witnesses at the discretion of the Chairman of the Inquiry would be simple to do and the effect would be to make an enormous difference in terms of cost and upset”—
which is incredibly important—
“to all concerned. Would that not be progress?”.
I sent that letter on 9 December. Until 11.22 am precisely, I had not received a reply, which I have now received from the right honourable Simon Hughes MP. It was given to me just as the debate began by my noble friend. I should add that I sent a chaser email at the beginning of this week, which perhaps helped. I think it would be helpful to the House if I were to read out the letter, dated today’s date:
“Dear Lady Buscombe,
Thank you for your further email of 9 December in response to mine of 26 November following my suggestion that you provide me with details of your experience in relation to Inquiry warning letters. I am sorry that you were disappointed with my response and apologise for the delay in responding.
I recognise that Rule 13, as currently drafted, has led inquiry chairs to treat the issue of warning letters as an obligation and I agree with your observations on how that leads to increased inquiry costs and the potential to cause concern for some witnesses. However, I believe that Rule 13 strikes the right balance, affording individuals every opportunity to take legal advice and, if they consider it necessary, to respond to criticism. A departure from the current approach, giving more discretion to inquiry chairs, could either lead to a loss of that opportunity with a corresponding impact on the involvement of witnesses, or as indicated in the Government’s response result in no change to the practice of sending Salmon letters almost universally adopted by inquiry chairs.
Although I do not propose to take this issue further, I look forward to the implementation of a number of the Committee’s recommendations by HMG when parliamentary time allows”.
Of course, we do not have very long.
So we have another reply—a response that I am still not convinced answers the question. We are not saying that there should be no rule; we are saying that the rule should be discretionary. There is a suggestion in the letter that,
“giving more discretion to inquiry chairs, could … lead to a loss of that opportunity”.
I think that noble Lords who have already spoken might argue that that is not necessarily the case, and, indeed, that it would be beneficial for there to be an amendment to ensure that there is discretion. I urge my noble friend the Minister—given the Government’s belief that Rule 13, in principle, strikes the right balance—to reconsider the question of making it explicit in the rule that this should be discretionary and that in no way should this compromise the position of the witnesses concerned.
We have learnt that the extraordinary, unexplained delay in publishing the Chilcot report relates to the ongoing receipt of information by the inquiry panel following the issuance of warning letters. If that is true, surely it is a prime example of a lack of clarity in the rules pursuant to the Inquiries Act, leading—I have no doubt—to a considerable increase in costs, time wasted and frustration on the part of all concerned and, worse still, to a loss of public trust in the process. Will anyone believe the report when it is published? That leads to my final point.
In this excellent report there are several references to public trust in inquiries. On reflection, I must declare that at the outset of our committee’s inquiry, I did not believe that the public trust or value inquiries very much at all, and nothing has happened since to change that belief. That is not to say that I do not believe in the value of public inquiries, but I am concerned about public trust. Any value is probably upfront; one witness said that the value is all upfront when an inquiry is a catharsis that something is being done. Other witnesses expressed the view that expectations are raised and, sadly, all too often wane when outcomes—we now have the latest example of that with the Al-Sweady inquiry—bring the whole process into very expensive disrepute. It is to the Government’s credit that the lawyers involved will be subject to legal action. This kind of scenario, relating directly to the Al-Sweady inquiry, was not one considered during our deliberations.
This is a very good and worthwhile report. I urge my noble friend the Minister that the recommendations which have been accepted by the Government in their response should remain in the pending tray, along with the question of Rule 13, to be actioned—we hope—by the next Government.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I begin by joining in the tributes rightly paid today to the noble Viscount, Lord Tenby. Where in this House, I wonder, will we find the wisdom that we shall be losing by his departure?
I, too, respectfully congratulate all those concerned with this impressive report, in which I played absolutely no part. Like others, I want to focus on recommendation 25, for the revoking of inquiry Rules 13 to 15 and substituting for them the single rule for flexibility set out in paragraph 251 of the report. It is, I hope, a sufficient qualification for me to speak today that Lord Salmon of Sandwich was a close kinsman and indeed largely responsible for my going to the Bar half a century or more ago. It was he, as Lord Justice Salmon, who in 1966 chaired the Royal Commission on Tribunals of Inquiry and articulated the six cardinal principles designed to secure fairness in future inquiries which, of course, by their nature are inquisitorial and not adversarial. It is the second Salmon principle that is here in point. It provides:
“Before any person who is involved in an inquiry is called as a witness, he should be informed of any allegations which are made against him and the substance of the evidence in support of them”.
Five years later there followed the Maxwell saga—the Board of Trade’s inquiry into Maxwell’s running of Pergamon Press—which prompted a series of spurious legal challenges to the inspectors’ conduct of that inquiry. The noble Lord, Lord Pannick, has shot most of my foxes, but this part of the history is worth emphasising. Maxwell’s complaint, that he had not been sent a draft of the inspectors’ proposed conclusions and given an opportunity for a last-minute comment on them—the process that has come to be known as Maxwellisation—was roundly rejected by the Court of Appeal, presided over by Lord Denning, as the noble Lord, Lord Pannick, explained. The inspectors—the one most severely criticised being my erstwhile pupil master, Owen Stable, Queen’s Counsel—were totally vindicated. Lord Denning’s judgment has been cited, but it is worth quoting a short passage from Lord Justice Lawton’s judgment—[1974] Q.B. 523, page 541. It puts it neatly thus:
“The researches of counsel have not produced any other case which has suggested that at the end of an inquiry those likely to be criticised in a report should be given an opportunity of refuting the tentative conclusions of whoever is making it. Those who conduct inquiries have to base their … findings … on the evidence. In my judgment they are no more bound to tell a witness likely to be criticised in their report what they have in mind to say about him than has a judge sitting alone who has to decide which of two conflicting witnesses is telling the truth. The judge must ensure that the witness whose credibility is suspected has a fair opportunity of correcting or contradicting the substance of what other witnesses have said or are expected to say which is in conflict with his testimony. Inspectors should do the same but I can see no reason why they should do any more”.
It is somewhat surprising that, in those circumstances and in the light of those judgments, the process of Maxwellisation nevertheless began to gain currency. It was adopted, apparently, by Lord Bingham in the inquiry that he chaired into the collapse of BCCI and, to some extent, by my noble and learned friend Lord Scott of Foscote in his arms to Iraq inquiry. Speaking some 20 years ago, just before the publication of his report, my noble and learned friend Lord Scott put it thus:
“The golden rule, in my opinion, is that there should be procedural flexibility, with procedures to achieve fairness tailored to suit the circumstances of each Inquiry”.
Ten years later came the Inquiries Act 2005, which, as your Lordships know, by Section 17 provided that, subject to the Act and to rules made under Section 41, the procedure and conduct of an inquiry is for the chairman. The following year, the Lord Chancellor made the Inquiry Rules 2006, and there are to be found Rules 13 to 15, providing, as they do, for an extreme and inflexible Maxwellisation process in all statutory inquiries.
Although, as the Government’s response to this recommendation observes, the power to send a Rule 13(1) letter is discretionary, Rule 13(3) prohibits an inquiry report criticising anyone unless they have been sent a warning letter—mandatorily, it has to contain all the detailed information set out in Rule 15—and given an opportunity to respond to it. My noble and learned friend Lord Cullen has already explained what that can amount to.
I will not repeat what my noble and learned friends Lord Cullen and Lord Morris of Aberavon have reminded us is to be found in the committee’s report about the experience of Mr—as he then was—Robert Francis on the Mid Staffordshire inquiry or indeed what was said by Lord Justice Leveson and his counsel to the inquiry, Mr Robert Jay QC, who, more than 30 years ago, was my pupil and is now Mr Justice Jay. The Chilcot inquiry, apparently treating itself as bound by these rules, although not in fact being conducted under the 2005 Act, has clearly been suffering from no less, and indeed almost certainly more, by way of “grief”—the word used by Mr Jay—delay and expense from a conscientious and thorough application of such rules. It, moreover, has suffered the additional disadvantage of having no counsel to the inquiry.
In short, the Government’s bland rejection of this recommendation is surely to be regarded as deeply unsatisfactory and indeed somewhat disingenuous. Nothing could be more obviously calculated to result in future inquiries needlessly suffering the same problems of delay and expense. I say “needlessly” because the rule proposed in substitution for Rules 13 to 15 would provide precisely the flexibility required to enable chairmen in future to ensure fairness in the particular circumstances of each case. The recommendation makes obvious good sense and should be accepted and implemented without further delay.
If I am allowed the briefest footnote, it is this. The Salmon principles themselves remain essentially sound. I respectfully suggest that, to some extent at least, they might with advantage be adopted by certain parliamentary committees—not, I hasten to say, in this House but in the other place.
Lord Soley (Lab)
My Lords, I begin by saying that it was a pleasure to be here when the noble Viscount, Lord Tenby, made his valedictory speech. I was very interested to hear that his first speech in this place was on non-custodial sentences. That led me to think to myself that he then went on to do 26 years of what might be described as a semi-custodial sentence. However, he has done it with great distinction and he will be missed.
I also congratulate the noble Lord, Lord Shutt, as well as all the staff of the committee, who often do not get the recognition they deserve. As a member of that committee, I can say that it was very informative, very well run and a pleasure to be on.
I echo what a number of speakers have said about the inadequacy of the Government’s response, which initially I thought was just down to Ministers’ incompetence and arrogance. I have come to the conclusion that it is actually more complicated than that: it is almost certainly about interdepartmental struggles over what to change and what not to change. No one can really believe that there is not a problem, not least in relation to the length and cost of inquiries. People often quote the Saville inquiry, which lasted 12 years at a cost of £191 million, but in fact others have overrun and been very costly. Therefore, there is a problem there.
However, I ask the Minister to put this matter in a wider perspective. My view—and this was said to us by a number of people giving evidence—is that inquiries are becoming increasingly important in winning the confidence of the public in our political and judicial systems. That point was made a number of times and I cannot stress it enough. At a time when we politicians are struggling to re-engage effectively with the public, and when that is very complicated because society is so much more complicated, these inquiries give the public a chance to have their voice heard, and not only in special circumstances if they are directly involved. They also enable the wider public to recognise that there are ways in which very complex topics can be explored in more detail, with good recommendations being made.
I entered the House of Commons back in 1979. When the riots started in 1981, I had in mind the Coldbath Fields riots of the 1830s. Then, the House of Commons set up a committee of inquiry composed of Members of Parliament, who took only two or three months to make their recommendations, including very major ones such as preventing the police being agents provocateurs. I thought that that was a very good system because it changed things after the Coldbath Fields riots, so why can we not do that again? However, when you saw the complexity of the inner-city riots and the Scarman inquiry began, you realised that it was too complex and too party-political to do it within the parliamentary system. Indeed, when I was at the Meadow Well Estate near Newcastle, where the riots had taken place, it occurred to me that the whole approach taken by Scarman was very impressive and needed to be taken forward. Since those days, we have had more and more inquiries in very appropriate circumstances.
What amazes me about this report is that one of the central recommendations—that we should presume to use the 2005 Act—is rejected in the government response through a list of statements, which do not give any clear reason why we should not do so. They could best be described as a painful elaboration of an attempt to find a field with very long grass into which to kick the recommendation. My noble friend Lord Richard made the point, as did others, that there will obviously be cases where, understandably, people will not want to use the 2005 Act, and security may well be one. I want to return to that in a moment. However, by and large, why is there not a presumption that the 2005 Act will be used? Although it received criticism, nobody said that it was a really bad Act.
Why is another of our recommendations—that a Minister should be expected to come before Parliament and say why they are not going to use the Act—rejected? In most cases, they would be able to do that. In cases which are difficult for security reasons, I have never generally found Ministers or MPs so shy or bashful that they cannot find a way of dealing with that. The Litvinenko affair was a classic example of where there was a need for an inquiry. However, for very real reasons—not just security reasons but reasons of relationships with a major power, Russia—it could not be done. Now, because relations with Russia are so much worse, the inquiry is taking place. However, initially it was resisted. If that is why the Government are reluctant to accept the recommendation of an assumption of using the 2005 Act, I say that that is not good enough. Reasons can be given in Parliament as to why they do not want to use the Act.
All the other points that have been made, which I do not wish to repeat in great detail, are absolutely right. It is absurd that we take so much time on insisting on letters being sent out with a warning when the chairman of the inquiry does not think it is necessary. Clearly, we have to give a considerable degree of leeway to the chairmen of inquiries in these circumstances. I also think that there are other points that we need to emphasise, such as the importance of involving the judiciary in the selection of the judge, if it is a judge-led inquiry, and issues of that kind.
Going through the report, the noble Lord, Lord Shutt, spelt out how many had been accepted, how many rejected and how many were conditional. The reality of reading the report in the round is that it is generally a case of avoidance. It is saying, “This is difficult; I can’t really do that; that’s too problematic; we’ll look at this again”, and so on. Reading the introduction by Simon Hughes MP, where he says that he welcomes the report, I thought that it would have been more accurate to say that he did not welcome the report and would rather it had never been written.
That is the thrust of the Government’s response. This is an important issue. If we look at recent public inquiries—the one on the hospital and the arguments around the inquiry that will take place on child sexual abuse—they are incredibly important to the public. They help to restore confidence in our political and judicial system, which has received some heavy knocks in recent years. We need to deal with that. It may be a bit late in the day, but perhaps not too late, to say to the Government that a bit of creative thinking would be useful. If the Government had approached their response to the report by picking up the evidence that a number of people have made about how important these inquiries are—Leveson is a classic example of one that attracted enormous interest—why are they so reluctant to make sure that they are well developed? The noble Baroness, Lady Buscombe, made the point about the importance of some central unit that keeps the processes under review to ensure that we do not spend lots of money on reinventing the wheel.
Inquiries are important for the public. They give the public greater confidence in the administrative system of the UK and that our constitutional structures are working well. They are becoming, in my judgment, a very important tool with which to re-engage with the public. That is how the Government should have approached this, and I am very sorry that they did not. They have underestimated their opportunity to engage better with the public by using public inquiries, and at the same time recognising that many of the things that have been mentioned today could be done not only to make them work better but to save an awful lot of money. It would not take too many more Savilles—I hope there will not be any—for the public to begin to lose support for them when they know the costs and timescales. That undermines public confidence. What the report is trying to do is to give structure to the system so that people continue to find inquiries useful and interesting, and that people have confidence in the administration of the UK and its constitution.
Baroness Stern (CB)
I begin, if I may, with a word about the noble Viscount, Lord Tenby. He may remember that when I arrived here 16 years ago I felt totally bewildered and utterly overwhelmed by it all. It is absolutely thanks to the noble Viscount and how he looked after me that I found my feet—I think I found my feet—and I have never forgotten his kindness and understanding.
I felt very privileged to have been a member of this Select Committee; it contained a vast wealth of wisdom and we have heard much of that today. The staff were hugely impressive and we had a chairman who held it all together, kept us in order, made us laugh, and got out of us what I feel is a very important report. We say in our summary:
“Inquiries into matters of major public concern are now an integral feature of the governance of this country”.
Indeed, they are a very important part of the arrangements we make to respond to and to resolve wrongs, disasters and failures. I appreciate the remarks of the noble Lord, Lord Soley, which spelt that out in some detail.
In my remarks I want to concentrate on the significance of inquiries to good governance in relation to their role in giving satisfaction to injured parties, helping to lay matters to rest so that they do not fester for years, and giving to people who have suffered a sense that justice has been done. The word “justice” can be used in different ways. It can mean that someone is convicted and punished or blamed and shamed. It can also mean that injured parties find out the truth of what happened. I am sure that some noble Lords heard on the BBC a woman whose son had died at Hillsborough talking about the effect on her of hearing the truth that came out at the inquest about what really happened on 15 April 1989. After all those years of waiting it was very forceful.
We explored this aspect with most of our witnesses and we conclude in paragraph 9 that one of the purposes of having public inquiries is “catharsis”, which we define as,
“an opportunity for reconciliation between those affected by an event and those whose action caused it or whose inaction failed to prevent it”.
We heard much interesting evidence on this theme. Liberty told us:
“Inquiries provide a means for the truth about an event or series of events to be reached by an independent and authoritative body, but in a manner which is more inclusive and restorative than litigation”.
The words, “inclusive” and “restorative” are significant in this context.
Ashley Underwood QC told us that if you did not have the cathartic element you were likely to fail. You simply will not have allayed the public concern if you do not get reconciliation and do not have people thinking they have had their voices heard. Robert Francis QC, now Sir Robert, told us that the cathartic effect of being heard is a very important part of the inquiry. Hazel Shaw of Inquest said that the standing of the victims or bereaved families in an inquiry was very important. She said that often they are asking some of the most searching and difficult questions and performing a function in the wider public interest. That point is worth stressing. Although the victims—those who have suffered wrong—are at the centre or core of an inquiry, which is why we call them “core participants”, the outcome is of much wider importance for the public as a whole.
I want to thank those who gave evidence who have suffered some grievous wrong, and were prepared to put effort and commitment into making a success of the inquiry that looked into what had happened to them. I think, for example, of Christopher Jefferies who had been vilified by the press, mistakenly as a murder suspect—he gave evidence to the Leveson inquiry—and Julie Bailey who was such a leading figure in the Mid Staffordshire inquiry. We considered in some depth how such core participants were dealt with in the inquiry process, and whether it was appropriate. We heard about good practice from the noble and learned Lord, Lord Cullen, who spoke earlier and who, as an inquiry chairman, had meetings with the bereaved before the inquiry started,
“so they have a chance to see what I am like”.
The noble Lord, Lord Gill, who also chaired an inquiry told us that he met the core participants in advance. He said:
“You have to make it clear to them at the outset that everything is coming out in the open, that nothing is being held back”.
These are very useful examples of good practice.
The committee recommended that interested parties, particularly victims and victims’ families, should be given an opportunity to make representations about the final terms of reference. The Government, in their response—that most unfortunate document that we have been talking about for much of the time throughout this debate—accepted that recommendation very half-heartedly. The response states that it is,
“accepted to the extent that it may be helpful in certain instances”.
One of the elements of the inquiry that is important for public confidence and for core participants in particular so that they feel that they will be treated fairly and nothing will be swept under the carpet, is independence. Our committee made recommendations about independence from government. The noble Lord, Lord Trimble, referred to those, as did the noble and learned Lord, Lord Cullen. For example, we recommended that the Minister should appoint a panel member only with the consent of the chairman. That was rejected. The Government response rejected that recommendation because,
“there may be occasions when the minister and chair have different views”.
We recommended that the Minister should get the consent of the chairman to appoint assessors. That was rejected. We recommended that,
“the Act should be amended so that the consent of the chair is needed before the minister can set or amend the terms of reference”.
That was also rejected because,
“ministers will wish to retain control of the details”.
Recommendation 19, which is that,
“the power of the minister to issue a restriction notice under section 19, restricting public access to an inquiry, should be abrogated”,
was also rejected. The Government said that Ministers must keep this power because:
“They will understand the nature of national security and other sensitive material”.
We must draw from that the unavoidable conclusion that, in the view of the Government, a learned judge chairing a public inquiry will not understand such matters.
Recommendation 21 was that,
“where the minister wishes to terminate the appointment of a panel member other than the chair”,
the Act,
“should be amended to require the chair’s consent”.
That was rejected.
In light of the rejection of these recommendations and particularly in light of the reasoning given, I hope that the Minister will affirm the Government’s commitment to the independence of public inquiries. I hope that this debate will convince your Lordships’ House and the wider public who follow our proceedings that public inquiries are of considerable importance in ensuring transparency, accountability, truth finding and catharsis, and that our recommendations deserved a more thoughtful and intelligent response than they received.
Baroness O'Loan (CB)
My Lords, I join with other noble and noble and learned Lords in congratulating the noble Viscount, Lord Tenby. When I came into this House five years ago, I, too, benefited very much not only from his gentle courtesy, but from his profound wisdom and I would like to thank him for all that he has done in this House.
I am grateful to the noble Lord, Lord Shutt, and the members of his committee for the excellent report that they produced on the Inquiries Act. This debate affords an important opportunity for the Government to review their position in relation to their response to the report.
I declare an interest. I am chairing the Daniel Morgan independent panel. It is not an inquiry under the Act; it is a Hillsborough-type independent panel, which was set up to examine the murder of Daniel Morgan in London in 1987, allegations of police involvement in his murder and of police and media corruption affecting the investigation. The issues that we have discussed are therefore of significant interest to me.
The genesis of this Act goes back, among other things, to 2003, when the European Court held that there had not been sufficiently effective and independent investigation for the purposes of Article 2 of the European Convention on Human Rights into the circumstances of the death of Belfast solicitor Patrick Finucane. He was murdered, it was subsequently established, as a consequence of,
“a series of positive actions by employees of the State”,
which,
“actively furthered and facilitated his murder and … in the aftermath of the murder”,
we are told,
“there was a relentless attempt to defeat the ends of justice”.
The Select Committee in its report was very clear that the Act does not as a whole require radical surgery, but it sets out clearly the deficiencies in respect of which evidence was received. The recommendations for amendment have already been referred to by a number of noble Lords and are summarised on page 89 of the report. Many of the deficiencies identified by the report go to the independence of the inquiry process. That is vital to public confidence in the Act, in the inquiry process and in governance. In responding, as the noble Baroness, Lady Stern, and others have said, the Government rejected the call to amend the most important of these provisions—the ministerial powers to amend the terms of reference, appoint members and, most particularly, the use of restriction notices.
As the noble Baroness, Lady Stern, said, in paragraphs 69 to 72 of their response, Her Majesty’s Government state that Ministers,
“will understand the nature of national security and other sensitive material”.
I have no doubt that we need to protect our national security. Having been the victim of a bomb explosion and having had other terrorist-related experiences, I am very clear about that. There are many threats to national security, as we know. But there is an imperative to learn from our past, not just on the terrorist front but as we now contemplate even just the number of inquiries currently being established into historic child sexual abuse and its alleged cover-up. Lord Acton, in one of his letters in January 1861, famously wrote:
“Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity”.
There is a temptation in any organisation to cover up its wrongdoing. We have seen it across so many professions and institutions. Governments will not be immune to that temptation and those who have advised them and their successors may seek to cover up past wrongdoing to protect what they perceive to be the stability of the present. But when we build on the shifting sands of noble cause corruption, we do so at our peril. We do not need to think back very far to identify situations in which a dishonest response, and a quick calculated inquiry, such as that which resulted in the Widgery report on Bloody Sunday, resulted in serious damage. They say in Northern Ireland that the Bloody Sunday shootings were one of the best recruiting agents for the IRA. We heard reference to the Saville report and to its cost, but I remind noble Lords and Her Majesty’s Government that a lot of the costs of that inquiry resulted from challenges by the Government and their agents to the inquiry itself. We must remember that.
I do not say this to offend; I say it because there is a duty on those who conduct these inquiries to do so using every tool at their disposal to uncover the truth. The power of the Minister to restrict attendances and block access to and disclosure of documentation, as the noble Lord, Lord Saville, is reported to have said in the report made,
“a very serious inroad into the independence of any inquiry; and is likely to damage or destroy public confidence in the inquiry and its findings”.
That view was also clearly articulated by the Joint Committee on Human Rights and the House of Lords Select Committee, stating that the power to make such notice compromises the Article 2 compliance of an inquiry by curtailing its independence and restricting the ability of the next of kin effectively to engage with an inquiry so as to enable it to lead to an accurate determination of responsibility.
A way forward in this dilemma was identified in the Baha Mousa inquiry, the chair of which was able to maintain his independence by insisting on a protocol that allowed him to maintain control over disclosure. However, placing the burden to stand up for independence on the chair is not right and does not ensure that, in the future, every inquiry will be independent and effective. The reality is that an inquiry that is deeply immersed in what might be millions of pages of documents is much better placed to assess the relevance of documentation and capable of protecting that which requires to be kept secret than the Government and their advisers.
The Finucane family, whose tragic loss has been the subject of so many limited inquiries, firmly believe that the whole truth about what was happening in Northern Ireland at the time, which led not just to the death of Patrick Finucane but to that of Adam Lambert, has not been told. It is now common knowledge that many other people died at the hands of terrorists because of the involvement of state agents in one way or another in these murders and the protection of those who committed them. I have seen the pattern of activity involving the state and paramilitary organisations, republican and loyalist. That is why they continue to call for a public inquiry, as, indeed, do other victims of atrocities.
Such inquiries must have proper independence. It is 27 years since Patrick Finucane was murdered and 13 years since the then Secretary of State declared that there would have to be an inquiry, but the terms of the Inquiries Act are such that the family cannot be sure of the initial and ongoing independence of any inquiry. The arguments not to have inquiries into atrocities such as the deaths of Mr Finucane and the Ballymurphy and Omagh victims are not even persuasive, let alone convincing, as we look at inquiries which have been established under the Inquiries Act.
It is not in the interests of national security that we protect those who did wrong, yet this Act, as currently framed, makes it much more possible for this to happen. I know that those seeking to protect vital national interests have, on occasion, been badly advised, but we all know that not every document marked “Secret” merits that mark and not every confidential document is in any way confidential. Each document should be capable of being examined on its merits by an independent inquiry. Chairmen and inquiry members should be cleared to the necessary level and can be briefed by the same people as Ministers. They surely have as much intellectual capacity as Ministers and hence will be competent to understand the nature of any briefing or explanations. Judges and others routinely work in areas of national security. They do not come new to it when they assume the role of chair of an inquiry.
As several noble Lords have said, Her Majesty’s Government’s arguments and their response to the Select Committee report are not convincing. There is significant risk of reputational damage to the UK as a consequence of the way the Inquiries Act was drafted and is playing out. As I have said, I am completely convinced of the need to protect national security, but I ask the Minister to look again at these provisions. I also urge any new Government to consider seriously the implications of the ongoing lack of trust which is to some degree perpetuated and even aggravated by the current state of the law. As we fight our current anti-terrorist battles, it is profoundly important that we do not, through our legislative and administrative activities, demonstrate that we are not capable of learning the lessons of the past. For 10 years there has been consistent criticism of this Act by parliamentary committees, by many noble and learned Lords and by other very distinguished academics. It is beyond time for change.
Lord King of Bridgwater (Con)
My Lords, I speak very briefly in the gap to congratulate my noble friend Lord Shutt on his chairmanship of this committee. I think that 90% of the committee have now contributed to this debate. I apologise to colleagues on the committee that I was unavoidably absent in the middle of this debate. I very strongly agree with the comments of my noble friend and the noble Lord, Lord Richard. I say to the Minister that while we talk in the report about lessons that might be learnt in the conduct of various inquiries, I think that there are lessons to be learnt, also, in how the Government should respond to Select Committee inquiries.
I was very interested indeed to serve on this committee and I think it was a sign of the contribution that the House of Lords can make. Looking at the membership of the committee, we had a former Lord Chief Justice, a former Attorney-General, a former Leader of this House, a number of Ministers who had to grapple with these sorts of problems and a number of people who take an interest in these issues and made contributions. Undoubted evidence was established in the course of that inquiry of actions that could be taken. In the current climate, with issues of public expenditure, we saw shocking illustrations of the considerable waste of public expenditure when people embarked on inquiries without proper preparation or knowing what was involved. Costs and time were wasted. If ever there was a case for a central store of evidence, this is it.
Like the noble Baroness, Lady O’Loan, I have faced requests for public inquiries of more than one kind, as she knows very well. The truth is that in many cases one never knows where a public inquiry is going to hit, which department it will be in or whether the Minister or the officials have ever had any previous relevant experience. There is a need for a central clearing arrangement so that people can learn lessons, not just in order to save money but in the chance of a prompt setting up of inquiries, which is in the interests of all concerned and is very important.
We are in a difficult position. I do not have a clue what the Minister is going to say, but I hope that it will be a very adequate and full response, reflecting, at last, some important points made by people who genuinely contribute to a very important discussion of this issue. I hope that he will be able to respond in a very full and helpful way in the interests of the better conduct of inquiries in the future.
Lord Beecham (Lab)
My Lords, I add the thanks of the Opposition Front Bench to the noble Viscount, Lord Tenby, for his many years of distinguished service in this House, to which others have referred. My father did not know Lloyd George, but as it happens he was a constituent of the noble Viscount’s father when he was a Member of Parliament for Newcastle North. The by-election that followed the first Viscount’s elevation to this place remains in my memory as the first by-election that I can recall as a very young supporter of the party of which the noble Viscount’s father was not a member.
I also add my tribute to the noble Lord, Lord Shutt, and the members of the committee, 10 of whom have spoken in today’s debate. It is a matter of regret, as he gently hinted, that the report has enjoyed its first birthday before making an appearance in this House for a debate. As I said last week in connection with another long-delayed report, although perhaps with less force in that case, the House needs to look at how it deals with post-legislative scrutiny, because it becomes extremely post if, once reports are published, they do not reach the Chamber for discussion.
Last week I chanced upon my copy of a book which I last consulted 50 years ago, as I, among others, including the noble Baroness, Lady Deech, who is not in her place today, was preparing for the final examinations for my Oxford law degree. The title of the book was Administrative Law and its author was the eminent legal academic, the Professor of English Law at Oxford, HWR Wade. In those days administrative law could be said to have been in its infancy. Indeed, the Lord Chancellor would be delighted to know that the words “judicial review” do not appear in the index or, indeed, in any other part of the book.
However, there is a chapter on statutory inquiries, which makes instructive reading. Of its 29 pages, 26 are essentially confined to planning inquiries, two to accident inquiries and one to what Professor Wade described as, “a type of public enquiry which from time to time attracts much attention: the special inquiry which Parliament may at any time constitute under the Tribunals of Inquiry (Evidence) Act”. He cited, as examples of the latter, premature disclosures of Budget details by Ministers, allegations that a change in bank rate was prematurely divulged, accusations of brutality by the police and other matters of public importance.
In the first 40 years of the Tribunals of Inquiry (Evidence) Act 1921 only 14 inquiries were established by a vote of both Houses to investigate such matters of urgent public importance, and the following 44 years saw only another 10. It is this Act that was replaced by the 2005 Act, which is the subject of the Select Committee report. Any discussion of inquiries has long since seen matters of urgent public importance overtake planning inquiries and the like as a subject of concern and debate.
Very often, of course, the demands for the establishment of a statutory inquiry arise from questions about the conduct of the Executive in one or other of its various manifestations. It is the role of Ministers in any Government in setting up inquiries, appointing the chair, controlling the disclosure of evidence and publication that not surprisingly provokes scepticism about the process.
It is striking that most of the 2005 Act inquiries arose from deaths in which the role of the police, military or health services came under scrutiny, in addition to the Leveson inquiry and some others. There are others, such as the inquiry into undercover policing, where the inquiry is a 2005 Act inquiry, but as the noble Lord, Lord Shutt, elucidated in a Question last year, the inquiry into the so-called “on the runs” in Northern Ireland is not. That was described as “an administrative review”, despite the issue stemming from a political decision, albeit one that many would say—I would be one of them—was the right one in the circumstances and which contributed to the successful outcome of the protracted negotiations that brought peace to Northern Ireland.
The indefatigable noble Lord, Lord Shutt, who Ministers, one senses, might have wished to have lived up to his name, was told in answer to another Question concerning the inquiry into the death of young people in prison—being conducted, I am absolutely confident, in exemplary fashion by my noble friend Lord Harris of Haringey—that the terms of the 2005 Act did not apply. Yet, as I have indicated, deaths in prisons and hospitals were the subject of 2005 Act inquiries. There are, as we have heard, crucial differences between 2005 Act and other inquiries, especially about such matters as the compellability of witnesses, the production of documents, and the public nature of the proceedings being subject to restrictions on grounds specified in the Act. But it is difficult to understand the decision-making processes that lead, for example in the case of the Hillsborough tragedy, to there being one inquest, followed by a major inquiry conducted by the late and much lamented Lord Taylor of Gosforth, and then a second inquest, on the face of it now being properly conducted, as opposed to the first. My noble friend Lord Soley referred to some misgivings, which many would perhaps share, about the way the Litvinenko matter has been handled—first possibly by an inquiry and now by an inquest.
The lack of a consistent approach is surely a matter of concern. It lends force to the Select Committee’s suggestion of central support for inquiries based in Her Majesty’s Courts and Tribunals Service, although in my view there might be other options for its location. However, the principle of having such a unit seems to be very appropriate. The Government’s response, relying on the roles of the Ministry of Justice and, heaven help us, the Cabinet Office, is not very appealing, particularly when it proclaims that the latter,
“offers advice and acts as a conduit for any interaction between the inquiry and Parliament”.
The response goes on to state that:
“In our experience, inquiry chairs and ministers have worked well together in agreeing the details of how an inquiry is to be established”.
It might be thought that the views of the parties to an inquiry, for example, or an independent source would offer more reassurance than this exercise in self-assessment and self-approval. Then there is the equally complacent, if not to say patronising, assertion, which the noble Baroness, Lady Stern, referred to, that:
“Ministers are best placed to understand the full significance of considerations such as national security and international relations and they make decisions accordingly in a way which cannot be expected of the inquiry chair”.
Of course such considerations have to be given due weight, but would it not be possible to involve others in the process, perhaps from the judiciary or Parliament?
It is disappointing that the Government have rejected out of hand recommendation 11 to give interested parties, particularly victims or their families, an opportunity to comment on the terms of reference for an inquiry, although perhaps such a procedure should be qualified by the words “wherever practical”; it may not be practical in all cases. However, there may well be some where it would be.
The Government have also rejected recommendation 19: that a notice,
“restricting access to an inquiry, should be abrogated”,
leaving that decision to the chair, and recommendation 20, giving,
“only the chair … the power to withhold material from publication”.
Again, if there is some doubt in the Government’s mind, could there not be recourse to some third-party involvement, at the very least on a trial basis?
I also have difficulty with the response to recommendation 23, referred to by the noble and learned Lord, Lord Cullen, that “only the chair” may appoint counsel to the inquiry because—I repeat his quotation:
“Ministers will want to retain control of such issues which affect departmental budgets and the terms of reference of an inquiry”.
Those are legitimate considerations, no doubt, but again is there not at the very least scope for some third-party involvement in the appointment of counsel, perhaps from the judiciary in this instance?
The noble Lord, Lord Shutt, explained the delay in bringing the committee’s report to the House when he asked a Question of the Leader in January saying that the delay was occasioned by the unsatisfactory nature of the response, about which we have heard a good deal in the debate today. Perhaps in replying to the debate the Minister will refer to the attempts made to secure a better response, which do not appear to have been startlingly successful, if I heard the noble Lord correctly. Why have the Government remained, as it would appear, pretty obdurate in respect of some of the recommendations and requests for a further and better response? Perhaps the Minister, not least in the light of the child abuse inquiry fiasco, could indicate whether any thought is being given to an enhanced role for Parliament in this whole area.
Another issue has been raised with me by the eminent QC, Stephen Hockman: namely, the responsibility for writing the report to be published by the inquiry. This is not covered by the rules or the committee report. I understand that Lord Leveson delegated the drafting of much of his landmark report to counsel to the inquiry, now Sir Robert Jay, whereas the noble and learned Lord, Lord Saville, wrote the entire report on Bloody Sunday himself after a prolonged 12-year inquiry. Another approach was apparently adopted by the noble and learned Lord, Phillips of Worth Matravers, who in the course of conducting the BSE inquiry published online a section of his report after each week of evidence. That is an interesting technique, and I am not saying for a moment that it would apply to all cases, but perhaps it is worth considering.
Is there not a case for providing inquiries with professional assistance in report drafting and a framework within which a draft report can be submitted for comment by interested parties on a more systematic basis than appears to be present at this time? After all, we are dealing with matters of great public interest in which it is vital to sustain public confidence in the independence of the process and its capacity to discover the truth, uncomfortable though that will sometimes be. Governments must go further if the public are to be reassured of the integrity and capacity of the system to meet these objectives, and they should recognise the role of Parliament as an indispensable element in the system.
Finally, I will conclude, if I may, by saying a word or two about the Minister. He and I have had the pleasure of confronting each other across the Dispatch Box for the last 15 months. I have always found him to be an extremely courteous and effective debater, and somebody who has done a valiant job in defending the Government—pursuing my ancestral career of making bricks without straw—but doing so with great charm and to great effect. Who knows what the forthcoming election will bring about in terms of our respective positions on the Front Benches or elsewhere in the Chamber, but I would like to put on the record something which I believe many members of the committee would share: our gratitude to the noble Lord for the way he responds to debates both in the Chamber and outside. I wish him well, whatever the outcome of the election and wherever that leads or leaves him.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I thank my noble friend Lord Shutt for initiating this debate to discuss the Select Committee’s report on the Inquiries Act 2005, and in particular the Government’s much criticised response to its recommendations. I also thank all other noble Lords who have contributed to this debate. If it is to be my last appearance at the Dispatch Box—I am most grateful to the noble Lord, Lord Beecham, for his remarks in that respect—it is a great privilege not only to be involved in a debate of this quality with so many participants of enormous experience, but also to be present on the occasion of the valedictory speech of the noble Viscount, Lord Tenby. I have not had the privilege of knowing him well; I wish I had known him better. I do know, however, that he was the assistant to no fewer than five Convenors of the Cross Benches. Perhaps I could dare this observation: I suspect that that might well have been quite a challenging occupation on some occasions.
Before finally turning to the debate itself, perhaps I may reciprocate the comments of the noble Lord, Lord Beecham. He has been a formidable opponent—not to say a thorn in my side—during the time that I have been standing at the Dispatch Box. He has held the Government to account with tremendous ferocity accompanied at the same time by great wit. I pay tribute to him for that.
The report of the noble Lord, Lord Shutt, received a response from the Government. The noble Lord, Lord Soley, suggested that in the welcome expressed by my ministerial colleague, Simon Hughes, there was a subtext that the Government did not in fact welcome the report. I am here to disabuse him on that particular matter: the Government do indeed welcome the report and know that the committee invested a considerable amount of time and effort in understanding the operation of inquiries both under the Act and otherwise. The committee’s work has undoubtedly prompted a lively and constructive debate today.
I am grateful to all those who have given evidence to the inquiry—both written evidence and in person—including former chairs, panel members, inquiry legal and administrative teams, and others with involvement in inquiries, who provided invaluable knowledge, experience and insight into how inquiry processes and procedures might be improved.
I assure the noble Lord, Lord Shutt, and his committee that their report was well received across government and that careful consideration was given to the recommendations. It is worth making clear to the House that the response submitted by my right honourable friend Simon Hughes, the Minister of State for Justice and Civil Liberties, who has responsibility for this policy area at the Ministry of Justice, reflected opinion across the whole of Whitehall, not just that of our department. As my noble friend Lord King pointed out, the possible need for these inquiries can confront Ministers in different departments with different levels of experience. It is important that there should be—this is very much the burden of one of the recommendations—a degree of sharing of knowledge and experience to enable a proper response to be given by Ministers in different departments to the call, as there often is, for a public inquiry.
For the benefit of those who are not familiar with this aspect of government, the Ministry of Justice works closely with the Cabinet Office in the operation of inquiries. My department has responsibility for the Inquiries Act 2005 and the Inquiry Rules 2006, which underpin the Act. It provides advice on the application of the Act and the rules. The Cabinet Office has responsibility within government for providing guidance on how to establish and conduct inquiries, and provides the main liaison between lead departments and the centre of government.
Regardless of how they are constituted—whether they are statutory or not—and as a number of noble Lords quite rightly said, public inquiries perform an important role in today’s society of holding public bodies to account, as well as bringing to light, and providing answers to, issues and events that cause public concern. Setting up a major public inquiry is a process that of course the Government take extremely seriously. There is a clear requirement in the Ministerial Code reflecting the importance that is attached to major inquiries of this nature. It states that:
“The Prime Minister must be consulted in good time about any proposal to set up … Major public inquiries under the Inquiries Act 2005”.
I know that the noble Lord, Lord Shutt, and his committee colleagues may feel that the Government took a long time to respond to their recommendations. However, as I have alluded to already, the Ministry of Justice consulted widely to make sure that the response was as comprehensive as possible. Some government departments had little experience of running an inquiry while others had much to offer. As it was, and simply for the sake of the record, the committee’s report was published on 11 March and the Government’s response was published on 30 June.
The noble Lord, Lord Shutt, referred, by way of comparison, to the report of the noble and learned Lord, Lord Hardie—another essay in post-legislative consideration—on the Mental Capacity Act. I was the Minister who responded to that debate. Lest it be thought that the Government are serial offenders in late responses, I should correct one slight misunderstanding that my noble friend may have in that respect. We did in fact respond to that report well within time. The letter that I wrote, and which was referred to in the debate, was a response to the noble Lord, Lord Beecham, simply to update the House as to what had been done to implement the various recommendations—I am glad to see the noble Lord nodding to affirm this. It enabled the debate to be much shorter because the House was made aware of the up to date position. The point that my noble friend makes is a valuable one, but it is not an appropriate criticism of the Government in that respect.
Here, the Select Committee’s report reflected a number of concerns about the use and operation of the 2005 Act and contained 33 recommendations. There were three broad areas of concern that my noble friend Lord Shutt focused on. First, the Committee believed that, when considering what form an inquiry should take, it should be Ministers’ practice to start from a presumption that the 2005 Act should be used—a point made forcefully in the course of our debate by the noble Lord, Lord Richard, who referred to the evidence given by my ministerial colleague Shailesh Vara.
The word “presumption” does not appear in the Act. It is an expression familiar to lawyers and it may be that, on many occasions, Ministers would be well advised to look at the 2005 Act first. However, it would be wrong to superimpose some rule of law, from whatever origin, that there is a presumption that the 2005 Act should be used. Whether it is wise, of course, is a matter of opinion, and this particular Act does not contain any mandatory obligation on the part of a Minister to employ the Act.
Secondly, the Committee felt that it would be useful to have a standing central inquiries unit to give practical support to the chair and secretary of inquiries. Thirdly, the committee made a number of recommendations to increase the accountability of government Ministers and limit their powers to act without the consent of the inquiry chair.
I am sorry that the committee did not feel that the Government’s response addressed these points to their satisfaction. The Government accepted over half of its recommendations—19, in fact, although I understand there is slight carping over the mathematics—and we believe that these included the most important recommendations, as I will explain in a moment.
As noted in the Government’s response, the Select Committee’s report was very much welcomed. My department had carried out post-legislative scrutiny of the Act in 2010, in line with the then new regime of departments scrutinising their legislation between three and five years after implementation. The 2010 scrutiny concluded that the Act was working well but that the 2006 rules presented a number of concerns. The work of the committee was therefore timely. When it reported in March last year, four years had elapsed since that post-legislative scrutiny. At that point, 17 inquiries, under the Act or otherwise, had reported since the implementation. Since the scrutiny, three further inquiries have either been set up under the 2005 Act or been converted to run under the Act. This includes the most recent independent inquiry into child sex abuse, to be chaired by Justice Lowell Goddard.
At the end of October, as he told the House, my noble friend Lord Shutt and members of the committee met my colleague the Minister of State for Justice and Civil Liberties. I understand that many of the committee’s concerns were addressed. There were, however, a few points on which the Government committed to respond—around the role of the Cabinet Office, as I understand it. Perhaps I may take this opportunity to apologise to the noble Lord and his colleagues for the delay in responding to those points. In response to the committee’s report, and to further helpful discussion with committee members, we have looked again at the guidance available and the role that the Cabinet Office can play in supporting departments. I will say a little more about that in due course.
As to the question of whether to establish an inquiry under the 2005 Act, the government response looked in some detail at how Ministers decide what kind of inquiry to establish. At the October meeting, my ministerial colleague addressed the committee’s concerns about the consideration given by government departments to establishing inquiries under the Act. However, for the benefit of the House, I will explain that Ministers will in fact always consider the suitability of the 2005 Act when deciding to establish a public inquiry—it will always be the starting point.
Ministers will, however, also want to consider whether another vehicle would be more appropriate and effective, bearing in mind time and cost. This could be a non-statutory inquiry—I note that the noble and learned Lord, Lord Morris, drew on his experience of non-statutory inquiries and said that they could be useful; an independent review; a parliamentary inquiry; an inquiry of privy counsellors; an investigation with a public hearings element overseen by a judge or QC; an independent review with a public hearings element; or, in a very limited number of cases, an inquiry established under other legislation, such as the Financial Services Act 2012 or the Merchant Shipping Act 1995.
Across government there was consensus that Ministers must retain the option of deciding whether or not to use the Act. It is essential to adopt what is the right approach under all circumstances. It should also be noted—some noble Lords might already be aware of this—that Section 1(1) of the Act gives Ministers discretion to decide whether or not to use the Act. This clearly indicates that Parliament was mindful of the potential of other, non-statutory, approaches.
The House should not lose sight, either, of the fact that there is always the option to convert an inquest or other form of inquiry, investigation or review, into a 2005 Act inquiry in the event that powers under the Act—such as those to compel witnesses—are felt to be required. Very often, witnesses do not need compelling, but recently this has been the case in the investigation into the death of Alexander Litvinenko. On 22 July 2014, the Home Secretary announced that the inquest would be converted into an inquiry—the noble Lord, Lord Soley, referred to this—under the 2005 Act to give the chair the power he needs to consider sensitive material.
On the point about a central inquiries unit and guidance—an important part of the report—I fully understand the concerns behind the committee’s recommendation that a central inquiries unit should be established within central government. Government departments considering establishing an inquiry—as well as potential inquiry chairs and teams, both administrative and legal—will want to be assured that there is resource and experience available to them, rather than having to reinvent the wheel, to use the terminology employed by the committee, with every new inquiry. However, as the Government’s response sets out, we do not accept the need to create a new standing team. The MoJ and Cabinet Office already work closely with departments to provide guidance and assistance at various stages of inquiries, from the point at which Ministers consider whether an inquiry is required, through set-up and on to the final publication of reports, to closing down inquiries and learning lessons.
We absolutely accept that more can be done to improve this service, and to ensure that we learn lessons from inquiries. However, it is essential that any central resource provided for inquiries work is proportionate to the number of inquiries and reflects the need from departments. In this vein, and since the Government’s response last June, the Cabinet Office revisited its approach in this area and identified dedicated resource to build the nature and profile of support available. The Cabinet Office also revisited the draft guidance to departments on establishing an inquiry, taking account of the views of the committee and feedback from departments. This will be a more streamlined document, providing the necessary signposts for those involved in inquiries and ensuring that there is complete clarity around additional sources of information and support.
The guidance will take account of the recommendations made by the noble Lord and his committee, of what has been said in today’s debate and also of the recently published guidance by the Centre for Effective Dispute Resolution—with which I know the noble and learned Lord, Lord Woolf, has been involved—on setting up and running a public inquiry. It will also take account of lessons learnt from inquiries that have completed or are underway, including the recent data loss from the Robert Hamill and Azelle Rodney inquiries. The Cabinet Office official responsible for this area of work instructed me to say that she would be very willing to meet my noble friend Lord Shutt to discuss this ongoing work before it is finalised.
Alongside this, the Cabinet Office is engaging with key officials across Whitehall to ensure that the cross-Whitehall officials group on inquiries operates as effectively as possible. In addition, we are establishing a network of former inquiry secretaries to provide a further repository of expertise and experience. We absolutely accept the committee’s concerns regarding the completion of lessons learnt exercises, and the Cabinet Office will ensure that these are completed with greater consistency than they have been to date, and that the lessons arising are cascaded appropriately and are used to continue to inform guidance to departments.
Like my department’s post-legislative review in 2010, the committee concluded that, generally speaking—and notwithstanding its various recommendations—the 2005 Act continues to work pretty well. However, the committee also agreed that there is a need to improve the rules. The committee recommended four amendments to the rules, of which the Government accepted three. Unfortunately, we have been unable to make these amendments in the current parliamentary Session. However, work is in hand to progress these changes at the earliest opportunity under the new Parliament. The changes are in no way controversial.
I now come to what is much more controversial: the question why Her Majesty’s Government rejected the committee’s recommendation that Rules 13 to 15 on warning letters should be revoked and substituted with a rule giving chairs greater discretion. Of course, on warning letters, a 2005 Act inquiry cannot apportion civil or criminal liability—although I note the observation of the noble and learned Lord, Lord Woolf, that more use might be made of the findings of inquiries in civil proceedings. The warning letter provides a mechanism to inform someone of the fact that they have been or may be criticised during the course of the inquiry. Rule 13 contains a discretion to send warning letters. The warning letter also provides that individual or body with the opportunity to respond to the inquiry chairman and provide any additional information. To that extent, warning letters can—as acknowledged in the debate—assist in the effectiveness of inquiries by encouraging engagement and allowing the inquiry to consider any response from that individual before reporting.
The next paragraph I will share with the House reflects the letter to my noble friend Lady Buscombe but contains a further comment. Her Majesty’s Government consider that Rule 13 strikes the right balance, affording individuals the opportunity to take legal advice and, if necessary, to respond to criticism. A departure from the current approach could lead to a loss of that opportunity with a corresponding impact on the involvement of witnesses.
During the course of this very helpful debate, there have been useful observations from the noble and learned Lords, Lord Woolf, Lord Cullen and Lord Morris, and the noble Lord, Lord Pannick. In the helpful comments of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, he provided the useful quotation from Sir Richard Scott—as he then was—stressing the need for flexibility and how so often this process has got out of hand. I can tell the House, notwithstanding the official response, that the Government—although considering, on the face of it, that there should be sufficient discretion for chairmen to avoid some of the undesirable features of the Salmonisation or Maxwellisation process so helpfully identified in this debate—are none the less much impressed by the strength of the argument today and consider that it may well be necessary to reconsider these particular rules to give greater clarity to chairmen so as to avoid some of those undesirable features. The House will realise that I cannot go further than that but I hope that that will provide some comfort to those who participated in the debate.
I assure the noble Lord, Lord Shutt, and his colleagues that, since the Government published their response, the Ministry of Justice and the Cabinet Office have worked closely together, and will continue to do so, to make sure that the committee’s recommendations are implemented. As I said, work has progressed on the support provided to those considering establishing an inquiry. The Cabinet Office is currently working with departments to ensure that this guidance reflects their needs, and will of course take account of all that has been said.
I was asked to deal specifically with a number of matters. I will do so very briefly given the time that has already elapsed in my response—although I was asked by my noble friend Lord King to give a full response, and I am endeavouring to do so.
The noble Lord, Lord Trefgarne, was concerned about the need for representation. Of course, he will be aware that it is provided for by Section 40 of the Act that the chair can award reasonable costs, but he was right to draw attention to the fact that he departed somewhat from the rest of the committee given his particular experience, having been before the Scott inquiry.
The noble and learned Lord, Lord Cullen, referred to the appointment of counsel. He will be aware that the cost of legal teams is one of the biggest cost drivers in inquiries, so it is right, in the Government’s view, that—important though the role of counsel is, for the reasons that he gave——Ministers should protect the power to be involved in the appointment of counsel. In the Government’s view, that should not be for the chairman alone, although one imagines that the chairman often has considerable influence in the identification of appropriate counsel.
My noble friend Lord Trimble referred to the question of inquests—whether there were inquests rather than inquiries, in a reference to Article 2 of the European convention. There is a slight difference. Of course, there has to be an inquest as a matter of law in certain circumstances but there is always discretion whether to call an inquiry. As he will know, all inquests have to comply with Article 2. I understand that the inquest system in Northern Ireland is somewhat different, and inquests there have been held by the ECHR not to comply with Article 2 of the European convention. He also referred to the on-the-runs inquiry. He said that that was a private inquiry. I am instructed that in fact it was not private, but was an independent review under the chairmanship of Lady Justice Hallett. No public evidence sessions were held, given the nature of the issues—of which my noble friend will be well aware—but a full report was published on 17 July 2014.
In conclusion, I hope that the House will be assured from my remarks today that the committee’s recommendations were well received and that work is progressing—perhaps not at the pace that the committee would like but at a pace that is realistic given the many other pressures, especially now as we approach the end of the Parliament.
The noble Lords, Lord Soley and Lord Richard, and the noble Baroness, Lady Stern, all rightly emphasised the importance that public inquiries exercise in the public mind as a reassurance when, sometimes, confidence in politicians is not quite what it might be. The noble Baronesses, Lady Stern and Lady O’Loan, emphasised the absolute need for the paramountcy of independence where inquiries are concerned. I entirely agree.
I think that the noble Lord, Lord Shutt, and his committee colleagues have accepted that given the nature of public inquiries there needs to be a degree of flexibility. One size plainly will not fit all. As we know, every time that an issue arises, there is a call for an inquiry. Consideration must be given to the most suitable approach that will deliver the answers and limit the possibility of the event happening again, but in a cost-efficient and timely manner.
The report, and this debate, have been an extremely valuable contribution to what is and will remain a very important topic. I thank all who have taken part very much.
Lord Shutt of Greetland
My Lords, before the noble Lord sits down, can he confirm whether we are to cull from Hansard some of the important things that he has had to say, or whether there will be what we might call a supplementary government response to the report?
Lord Faulks
I will not to commit to a supplementary government response, but I will look through Hansard to see whether there are any particular matters that I did not deal with in the course of the debate.
Lord Shutt of Greetland
My Lords, I thank the noble Lord, Lord Faulks, for his response. He said that the Government had welcomed our report, and perhaps they have, although it did not seem like it at the time. I am delighted that he said today that in looking at inquiries under the Act, the Act will always be considered: it is on the agenda of the Minister bringing in an inquiry. Secondly, whether it is a central inquiries unit or a discrete department of the Cabinet Office, it sounds to me as though we are going down the right track. That is also helpful.
We will see what happens. There will be a Ministry of Justice Bill at some point in a subsequent Parliament. Amendments may well arise in connection with such a Bill. I thank the Minister for his work during this period in government.
I also thank everyone who has taken part in this debate and I am grateful for the very kind remarks that have been made. It is quite splendid that 10 of the 12 members of the committee have spoken today. That says to me that there has been a real weight of support for what we did and the recommendations that we made. We will read Hansard to take in the debate further, and there may be supplementary information, but as for the inquiry rules in connection with warning letters, not only did the committee hear witnesses and take a view, that has been enhanced by the debate today. It has been further embraced by serious, solid, senior lawyers—amazingly to me—that there can be a real saving in time and money. I should have thought that that was something to be grabbed by government. I hope that what the Minister said will be embraced in a supplementary report or is dealt with later. I thank everyone for taking part today.
European Public Prosecutor’s Office (EUC Report)
(9 years, 9 months ago)
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Baroness Corston
That this House takes note of the report of the European Union Committee on the impact of the European Public Prosecutor’s Office on the United Kingdom (4th Report, HL Paper 53).
Baroness Corston (Lab)
My Lords, it was my pleasure to serve as both a member and the chair of the Sub-Committee on Justice, Institutions and Consumer Protection. At the outset I thank my colleagues who served as members of that committee, who all brought extraordinary expertise and diligence to their work, and pay tribute to our staff. We were very fortunate in the clerks who served when I was on the committee and in our legal advisers, who were second to none. Having served for 13 years as a Member of another place, I think I can say without contradiction that the scrutiny role of the House of Lords in its European work is second to none and is recognised as such throughout the European Union.
On 17 July 2013, the European Commission published its long-awaited proposal for a European public prosecutor’s office. It is subject to the UK’s opt-in protocol, but the coalition agreement had already ruled out participation by the United Kingdom. I interject a personal note here. It seems to me to be quite a discourtesy in parliamentary terms to start a consultation process on 17 July in any year as Parliament has either risen for the Summer Recess or is about to do so. In order for us to do our scrutiny work properly, not only did it involve holiday time for staff, it meant that the committee had to come back when the House was not sitting to be able to fulfil its role. I hope that the European Commission will not persist with that kind of timetable in future.
Under the Commission’s proposal, the prosecutor would be made,
“responsible for investigating, prosecuting and bringing to judgment … the perpetrators of … offences against the Union’s financial interest”,
and would be empowered to,
“exercise the functions of prosecutor in the competent courts of the Member States”.
This organisation was going to be responsible for all fraud in the European Union. At its meeting on 11 September 2013, the Sub-Committee on Justice, Institutions and Consumer Protection, which at the time I chaired, considered the Commission’s proposal for the first time and decided to issue a reasoned opinion, challenging it on the grounds of subsidiarity. In October of the same year, this House approved the sub-committee’s proposed reasoned opinion and because the number of reasoned opinions submitted by the national parliaments reached the “yellow card” threshold, the Commission was obliged to review the proposal. It is important to point out that this was only the second time that sufficient national parliaments had ever forced the Commission to undertake such a review.
We were consequently very disappointed when shortly thereafter, in November, following its review, the Commission produced a communication in which it decided to maintain its proposed European prosecutor as originally brought forward. There was not much in the way of a reasoned argument. Following this news, in January 2014, the sub-committee agreed to launch an inquiry into the ramifications of the proposed European public prosecutor’s office for non-participating states such as the United Kingdom—but of course, the United Kingdom is not the only one. While we had our doubts about the proposal, we were also very concerned about the impact it would have on the non-participating member states, of which the UK is one, and on the ongoing relationship with the European Union’s current anti-fraud body, OLAF, and Eurojust.
We began taking evidence in March 2014. We heard from leading academics in the field, representatives of the legal profession, the current president of Eurojust and one former holder of that position, and the current director-general of OLAF. The sessions concluded with evidence from the Home Secretary. We are grateful to all those who submitted evidence to our inquiry. Unfortunately, the committee’s planned timetable was somewhat frustrated in that while the evidence sessions were well under way, following the member states’ initial discussion of the Commission’s proposal, the then Greek presidency of the Council brought forward an alternative prosecutor’s proposal, addressing some of the member states’ key concerns. The Government submitted an Explanatory Memorandum on this alternative text in June 2014.
We took the decision to postpone publication to allow all those who gave evidence to the inquiry an opportunity to consider the rival text. The committee’s subsequent report was published on 3 November 2014. My committee found a number of very significant problems with the Commission’s proposal. We were worried about the principle that the prosecutor would be responsible for investigating and prosecuting all EU fraud crimes, to the exclusion of the national bodies responsible—what is referred to in the jargon as exclusive competence. This in turn would run the risk of the prosecutor being overwhelmed from birth by an excessive workload. We also expressed doubts about the proposed centralised structure.
Unfortunately, we did not see the presidency’s text as a panacea. The committee found that the rival text raised more questions than answers. There was a lack of clarity about sharing competence for these crimes between the member states and the relevant national authorities. We also thought that the attempt to mimic Eurojust’s collegiate structure was overly complicated. As for the position of the non-participating member states, neither of the texts considered during the inquiry addressed their position at all. However, the report warned that the proposed European prosecutor could seriously undermine the UK’s relationship with the European Union’s current anti-fraud body, OLAF, and with Eurojust.
Unsurprisingly, given their long-standing opposition to the European public prosecutor’s office, the Government shared many of the committee’s concerns. There is a great deal of common ground between the committee and the Government and, as we know, that is not always the case.
Lord Spicer (Con)
I do not quite see why the committee was so surprised that it was all or nothing. As it is all going to be conducted under a different form of law from ours, it has to be, in the interests of fairness, all or nothing, does it not?
Baroness Corston
The main problem, as we saw it, was not only that the prosecutor would be completely overwhelmed but that no consideration at all was given to countries that, from the outset, would not play any part. I think that formed the basis of both our concern and the concern of the Government.
Given that there was a great deal of common ground between the Government and the committee, the Government agreed with nearly all our conclusions and recommendations. The only point of disagreement relates to the Home Secretary’s suggestion during her evidence that the United Kingdom might not be legally obliged to respond to requests for assistance from the European public prosecutor’s office. Given her doubts, the committee called for an urgent consultation by the Home Office on this matter. Sadly, our call was rejected by the Government. They cited as a reason the current lack of clarity over the prosecutor’s potential role. I accept, of course, that a lack of clarity pervades any discussion of the proposed public prosecutor’s office—indeed, this theme runs throughout the report—but I would suggest that the issue of co-operation between the European public prosecutor in whatever form and the relevant UK authorities—for example, in relation to European arrest warrants—is not going to go away.
Witnesses to the inquiry were quite clear that any weakness or failure by the UK authorities to co-operate with the European public prosecutor in this regard risked the UK being seen as a safe-haven for those suspected of committing offences against the European Union’s financial interests and for illegally obtained EU funds. The members of my former committee would not want to see the UK become, as one witness warned, the Costa del Sol of the 1980s for those who perpetrate criminal frauds against the European Union’s finances.
I again thank those who contributed to the inquiry and my former colleagues on the sub-committee, whose company I very much appreciated. No doubt we all agree that it is essential that the European Union and the UK consider the full implications of the establishment of the European public prosecutor, not only for those states that will not participate but for bringing to justice those people who commit fraud against the interests of the European Union. I beg to move.
Lord Hope of Craighead (CB)
My Lords, I congratulate the noble Baroness, Lady Corston, and her committee on the work they have done and on their very timely report on this rather troublesome issue. For the most part, I welcome the response by the Home Office to the report. I particularly welcome the Government’s decision not to opt in to the Commission’s proposal to establish a European public prosecutor’s office. I am delighted that the committee has taken the opportunity in paragraph 6 of its report to endorse that proposal.
I last worked on Sub-Committee E about 15 years ago. At that time, the splendidly named OLAF had only just been born and Eurojust was still in the course of being conceived. It was being talked about, but had not yet come into existence. Now that they have grown up, as it were, it is a real pleasure for me to cast an eye over them to see how they are getting on. As it happened, last October I attended a seminar in Florence, at which one of the delegates was from Eurojust. We enjoyed a conversation over dinner, at which she spoke with real enthusiasm about the contacts which she had in the course of her work with prosecutors in the United Kingdom. As I spent some time when I was at the Bar as a prosecutor in Scotland, I was particularly interested in what she had to say about her contacts with the Lord Advocate’s department. Here, too, she was enthusiastic about her contacts with that department and the practical value which she saw in those contacts.
Your Lordships would get much the same message if they were to read the written evidence which the committee received in March last year from Frank Mulholland QC, the Lord Advocate, to which brief reference is made in paragraph 37 of the report. He tells us that the serious and organised crime division in his department, which has an international co-operation unit, participates fully in the work of Eurojust and OLAF. That unit liaises regularly with colleagues abroad in relation to investigations and prosecutions in Scotland, as well as providing assistance to colleagues from other jurisdictions in their own investigations. He tells us that it has successfully used the assistance of Eurojust in a number of serious and high-profile cases, especially those, as in the case of VAT fraud, which are especially complicated.
The Lord Advocate describes the work that Eurojust does in the co-ordination of investigations of the different member states when dealing with cross-border crime as “extremely valuable”. He says that his department also has experience of working with OLAF and that it too carries out much valuable work, although it is fair to say that he adds that difficulties have sometimes arisen because OLAF was not engaged at a sufficiently early stage of an investigation to meet the procedural requirements of Scots law.
If I have any criticism of the report, it is the tiny point that it did not make a little more use of the Lord Advocate’s criticism. As I have said, it gets only one very brief mention in two sentences in paragraph 37. The essence of that evidence is accurately summarised in these two sentences, but it might have been helpful if some more references had been given to his evidence in the later passages dealing particularly with OLAF and Eurojust. Of course, it is possible to trace the evidence online with the assistance of the reference in footnote 98. I am particularly grateful to our Librarian for being able to do this for me. I encourage the Minister and his team to do just that, and to read what the Lord Advocate has to say. That is because one does get from it some valuable insight from someone who as a prosecutor is really in touch with what is going on on the ground.
May I mention briefly some of the points the Lord Advocate makes because I think that they add force to the points made in conclusions and recommendations 6, 7, 8 and 9, with all of which I respectfully agree? The first point is that his department does not see the need for the creation of the EPPO. It is perhaps a bit late in the day to make that point, but it does underline the good sense of the decision not to opt in to the proposal, and the reasons why he makes it are worth stressing. He says:
“There are many challenges to overcome where criminal jurisdiction is potentially viable in different Member States and the diverse rules of evidence within Europe bring their own barriers. Whilst it is recognised that organised crime is not necessarily related to a specific Member State and that the fight against crime needs to be addressed Europe wide, without an evidence based assessment relating to why existing measures and national procedures and practices are not sufficient it is difficult to come to the conclusion that a European Public Prosecutor’s Office would be able to prosecute cases more effectively than individual Member States”.
It is worth stressing the different evidential rules which arise from state to state. The complications for a central office trying to deal with that are fairly obvious. He also makes the point that,
“there is scope for further improvements to be made in the investigation and prosecution of frauds against EU interests through better use of Eurojust and OLAF and by improving working practices between Member States and those organisations”.
He believes, and one can see the force of this, that:
“It is logical that Member States use the current structures available to their full extent before consideration is given to establishing a new body with such far reaching powers”.
As for the impact that the creation of an EPPO would have on a non-participant member state, the Lord Advocate makes the point several times that there is a lack of sufficiently robust evidence to demonstrate that such an office is required. This reinforces the point made in conclusion 6 that the Commission has failed to address the EPPO’s impact on OLAF and the knock-on effect for non-participating member states. As the Lord Advocate sees it, there is a lack of information which makes these effects difficult to assess. He sees real difficulties, whichever model is adopted, whether it is exclusive competence to the EPPO in matters affecting the EU’s budget or a competence that is shared with member states. Either way, conflicts of competence or jurisdiction will arise, which would be a recipe for confusion and delay and would play into the hands of offenders and their defence teams. As the Lord Advocate puts it, a system that gives exclusive competence in some cases and a shared competence in others would result in confusion as to who is dealing with which offence, which would be highly undesirable.
As for the effect on Eurojust and OLAF, here too there is a lack of sufficient information. That is why the assurances referred to in recommendations 6 to 9 are so necessary. There is real cause for concern. This would not be so if the functions of Eurojust were to remain as they are, as Scottish prosecutors would still have the access they enjoy at present, but that is not what seems likely to happen if the proposal goes ahead.
I warmly support what the report says in these recommendations. It is important that the Government take an active role in the development of the proposal. I hope that they will draw strength and guidance from the points made by the Lord Advocate, to which I have referred. I stress that they are not motivated in the least by any kind of Euroscepticism on his part. On the contrary, he is all in favour of inter-state co-operation. He has seen on the ground the benefits that that can bring in combating fraud conducted across borders. The points are essentially practical ones made by someone who really does know what he is talking about,
Baroness O'Loan (CB)
My Lords, I speak in this debate as a member of European Union Sub-Committee E, which was so ably chaired by the noble Baroness, Lady Corston. This report deals with a subject which has much exercised the committee over the past years as the heart of it goes to how the European Union and the member states thereof seek to control crime, and particularly fraud affecting the EU.
There can be little doubt that co-operation between member states and European institutions and agencies in the fields of justice and home affairs has resulted in significant achievements in the battle against crime. Eurojust, Europol and OLAF—the European anti-fraud office—have all played their role in fighting crime. While there are deficiencies which have been identified, there can be no doubt that co-operation in the processes of investigation et cetera has facilitated effective action. The sub-committee was aware that there is a problem of hitherto unquantified fraud on the EU’s finances and it published a report on this matter.
European Union law obliges both the European Commission and member states to combat fraud on the EU’s finances, but the onus to protect the EU’s financial interests falls mainly on individual member states because they are currently responsible for administering 80% of EU funds. We found that the EU’s anti-fraud system has a number of weaknesses. The Commission cites a figure of fraud worth €404 million per annum, but we felt it offered only a glimpse of the level of fraud perpetrated against the EU’s budget. Based on the evidence we received, we felt that the actual figure is around £5 billion but may be even more. There clearly is a problem and the proposal for the EPPO is one of the initiatives intended to address this issue, but it does not really address the problem. Rather, we found that it had the capacity to create major problems both within participating member states—as the noble Baroness, Lady Corston, said, the UK would not be one at present because we would exercise our right not to participate—but also in other member states because of the capacity of the proposals to interfere with the working of the two institutions which have been really useful in the fight against crime against the EU’s financial interests: Eurojust and OLAF.
An EU body to investigate and prosecute crimes against the EU’s financial interests was provided for in Article 86 of the treaty on the functioning of the EU, which says that any EPPO would be responsible for investigating and prosecuting and bringing to judgment the perpetrators against the EU’s financial interests and that it would be empowered to exercise the functions of prosecutor in competent courts of the member states. The noble Baroness, Lady Corston, has articulated what happened when that proposal came before the sub-committee. We published a report in October 2013 which suggested that the House challenge the EPPO proposal on the very considerable grounds of subsidiarity. The House approved that opinion, and 14 other legislatures reached similar views, causing the EU Commission to review its proposal. However, it was a cursory review, and in December 2013 the Commission indicated that it would proceed with its proposal. We therefore undertook the second stage of the inquiry.
We found many problems with the current proposal for the EPPO, and many potential difficulties for the United Kingdom in the proposed arrangements and the possible UK response to them. First, the potential workload of the EPPO would be absolutely overwhelming, given the range of crimes against the EU’s financial interests. Witness after witness gave evidence to that effect, and even the Home Secretary was clear that it was impossible for anybody to give the correct figure for such crime—a view shared by the British former president of Eurojust, Mike Kennedy. The UK could not legally respond to EPPO requests for assistance, giving rise to the risk that the UK would—as the noble Baroness, Lady Corston, said—become a safe haven for illegally obtained EU funds; there would be problems for non-participating states in that the proposal might affect the capacity of Eurojust to support all member states; the proposals for shared competence between the EPPO and the member states are unclear to the extent that they may be unworkable; robust and capable monitoring of investigations and supporting fast and efficient decision-making would not be possible; and there is no clarity as to the impact of the existence of the EPPO on OLAF.
At a time when the activities and costs of the EU are under significant scrutiny, when organised crime is becoming even more effective despite the massive resources poured into the attempts to control it, and when there is deep scepticism in some quarters about the benefits of EU membership—scepticism which I do not share—the committee has called on the Government to take effective action to ensure that the UK’s interests and indeed the interests of its colleagues of the European Union are not compromised, that very clear steps are taken both here and in the Union to ensure that before any EPPO is established there are very clear rules about how its shared competence will operate, and to provide for the situation in which we do not participate but must be protected against the adverse consequences which may result. In addition, the need to protect OLAF and the assistance currently received by the UK from OLAF and Eurojust is vital.
I therefore commend the recommendations of this report to Government for implementation. I welcome their response to the report, but urge them to accept all the recommendations, notwithstanding the lack of clarity about the proposal for the EPPO’s role and operation.
Lord Pearson of Rannoch (UKIP)
My Lords, I cannot resist speaking briefly in the gap, because I think this is the first time in 25 years that I am able to congratulate an EU Select Committee on one of its reports, and indeed the Government on their reply.
I also take the opportunity to apologise for scratching last Wednesday 11 March from our debate on the competences review, or balance of power between Brussels and our Government. A long-standing family engagement meant that I could not have stayed to the end—not that I would have asked the Minister, the noble Lord, Lord Wallace, any questions. I would just have explained why the whole exercise is pretty much a waste of time that will do little to curb the appetite of the corrupt octopus in Brussels.
I will, however, take this opportunity to say that I am disappointed that the Minister, the noble Lord, Lord Wallace, took the opportunity—at col.748—to criticise me and my views on the European Union in my absence. The richest bit of this criticism was perhaps that the noble Lord opined that Euroscepticism in this country is a belief, a faith, a prejudice. Yet it is surely our Europhiles who demonstrate a disease-like blind faith in the project of European integration, which is failing before our eyes, causing great misery across the continent, and which will continue to do so until it eventually collapses.
This report and the Government are rightly critical of the Commission’s stubbornness in continuing with its plans for a European public prosecutor. I therefore thought that it might be helpful if I put the powers of the unelected Commission on the record, perhaps for the first time, so that people can see what our powerless national Government are up against.
First, the Commission enjoys the monopoly to propose in secret all EU legislation, and thus a large proportion of our national law.
Secondly, its proposals go for still-secret discussion in COREPER—the Committee of Permanent Representatives, sometimes described as EU ambassadors—where the bureaucrats from the member states negotiate their national interest, the members of the Commission having sworn allegiance to the EU and not to support any partial national interest. I have never understood how our privy counsellors square their oath of allegiance to Her Majesty with that one. That is their problem, I suppose.
Thirdly, when the proposals emerge from COREPER as pretty much a done deal, they go for ratification to the Council of Ministers from the member states, in still largely clandestine discussion, and to the European Parliament, with its powers of co-decision.
Fourthly, our Parliament can scrutinise the emerging legislation but cannot change it. Indeed, it has never done so, as we see with this proposed public prosecutor.
Fifthly, the Commission then becomes the sole enforcer of all EU law and can impose massive fines for transgression, subject only to the Europhile Luxembourg court.
Sixthly, the Commission manages the EU budget so badly that the EU’s accounts have not been signed off by its internal auditors—there being no external auditor— for the last 19 years. If a public company was in a similar position, its directors would have been in jail many years ago.
Seventhly, the Commission negotiates all our foreign trade arrangements, again badly. Singapore has had free trade agreements with India, China, Japan and the United States for 10 years, but we have none because the Commission is in charge on behalf of all the member states.
I cannot help feeling that if the British people understood the full extent of the unelected Commission’s powers, which I have set out above, and how powerless their Parliament has become in this and other matters, their dislike of our EU membership would increase even further.
I have only one question for the Minister: what happens if the Commission decides to plough on with this proposal?
Baroness Smith of Basildon (Lab)
My Lords, to return to the committee report, I thank my noble friend Lady Corston and her committee. I was also grateful for her introduction to the debate. She was extremely helpful in her narrative about the twists and turns, and the ongoing debate on this issue. It was of benefit to the House to hear about the frustrations that her committee had in dealing with some of these issues.
Other noble Lords who took part in our previous debate on this issue on 28 October 2013 will recall that the report that we then discussed and the scrutiny that the committee had provided were invaluable in the understanding and analysis of what a European public prosecutor’s office could do and was intended to do. That position remains the same. I thank my noble friend and her colleagues on the committee, including the noble Baroness, Lady O’Loan, for providing what for me, having not considered this in great detail before, is a clear and detailed report.
There are important issues, but although the premise may be very straightforward, there are complexities and differences of opinion on how they can best be tackled, which cannot be lightly dismissed or ignored because they are genuine and justified concerns. As my noble friend Lady Corston pointed out, it is not a new proposal. The idea had been discussed even before the Commission’s proposals in the 2001 Green Paper, particularly in discussions on the Nice treaty. At that time, an outline proposal was debated but then abandoned though lack of support. Concerns were expressed and discussed then. They are still being discussed and concerns remain, which have not been addressed, about the relationship between an EPPO, Eurojust and OLAF, the European Anti-Fraud Office. The European Scrutiny Committee in the other place reported that a body such as the EPPO was,
“unnecessary, particularly given the existence of Eurojust”.
Our committee took evidence from experts of exactly the same view.
It is not the first time that this has been raised and it is not the first time that it has been debated in your Lordships’ House; it is the second report of the EU Committee. However, despite the criticisms of the proposed mechanism, the issues that the proposal seeks to address are very serious. That is why the deficiencies in the proposals are so disappointing and so serious. This is not an issue that has been plucked out of thin air; it seeks to address a very genuine and serious problem. The level of fraud against the EU budget must be taken extremely seriously and action has to be taken to address it. When we last discussed the issue, the Commission estimated the level of fraud at around €5 million in each of the previous five years. That is money taken from British taxpayers. Not only do we need to take action against those responsible and bring them to justice, it is very clear that far more preventive work and action must be undertaken.
The ongoing debate is not on whether we should tackle fraud, or assess whether we are tackling it or how best to tackle it, but on whether the proposal that has been put forward for the European Public Prosecutor’s Office is the best way to deal with the problem and to bring those responsible to justice. As this report highlights and analyses, there is also the question of whether the Commission recognises the concerns that have been raised and why they were not addressed in the revised proposals. As we said, the proposals previously presented clearly breached the subsidiarity principle, and the national level approach supported by existing EU mechanisms was far more appropriate.
It was therefore unfortunate and unhelpful that, as the report makes clear, despite the response of a number of national parliaments expressing their concerns and despite the Commission being forced to review the proposals in December 2013, the Commission decided not to make any amendments but to continue with the proposal as originally intended. The noble Baroness, Lady O’Loan, referred to it as a cursory review; I think that that is a correct assessment. As a result, 14 reasoned opinions were issued by national parliaments, which clearly makes the case that there are widespread concerns across the EU—we are not the only country with such concerns and reservations. Then we had the position where, seeking compromise, the Greek presidency issued an alternative text—but that is not supported by the Commission.
So where are we now? The conclusions and recommendations of the EU Committee are not based, as we have seen so often with debates on EU legislation, on whether the committee is pro-European Union or anti-European Union. I mention that because it sometimes characterises debates. We heard earlier from the noble Lord, Lord Pearson—and whether someone is pro-EU or anti-EU can colour their judgment on anything brought forward. When we had that farce of the opt out, opt in again debates on policing and criminal justice measures, it was very clear that the Government’s position was highly political, rather than a pragmatic, principled position in the interests of tackling crime across the European Union.
I have to return to this—I know that the Minister will groan with frustration as I do—but I have never, ever had an answer from the Government to my question about the practical impact or the operational value of those EU crime and policing measures that the Government have opted out of. I suspect that their answer is that there is very little: surely no Government want to get rid of EU-wide measures that are effective in tackling crime. Either the measures that the UK has opted out of had a practical and operational effect, or it was just a political stunt. I suspect that it was the latter.
That is where the committee’s report is so useful, both for your Lordships’ consideration in this debate and for wider consideration. I hope that the Minister recognises that it is also helpful to the Government. I saw the Government’s response rather late in the day in an undated letter to the noble Lord, Lord Boswell. I do not know when the letter was sent; I was able to get a copy only today. I certainly would have appreciated a copy of that letter much sooner for today’s debate than collecting it from the Printed Paper Office earlier.
I come back to the central point about this report: it is factual, well informed and principled. I think that the frustration of the committee in looking at these issues comes across very loud and clear. On this occasion, it is frustration—I have to say—not with the UK Government but with what appears to be, and I put it politely, some intransigence on the part of the Commission. All of us need to understand how serious the issue of EU fraud and financial crime is. Being critical of the proposals put forward in no way detracts from our wish to tackle these issues or from our understanding of how serious it is. The proposals and recommendations of the committee seek, first, to address some of the problems that have arisen from the Commission’s proposals, and, secondly, to suggest how the UK could take a lead and play a key role in seeking to ensure that those issues are addressed.
It should also be recognised that the political landscape has changed—as my noble friend Lady Corston observed—in the way that these matters are considered. Any new proposal such as this would now be subject to a referendum and legislation if its adoption by the UK were to be recommended—although that is not currently the case and it seems unlikely that it will be so. What is so disappointing is that the Commission’s position does not appear to have changed and it does not appear to be designed to try to gain as much support as possible for an EU-wide body or EU-wide co-operation around the core principles and actions of tackling crime. Had the Commission wanted to garner greater support, and if it was serious about ensuring that this was workable and that other nations would sign up to it, it would have amended the proposals and had more discussions. That frustration comes through in the report. There is no doubt that tackling any cross-border crime, including—or perhaps especially—EU fraud, benefits from EU-wide co-operation.
The objections outlined in this report cannot be lightly dismissed and I was pleased to read the Government’s response. The objections deserve far greater consideration by the Commission. On the issues that were highlighted—exclusive competence and workload—evidence was given to the committee that a new body such as the EPPO would collapse under the weight of the work it was provided with. The impact on Eurojust and OLAF is important, not just in principle, but in pragmatic, operational terms: how a new body such as the EPPO could possibly be effective in practice. It seems that all those who gave evidence for the report said that the complications of such a body would make it even more difficult to prosecute than it would be without the body: first, because it would collapse under the weight of the work, and, secondly, because of its relationship with the other bodies.
It is worrying—as the report and the Home Secretary’s evidence highlighted—that the lack of attention to the impact on non-participating member states creates an unacceptable level of risk that has to be addressed. When this proposal was first discussed, it was on the basis that all member states would sign up to it; that is clearly not the case, so the issue about those member states that do not sign up to it has to be properly considered. We had a similar debate on the National Crime Agency not applying to Northern Ireland, and we see it in this debate on a far wider scale; it is clear that they have not properly looked at this issue. My noble friend Lady Corston warned that the UK could be placed at risk by being, in effect, a safe haven for illegally obtained EU funds. That is why this issue has to be considered.
I do not want to repeat the detail of the report. It is an excellent report, and it does this House a great service to be able to consider such reports. The committee’s recommendations are useful and seek to find some way forward. The Government’s response—in the time that I have had to look at it—is positive, but this is a debate that will continue for weeks, months and, I suspect, possibly for years. We often say that a committee’s report is a valuable contribution to a debate, but in this case it goes far wider than that. This report is essential reading for any Government who have to deal with this matter. I look forward to the Minister’s response.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I join others in paying tribute to the work of the wider EU committees under the chairmanship of the noble Lord, Lord Boswell, and, specifically in this context, to the work of the Sub-Committee on Justice, Institutions and Consumer Protection under the chairmanship of the noble Baroness, Lady Corston.
The report is very thorough and comprehensive, and the body of evidence that it drew upon in arriving at its conclusions was substantial. Anyone who has had anything to do with EU institutions will recognise the high regard that is held throughout the European Union member states for the work of this House in carrying out scrutiny of proposals. It is therefore doubly disappointing that the concerns, which were clearly expressed in the reasoned opinion, were not taken more seriously. The yellow card system could perhaps have worked a little better in that regard. However, the Government have very much welcomed the report. The Home Secretary gave evidence to it, and we have responded to the committee and to its specific recommendations. I now want to cover some of the principal points raised during the debate.
The Government have consistently made it clear that we will not participate in an EPPO, and we have assurances from the Commission and all member states that our non-participation will be respected. We continue to take an active role in negotiations to ensure that it is, and those negotiations are ongoing. I was amazed to see that the idea of an EPPO had its genesis back in 2000 or 2001, so it has been going on for some 14 years. I do not understand why, in the words of the noble and learned Lord, Lord Hope, people are not looking at the existing structure and making what we have work better rather than seeking to develop something that is new, untried and untested. That logic escapes the Government, as it has escaped the committee.
The negotiations are contentious and extremely fluid. The focus to date has been on Chapters I to V of the proposal. Participating member states regard these as internal business matters that concern only them. In their view, it is too early to have discussions about impacts on non-participating member states. The Latvian presidency is aiming to reach a partial general approach at the June Justice and Home Affairs Council, which it hopes will firm up the basic structure of the EPPO. Yet member states still have divergent positions on many of these issues.
There are other factors in play, many of which have been mentioned today. Under negotiation are separate EU measures, such as the directive in the fight against fraud to the Union’s financial interests by means of criminal law, known as the PIF directive, as well as the Eurojust regulation. The PIF directive in particular will affect how an EPPO would deal with cases on a day-to-day basis. It is therefore extremely difficult for us to know what effect an EPPO will have on existing EU co-operation mechanisms and systems. It is also still too early for the presidency and other member states to consider how an EPPO will impact on the UK. We totally accept that, as stated by the noble Baroness, Lady O’Loan, there will be very serious implications for the UK, including Scotland, and these will need to be addressed and assessed. However, there will be a continuing need to engage closely in the negotiations, and where we deem that so-called internal issues directly affect the UK we will continue to strongly raise our concerns. We also continue to make it clear that we want to strengthen the existing—
Lord Spicer (Con)
The Minister says that there could be serious effects on the UK. Is one of those effects that we could have to go across to a different form of law?
Lord Bates
I do not think that is the particular effect that I was thinking about in this context. Clearly we have a system that works to a degree at the moment with Eurojust and OLAF as the two bodies that then refer back, in our case, to the Serious Fraud Office and the newly established National Crime Agency, which is doing very good work in tackling fraud of this nature. They are then prosecuted through a court in the UK. It is more that operational level which the Government are thinking about at this time.
Lord Hope of Craighead
I am grateful to the Minister for allowing me to intervene. The point that really gives rise to concerns for the Lord Advocate is confusion about competence and jurisdiction. At the moment we have complete clarity as to which body is entitled to prosecute in our courts. They have a complete understanding, rights of audience, and so on. Introducing this outside body would give rise to differentials and demarcations. That in itself would give rise to disputes and we would have a sort of preliminary session as to whether one body or the other should prosecute, which gives rise to delay. So it is not really a matter of resources so much as a matter of confusion, which is why the call for further detail is really so important and why I still support the line that the Government are taking.
Lord Bates
That very clearly makes the point that we are talking about, and perhaps explains why it has been impossible to find a way forward so far. I would also mention some of the challenges, which may be insurmountable, in trying to progress down this model. The Government are absolutely committed carefully to watching the negotiations and ensuring that our interests are defended.
The noble and learned Lord also asked about shared competence. Ideally member states would retain competence. It is the only way in which they could contain the elements of the Commission’s proposal that they favour. An independent prosecutor would investigate cases inside member states free of bribery and corruption. We believe that that would be the only way in which the EPPO would add any value to the fight against EU fraud. The UK would prefer the EPPO to have as little competence as possible.
In response to a number of questions raised particularly by the noble Baroness, Lady Corston, in her introduction, it is worth putting on the record and restating the fact that the UK Government are absolutely committed to the fight against fraud. We certainly cannot envisage any circumstances in which it would be tolerated that the UK could become a safe haven for fraud. We are expressing confidence in our own legal systems and existing cross-border co-operation to ensure that that does not become the case.
Lord Pearson of Rannoch
While he is on that subject, can the Minister give noble Lords any estimate of the annual amount of EU fraud across the European Union? Do we have a modern figure for that?
Lord Bates
A figure has been mentioned. I am trying to put my hand on it. I wonder whether the noble Lord would accept the Commission’s estimate of the level of fraud. Those of us who are participating in this debate are still trying to recover and see whether we are on the right track when praised by the noble Lord, Lord Pearson, on European matters. It slightly shook our confidence, but we are recovering from that, and I think we are all on the same page here.
The Commission’s estimate of the level of fraud in July 2013 in the impact assessment put EU fraud at not detectable, and therefore unknown, at around £2.55 billion a year. I am reading out this figure and am aware that it is slightly contradictory to say, “not detectable, and therefore unknown”, when the estimate is around £2.55 billion a year. But that is the Commission’s estimate.
Baroness Corston
Can I point out to the Minister that evidence given to the EU Justice, Institutions and Consumer Protection Sub-Committee before this inquiry was that the dimension of fraud against the European Union budget was probably about €5 billion a year?
Lord Bates
Yes. They are extraordinarily large and very worrying sums of money, and this Government remain absolutely committed to tackling that. We continue to support efforts by the EU anti-fraud office to tackle EU fraud, we value the role of OLAF and Eurojust, and we want to minimise disruption to current and future anti-fraud cases if an EPPO is created.
We understand that the EPPO-to-Eurojust relationship and the EPPO’s impact on OLAF will not be discussed until later in the negotiations. We also have no further information from the Commission on any plan for reform of OLAF. I appreciate that this lack of clarity makes assessment of the impact of an EPPO difficult at this stage. The Luxembourg presidency may be in a position in the latter half of this year to begin constructive discussions on EPPO interactions with other EU bodies, third countries and non-participating member states, but that is highly likely to depend on where things stand in June. As soon as there are significant developments, we will update noble Lords in the normal way.
Lord Spicer
We always used to be told that European criminal law would not incurse itself into our law, which is a different form of law. This is surely an example of the reverse; this is the incursion of European criminal law into our common law-based system. It is very serious from the point of view of this country, surely.
Lord Bates
These are important constitutional matters. I am looking across to the Benches where we have a distinguished constitutional academic and a distinguished former member of the Supreme Court, who may offer opinion, but I think I will slightly side-step the question.
Help is at hand.
Baroness O'Loan
My Lords, the proposal is that prosecutions will occur in British courts under British law. This is not a proposal that European law will be exercised in British courts, so the reservations of the noble Lord are not warranted.
Lord Pearson of Rannoch
I am not quite sure whether the Minister was attempting to answer the question that I put to him, but just to be sure I will repeat it. What happens if the Commission decides to plough on with this proposal? Are we capable of stopping it or must we just live with the muddle, the increase in fraud and the damage that will ensue, thanks to the Commission’s activities?
Lord Bates
If the Commission continues down that line, there will have to be treaty changes. Negotiations will have to take place on the implications for non-member states and third-party countries as well as for member states. However, the proposal is in such flux at the moment that trying to judge what it is is nigh on impossible at present, let alone what a future Government’s position would be in responding to it. The fact is that we would have a position, there would be a negotiation and there would have to be agreement as to how it would operate in this country. The report, which has been presented so ably today, has highlighted the many complex issues that will need to be addressed by a future Government.
Baroness Corston
My Lords, I am very grateful to all noble Lords who have taken part in this debate. While it has been a short debate, it has been an excellent one. I am very grateful to my noble friend Lady O’Loan for drawing your Lordships’ attention to the possible dimensions of fraud against the European Union, particularly so-called carousel fraud. We all take that terribly seriously and want it to be addressed, except that we do not think that the EPPO is the remedy.
I also want to reassure the noble and learned Lord, Lord Hope of Craighead, that no discourtesy at all was intended in not referring more comprehensively to the evidence submitted to us by the Lord Advocate for Scotland, Frank Mulholland QC; we found his contribution to be both cogent and persuasive and based very much on practical experience. I also want to thank the Minister for his thoughtful response.
International Science, Technology, Engineering and Mathematics Students (S&T Committee Report)
Lord Krebs
That this House takes note of the report of the Science and Technology Committee on International Science, Technology, Engineering and Mathematics (STEM) students (4th Report, Session 2013–14, HL Paper 162).
Lord Krebs (CB)
My Lords, I declare two interests, first as principal of Jesus College, Oxford, where we have many international students, and secondly as chairman of Oxford Risk, a small-business spin-out of Oxford University that has an interest in recruiting the best talent from around the world.
I thank the members of the Science and Technology Select Committee for their excellent contributions to this inquiry, as well as our outstanding specialist adviser, Professor Sir William Wakeham, for his wise and expert advice and, of course, the committee clerk and policy analyst for their superb support. Noble Lords will be aware that this report is a historical throw-back to my time as chairman of the S&T Select Committee and I am pleased to note that it is the last of the reports under my chairmanship to be debated.
I also thank the noble Baroness the Minister for the Government’s response to our report, although I have to say that the response was a little less positive than we had hoped. We made nine recommendations, of which one was accepted unequivocally, four were rejected and four were considered, I suppose. I hope that at the end of the debate, the noble Baroness will bring us an update on the Government’s thinking.
I start by clarifying what it is we are talking about. Noble Lords will be aware that there is a broader debate about measures to reduce net migration into this country. Our inquiry falls within that broader context. We looked, in particular, at undergraduate and postgraduate students from outside the UK and European Union, referred to either as overseas students or international students, coming to this country, or not, to study science, technology, engineering and mathematics—STEM subjects, as they are commonly known. We were particularly concerned with what we called “hard STEM subjects”, such as physics, maths, chemistry, engineering, computer sciences, medicine and biology, rather than the softer subjects that come under the broad heading of STEM used by the Higher Education Statistics Agency and which include courses such as architecture, building and planning, forensic science and equine studies.
When we think about students who are studying what we called “hard STEM subjects”, the first point to note is that we have a national skills shortage. The CBI estimates that 43% of employers have recruitment difficulties with STEM graduates and that, in order to fill the requirements of industry, the number of graduates will have to rise by 40% from today’s levels. Similarly, the Social Market Foundation has proposed that we need an extra 40,000 STEM graduates per year up to 2020. Another metric is the shortage of physics teachers in state schools. It is estimated that more than 500 state schools have no qualified physics teacher at all and that there is an overall national shortage of about 4,000 physics teachers. If we are to develop the high-tech, science-based economy that was referred to in yesterday’s Budget, we need to be able to educate and employ more STEM graduates.
International STEM graduates are a very important part of the higher education ecosystem. In total, there are between 50,000 and 60,000 international STEM students in the UK, if we include both undergraduate and postgraduate. Some university courses are hugely dependent on international students for their sustainability. For instance, almost half of those enrolled on taught master’s courses in computing and engineering come from outside the UK and the European Union.
In spite of our dependence on international students both in our educational system and for employment in our science and engineering industries, it seems that our ability to attract international STEM students is declining relative to our competitors. The question we asked in our inquiry was whether this decline, which started about five years ago, has been caused at least in part by the serial changes to immigration policies that have been introduced since 2010 as part of the Government’s aim of cutting net migration. Before 2010, the number of so-called hard STEM students from overseas was steadily increasing year on year, but since then the overall number has not increased, and in some cases there have been dramatic declines.
The picture is not uniform across subjects, across courses and across countries of origin. I will not go through all the detail of the figures we were given by BIS, but suffice it to say that the most dramatic decline post 2010 is in students coming from the Indian subcontinent. Indian student numbers declined from around 12,000 to 5,000 over the two years post 2010, while other countries, notably China, have continued to show an increase. Looking at subjects and kinds of course, the biggest declines within subjects are in engineering, computer science and subjects allied to medicine like optometry and pharmacology, and that is true whether looking at undergraduate numbers or those taking postgraduate taught master’s degrees. There has been no discernible trend towards a decline in the number of students studying for PhD degrees—research students—but the numbers here are in any case relatively small. The decline in particular subjects and courses may actually be linked to the decline in geographical origin because many Indian students who used to come here would study the subjects in which there has been a marked decline in overall intake.
The question is this: what has caused these changes? Is the correlation between the decline or levelling off in some areas and the introduction of changes to the Immigration Rules for students sufficient for us to infer causation? The problem with interpreting the trends is that, of course, we do not have the counterfactual; we do not know what would have happened had there not been any changes to the Immigration Rules. Would the increase in students from China have been even steeper? Would India have continued to rise instead of falling? We were told by officials from BIS that other factors may have influenced the trends. They mentioned, for example, exchange rate fluctuations, particularly the fall in the value of the rupee, and they also referred to more aggressive marketing and recruitment by our major competitors such as Australia, the USA, Canada, Singapore and other EU countries. But while we saw a 42% decrease in Indian students between 2010 and 2012, Germany and Canada both saw an increase, and the USA had a mere 7% decrease. Since the fall in the value of the rupee would surely have affected these countries too, it would appear that exchange rate fluctuations cannot be the whole story.
A report published last month by the British Council draws on the figures from the Higher Education Statistics Agency. It highlights how we are losing out to our competitors. Our market share of international students globally—not just in STEM, it has to be said—has fallen over the past four years by more than 4% and there is no sign of that decline slowing down. So in spite of our natural advantages—the English language and our global connections through the Commonwealth—our competitors seem to be eroding our market share. This is bad news for universities and for the much-needed skills that I have already referred to which international STEM students could bring to our industries, not to mention the soft power effect of building relationships with other countries for the future.
We cannot be absolutely sure what has caused the slow-down and in some cases the decline in the arrival of international students, but the circumstantial evidence we heard suggests very strongly that government policies on immigration have played a significant role in preventing STEM students from coming here to study and work. I will not attempt to speculate whether this was the Government’s intention, but we know from the Statement made in another place by the Home Secretary in March 2011 that the aim of the changes to which I am about to refer was to reduce net migration and,
“to return some … sense to our student visa system”.—[Official Report, Commons, 22/3/11; col. 856.]
So there probably was some element of intent in that.
To summarise the evidence, we heard about three kinds of factors that might be putting off students from outside the European Union coming to this country. The first is perception, the second is bureaucracy, and the third is specific barriers. I shall say a little about each of those.
On perception, as a result of the changes that started in 2010, some overseas students appear to have got the message that the UK does not welcome them. That is great news for our competitors. I know that the Prime Minister and the former Minister with responsibility for science, David Willetts, have gone to great efforts, including travelling to India, to say that the UK is open for business and welcomes international students. But once confidence has been eroded, it is not easy to rebuild it, and I think that more work needs to be done. Although the numbers are very small, my own informal survey of international students at Oxford University tells me that there is still a perception in India and elsewhere that the UK is less welcoming than it used to be.
On bureaucracy, we heard in our evidence that the frequent changes in immigration policy—it was not just a one-off; many things have changed since 2010—and the bureaucracy associated with applying for visas is off-putting to potential students.
On both those issues, the Government in their response appeared to be pretty well satisfied with the current situation. However, I would like to ask the Minister whether the Government have done any research to ascertain the perceptions of students themselves, both those who choose to come to the UK and those who considered coming here and have gone elsewhere. In a moment, I will refer to such a survey carried out by an independent body. I think that market research of that kind might help as a reality check to see where we are.
I turn now to some specific barriers. The first thing to say about the evidence that we heard is that the cost of a student visa to come here is higher than in eight out of nine competitor countries for which we have evidence. The sums of money may not be huge—they are in the order of tens to hundreds of pounds—but the implicit signal is clear: we want to make it more difficult to come here, through what we will charge you for a visa, than some of our competitors do. I think that that is a continuing problem.
Perhaps the most important barrier that we heard about is the change in the rules allowing students to stay on and work after they have qualified. Some, perhaps many, international STEM students, having qualified in a UK university, would like to stay on and work. This is surely a good thing, given that we have trained and educated them to provide the skills that our industry desperately needs. You would think it a no-brainer that we would want to try to persuade them to stay here.
Under the old arrangements, prior to 2012, the so-called post-study work route entitled international students to stay on and work for up to two years before applying for a tier 2 skilled worker visa if they had a job. In 2012, the post-study work route was abolished and replaced with a new scheme in which students have a mere four months to find a job, not after they have graduated but after they finish their course, and have to have a salary, which is today more than £20,500, to apply for a visa. We heard that this is a major deterrent to overseas students coming here. Our time limit of four months is shorter than in any other English-speaking or EU competitor country. For instance, Germany has a period of 18 months; the USA, 29 months after STEM graduates finish the course; and Australia, depending on the course and the circumstances, has a period of between 18 months and four years.
Look at the numbers. In the year before the old tier 1 post-study route was abolished, just under 35,000 visas were issued. In 2013, under the new tier 2 “general” route, only 4,175 visas were issued. That is an 88% drop in one year. We heard abundant evidence that the current arrangements are not only bad for UK universities but bad for UK business. One of our witnesses, Sir Andrew Witty, the chief executive of GlaxoSmithKline, told us that the new arrangements are “not great for employers” and that students have,
“vanishingly small amounts of time”,
to secure a job. As I said, the four-month clock starts ticking as soon as they finish their course, which may be many weeks ahead of the time that they receive their degree or final qualification, especially if it is a Masters degree with an element of a viva. The time that they have after they know their qualification to complete a visa application and job application is vanishingly small, as Sir Andrew says.
The Engineering Employers Federation also commented to us on the difficulties of the new arrangements, particularly for businesses that need to get a sponsorship licence. As I declared at the beginning, I am chairman of a small business. This morning we discussed there the fact that the UKVI guidance book that we must study if we want to get a sponsorship licence is a mere 144 pages long. We are not making life easy for small businesses to hire skilled STEM graduates from overseas. Would the Minister agree that our evidence from industrial employers shows that the current arrangements are really not fit for purpose? Why should the Government ignore the comments of those working hard to build a UK science-based economy?
Furthermore, an independent survey carried out by Hobsons of 70,000 prospective international students who made inquiries to UK universities between March 2011 and 2013 demonstrated that perceptions of visa restrictions, including the post-study work route, were a major deterrent to students coming to this country from overseas.
Let me end with, very briefly, two individual case histories that both relate to my college at Oxford, Jesus College. One student who gave written evidence to the committee is a Canadian citizen who studied medicine at King’s College London before coming to Oxford for further specialist training. She went back to Canada briefly to complete Canadian medical exams in case at some point in her career she wanted to practise there, but she wanted to come back and work in the NHS. However, in the brief period she was away, the rules changed and she was told that she was no longer eligible for further medical training in the UK. It seems to be madness for us to invest years in training a doctor and then tell her that she cannot come and work here.
My other case history is a Chinese engineering graduate from Jesus College who set up her own company, Oxford Space Structures, which is building consumer products as a spin-out of the European Space Agency’s research. Apparently, her company’s product is a lightweight travel cot based on technology developed for satellites—I look forward to buying one for my brand-new granddaughter, who arrived last Saturday. The BBC covered the story two weeks ago under the banner headline, “The global fight to attract foreign entrepreneurs”. It seems like a good news story, and indeed it is. However, when I clicked on the link to the UKTI Sirius scheme, under which the Chinese engineer was able to set up her business and which is designed to attract such entrepreneurs, I read that it is currently closed. Does UKTI have future plans for attracting overseas entrepreneurs if the Sirius scheme is now closed?
I could make a number of further comments about our report, but I prefer to hear what other noble Lords have to say. I just end by noting that our report is by no means alone in highlighting the problems to which I have alluded. In 2011, the Home Affairs Select Committee in another place advised against the closure of the post-study work route. Just last month, the All-Party Parliamentary Group on Migration published a report that reached a very similar conclusion to ours, based—as was our report—on a substantial volume of evidence from universities, students and employers. I beg to move.
The Earl of Selborne (Con)
My Lords, the whole House will be grateful to the noble Lord, Lord Krebs. He speaks with great experience about these matters, as we have just heard. He has chaired the Science and Technology Committee for some time. I was very privileged to serve with him and to succeed him. We are enormously grateful for the way he introduced this report. I was particularly taken by the case histories he mentioned from Jesus College. I cannot, alas, from my own background quote such specific examples but I am absolutely certain that it is only when we get to the detail of some of these astonishing cases that we realise that at the moment we seem to muddle our way into making life difficult for the very students we wish to attract. Before I start my main observations, perhaps I may say also how much I am looking forward to the maiden speech of the noble Earl, Lord Kinnoull.
There are two government policies that are both perfectly worthy but are proving difficult to reconcile. The first is to increase numbers of international students and the second is to deal with the historic abuses which certainly happened in the international student visa system. If we are to deliver what the Budget set out yesterday, which is a competitive economy, we simply must attract students to our world-class universities in competition with other world-class universities in competing economies. That, I am certain, is universally accepted. We have to look at how successful we are in that, the first and most important of the Government’s policies. We know that our economy’s success in creating employment will depend on an industrial strategy of building on existing strengths. For example, I could mention healthcare, aerospace, biotechnology, renewable energy, the automotive sector and many more. They are often multidisciplinary, with an interaction between chemistry, biology, medicine, engineering and much else. We will need to attract inward investment, which will come when those who have the inclination to invest are persuaded that the quality of the science and engineering is the highest, and that a reservoir of skilled persons is available to drive that knowledge economy.
We have a skills shortage. The noble Lord, Lord Krebs, mentioned the figures issued by the CBI. Employers throughout the country are struggling to meet demand, particularly for engineers, but for other skilled graduates in the science and technology sectors. The number of UK-based engineering students over the past 10 years has risen a little, but very disappointingly, from 12,700 in 2004 to 13,700—an increase of 1,000 over four years. The number of non-EU international engineering students increased by much more, by about 70% from 3,200 to 5,500. The Institution of Engineering and Technology estimates that to meet demand from employers we need 87,000 new engineers per year. Even if the Government do not accept that figure—which I accept may be special pleading—I think we all recognise just how dire the shortage can be in those specialist skills areas. Sir James Dyson, who has advised the Conservative Party on these matters, recently stated in an article in the Guardian:
“But I do worry about Britain’s ability to make, make, make. Make engineering breakthroughs. Make scientific progress. And, yes, make money for UK plc”.
I think that sums up what an awful lot of captains of industry would say and the evidence that the committee heard. We need to attract more of our UK students into STEM subjects, we need to attract more international STEM students and we need to attract more highly qualified scientists and engineers, even if they have not done their research training and graduate or postgraduate studies here, to make up our numbers.
That brings me to the second government policy, which is proving incompatible with the first: the policy of tightening procedures and qualifications for student visas. We have heard about the added complexity, cost and bureaucracy and the perception, particularly in India and Pakistan, that once you have graduated you are no longer welcome. Some pretty lurid headlines in the Indian papers said just that. I give credit to the Prime Minister, to David Willetts, and to other Ministers who had the thankless job of trying to reverse that perception but, as the noble Lord, Lord Krebs, said, once the perception gains currency it takes an awful lot of hard work to reverse it.
We must acknowledge that there has been historic abuse of student visas by some institutions that I would call marginal. In the past, there has been a danger of international graduates, once they finished their studies and decided to stay in this country, taking jobs for which they were overqualified—unskilled jobs—therefore increasing the competition for jobs for our nationals. These issues need addressing. Clearly, you need to make sure that, having trained people for skilled jobs, they take on the skilled jobs. It is important that we do not allow such abuses, but we must not try to deal with these problems at the expense of jeopardising that overriding national need to equip ourselves with a competitive knowledge economy.
The Government said in response to our committee’s report:
“There have been a number of myths and inaccurate perceptions, which we are determined to correct, in partnership with the sector who also have an important role to play in this”.
I hope my noble friend the Minister will concede that the well documented examples in the report of added costs and complexity which have fallen on students, the higher education sector and employers amount to more than myths and inaccurate perceptions, although there are indeed those as well. The abuses certainly needed tackling but, equally, genuine students deserved a better visa service than they were receiving in some of the instances on which we took evidence. I acknowledge that since our report there have been some improvements, although it will take years for some of these perceptions, however ill founded, to be redressed.
An example of the complexity which the Government have imposed on the system is the tier 5 route, for people who want to come to the United Kingdom for a short period to do work experience, training, research or a fellowship through an approved, government-authorised exchange scheme. As paragraph 106 of our report said:
“The University of Manchester described the Tier 5 route as ‘unpopular with both our students and employers … We are not familiar with any students actually taking a Tier 5 experience at Manchester’”.
If the Home Office really sought to work in partnership with universities to implement a reformed student visa regime—as the Government’s response suggested and as I am sure it does—it would surely have been much more productive to have worked closely with the sector in designing measures which were effective, fit for purpose, less complex and, above all, did not need changing rapidly and repeatedly at short notice. It would also have been desirable, if possible, to have a scheme which would be less expensive for students.
The Government remain determined to cling to a net migration target that includes students as its largest component. They plead the need to comply with UN regulations. The United States also includes students in its overall migration figures and then excludes them for migration policy purposes. This would also have been the sensible way for us to proceed. As international student numbers grow, the United States has no inducement to limit their share of this expanding market. While we insist on including students in the national migration targets, we will be conflicted and remain so until international student numbers level off or decline. The huge public benefit derived from international students coming to Britain will be compromised.
The Earl of Kinnoull (CB) (Maiden Speech)
My Lords, it is an honour and a privilege to rise for the first time in your Lordships’ House. In the last weeks, I have been much touched by the warmth of Members of the House, many of whom have been generous of their time and canny in their advice. I would particularly like to cite the noble Lords, Lord Laming and Lord Aberdare.
I am also grateful for the staff of the House who have helped me in very many ways. I have discovered one thing—that there is finally something for which there is no iPad app: that is, of course, navigation around your Lordships’ House. Like every other new Peer I have been lost frequently but, always with good humour and a smile, put back on the right road. I dare say that for some moons to come, they will be doing the same.
I congratulate the noble Lord, Lord Krebs, and his committee on their report. Its clarity, its appealing logic and the good body of evidence it assembled in its recommendations were a cracking read. I would like to add a very few thoughts to it, because it was settled roughly a year ago.
My first thought can be summarised in the proposition that British international business needs the international STEM student product. Here I declare an interest: I have worked for more than 25 years in British international business and for a very large number of years in senior levels at the Hiscox insurance group, in which I declare a financial interest, as I do in Schroders plc. International business naturally likes STEM graduates. They are numerate, flexible-minded and well trained. If we like them, we like the international STEM graduates even more, because they bring with them the two additional dimensions of knowledge of another culture and, one hopes, linguistic skills. When put together in a team trying to win business internationally, having a balance in the availability of all of those features is something which often, in my experience, makes the difference between success and lack of success.
It has been marvellous for all the British international businesses to be able to participate in the annual milk rounds around the various universities to attract the best and the brightest and to try to sell our businesses and the excitement of doing things in our businesses to those students. Anything that reduces the availability of the pot of good students is something which is not in the interests of British international business. I put it to the Minister that, in consideration of the matters considered in this report, the interests of British international business should always be borne in mind.
I decided to do a little private update to see what it was like in the front line; it was a very limited exercise. I contacted the department of chemistry at Oxford. I should declare another interest in that in the 1980s, for four very happy years, including a year in research, I studied chemistry there. The department was very helpful and sent me an enormous lot of comment and figures, most of which I have sent straight on to the secretary of the committee in the hope that, when the committee returns to the subject—as I very much hope it will—it will be of some help to it.
I would like to bring to your Lordships’ attention three things that came out of that exercise. First, my own fiddling around with the statistics showed something pretty interesting to me about the chemistry department, which is that, roughly speaking, half the chemistry product at Oxford—both graduate and undergraduate—goes into business. The second thing I was not expecting at all, as it did not arise out of any of the questions I had asked. It came from an unsolicited email from Lucy Erickson, an international STEM graduate, who was my conduit at the department of chemistry. It was through her that I was contacting quite a large number of people. I think your Lordships should hear her words:
“I am an international alumna (Canadian) and graduated from Oxford in 2011. I’ve been working in Oxford since then and have seen many contemporaries struggle with visas.
I was lucky enough to get a Tier 1 Post-study Work Visa after my degree, which allowed me to stay and job hunt in the UK for two years.
However, after I finished, the post-study work visa was abolished. This had a huge negative effect on my colleagues who graduated after 2012—it was a real struggle for people to find sponsored work in just 6 months.
For example, two of my close friends were forced to leave the UK and move back to America when they were desperate to stay here. Those are just two examples but I know of many other people who were affected negatively by the change”.
I must say—slipping back on the British international business hat—that I find it very disappointing that we were not able to get access at least to try to attract those obviously high-potential graduates into our world.
British international business tends to operate on an annual recruitment basis. It is simply not practical to run induction and training programmes more than, say, once a year. If one is doing that, it takes several months to run a process from the opening of applications to the awarding of jobs. One is therefore looking, in the interests of British international business, for STEM students to be allowed to stay in the country for at least 15 months. I will come shortly to a practical suggestion about how that might be addressed.
I suppose that, net, that is slightly bad news. However, something that is, net, very good news came out of my mini-survey—and this is the third and final point on that. It was an email from the careers service team at Oxford University which states:
“While the lack of post study work opportunities has caused concern, the new ‘Tier 1 Graduate Entrepreneurship Visa (GEV)’ has enabled Oxford to endorse 40 international graduate students to stay in the UK with their new business ideas and the scheme has been very positive”.
I was not really aware of that scheme, but I am now. In further questioning, it turned out that more than half those 40 students were STEM students. When I looked at the high-level summaries of the business ideas, I was most impressed. However, there was a mild warning gong. It turned out that Oxford had the impression that only 135 GEVs have been issued so far. If that is the case, Oxford has a market share—if that is the right expression—of rather more than 25%, which suggests that the GEV is possibly not well enough understood or not well enough known about by a large number of other higher education institutions in the United Kingdom. I am coming on to a practical suggestion about how that should be looked into as a matter of urgency.
I realise that touching on anything to do with immigration at the moment is, at the very least, a warm potato, but I put it to the Minister that she would be able to instruct officials during the election break to look at the two issues I have raised and to see whether it would be possible to raise the post-study work time allowed to international STEM students from four months to the minimum of 15 months that I suggested, and how to do it; and to look at the GEV point I have made to see whether there is anything in that. Officials could be asked to report back by mid-June so that the report arrives absolutely fresh on the desk of the new government Minister, who would then be able to consider the findings and act accordingly and rapidly.
Viscount Hanworth (Lab)
My Lords, we must congratulate the noble Earl, Lord Kinnoull, on a most interesting and engaging maiden speech, which conveyed some important and compelling evidence. His speech is a contribution to a debate on a most important issue in which, remarkably, three earls are speaking. The noble Earl, Lord Kinnoull, trained and practised as a lawyer and has spent 25 years in the insurance industry. We have just learnt that he is also a chemistry graduate. He will bring significant professional expertise to the deliberations of this House, and we can look forward to his well informed contributions in the course of what he has promised will be his regular and diligent attendance.
The excellent report of the Science and Technology Select Committee, which we are debating today, was published in April 2014. Since then, almost a year has passed, during which time the policies that the report wishes to see amended have been inflicting severe damage on our universities. The problems that the report instances have arisen from measures that have been enacted in response to an unguarded declaration of the Prime Minster concerning the number of immigrants to the UK. In a speech in March 2013, the Prime Minister declared that net migration needs to come down from hundreds of thousands per year to just tens of thousands. It seems that no serious thought had been given, in advance of the statement, to how this objective might be achieved.
In one unguarded moment the Government became hostage to the right wing of their own party. They suffered acute embarrassment at the failure to come anywhere near to achieving the declared target. They have handed ammunition to another party, which in contrast to the leadership of the Conservatives, is strongly opposed to our membership of the European Union, which allows citizens to migrate freely within its territories. The ineptitude in that connection is staggering, or at least it would be so had we not witnessed other, similar instances of such extemporary and troublesome policy declarations. The collateral damage that has been inflicted on the universities by an attempt to staunch the flow of immigrants in fulfilment of the policy has been immense.
To understand how foolish was the statement concerning net migration, one need only glance at table 1 of the committee’s report, which shows that in 2012-13 the total number of immigrants, which was roughly 500,000, was divided almost equally between immigrants from the European Union and from elsewhere. Short of leaving the Union, the Government can exercise no control over the numbers of European immigrants. Unless those people can be disbarred from coming to the country, there is no way in which net migration can be reduced to the tens of thousands. When we look at the figures for non-EU immigrants, we find that in the year in question nearly 170,000 out of 240,000 immigrants were entrants to courses at publicly funded higher education institutions. That is a fraction in excess of two-thirds. It is only by radically reducing those numbers that any significant reduction in net migration could be achieved.
In providing courses to overseas students, the university sector constitutes a major export industry. It appears that the Government have been prepared to curtail those valuable activities of the sector solely for the purpose of saving themselves the embarrassment of a failing political agenda that has arisen from a foolishly unguarded statement.
The committee’s report has urged the Government to remove students from the net migration figures. That was also urged upon the Government, almost unanimously, by those who participated in a previous debate on higher education. However, the Government have been intransigent on this point. By removing student migrants from the total, the Government could surely cut the numbers of recorded immigrants at a stroke. Their unwillingness to do so is almost incomprehensible. The only conceivable reason for not doing so is that by removing the students from the figures the Government would be denying themselves a valued opportunity to show that their policies are having an effect on the numbers of immigrants.
It may be that the Government have begun to believe their own propaganda. They may be imagining that, contrary to all the evidence, many of the non-European Union students are intent on exploiting the opportunity to come to the UK as a means of gaining permanent residence or of neglecting their studies in order to exploit other opportunities. The few instances when that has been the case have been widely publicised in support of a highly erroneous perception.
The supposition that a large proportion of the students have fraudulent intentions goes some way towards explaining the nature of the numerous additional provisions and restrictions that have been imposed upon overseas students. The conditions of the tier 4 student visas have been made increasingly stringent. The rules regarding the funds for their maintenance and for paying their university fees, which the students must have in their bank account if they are to be allowed to join a course, are now disbarring many of them. Perhaps the greatest discouragement to prospective students has been the way in which the routes to post-study work, which is so valuable to postgraduate and doctoral students, have been closed.
The increasing burden of regulations has been administered in a careless way. Changes in the regulations have occurred without sufficient prior announcement to allow the institutions of higher education to adapt to them. They have often occurred midway in the cycle of student recruitment, which has created severe difficulties for the institutions.
The rule changes have also had very distressing impacts on individual students, who have discovered that the suppositions under which they embarked on their courses are no longer valid. Thus, for example, the work experience components that may have been an attractive feature of many courses have, in certain instances, ceased to be available at a midway point in the course, in consequence of the new regulations.
One applicant to a doctoral program, with whose case I am well acquainted, was subjected to a test of his competence in the English language. This person originates in one of the central Asian republics. His written English is superb but his spoken English is hesitant and strongly accented in consequence of his lack of practice. On these grounds, he has been disbarred from pursuing his doctoral studies in the UK under the supervision of one of my academic colleagues.
I must now respond to the fact that the committee’s report is devoted primarily to the impact of the immigration regulations on the recruitment of students in science, technology, engineering and mathematics. A large proportion of these students are at the postgraduate level pursuing masters or doctoral studies. In their absence, many of our MSc courses would not be viable and would have to close. In effect, we depend upon overseas students for the maintenance of our scientific and technological skills. We shall continue to do so until a scientific and technological revival in the UK allows us to fill our courses with native students. For this purpose, we should need to provide adequate funding for our postgraduate students.
I should take the opportunity now of drawing attention to the fact that we are failing to produce sufficient numbers of scientists, technologists and mathematicians to staff our universities. A cursory glance at the staff list within academic departments will reveal that the majority of them are non-native. In the past, we have been able to celebrate the fact that our academic staff have been drawn from many other nations. We have had a genius for converting such people into British citizens with strong allegiances to this country, from whom we have profited greatly. Such circumstances no longer prevail.
Nowadays, the numerous overseas recruits to our university departments are typically short-stay visitors. In some academic departments, in my experience, a staff turnover of as much as 30% per annum is not unusual. If such circumstances are to continue, and there is no indication that they will not do so, then the effect upon the quality of higher education in the UK and upon our scientific research capacity will be dire.
It is typical when discussing in this Chamber the circumstances of UK higher education to hear fulsome assertions regarding its outstanding quality and world-beating status. Such assertions usually come from people who are only tenuously connected to higher education. They relate to past glories and to their lingering effects. The view from inside could not be more different; and the well informed prognosis for higher education in the UK is a grim one, which foresees a terminal decline.
Lord Rees of Ludlow (CB)
I thank the noble Lord, Lord Krebs, for chairing this study, and for his comprehensive speech. I echo his thanks to the staff of the committee, and I declare an interest as a member of Cambridge University.
We must be aware that overseas students display huge diversity in interests as well as nationality. The bulk of them are doing undergraduate degrees, but those doing masters or doctoral degrees tend to be a larger proportion of all students in those categories. We are in an international market for talent in which our strong higher education system ought to give us an edge. My concern is that the various obstacles being put in the way are preventing us from achieving our potential.
The most insistent theme of our committee’s evidence was the general regret at the removal of the post-study work visa scheme in 2012 and unease with the more stringent and vexatious requirements that have replaced it. As the noble Lord, Lord Krebs, has said, a specially compelling witness was Sir Andrew Witty. He came as chancellor of Nottingham University but spoke with the authority of a chief executive of a major company, GSK. He noted, with regard to the four-month limit, that the clock starts when the students finish their course, not when they formally graduate. This puts them under even greater time pressure in seeking a job. Some try and fail, but too many are less confident: they assume failure and do not even try. Sir Andrew recommended a year from finishing the degree, which might then obviate the need for the specific entrepreneurial route. In the US, for instance, students are given a five-year visa for a four-year course, which makes it possible to gain work experience without hassle. Germany offers 18 months.
It was pointed out, particularly in evidence from Leicester University, that for students from India or Pakistan the work experience is perceived as a highly valued supplement to one-year master’s courses. Let us not forget what a huge investment in rupees Indian students make and how life-changing their experience here can be. The decline in perceived opportunities tilts the balance, in their minds, in favour of the US, Canada and elsewhere. Of course, such perceptions feed back to India and weaken the field applying here in future years.
Another issue that we raised is the salary threshold of £20,700. The Government’s response was that this was not too high and that its purpose was to prevent people staying on in unskilled occupations. However, we were told in evidence that new graduates in a subject such as pharmacy, without professional accreditation, would not get an offer at that level, but they would get lower-paid jobs offering the kind of valuable experience that would help them and convince them that they had made the right decision coming here. In fact, a similar concern was expressed recently in a radio interview with no less an authority than David Willetts, who pointed out that the threshold salary may be appropriate for London but is not so easy to achieve in the Midlands or the north of England, and so has the effect of sucking overseas graduates into the south-east. He suggested that there should be flexibility, with rather lower wage requirements in other parts of the country. Technical jobs paying less are genuinely valuable work experience—certainly not the same as unskilled work. The potential of such work is part of the package that allows students from India and Pakistan to get good value from the sacrifices that they make to come here.
A further impediment is that employers, especially in SMEs, continue to perceive complexity in the current rules for becoming sponsors. This was clear from the evidence, despite the official claims that it takes only 30 minutes to do so. The doctorate extension scheme is welcome, but again there were concerns that the application was not straightforward because the application has to be made no more than 60 days before the uncertain completion date of a PhD.
Subsequent to our report, further measures have been introduced by the Immigration Act 2014. These need to be carefully monitored. For instance, the NHS surcharge will increase application fees significantly. For a PhD student on a four-year course, visa and associated costs will increase from £310 to around £1,000, with the same amount for each dependant. The pilot scheme in the West Midlands for immigration checks by landlords would need thorough assessment before any decision was made to roll out the requirement nationally. There is a risk that it will deter landlords from renting to overseas students, especially in university cities where accommodation is already scarce.
The Government did not accept our committee’s recommendation for a biennial review to monitor the impact of frequent policy changes such as these, which are widely reported overseas and fuel the perception of the UK as inconsistent and unwelcoming to international students. Universities would like a period of stability, not only for their planning purposes but because it would give confidence to potential applicants. Of course, there was huge relief in January when there was no follow-through on the Home Secretary’s proposal to abolish even the four-month grace period, but the fact that this was prominently floated will surely in itself have deterred some applicants this year.
Many are perplexed at the Government’s reluctance to distinguish in their public pronouncements and policy between students and other immigrants—something that has been urged by several other committees apart than our own. Students are a substantial fraction of non-EU arrivals. As we know, the Government are being pressured about the gap between their 100,000 target and the three-times higher reality. It seems baffling that they are not eager to highlight the distinction and thereby at least blunt the manifest contradiction between the rhetoric from the Home Office and that from BIS. Perhaps the Minister could clarify that.
There is a growing worldwide demand for young people with STEM qualifications, and indeed with expertise in other fields of learning. As has been said, our universities are especially well placed to attract students at all levels: undergraduates, those who seek the professional development that a taught master’s course provides, and those seeking PhDs. In the competition for talent, our traditional rivals have been the US, Canada and Australia, but mainland Europe is more attractive now to students, especially from Asia, because courses are also offered in English.
We should surely also prepare for the disruptive effects of distance learning. So-called massive, open, online courses—MOOCs for short—have perhaps been overhyped, but they have their greatest potential at the level of vocational master’s courses, especially in subjects that do not require laboratory work. These MOOCs offer the UK an opportunity; the Open University especially has a real chance to excel in marketing this kind of distance learning. Its downside will be that as online courses develop, expensive residential courses in the UK will lose their allure unless enhanced by the genuine prospect of work experience, which requires relaxing visa regulations.
It may not be easy, even with optimum policies, to sustain the level of foreign students, the best of whom are surely an asset who should be welcomed and encouraged to stay. That is why we must surely avoid the own goals stemming from erratic and burdensome regulations. Foreign students who stay enhance our talent pool; those who return can forge links with this country that enhance our soft power. Overseas students should be welcomed—their paths should be smooth.
The Earl of Dundee (Con)
My Lords, all of us will be grateful to the noble Lord, Lord Krebs, for introducing this debate. We have also heard from the noble Earl, Lord Kinnoull, in what was an excellent maiden speech. The House is very fortunate that he has joined us and to be able to look forward to his future contributions.
To attract here students of these subjects, in particular those from overseas, I would like to make a few brief points. There is an obvious need: to increase foreign student numbers which have been declining; to make them feel welcome and thus also, in the first place, to simplify their process of application for entry; to encourage them to stay to find employment with UK businesses and industry; for proper monitoring of our policies and assessments of their results—these to be viewed against those of our competitor countries; and for our Government to be alert to other associated and constructive expedients—for science, technology and mathematics not least would such include the considerable scope, to mutual advantage, for student exchanges between United Kingdom institutions and those elsewhere.
The noble Lord, Lord Krebs, mentioned falling numbers; my noble friend the Minister may point out that there has been a slight recovery. This can be noticed in recent figures for Indian students coming here. There have also been useful government missions to build up trade and investment between the United Kingdom and India. That apart, there is still a much reduced number of students coming here from India and other states.
Several aspects may put off foreign students, and each of these is in our power to change. There is a need for greater clarity in the publication of immigration statistics. So far, our presentations do not sufficiently distinguish student figures from those of all other immigrants. This category is overseas students in possession of tier 4 visas. Does my noble friend the Minister agree that clear publication of their numbers as a separate immigration component would achieve two purposes: first, the removal of a government policy anomaly, where a Government restrict general immigration on one hand yet seek to increase student immigration on the other; and, secondly, that it would serve to help reverse the impression of many potential overseas students, to which many of your Lordships have referred, that they are unwelcome in the United Kingdom?
Foreign students are discouraged as well by unnecessary remaining complications within the application process itself. There is a strong case, therefore, for its simplification and streamlining, and the Select Committee has recommended that. Might the Government perhaps pursue this recommendation?
The Government have introduced a scheme for foreign students to stay on as graduate entrepreneurs. This is to be welcomed. It also connects to arrangements for students to complete PhDs and for corporate interns. Nevertheless, as the noble Lord, Lord Krebs, and others have stressed, the Select Committee has expressed much concern about the government scheme that has replaced it, named post-study work. It recommends that the Government should reinstate the latter. Does my noble friend concur that, if combined, the PSW and graduate entrepreneurs scheme together would send out a very positive message? Thereby, foreign students would have much greater opportunity than they do now to prolong their studies and to take up employment with United Kingdom business and industry.
We also need frequent reviews of the effect of policies and of how our results compare with those of competitor countries. Does my noble friend support this? If so, might the Government introduce those constructive procedures for monitoring and assessments? Whether in the humanities or sciences, the pursuit of opportunities for student exchange is always worth while and to the advantage of all. It also reflects a paradox. In this case, it demonstrates how co-operation transcends competition while still retaining all the benefits of the latter. That comes from academic exchange and working synergies between universities and institutions in different countries. As a Council of Europe parliamentarian, it is a great privilege for me to have been asked to help with programmes for such exchanges between the United Kingdom and elsewhere.
At the same time, as the noble Earl, Lord Kinnoull, reminded us, the United Kingdom must not fall behind the standards of competitor countries, which equally seek to attract foreign students to their own economies. There is every good chance that we will not do so and, instead, build up very good practice. Meanwhile, and to that end, we are fortunate to be guided by this useful Select Committee report.
Lord Stevenson of Balmacara (Lab)
My Lords, I begin by thanking the noble Earl, Lord Kinnoull, for his very fine maiden speech, which has already been referred to around the House. We are all very grateful to have him with us to join in our discussions. I send my particular welcome to him as a fellow chemistry graduate from the same university, although, I think, of a different generation. In fact, I think that we did the same thing, which was to take the best of the chemistry courses on offer and then immediately go off and do something else—in my case, an accountancy and professional administration degree. Nevertheless, the lessons that we learnt will stay with us. Indeed, the noble Earl was able to use his business experience to contribute directly to this debate and we were all informed by that. His point that international businesses need international STEM graduates is very important, and it is a theme that comes back throughout the report.
It is no disrespect to the noble Earl to say that the other people who have contributed to the debate have also made it a very high-quality one. The point was made that it was rather weighted on the scales towards the aristocratic side, with three earls and a viscount. Indeed, I got so freaked by that that I decided I had better have some reserves, so I brought along my good and noble friend Lord Grantchester. Unfortunately, he scarpered just before he had the chance to bolster up what I was about to say, but I am sure he will come back.
I thank the committee and particularly the chairman, the noble Lord, Lord Krebs, for an excellent report on international science, technology, engineering and mathematics students and for trying to tease out some helpful recommendations for the benefit of your Lordships’ House and, indeed, of the Government. Once again, it is fair to point out that there has been a delay of nearly a year before your Lordships have been able to discuss such a good report. That is to be regretted.
It is a fine report and it is in the best traditions of the House. It is one that we expect to see but it is also important to recognise how good it is. It is a process of taking evidence, reflecting on and sifting through it, and then reporting carefully on the issues and offering suggestions to the Government on how many of those issues might be resolved. Sadly, as the noble Lord, Lord Krebs, said in his introduction, the Government’s response to the report is rather defensive and, in some cases, rather brusque to the point of rudeness. I may be wrong but I wonder whether anybody else got from the response, as I did, some Orwellian overtones, with the assertive mantra: there was a problem; the government have acted; there is therefore no longer a problem and no further work is required. For example, the introduction to their response states:
“The Government has reformed the student visa system to cut out the abuse of the system, and will continue to do so. We have also taken steps to continue to attract talented international students to our world class universities. We have been very clear that there is no limit on the number of international students and there are no barriers to studying in the UK”.
It is pure aspiration and rhetoric. It is not evidence-based or thoughtful in terms of the report. It continues with the rather chilling phrase:
“There have been a number of myths and inaccurate perceptions, which we are determined to correct”.
That smacks more of Room 101 in the Ministry of Love than a considered response from BIS and the Home Office.
In my view, Britain has long been and must remain an optimistic, outward looking and confident nation. When more people travel and trade physically and virtually across borders than ever before, no country can pull up the drawbridge. Our economy and culture have benefited immensely from those who have come here through the generations. We should be proud of being British and we should rejoice in the confident British diversity that occurs right across the country, and which London showed off for us in Olympic year. As we have heard today, the impact of the Government’s student visa policy is both economically illiterate and culturally bankrupt. Bringing more talented students, whether from China, India or Brazil, to learn at Britain’s universities not only brings in substantial investment in the short term but helps Britain to build cultural and economic links with the future leaders of the fastest growing economies on earth.
Britain has a long and proud history of being the destination of choice for potential students from around the globe. Our universities are highly regarded and the UK provides a rich, diverse and safe environment to study. All of this is detailed in the report. It seems to me that, given the comparative advantage that we have established, and the place we hold within the world, UK higher education should be front and centre of an active government strategy to generate growth. If we are going to keep up with our competitor countries we need to be bringing in more talented students from around the world to learn at Britain’s top universities. It not only brings in substantial investment but helps Britain to build important cultural and economic links—the soft power referred to by other speakers—and we should be absolutely getting behind it and backing it all the way.
Why is the Government’s policy so confused? Why is it so destructive? It is already having negative impacts, as we have heard, on the perception of the UK as a good place to study. A recent NUS survey of international students found that 40 per cent of those who were here said that they would not advise a friend or relative from their home country to come to the UK to study. That does not seem to be the best possible advice. Everybody knows that the best advertising for any product are the clients and customers. If they turn against it, there is a problem.
As we heard today, the main charge is that there is a causal relationship between the immigration changes brought in by this Government and the erosion in our market share of students coming to study STEM subjects. The evidence is that there is a perception around the world that Britain no longer welcomes its international students. As we heard, the Indian subcontinent has been one of the worst examples of that. We think that many of the students who would previously have come here have gone to Canada, Australia or America. We doubt whether that will ever revert back to the normal situation. The evidence is difficult to prove. As was said, there is no test that could be carried out on what would have happened if the world had not changed, but it seems to be convincing that so much has happened within the period of four years in which these changes have come in. Changing the rules continuously, as has happened, and as documented in the report, fuels that perception, whatever the Prime Minister or Ministers may say.
If bureaucracy is intensifying and the costs are going up, we are hardly being competitive. The world market is competitive and we are falling behind in what we can offer in terms of easy access to courses and then in terms of graduate employment, as shown in the report and raised by a number of noble Lords. We are not able to sustain our postgraduate courses, with all that that implies in terms of what the impact might be on home-based students. It also has an impact on SMEs, as employers’ organisations have pointed out, so it is a perfect storm.
With one or two exceptions, we seem to be agreed in the Chamber that there is a problem and that the solutions put forward by the Government will not clear it up. But as the noble Lord, Lord Rees, said, what is intriguing is why this has happened. The department responsible for higher education, BIS, has in effect been rolled over by the Home Office and the policies of immigration have trumped the policies of growth. An initial idea, which was probably right in instinct and correct to carry out, to clean up what seems to have been a really troublesome FE sector in terms of immigration, has been used to drive a coach and horses through a sector that we should support and cherish.
Can the Minister reconcile what is set out in this excellent report with the aspirations set out in her department’s July 2013 publication, International Education: Global Growth and Prosperity, which is quoted in the Select Committee’s report, which states that international students,
“boost the local economy where they study—as well as enhancing our cultural life, and broadening the educational experience of the UK students they study alongside”.
Is that still the case? Can she confirm that it remains the Government’s intention to leave the immigration system as it is? If so, can she explain how the Government can say that they believe that it is realistic for numbers of international students in HE to grow by 15% to 20% over the next five years? I do not see the evidence to support that. Can she set out for us today the practical steps that the Government are taking to show that the UK values international students, will provide a warm welcome and support while they are here and will keep in touch after they go home?
Baroness Williams of Trafford (Con)
I thank all noble Lords who have participated in this debate today and who have supported the inquiry, particularly the noble Lord, Lord Krebs, and the noble Earl, Lord Kinnoull, who made his maiden speech today outlining some of his experiences, which were extremely interesting. I also noted, as did the noble Lord, Lord Stevenson, that we are surrounded by three earls and a viscount today, so I stand humbled before the committee and the noble Lords who spoke.
The quality of the debate that we have had today underlines just how important it is to attract and harness the talent across science, technology, engineering and maths, otherwise known as STEM, and how important it is to the economic and social well-being of our nation.
In 2013-14, we welcomed 179,390 new entrants from outside the EU to UK universities, including 56,340 STEM entrants. This year there has been a 6% increase. That is an additional 3,400 STEM entrants from outside the UK. The UK enjoys a 13% share of the international higher education student market. Competing recruiting countries such as Australia, the US and Canada are developing national education brands and marketing activities alongside competitive visa policies. All noble Lords referred to that in some way or other. They raised concerns that changes to our visa regime for international students and specifically those on post-study work options have been a big deterrent. I will try to argue that the latest data show a much more complex and somewhat patchy picture.
There was a 7% growth in visa applications last year and 18% since 2010. That includes an 11% increase for the Russell group. The Government have been very clear that there is no limit on the number of international students and there are no barriers to studying in the UK. It is also true that the Government have made reforms to the student visa arrangements, as many noble Lords pointed out. I will briefly outline why.
Under the system that the Government inherited, there was evidence of the system being abused. My noble friend Lord Selborne alluded to that. An example of the scale of the problem is the findings of the National Audit Office which reported that up to a quarter of the international students who came to the UK in 2009-10 may have come to work rather than to study and 26% of international students at private colleges were potentially non-compliant with immigration control.
Since 2010 the Home Office has revoked more than 860 sponsor licences. The system needed reform, with a series of measures to tackle the abuse, while continuing to attract the best and brightest students, and we believe that we have struck the right balance. Striking the right balance does, however, mean some tightening up of the system in some areas. These changes were entirely necessary to eliminate non-genuine students and to remove those providers not supplying genuine high-quality education. We believe that these changes are helping to protect the reputation of the UK education sector.
The current visa system is a good one but the committee is right to advise the Government to keep the system under review so that we can remain competitive and respond to the changing needs of students, providers and employers. The report recognised that many factors influence international students when they decide where they would like to study and it can be,
“difficult to tease out the motivations of prospective international students with any great certainty”.
I will now address some of the committee’s key recommendations. The committee recommended that we should change the way we calculate our net migration statistics and not include students when considering immigration policy. A number of noble Lords mentioned this, particularly the noble Viscount, Lord Hanworth. The Government use the UN definition of net migration, which covers all those coming for 12 months or more, including students. There is no need to change the way we measure the statistics and this would not make any difference to our student migration policy. As the Prime Minister said before the Liaison Committee on 13 May 2014:
“We do not need to make a change to our immigration policy or the way we measure statistics in order to have an incredibly positive offer to students around the world”.
The committee also called for a period of stability. We are all aware that there has been significant reform during this Parliament. However, it is important to note that many of the changes to tier 4 have been undertaken in response to requests from sponsors to simplify the system or to provide more flexibility. While we seek to minimise the frequency of changes, it is important to retain flexibility and to react quickly where there is evidence that the system is being abused. That is why the Government are keen to work with the education sector and have set up the education sector forum with those institutions which recruit international students and have the practical experience to identify unnecessary obstacles and work with the Government to overcome them.
The report also recommended that BIS establish a working group to review the effects of a reduction in international STEM students on STEM taught masters courses. The Government response highlighted the fact that the International Education Council, which was set up following the publication of the international education strategy in 2013, would look annually at the trends of international students coming to the UK. I can confirm that the council met earlier this week and the matter was on the agenda. The minutes of the meeting will be published on the GOV.UK website in due course.
We also recognise that there is a job to be done in better communicating our offer. A number of noble Lords talked about this. Other nations are ready and able to pounce on any chink in our armour. In a world of mobile technologies and social media, any perceived difficulties within the UK will be played back not only by the media in our key competitor nations, such as Australia, Canada or the US, but more directly and more powerfully as students share their experience with their peers in Asia, India and the Middle East.
I am pleased to note that the Government have made some progress in improving the information that is available for prospective international students. The Home Office strategic communications team has developed a suite of products for use by stakeholders and migrants which are updated quarterly. The Government are very keen to demystify the student offer for international students, and I am pleased to report to the House that the immigration and universities Ministers have agreed to continue to develop communications material for international students, their sponsors and employers to explain the different work rights.
I should like to focus briefly on a country which was mentioned by a couple of noble Lords, and that is India. We have seen a fall in the number of Indian students coming to the UK. Our response has been direct and unequivocal. The Prime Minister visited India and stressed that the UK welcomes genuine international students. A series of Ministers, including Vince Cable and David Willetts, have visited India to reinforce the message. Sir Mark Walport, the Government Chief Scientific Adviser, has also visited and reiterated these points. The British Council has used the education element of the GREAT Britain campaign as part of a series of exhibitions and seminars across India to promote the opportunities open to prospective students interested in coming to the UK.
Noble Lords will appreciate that just as there are several factors influencing the promotion of the UK as a study destination, there are many factors which influence a student’s choice of course and institution and country. There has been particularly strong and continuing growth in the Indian higher education capacity, from 250 universities and 12,500 colleges in 2000-01 to around 700 universities and more than 35,000 colleges today, with a comparable increase in domestic enrolment rates. Around 45 UK institutions have a presence in India in the form of a representative office or individual, and all are investing heavily in resources to market their brand. These offices also manage alumni and partnership opportunities for their universities, thus contributing to the efforts of marketing the UK as a favoured study-abroad destination.
So that we can get a much clearer understanding of the reasons for such a drop in international students from India, Greg Clark and James Brokenshire now jointly chair a UK-India visa group which convenes every three months with Mr Ranjan Mathai, the Indian High Commissioner to the UK. The aim is to ensure that our existing visa rules are being applied correctly by discussing specific cases of individual difficulties brought by the Indian High Commission, to promote our excellent student visa offer, and seek to tackle the negative perceptions through targeted communications. We are making it clear that there are plenty of opportunities for Indian students who wish to stay to work after graduating in the UK, with no limits on their numbers.
Perhaps I may now turn to the specific questions put to me by noble Lords. The noble Lord, Lord Krebs, said that the exchange rate may have affected the number of STEM students coming here, but he also pointed out that the USA and Australia exchange rates have also fallen, so why have not their numbers? It is difficult to determine an answer. As the committee has recognised, many factors influence prospective international students when they are deciding where they would like to study, and it is not easy to tease out their motivations with any great certainty.
Most noble Lords asked about the post-study work route and expressed concerns about the short period of time that students on graduating have to remain in this country, as well as the level of starting salaries. The Government are committed to enabling the best international graduates to access the labour market. The old tier 1 post-study visa allowed too many students to end up in low-skilled and unskilled jobs or being unemployed. As I have already mentioned, in 2009 more than 38,000 graduates were given post-study work visas which gave them unconditional access to the labour market for up to two years. This was absurdly generous at a time of high unemployment in the UK.
We have replaced the post-study work visa with a selective system. All students studying a course for a year or more will have four months at the end of their course which they can use to search for a graduate-level job with a company holding a tier 2 licence. Those entering tier 2 in this way do not count against the annual tier 2 limit of 20,700 places. We have also waived the requirement on employers to test whether a suitable resident worker is available. It is easy for businesses to become tier 2 sponsors; they can apply online and the application takes just 30 minutes. That has been questioned, I know, by the noble Lord, Lord Rees, and so I stand corrected if that is not in fact the case.
The noble Earl, Lord Kinnoull, mentioned the milk round, which is an excellent way for companies and businesses to recruit students. I remember the milk round, and it is a way in which many students can secure jobs before they have even graduated, therefore putting them on the route to employment before the four-month clock starts ticking.
The noble Lord, Lord Krebs, mentioned the Sirius programme. If you look on the website, you will see that the Sirius programme is no more. That is because it was a pilot scheme, and the pilot is currently closed to new applicants. As he will know, it was a competition that invited applications in 2013 and 2014 and applications were received from over 93 countries. It is now being evaluated and we need to learn from the pilot before we can say what will happen in the future, but—there is no doubt about it—it has been a very popular initiative.
The noble Lord, Lord Krebs, mentioned a case study of a Canadian student, which is in the Select Committee report. The student in question could apply for a tier 2 visa and would be subject to the residential labour market test. The speciality that the student had chosen at that time was one where training places were, I understand, heavily oversubscribed, so the complaint is essentially that the places would be taken by resident workers before the student was able to apply. The NHS does choose to manage the RLMT by having two application rounds, with only resident workers being allowed to apply in round one. If the noble Lord would like any more detail on that, I am very happy to give it to him. Interestingly, there was no policy change in 2013 that would have changed the situation. Before April 2012, the student could have started her speciality training under tier 1 with no need for the RLMT, but this had already closed by the time that she finished her foundation training in August 2012. However, I am happy to write further to the noble Lord if he should wish.
Many noble Lords talked today about the difficulty in getting visas. We do not accept that the UK’s immigration rules are deterring international students and there is no clear evidence in the report to support that argument: where some courses and countries have seen falling numbers, other countries and courses are on the rise. As I have already outlined, visa applications continued to rise in 2014, with a significant increase for the Russell Group universities.
The noble Lord, Lord Krebs, asked about research by government to ascertain the views of students and the student experience. The International Education Council has commissioned a working group to look at the student experience and hear first-hand views from international students on what practical things we can do to remove barriers. The stakeholders will report once they have completed their project.
Time is running out; I am going to have to write to some noble Lords. My noble friend Lord Dundee talked about the recent improvement in numbers of Indian students. I have already covered the point on India.
My noble friend Lord Selborne talked about the tier 5 temporary worker visa, which is for 12 to 24 months. That is certainly a route for some international students. As a country and as a Government, I think that we need to do more to help employers understand the options open to them.
My noble friend Lord Dundee asked a question on entrants for STEM and non-STEM. In 2003-04, for STEM there were just over 39,000 entrants; in 2013-14, there were just over 56,000. For non-STEM, back in 2003-04, there were 72,500 entrants; in 2013-14, there were just over 123,000.
The noble Earl, Lord Kinnoull, asked about graduate entrepreneur visas and how many were issued in 2013. Some 171 were issued in 2013. He commented that that was quite a low figure and, given that it was such a good scheme, he asked whether we could do more to promote it. I totally agree with the noble Earl on that.
My noble friend Lord Selborne asked about tier 4 and whether the doctorate extension scheme is too complicated. The Home Office reports that 434 doctorate extensions were granted in 2013.
I have run out of time. I apologise—I know I have not answered all noble Lords’ questions because there was more to come. I thank all noble Lords for taking part in this very interesting debate.
Lord Krebs
My Lords, I thank all noble Lords who took part in this debate for their tremendous contributions. I particularly congratulate the noble Earl, Lord Kinnoull, on his excellent maiden speech. He made some immensely interesting points and revealed the advantage of having a chemistry degree from an ancient university.
I also thank the Minister for her response. The one area where we did not quite get the answer that we might have hoped for was on the four-month limit in the post-graduation time to acquire a visa. I hope that whoever is in government after the May election will look at that again, because the evidence is overwhelming from all sides that four months is just too short. As the noble Earl, Lord Kinnoull, said, with the milk round and the annual cycle of companies in recruiting, four months just does not work. As Sir Andrew Witty said, it does not leave students with enough time. I hope that will be reconsidered in future.
Health Service Commissioner for England (Complaint Handling) Bill
Baroness Finlay of Llandaff (CB)
My Lords, I understand that no amendments have been tabled to the Bill and that no noble Lord has expressed a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.