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Oral Answers to Questions
(7 years, 9 months ago)
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Sir David Amess (Southend West) (Con)
1. What steps his Department is taking to improve the life chances of the most disadvantaged children and families.
Oliver Colvile (Plymouth, Sutton and Devonport) (Con)
11. What steps his Department is taking to improve the life chances of the most disadvantaged children and families.
Lucy Allan (Telford) (Con)
20. What steps his Department is taking to improve the life chances of the most disadvantaged children and families.
The Secretary of State for Work and Pensions (Stephen Crabb)
The Government are committed to tackling disadvantage and extending opportunity so that everyone has the chance to realise their full potential. Our life chances approach will focus on tackling the root causes of poverty, such as worklessness, educational attainment and family stability.
Sir David Amess
While I welcome my right hon. Friend’s recognition that strong and stable families make an enormous impact on children’s life chances, will he spell out to the House precisely what his Department is doing to ensure that those relationships are fostered and strengthened, particularly in a coastal town such as Southend?
Stephen Crabb
My hon. Friend is exactly right: family stability is a really important part of our mission to tackle entrenched disadvantage. That is why we have doubled funding for relationship support to £70 million and are significantly expanding support for parents. In addition, through our local family offer, we are working with 12 local authorities, including his own in Essex, to learn how best to strengthen the support they offer to families.
Oliver Colvile
As my right hon. Friend might know, there is a 12-year difference in life expectancy between one side of my city of Plymouth and the other. What advice would he give to improve chances and life expectancy in Plymouth?
Stephen Crabb
My hon. Friend is right that such inequality is unacceptable in Britain today, and that is why our life chances approach includes a set of statutory and non-statutory indicators that will drive action to tackle the wide range of complex and deep-rooted factors that can trap people in poverty, damaging their health and preventing them from making the most of their lives.
Lucy Allan
I would like to thank the Prime Minister for his amazing work on the life chances strategy. I hope that every Member, on both sides of the House, will continue to pursue this aim.
The troubled families programme has been a huge success, but does the Secretary of State agree that it could more positively be labelled the “supported families” initiative?
Stephen Crabb
I agree very much with my hon. Friend’s point about the leadership role that my right hon. Friend the Prime Minister has played—it has been critical in driving this agenda forward—and I am delighted that the future Prime Minister also shares his commitment. My hon. Friend is also right about the troubled families programme. It is important that we stay positive about the changes and that we do not stigmatise any particular communities, families or households.
Alison McGovern (Wirral South) (Lab)
The Secretary of State has mentioned support for working parents several times, but those hit hardest by the Government’s cuts to in-work support for parents are single parents—those who least deserve it—so, on this issue and that of helping single parents, will he think again?
Stephen Crabb
I share the hon. Lady’s passion for helping single parents. The current statistics all demonstrate and underline that when lone parents are supported back into work, they can achieve remarkable things in bringing children in those households out of poverty. The trends are moving in the right direction. She should welcome initiatives such as universal credit and our support for childcare costs.
Ms Margaret Ritchie (South Down) (SDLP)
Does the Secretary of State agree that efforts to improve the life chances of disadvantaged children and families will be undermined by neglecting the importance of current income levels?
Stephen Crabb
I have always been very clear that income levels are important—a regular income is vital for families in difficult circumstances—but it is important that we look beyond that and, for the first time as a nation, start to tackle the underlying root causes of entrenched poverty.
Debbie Abrahams (Oldham East and Saddleworth) (Lab)
Last year, child poverty increased by 200,000 as a direct result of the Government’s tax and social security policies, with two thirds of these children living in working households, and it is estimated that by 2020 more than 3.6 million children will be living in poverty. There is overwhelming evidence that child poverty has a direct and negative impact on children’s social, emotional and cognitive outcomes and ultimately on their life expectancy. Given the catastrophic consequences of Government policy implemented on scant evidence, will the Secretary of State do the right thing and repeal the damaging effects of the Welfare Reform Act 2012 and the Welfare Reform and Work Act 2016, which threaten the life chances of these children?
Stephen Crabb
I welcome the hon. Lady to her new position on the Front Bench. Given her work in the Select Committee, I am sure she will do an excellent job in the shadow role.
The 200,000 figure that the hon. Lady mentioned exactly points to what was wrong with the previous relative income approach, which her previous Government took to tackling poverty. When real wages grow, poverty rates increase, despite people’s incomes not falling. It is much more important to tackle the underlying causes of poverty—worklessness, educational failure, family stability, problem debt and addictions.
Chloe Smith (Norwich North) (Con)
My right hon. Friend will know that Norwich is challenged by social mobility as per the social mobility index of earlier this year. Does he agree with me that it takes all parts of the community to come together to address these kind of problems, including the private sector and the third sector, and that constituency MPs can also play a key role in leading these things?
Stephen Crabb
I agree absolutely with my hon. Friend. The work she has championed in Norwich is a good example of local action, showing where local MPs can indeed be the champions. Much as we might want to talk about national levels of poverty and social mobility, it is much more important to understand what is going on at a local level and to drive local action with effective partnerships.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
Many disadvantaged families have an older disabled relative, including 2,000 in my constituency who receive attendance allowance. The Government have said that they will scrap attendance allowance and pass funding to councils. When are the Government going to consult formally on those plans?
Stephen Crabb
The Government have not said that they are going to scrap attendance allowance. We are looking at options for devolving it to the local authority level, but we have been absolutely clear that this does not mean a cut to supporting attendance allowance. It is about looking at more effective ways of delivering it at the local level to achieve what it is intended to achieve.
Mr Jim Cunningham (Coventry South) (Lab)
2. What assessment he has made of the potential effect of the UK leaving the EU on British pensioners living overseas.
The Parliamentary Under-Secretary of State for Work and Pensions (Mr Shailesh Vara)
There will be no immediate changes, as a result of the referendum, in the circumstances of British pensioners. Negotiations for Britain’s future relationship with Europe will begin under the new Prime Minister.
Mr Cunningham
What discussions has the Minister had with European countries about the exchange rate and its effect on pensioners abroad?
Chris Bryant (Rhondda) (Lab)
But would it not make sense for the Department for Work and Pensions to do some investigative work now, when there are thousands if not millions of British pensioners living elsewhere in the European Union? Those people currently have free access, for example, to the NHS in their local areas without contributing, but they might suddenly find their finances to be in dire jeopardy and wish to return to this country. Should not the DWP act immediately? Let me gently suggest to the Minister that just waiting as if the new Prime Minister is going to be some way away might be a bit of a mistake?
Ian Blackford (Ross, Skye and Lochaber) (SNP)
This is about doing what is right. We are talking about British pensioners living overseas who have paid national insurance. Why not remove that uncertainty? Why not guarantee what they are entitled to? It is all about doing the right thing with a new Prime Minister. Let us get off on the right foot and make sure that happens..
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
Is the Minister not aware that the role of pensioners is a very sophisticated and complex one? Many of them depend for support on free access for their relatives in this country and on freedom to travel, as do young people going to places such as Spain to work. Has the Minister not already looked at this in some detail?
Mr Vara
As I said, the result of the referendum came only some few days ago, but I can assure the hon. Gentleman that detailed conversations are going on in the Cabinet unit. Let me provide him with the further assurance that Britain still remains a member of the EU. I want to reassure British people living in EU countries and those EU citizens who are living in the UK that there will be no immediate changes in their circumstances.
David Mowat (Warrington South) (Con)
3. What progress his Department has made on auto-enrolling people into workplace pensions.
The Parliamentary Under-Secretary of State for Work and Pensions (Mr Shailesh Vara)
Automatic enrolment has been a great success with nearly 6.3 million people automatically enrolled into a workplace pension by almost 143,000 employers. We will continue with our programme to get many more people enrolled.
David Mowat
Auto-enrolment has met or exceeded all initial targets. However, to maximise pensions in the long term, we need to bear down on charges. Two years ago, the Government put in place a cap of 0.75%, which is half that permitted by the Opposition when they had one for stakeholders. The Government said they would review the level of the cap, with a view to it being lower in future. Will the Minister update us on the status of that review?
Andrew Gwynne (Denton and Reddish) (Lab)
The Minister will know that in September last year, in evidence to the Work and Pensions Committee, the Economic Secretary said that if there was not transparency and comparability in fees, the Government would legislate. Does he think there has been transparency? If not, when will he legislate?
Jeremy Quin (Horsham) (Con)
I congratulate the Minister on the successful roll-out of auto-enrolment. What more could be done to help the self-employed to engage in the process?
Mr Vara
We are working very closely with the Pensions Regulator to ensure the whole programme of auto-enrolment is easily understood, in particular for self-employed people and those who have one or two employees, so that the rules are in very clear easy-to-use language on the website and in offline literature and any other offline facilities.
Jessica Morden (Newport East) (Lab)
4. If he will make it his policy to introduce transitional protection for women adversely affected by the acceleration of increases in the state pension age.
Barbara Keeley (Worsley and Eccles South) (Lab)
9. If he will make it his policy to introduce transitional protection for women adversely affected by the acceleration of increases in the state pension age.
The Parliamentary Under-Secretary of State for Work and Pensions (Mr Shailesh Vara)
Transitional arrangements are already in place. We committed over £1 billion to lessen the impact of the changes for those worst affected, so that no one will see their pension age change by more than 18 months compared with the previous timetable. We have no plans for further changes.
Jessica Morden
My constituent who turned 60 this year has not received any information about the changes. She was the primary carer of her children and now cannot work because of disability. but now looks forward to having to work another six years. The Minister has been presented with many proposals, including transitional arrangements. When will the Government give these women the justice they deserve?
Mr Vara
The hon. Lady refers to notice. At the time of the Pensions Act 2011, more than 5 million affected people did receive notification. That was done using the addresses Her Majesty’s Revenue and Customs then had. As far as the proposals are concerned, they all, regrettably, cost a huge amount of money. We therefore have no plans to go down that route.
Barbara Keeley
In reality, it is the 1950s-born women who are bearing the cost. My constituent is 62-years-old and is about to be made redundant in July. She suffers with diabetes, a heart condition and COPD. She tells me that, owing to limited childcare, she worked part-time when her family were young and could not contribute to her pension. She is now very anxious that she will never be able to secure another job, and will not receive her state pension until she is 66. She has a large black hole now in her life. How does the Minister advise her on facing that bleak future?
Mr Vara
I assure the hon. Lady that, under the coalition Government and the present Government, we have record levels of employment for women, including older women. That is something to bear in mind. We are working extensively with employers to ensure they appreciate the value of older workers, which they do. That is why we have record levels of employment, particularly for women.
Geoffrey Clifton-Brown (The Cotswolds) (Con)
I suspect that most hon. Members have been acquainted with difficult cases like the one mentioned by the hon. Lady. Will my hon. Friend the Minister keep an open mind on pension credit arrangements for these people? They are, after all, means-tested and could deal with the worst hardship cases.
Ian Austin (Dudley North) (Lab)
Two thousand women in Dudley North worked hard to save and plan for their retirement, but have been affected by the changes. Will the Minister meet me, my constituent Hilary Henderson and the other women from Dudley North to discuss the changes in detail? If not, why not?
Mr Vara
I recently met the leaders of the Women Against State Pension Inequality campaign, and I have met many members of the campaign in my constituency, so I am very well aware of all the details and facts. As the hon. Gentleman knows, there have also been a huge number of debates about the subject in the Chamber in recent weeks.
Nia Griffith (Llanelli) (Lab)
Given the imminent takeover by the new Prime Minister, who herself falls into the category of women affected by the pension changes, would this not be the ideal moment to look again at the various proposals that have been advanced for much fairer transitional arrangements—such as the one from Mariana Robinson of Wales—for all the women who do not have a prime ministerial salary to fall back on?
Angela Rayner (Ashton-under-Lyne) (Lab)
A little over a week ago, thousands of women from across the United Kingdom came to Parliament in a display of solidarity that reminded me very much of the Dagenham women some decades earlier. Is not the Secretary of State’s refusal to revisit the financial issues faced by the 2.6 million women whose pension ages have been increased without adequate notice a slap in the face for those women? Given that the former Pensions Minister admitted that the coalition Government had got it wrong, why is the Under-Secretary being so unreasonable?
Mr Vara
I find it deeply regrettable that Opposition parties seek to make capital at the Dispatch Box, and indeed from the Back Benches, when they do not have a solid proposal. They cannot provide a proper, credible solution that will ensure that the financial position of the country is taken into account. I might add that if the Opposition parties are so keen on this issue, they should bear in mind that although the Pensions Act came into being in 2011, the issue was not raised in any of their manifestos.
Alan Brown (Kilmarnock and Loudoun) (SNP)
5. What assessment he has made of the potential policy implications for his Department of the UK leaving the EU.
Patricia Gibson (North Ayrshire and Arran) (SNP)
12. What assessment he has made of the potential policy implications for his Department of the UK leaving the EU.
Owen Thompson (Midlothian) (SNP)
21. What assessment he has made of the potential policy implications for his Department of the UK leaving the EU.
Michelle Thomson (Edinburgh West) (Ind)
22. What assessment he has made of the potential effect of the outcome of the EU referendum on welfare spending.
The Secretary of State for Work and Pensions (Stephen Crabb)
The British people have voted to leave the European Union, and the referendum decision must be respected and delivered. My Department is working closely with the EU unit that has been set up in the Cabinet Office, and we will be working with the next Prime Minister and the rest of the Cabinet as we forge a new path for the country.
Alan Brown
The European Union has provided a number of legal protections involving equality and human rights for disabled people. Given the delay in the publication of the Green Paper on the Work and Health programme, what plans has the Department to protect those rights following Brexit?
Stephen Crabb
No one with a disability or a long-term health condition should have any fear whatsoever about what will happen in the coming months and years as we negotiate Britain’s exit from the European Union. We are absolutely committed to protecting rights for disabled people in this country, and the Green Paper, which we will publish in the autumn, will outline our proposals for reforming systems in order to give better support to people with disabilities and long-term health conditions.
Patricia Gibson
Last week the Under-Secretary of State for disabled people confirmed that the Green Paper and the long-promised Work and Health programme for disabled people remained a priority for the Government. In the light of the current uncertainty, will the Secretary of State give us an assurance and a clear commitment that sufficient funds for that support are ring-fenced and the programme is guaranteed?
Stephen Crabb
The money has already been announced by the Chancellor on successive occasions, and it is there, waiting to be used. When the hon. Lady reads the Green Paper, which we hope to publish later this year, she will see how we will use it to develop longer-term reform options to provide better support for people with disabilities and close the disability employment gap. I think there is cross-party support for that in the House.
Owen Thompson
Cuts in support for people who have been placed in the employment and support allowance work-related activity group from April 2017 will leave many sick and disabled people in the dark, and potentially without the protections provided by the European Union. Will the Secretary of State, unlike the Brexiteers, give us some assurance that the Government actually have a plan for the Green Paper to give back, so that those who are affected by these changes are accurately assessed and are recognised and valued by the state?
Stephen Crabb
I entirely agree with the hon. Gentleman about the need to recognise and protect people with these health conditions, and we are absolutely committed to doing that. I do not want to repeat the answer that I gave earlier, but we have money set aside, and we will publish the Green Paper later this year. It will set out clear reform options which I hope will command support from Members on both sides of the House, and also from disability organisations.
Mr David Nuttall (Bury North) (Con)
Does my right hon. Friend agree that one of the most important policy developments is the fact that, once we have left the EU, decisions by his Department relating to eligibility for benefits will no longer be at risk of being overturned by the European Court of Justice?
Stephen Crabb
My hon. Friend is absolutely right: there will be that freedom in the future, but there are more options we can develop right now, even while we are still in the EU, for further ensuring that we have a fair benefits system that does not act as an unnatural draw for more migrants. We want people to come here, work and bring their talents, but we do not want the benefits system inflating those migration numbers.
Debbie Abrahams (Oldham East and Saddleworth) (Lab)
The impact of uncertainty on the economy following the Brexit vote is already being felt and ultimately will affect jobs, tax revenues and public spending. Before the referendum, the Government predicted that 500,000 jobs might be at risk, so what is the Secretary of State doing to protect these jobs and what is his estimate of the impact on social security spending?
Stephen Crabb
It is important that none of us talks up the risks and dangers to the economy. We need to be clear-sighted about the risks and challenges, but we should not be doing anything at the moment to talk down the British economy. The truth is that our economy is fundamentally strong: we have record numbers of people in work and, as we have seen from the announcement by Boeing today, continued investment in creating new jobs in our economy.
Debbie Abrahams
The lack of planning by this Government post-Brexit is complacency verging on neglect. The FTSE 250 has already lost 10% of its value since the referendum outcome and that will impact on pension funds. Given that 5,000 of the 6,000 defined benefit pension schemes are currently in deficit and that the pensions regulator has raised concerns of additional risks to these schemes following the Brexit decision, what is the Secretary of State doing to protect the pensions of the millions of people who will be affected?
Stephen Crabb
Nothing fundamentally has changed since the outcome of the referendum: the economy continues to perform well and, as I said, we need to be careful that we do not do our bit in talking down the economy at the moment. I agree with the hon. Lady that there is a very real systemic issue with DB pension schemes that we need to look at, and my Department will be discussing it further in the months ahead.
Mr Peter Bone (Wellingborough) (Con)
One thing that we do know has happened is the fall in the pound. That has resulted in making our exports much cheaper and imports more expensive. Employers have already said that that will lead to more business and jobs. Does the Minister agree that that would be helpful to him in reducing the number of unemployed?
Stephen Crabb
The truth is that right in front of us now, since the outcome of the referendum, we have a mixture of opportunities and challenges. It is incumbent upon us to turn those challenges into opportunities, and we are determined as a Government to do so. If the Opposition want to do their bit, they can stand up and not talk down the British economy at this time.
Dr Eilidh Whiteford (Banff and Buchan) (SNP)
Already during this Parliament the Government’s austerity cuts have taken more than £12 billion out of the pockets of low-income households, mostly through changes initiated by the DWP. With many economists predicting a further recession as a consequence of Brexit, and the pound now less stable than Bitcoin, will the Secretary of State assure me that he will not allow those on low and middle incomes to bear the brunt of further economic downturn?
Stephen Crabb
On previous occasions I have set out the broad approach I take to welfare reform. With regard to issues in Scotland, with which I know the hon. Lady is primarily concerned, she should be aware that I had a very constructive meeting last week with her colleague Angela Constance, the welfare Minister in the Scottish Parliament. We remain absolutely committed to giving the Scottish Government the new welfare powers agreed to in the Scotland Act 2016.
Dr Whiteford
In the past week, for the fourth year in a row, the Infrastructure and Projects Authority has given the roll-out of personal independence payments an “amber/red” rating, indicating that
“successful delivery of the project/programme is in doubt with major risks apparent in a number of key areas”
and adding that “urgent action” is needed to address the problems. What is the Secretary of State going to do to fix these problems, and how does he intend to protect his Department’s projects from the impending doom of a Cabinet full of Brexiteers?
Stephen Crabb
Any big project, whether it is the introduction of universal credit or the roll-out of PIP, carries substantial risks, and I think the IPA report recognised that fact. In the past four months, since I have been in the Department, I have been committed to driving through improvements to the PIP process. PIP still commands broad support across disability organisations, which recognise that it is a much better benefit than the old-style disability living allowance.
Kerry McCarthy (Bristol East) (Lab)
On the one hand, Lush cosmetics has just announced that it is going to move most of its production overseas, because it says that its workers do not feel welcome here, while on the other hand there are those in the food and farming sector, 38% of whose workforce comes from overseas, who are saying that they could go out of business because they will not be able to find people to employ. What is the Department doing to protect jobs in the south-west in the wake of the Brexit vote?
Stephen Crabb
The Department has clear plans in place for any significant increase in unemployment, whether in a particular local region or right across the UK. We have contingency plans for dealing with up-ticks in unemployment. However, we need to be really careful that we do not exaggerate the bad news that the hon. Lady might think is out there. There are opportunities for this country in terms of trade deals and of securing new investment, such as the investment from Boeing that was announced today. There are also serious risks and challenges, and we need to be clear-sighted and prepared for those.
Dr James Davies (Vale of Clwyd) (Con)
6. What progress his Department is making on reducing the number of workless households.
The Secretary of State for Work and Pensions (Stephen Crabb)
The number of workless households is now the lowest on record. Since 2010, it has fallen by more than 750,000.
Dr Davies
In Rhyl and district, the number of people requiring support through the Work programme for the long-term unemployed has dropped from 400 to 150 over the past 18 months. That is good news, but jobseeker’s allowance and employment and support allowance claimant rates in parts of Rhyl remain concerning, and the Work programme delivery company has recently closed its principal office in the town. Can the Minister assure me that the new Work and Health programme will take particular account of individuals who are less receptive to intervention and who need more intensive input?
Stephen Crabb
I absolutely agree with my hon. Friend. The new Work and Health programme is being designed precisely to help those people who face multiple and complex barriers to getting into work. Beyond that, our upcoming Green Paper will look at the additional ways in which we can reduce the disability employment gap in the longer term. Of course, GPs play a key role in supporting those people, and I look forward to meeting my hon. Friend and his GP colleagues to discuss these important issues further.
Neil Gray (Airdrie and Shotts) (SNP)
Given that the Work programmes have been cut by 87% and that the Secretary of State now knows who the next Prime Minister will be, will he confirm today that he will lobby her to increase the funding for the system that the Green Paper will produce? Will he also confirm the timetable for its roll-out?
Stephen Crabb
I am pleased to be able to tell the hon. Gentleman that the next Prime Minister of this country absolutely shares my passion and commitment to a one nation vision of our society, to breaking down barriers and disadvantage and to ending inequalities. We await the specific decisions that the new Prime Minister will take on the important issues we are discussing today.
Heidi Allen (South Cambridgeshire) (Con)
Building on the point about the significantly reduced amount of funding available for the Work and Health programme, what assurances will the Secretary of State be able to give us if, in the light of Brexit, we see a significant increase in the number of people looking for work generally? How on earth will a reduced programme be able to serve everybody?
Stephen Crabb
The important point to make to my hon. Friend is that the Work and Health programme is just one part of a wider package of initiatives that we are taking forward to close the disability employment gap and to provide better support for people with long-term health conditions. I shall not repeat what I said in response to earlier questions, but the Green Paper that we are publishing later this year will outline the full range of reform options that we are interested in taking forward.
Shabana Mahmood (Birmingham, Ladywood) (Lab)
7. What assessment his Department has made of the effect of recent changes to benefits on the number of children living in poverty.
The Secretary of State for Work and Pensions (Stephen Crabb)
We know that work is the best route out of poverty. The number of people in work is at a record high and the number of children living in a household where no one works has fallen by 450,000 since 2010.
Shabana Mahmood
My constituency has the third highest level of child poverty in the country, and 13,600 families currently receive tax credits, leaving them vulnerable to the Government’s cuts to universal credit. In his aborted bid for the Tory leadership, the Secretary of State said that he had a
“strong grasp of…the social and economic divisions in our country”.
If that is true, does he agree that cuts to universal credit will only compound the social and economic divisions in our country? Will he now commit to reversing those changes so that our children do not have to pay the price of his Government’s political choices?
Stephen Crabb
I absolutely stand by what I said. There was a massive expansion of tax credits under the previous Labour Government, but it did not do a single thing to tackle the underlying causes of poverty. Universal credit is just one part of what we are doing. There is the national living wage, which the Labour party used to support at one time, and the increase in personal allowances. We are in the business of transforming the landscape for people on low incomes. That is why the figures are moving in the right direction.
Derek Twigg (Halton) (Lab)
Whatever the recent changes to benefits, they do not seem to have dealt with the big issue of personal independence payments—PIP. I recently had to deal with a horrendous case in which an individual in my constituency should have received PIP, but did not and had to go through the appeal process. I wrote to the Minister and the Government just ignored it. What are the Government doing to ensure that people who should be in receipt of PIP get it early and are not left to wallow while waiting for a long time, as they have been recently?
Stephen Crabb
The Parliamentary Under-Secretary of State for Disabled People or I will be happy to meet the hon. Gentleman to discuss that specific case. As for the broader principles behind the question, we are improving the PIP process, speeding up applications, decisions and appeals. If the hon. Gentleman has specific concerns, I would be happy to meet him to discuss them further.
Luke Hall (Thornbury and Yate) (Con)
8. What steps he is taking to support people with disabilities and health conditions who are looking for work.
Antoinette Sandbach (Eddisbury) (Con)
15. What steps he is taking to support people with disabilities and health conditions who are looking for work.
Peter Heaton-Jones (North Devon) (Con)
16. What steps he is taking to support people with disabilities and health conditions who are looking for work.
The Parliamentary Under-Secretary of State for Disabled People (Justin Tomlinson)
This Government are committed to halving the disability employment gap. In the spending review we announced a real-terms spending increase on supporting disabled people into work. In the past two years, 365,000 disabled people have entered employment. Our forthcoming Green Paper will set out our plans to support more disabled people into work.
Luke Hall
Over 99% of vat-registered enterprises in my constituency are small and medium-sized enterprises. Will my hon. Friend update the House on what he is doing to help smaller businesses get the support they need to recruit people with disabilities and health conditions?
Justin Tomlinson
As someone who owned a small business for 10 years, I absolutely understand that point. We currently have three successful pilots, concentrating on a small employer offer and matching up those with a disability to the 45% of jobs that are available through SMEs.
Antoinette Sandbach
Britain has an astonishing 30% gap between disabled and non-disabled people in work. What steps are being taken to ensure that disabled people are afforded the same professional opportunities as those without disabilities?
Justin Tomlinson
The Government are committed to halving the disability employment gap. We are ensuring that disabled people have the skills and confidence to enter work through a named coach in universal credit and we are upskilling our Jobcentre Plus staff and our employment support programmes. We also recognise that we need to create opportunities, so we are working with businesses through the Access to Work programme, the Disability Confident campaign, the small employer offer, and our reverse jobs fairs.
Peter Heaton-Jones
I recently attended a celebration at Petroc college in North Devon to thank employers and congratulate the students who took part in the successful supported internship programme, which provides valuable work experience for young people with additional needs. Will the Minister join me in congratulating everyone concerned? Does he agree that such schemes play an important part in the Government’s policy of bringing people with disabilities closer to employment?
Justin Tomlinson
I pay tribute to my hon. Friend because I had the pleasure of meeting the students and staff at Petroc at his own reverse jobs fair, where he took a proactive approach to linking employers with the greater opportunities provided by organisations such as Petroc.
Angela Rayner (Ashton-under-Lyne) (Lab)
This has been mentioned previously but it did not get an adequate response. Given that the prominent Brexit campaign called for a bonfire of EU protections for workers, what guarantee can the Minister give that all the current protections extended to disabled people by our membership of the EU will be safe?
Justin Tomlinson
This Government have a proud record on this issue. We spend over £50 billion a year supporting people with disabilities and long-term health conditions—up £2 billion since the previous Parliament—and will continue to work in this area.
Margaret Ferrier (Rutherglen and Hamilton West) (SNP)
10. What recent representations he has received from the Women Against State Pension Inequality campaign; and if he will make a statement.
The Parliamentary Under-Secretary of State for Work and Pensions (Mr Shailesh Vara)
The Pensions Minister, Baroness Altmann, and I recently met WASPI representatives to listen to their concerns. We made clear the Government’s position that we will not be unwinding past decisions and that there are no plans to change policy.
Margaret Ferrier
Between 2016-17 and 2025-26, more than 5,000 women in my constituency alone will be affected by the changes. Some of them will need to work six years longer than they had anticipated. For the last time, I ask the Minister to show some leadership. Rather than shrug his shoulders, will he step up to the mark and end this injustice?
Mr Vara
No one is shrugging shoulders. As I said, no credible alternative has been put forward by any of the parties in this House; it was not in their manifestos. Members do not help the WASPI women by leading them to have expectations when the position of the Government is absolutely clear. A £1.1 billion concession was made in 2011; the period involved was reduced from two years to 18 months; and for 81% of the women affected the period concerned is no more than 12 months—81% of the women will not be affected by more than 12 months.
Mr Dennis Skinner (Bolsover) (Lab)
A few moments ago, the Secretary of State made a statement saying that Britain’s economy was booming—or words to that effect. [Interruption.] It was as near as dammit. If it is that good, why does he not make sure the WASPI women get the proper pensions, and not this load of crap the Government are chucking out now?
Mr Vara
Let me just correct the hon. Gentleman: my right hon. Friend the Secretary of State said that the economy was fundamentally strong. As for the other issues, it would have been helpful if the hon. Gentleman had listened to some of the answers I had given earlier, while he was rehearsing his question. If he had listened, he would have appreciated—
Sir Henry Bellingham (North West Norfolk) (Con)
13. What recent assessment he has made of job creation and employment trends in East Anglia; and if he will make a statement.
The Parliamentary Under-Secretary of State for Disabled People (Justin Tomlinson)
In the east of England, the number of people in employment has increased by nearly 300,000 since 2010, and the employment rate is close to the highest on record.
Sir Henry Bellingham
Is the Minister aware that in my constituency unemployment has come down from 4.3% in 2010 to 1.5% last month, and that only last Friday Mars Food announced a very welcome £23 million investment in its King’s Lynn plant, thus creating more well paid, skilled jobs? Does he agree that in this post-Brexit climate we should all be doing what we can to flag up such successes?
Justin Tomlinson
That is yet another sign of just how fundamentally strong our economy is, which is helping us to deliver record numbers of people in employment.
Mr Speaker
I did not study geography at university, but the hon. Gentleman’s constituency is a little way away from East Anglia.
Mr Speaker
I am in a generous mood. I have known the hon. Gentleman for 30 years, and if he wants to persuade me that Bedford and Kempston is a hop, skip and a jump away from the constituency of the hon. Member for North West Norfolk (Sir Henry Bellingham), he has a taxing task, but let us hear it.
Richard Fuller
I am very grateful for your indulgence, Mr Speaker. As a lifelong watcher of Anglia Television from the heart of Bedford, I can say that we are very proudly members of East Anglia. In Bedford, a small town, we have only small employers—we do not have a large private sector employer. What steps are the Government taking to encourage small businesses to take on young people and others who are unemployed?
Mr Speaker
I would never have done anything like what the hon. Gentleman has just done when I was a Back Bencher.
Justin Tomlinson
As a Government, we recognise that 45% of private sector jobs are created by small businesses, and so such businesses are key to the success of creating new opportunities. This will be very much at the heart of the Green Paper, making sure that they are aware of initiatives, particularly the commitment to have 3 million more apprentices by 2020.
Jo Churchill (Bury St Edmunds) (Con)
17. What steps his Department is taking to assist disabled young people into work.
The Parliamentary Under-Secretary of State for Disabled People (Justin Tomlinson)
The Department for Business, Innovation and Skills and the Department for Work and Pensions have received the recommendations from my hon. Friend the Member for Blackpool North and Cleveleys (Paul Maynard) and agree that the requirement to achieve level 1 English and Maths in an apprenticeship is a hurdle for some young people with learning disabilities. Therefore, subject to a candidate demonstrating need, we will look to adjust this requirement to entry level 3 as soon as possible and monitor the impact.
Jo Churchill
Last month, I received a wonderful letter from a 13-year-old constituent, Eleanor, who wrote to me about her 20-year-old brother. Richard has autism and learning difficulties, and struggles to find work with the right support. The news about the educational assistance is therefore very welcome. However, he is met with frustration and discrimination in employment. Eleanor said:
“seeing how the public can treat him is terrible and it’s hard on me, him, and the rest of our family. Please help him and people with disabilities to have a fairer life with employment opportunities.”
Does the Minister agree that the enormous contribution of disabled employees such as Richard is not yet fully recognised by employers?
Justin Tomlinson
The point about employers is absolutely right. That is why we have worked with Autism Alliance to improve knowledge and awareness across our Jobcentre network. We have specialist teams to assist with access to work, and the small employer offer will specifically match employers with the support and help that is available to create more opportunities for disabled people.
Rosie Cooper (West Lancashire) (Lab)
18. What steps his Department is taking to ensure that personal independence payment assessments are undertaken fairly and appropriately.
The Parliamentary Under-Secretary of State for Disabled People (Justin Tomlinson)
Provider performance is measured across a range of service level agreements setting out the Department’s expectations for a quality service. This includes an assessment report quality audit. Contractual remedies are in place if the provider fails to deliver against the service standards.
Rosie Cooper
Given that the Infrastructure and Projects Authority’s rating of the Department’s PIP programme is once again amber/red, meaning that successful delivery of the project is in doubt, with major risks or issues apparent in a number of areas, what urgent action is the Minister taking to ensure that problems with assessment are addressed and that disabled people do not continue to bear the brunt of the Government’s policies?
Justin Tomlinson
We have seen that of those who go through the PIP process, 22.5% of claimants secure the highest rate of benefit, compared with just 16% under disability living allowance. We have a constant evaluation, including working with charities and stakeholders, and currently a claimant can expect to have their assessment process over a median of 13 weeks end to end, which is well within expectations.
Kate Hollern (Blackburn) (Lab)
Will the Secretary of State intervene personally in the case of one of my constituents, who suffered a stroke, has severe eyesight problems and is almost completely wheelchair-bound? He was refused PIP and as a result his wife has been refused carer’s allowance. He has not had a reassessment since November last year and that is not acceptable.
Justin Tomlinson
I would be happy to meet the hon. Lady to discuss this specific case.
Natalie McGarry (Glasgow East) (Ind)
19. What assessment he has made of the effects of welfare reform, benefit sanctions and work capability assessments on people with disabilities in (a) Glasgow and (b) Scotland.
The Parliamentary Under-Secretary of State for Disabled People (Justin Tomlinson)
The Government set out our assessment of the impact of the welfare policies in the Welfare Reform and Work Act 2016 on 20 July 2015, with similar assessments for previous changes. Spending to support people with disabilities and health conditions will be higher in real terms in every year to 2020 than it was in 2010.
Natalie McGarry
Scotland and in particular my constituency, Glasgow East, has higher levels of long-term health problems and disability compared with the UK as a whole. People living with disabilities tend to be more dependent on benefits for a longer time and are therefore more vulnerable to changes to disability benefits. Given that this Government and their predecessor embarked on the biggest overhaul of the welfare state in living memory, does the Minister agree that it is vital for the Government to undertake regular cumulative impact assessments of welfare reform on those with disabilities?
Justin Tomlinson
The Treasury already publishes cumulative distribution analysis, including welfare spending, health spending, employment support and infrastructure investment, but we also need to consider increases in employment, increases in hours and earnings, universal credit, PIP, personal tax allowance changes, health spending, employment support and investment in infrastructure.
Richard Graham (Gloucester) (Con)
T1. If he will make a statement on his departmental responsibilities.
The Secretary of State for Work and Pensions (Stephen Crabb)
On 6 July I appointed Paul Gray to lead a second independent review of PIP. A call for evidence has been published today, seeking evidence from individuals and organisations to inform the review. The review will consider how effectively further evidence is being used to assist the correct claim decision. It will also look at the speed and effectiveness of information gathering, as well as building on recommendations from the first review. I am today announcing the Department’s intention to conduct an evaluation of PIP, with initial findings to be published by early 2017.
Richard Graham
To help deliver our manifesto commitment of bringing a million people with disabilities into work, will my right hon. Friend consider extending the current exemption from employer national insurance contributions for apprentices both to additional apprentices and to full-time employees with disabilities, so that, like the US, the Netherlands and Ireland, our tax system benefits employers who see the abilities as well as the disabilities of all our constituents?
Stephen Crabb
When it comes to closing the disability employment gap, I am absolutely clear that no options have been left off the table. We want to look at the widest possible range of solutions, including financial incentives such as our small employment offer, which will support small businesses to increase local job opportunities for disabled people.
Debbie Abrahams (Oldham East and Saddleworth) (Lab)
In May, after a two-year fight, the Government finally published redacted reports of 49 social security claimants who had died between 2012 and 2014, revealing that 10 of the 49 had died following a sanction, and 40 of the deaths were associated with a suicide or a suspected suicide. Another nine social security claimants have died since 2014. When will the Secretary of State publish the reports into their deaths, or will we have to wait another two years for those as well?
Stephen Crabb
I hear the hon. Lady’s point, but it is important not to infer too many causal links between the factors that she is raising, and she needs to be extremely careful in how she describes those cases at the Dispatch Box. I am happy to discuss the matter with her on another occasion.
Henry Smith (Crawley) (Con)
T2. What support is my right hon. Friend’s Department offering to those in later middle age and older who are seeking work?
The Parliamentary Under-Secretary of State for Work and Pensions (Mr Shailesh Vara)
My hon. Friend raises a very good point. We are doing a number of things in this area. For example, as well as access to a full Jobcentre Plus offer of personalised support, the Department for Work and Pensions introduced older claimant champions in each of the seven Jobcentre Plus groups to work with work coaches within jobcentres to raise the profile of older workers, highlight the benefit of employing older jobseekers and share good practice.
Catherine McKinnell (Newcastle upon Tyne North) (Lab)
T5. Will the Secretary of State explain to the WASPI women from the north-east, some of whom have already retired in the mistaken belief that they would be receiving their state pension sooner and who live in a region that continues to have the highest level of unemployment in the country, how they are to make ends meet?
Ben Howlett (Bath) (Con)
T3. Thanks to the work of this Government, the unemployment rate in Bath is just 1.5%. Does the Minister agree that, as well as providing a steady income, working also provides health benefits, both physical and mental?
The Parliamentary Under-Secretary of State for Disabled People (Justin Tomlinson)
I fully agree that being in work has many benefits beyond the immediate economic security that it brings. It gives us a sense of value and can greatly benefit our mental and physical wellbeing, which is why this Government are championing the transformative role of work. With more people in work than ever before, we are making sure that the whole of society benefits from our growing economy.
Ms Tasmina Ahmed-Sheikh (Ochil and South Perthshire) (SNP)
T7. With an 87% budget cut by the UK Government in the first year of employability services in Scotland, will the Secretary of State tell us precisely what his Government are doing to support people back into work in Scotland? Perhaps he can take this opportunity to congratulate the Scottish Government on the £20 million of extra support that they have been giving to help people back into work when this Government have been letting down the people of Scotland.
Stephen Crabb
I totally disagree with the hon. Lady. We are continuing to roll out universal credit across Scotland, and the early results from Scottish jobcentres are very, very positive. As I said earlier, I had a very constructive and useful meeting last week with Angela Constance, the Scottish Minister with welfare responsibilities. I recognise that the Scottish Government have some separate choices and priorities, and we are committed to giving them the powers to take those forward.
Mr Alan Mak (Havant) (Con)
T4. Starting a new business is one of the best ways out of worklessness. Will the Secretary of State join me in encouraging entrepreneurial jobseekers from Havant and across the country to apply for the Government’s new enterprise allowance?
Stephen Crabb
We absolutely do want to support more people to move into self-employment and to help develop the entrepreneurs of the future. The new enterprise allowance has now successfully supported the start-up of nearly 85,000 new businesses and I look forward to visiting my hon. Friend’s constituency to see some of those businesses in action.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
T8. For obvious reasons, refugee families and children are not usually required to meet past residence requirements when accessing benefits, so why on earth are the Government trying to overturn a recent tribunal decision so as to deny disabled refugees, including children, access to disability living allowance on the grounds of those very residence criteria? Is that not particularly absurd given that many of them will have been resettled here specifically because they have such a disability?
Justin Tomlinson
That is an issue on which we are considering taking legal advice.
Craig Williams (Cardiff North) (Con)
T6. As Paralympians from Cardiff, elsewhere in Wales and across the United Kingdom prepare for the Paralympics in Rio, how can we use the Paralympics to change the perception of disabled people, and what are the Government doing to prepare for that?
Justin Tomlinson
I would like to thank you, Mr Speaker, for hosting the announcement of the tennis Paralympic team for Rio. I pay tribute to Channel 4, which will be showing over 700 hours of the Paralympics, with 75% of the presenters having a disability. This is a fantastic opportunity to showcase people’s abilities, and we are all in for a real treat next Friday, when Channel 4 launches its fantastic video promoting the opportunities offered by the Paralympics.
Mr Speaker
I am extraordinarily grateful to the Minister for giving me my cue. First, let me take this opportunity on behalf of the House warmly to congratulate Gordon Reid on his great success at Wimbledon yesterday. Secondly, I am sure the whole House will want to join me in congratulating most warmly Andy Murray on an outstanding performance in winning his second Wimbledon title and his third grand slam so far.
Diana Johnson (Kingston upon Hull North) (Lab)
T10. The disabilities Minister just agreed to meet a Member of Parliament and their constituent regarding an issue they were concerned about, so can I try again with the Pensions Minister? Will he meet me and some of the 10,000 women born in the 1950s who are affected by the pension changes? Will he come to Hull to meet some of these people and hear directly from them?
Mr Vara
I have met the leadership of the WASPI campaign, and I have met my own constituents. The hon. Lady has articulated the views of her constituents, as have many other MPs on a regular basis. I know very well all the facts; the issue here is that Members such as her should not be giving expectations to women, when the position has been made absolutely clear at the Dispatch Box: the Government have no intention of changing their policy.
Paul Maynard (Blackpool North and Cleveleys) (Con)
I thank the disabilities Minister for accepting the recommendations of the review I chaired into learning disability apprenticeships. Will he confirm that he will look into which of those recommendations can now be applied to other hidden impairments, such as hearing loss and sight loss?
Justin Tomlinson
I would like to thank my hon. Friend, as his taskforce concluded its work within a month, and we have now secured agreement from my Department and the Department for Business, Innovation and Skills to open up in the apprenticeship programme greater opportunities for those with a learning disability. I am sure we will be coming to my hon. Friend very soon to help to extend the remit of the taskforce, which I am sure he would be delighted to chair.
Chi Onwurah (Newcastle upon Tyne Central) (Lab)
The Government are trialling distributed ledger technology, or blockchain, for the payment and spending of claimants’ benefits. It is a fantastic new technology, but the Government’s own report says that it needs a regulatory, ethical and data framework. How do we know that vulnerable benefits claimants are not being forced to share their data without giving proper informed consent?
Stephen Crabb
I thank the hon. Lady for that very interesting question. This technology is very new, and I confess that I am not an expert on it—the person who is is my noble Friend Lord Freud, who is, of course, in the other place. When it comes to security of claimants’ data, we are absolutely committed to the very highest standards of protection. However, in terms of the wider technology issue the hon. Lady refers to, I look forward to discussing it with her in more detail.
Stuart Andrew (Pudsey) (Con)
Currently, children under three are not eligible for Motability benefits. However, during my time in children’s hospices, I saw first hand how critical transport is for children with life-limiting illnesses, particularly given all the equipment they need. Will my hon. Friend agree to look at the issue again to see whether these young people can get the support they need?
Justin Tomlinson
My hon. Friend has been campaigning on this issue for some time, using his first-hand experience. We are acutely aware of the issue, and I would be happy to meet him to discuss further opportunities.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
I do not want to upset anybody on the Labour Front Bench by showing passion and anger about the Government’s failure to tackle unscrupulous employers who give no guarantee of employment, no contract, no certainty and no pension—nothing but zero-hours contracts, with people being hired from agencies—but when will the Government take on these rotten employers?
Stephen Crabb
Zero-hours contracts, of course, form only a very small proportion of the overall jobs in the labour market. The thing that is particularly pernicious about zero-hours contracts is the exclusivity clauses—that has been recognised as widespread—and we are the Government who actually took action to deal with that.
David Morris (Morecambe and Lunesdale) (Con)
In my constituency we have an initiative with the DWP and the Salvation Army food bank whereby when people come into the food bank, the DWP helps them in any way it can by placing an officer there. Would my right hon. Friend like to come to Morecambe to see at first hand how this initiative is working out?
Stephen Crabb
Yes, I would like to go to Morecambe to see that project. I am very clear that something we need to be doing far better, and more of, through our job centres at a local level is integrating with local services, whether they are provided through the Salvation Army or any other charity.
Article 50: Parliamentary Approval
(7 years, 9 months ago)
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Urgent Questions are proposed each morning by backbench MPs, and up to two may be selected each day by the Speaker. Chosen Urgent Questions are announced 30 minutes before Parliament sits each day.
Each Urgent Question requires a Government Minister to give a response on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Helen Goodman (Bishop Auckland) (Lab)
(Urgent Question): To ask the Chancellor of the Duchy of Lancaster to make a statement on whether the Government will seek parliamentary approval before triggering article 50.
The Parliamentary Secretary, Cabinet Office (John Penrose)
The question of how to invoke parliamentary discussion around triggering article 50 has two distinct facets, one legal and the other democratic. Taking the legal considerations first, I am sure that everyone will be aware of the debate about whether invoking article 50 can be done through the royal prerogative, which would not legally require parliamentary approval, or would require an Act of Parliament because it leads ultimately to repeal or amendment of the European Communities Act 1972. I will leave the lawyers to their doubtless very enjoyable and highly paid disputes. Apart from observing that there are court cases already planned or under way on this issue, so the judges may reach a different view, I simply remark that Government lawyers believe that it is a royal prerogative issue.
Nevertheless, I hope that everyone here will agree that democratic principles should out rank legal formalities. The Prime Minister has already said that Parliament will have a role, and it is clearly right that a decision as momentous as this one must be fully debated and discussed in Parliament. Clearly, the precise format and timing of those debates and discussions will need to be agreed through the usual channels. As everyone will understand, I cannot offer any more details today because those discussions have not yet happened. However, I will venture this modest prediction: I strongly doubt that they will be confined to a single debate or a single occasion. There will be many important issues about the timing and the substance of different facets of the negotiations that the Government, the Opposition, the Backbench Business Committee, and I dare say, perhaps even you, Mr Speaker, will feel it is important to discuss, but on the details of which topics, on what dates, and the specific wording of the motions, we shall have to wait and see.
Helen Goodman
I thank the Minister for that reply. If the royal prerogative is used to trigger article 50, would that not be a clear breach of the promises made to the public by the Brexiters during the referendum campaign that they would “take back control” and “restore parliamentary sovereignty”? How could it be right to initiate negotiations with important and far-reaching significance for citizenship rights, immigration rules, employment and social rights, agriculture, trading relations with the EU and third countries, and Scotland and Northern Ireland, without seeking Parliament’s approval for the aims, objectives and red lines?
The issues at stake are the culmination of 40 years of legislation. Is it not extraordinary to suggest that changes to these areas should not now come back to this House? The priorities and trade-offs are extremely important to everyone living in the UK. Surely the Minister is not suggesting that they should be decided behind closed doors in Whitehall while Parliament is presented with a done deal. Is not his inability to say how Brexit will be negotiated a clear indication of the Government’s failure to do any contingency planning? Why is the Chancellor of the Duchy of Lancaster wasting taxpayers’ money fighting a court case to keep the Government’s approach to Brexit secret? We know that the Minister cannot say today what the red lines will be, but why cannot he at least be clear that Parliament’s approval will be sought before the negotiations begin? When will he be able to say what the process will be? He says that these are matters for a new Government. Has the right hon. Member for Maidenhead (Mrs May) been consulted, and can the Minister tell the House when we will have a new Government?
Mr Speaker
A considerable burden has been placed by the hon. Lady on Minister Penrose’s shoulders. It is a burden that he seems to bear stoically and with fortitude, but it would be good if we could actually hear his response.
John Penrose
Thank you, Mr Speaker. I shall try to bear up under the pressure. First, I gently say to the hon. Member for Bishop Auckland (Helen Goodman) that it is difficult to argue that the Government’s approach is secret if it is in court. It is not a secret court; it will all be argued out in public. I have just said that the issues will be revealed as we go forward with the new Prime Minister. The point on which I hope I can reassure the hon. Lady is very straightforward: my right hon. Friend the Member for Maidenhead (Mrs May)—it looks like she is going to be the new Prime Minister—has been very clear in saying that Brexit means Brexit. What that means is that the destination to which we are travelling is not in doubt. The means used to get there will have to be explained, but I think it only fair to wait until she is Prime Minister and has a chance to lay out her programme, the process and, therefore, when Parliament will have a chance to discuss and debate the issues. At that point I am sure that all will be revealed.
John Redwood (Wokingham) (Con)
Does the Minister agree that the way to take back control and seek parliamentary approval is to proceed quickly to repeal the European Communities Act 1972 while transferring all European law relevant to the single market into British law and at the same time protecting our borders and keeping our contributions? That is what we voted for. Will the new Government deliver that promptly?
John Penrose
As I just said, the important thing—I hope this reassures my right hon. Friend—is that my right hon. Friend the Member for Maidenhead has been clear that Brexit means Brexit. That means that the destination, on which he and I both agree, is not in doubt. There are questions on how we get there, precisely how to run the negotiations and the precise timing of what gets addressed and when, and I hope that both he and I will allow our soon-to-be-installed new Prime Minister time to lay that out. I am sure that she will do so at the first opportunity.
Louise Haigh (Sheffield, Heeley) (Lab)
I thank you, Mr Speaker, for granting this urgent question and my hon. Friend the Member for Bishop Auckland (Helen Goodman) for asking it.
The outcome of the EU referendum represents the most momentous constitutional change that our country has faced in the post-war era. Now is the time to take a considered view on the future of the negotiations and for the new Government to lay out the timetable, including when they anticipate that article 50 will be triggered. It should not be triggered, however, until there is a clear plan in place about what the UK will be negotiating for and how it will be achieved.
The Government have already indicated that they will consult the devolved Administrations and the Mayor of London, and they must do the same with Her Majesty’s official Opposition. That is the only way we can develop a consensus about what the country’s negotiating plan should be, and that should be put to a vote in this House.
The priority must be to ensure that the Government’s negotiating team, undertaking the most substantial set of negotiations on our behalf in modern history, are fully equipped, fully resourced and fully prepared to extract the best deal possible for Britain in the Brexit negotiations. There are 170 trade agreements that now need to be renegotiated, but it is suggested that only 20 people across the whole of Whitehall have the requisite experience to negotiate.
We have deep concerns that the autumn statement, which outlined drastic cuts for Whitehall long before Brexit materialised as a realistic possibility, is no longer fit for purpose. That is why Labour is saying to the Government that, while discussions about article 50 are vital, it is clear that what comes next matters even more. It would be an abdication of responsibility if our civil service negotiating team does not have the resources it needs and is instead forced to spend vital time implementing brutal budget cuts at home when it should be batting for Britain abroad. Let us properly resource our civil service and together develop a consensus for the future of Britain.
John Penrose
I am pleased to hear the hon. Lady say that there is an opportunity for cross-party consensus. It will be much more powerful for this country in any negotiations that it undertakes, not only with other EU member states, but with other countries around the world, if they know that the political parties and the people of Britain are speaking with one voice and that we are anxious to be an outward-looking, international country that is aiming to establish new links around the world. I welcome the hon. Lady’s comments on that.
I also agree with the hon. Lady that it is important that we have a clear timetable as soon as our new Prime Minister is in place, if only because—she is right to point this out—the details of the timetable have to be geared to maximising our negotiating leverage. We know where we are going; the question is how we get there. Clearly, the order of play—the order in which issues are addressed—and the timing have to be planned out incredibly carefully, to make sure, as she said, that we get the best deal possible.
The final point on which I agree with the hon. Lady is that about devolved Government. She is absolutely right to say that we need to make sure that the devolved Administrations are involved as well, so that this is not merely a question of cross-party consensus in Westminster. It has to be a question of consensus, as far as it is possible to achieve it, right across the UK.
Dr Liam Fox (North Somerset) (Con)
The Prime Minister originally said that he would trigger article 50 immediately, so presumably he felt that he had the full legal authority to do so. Does my hon. Friend accept that those who want to have a vote before article 50 is triggered are concerned not with parliamentary sovereignty but at making a clear attempt to thwart the democratic will of the British people? Does he agree that they must be completely resisted by any real democrat? The referendum was not a consultation with the British people; it was an instruction from the British people that we have a duty to obey.
John Penrose
I strongly agree with my right hon. Friend and parliamentary neighbour that the question here is not about the legal power, which clearly, as the Prime Minister has previously mentioned, is available. The question is: what is politically and democratically right to reflect the decision that has been made in the referendum? Therefore, although the Prime Minister is, very sensibly, saying that the timing and method of triggering article 50 needs to be a decision taken by his successor—we now know who that will be—his successor is also right to say very clearly that the British people have spoken and that Brexit means Brexit.
Pete Wishart (Perth and North Perthshire) (SNP)
We are grateful to the Minister for confirming that this will be done through royal prerogative. Given the events of today, perhaps that is the way we could determine the leadership of the Conservative party. However, I remind the Minister of the soon to be departed Prime Minister’s remarks that the Scottish Government will be fully consulted on any Brexit proposals. Can the Minister therefore confirm that, before any process is started on article 50, the Scottish Government will be fully consulted and able to give their consent for any move forward? I also remind the Minister that Scotland did not vote for this Tory-inspired Brexit, and for us it is the Scottish people who are sovereign. We have yet to hear any Minister say that they respect the Scottish result and are prepared to make sure that the Scottish people also secure what they voted for. This Government might be charged with taking the UK out of the EU, but those of us on the SNP Benches are charged with ensuring that the Scottish people always get what they voted for too.
John Penrose
I am delighted to confirm that the Scottish Government will be involved. In fact, I believe that some early discussions are already under way. I hope and expect that those will continue, as they will with the other devolved Governments. I would, however, gently remind the hon. Gentleman that this is a commitment to consult, which is not quite the same thing as seeking an outright consent. As his own party has accepted very recently, this is not a devolved issue and is to be dealt with by this Parliament and the UK as a whole. It is a decision that we have taken as a country collectively.
Crispin Blunt (Reigate) (Con)
I am grateful to the Minister for that last clarification. We may be seeking consensus, but it will almost certainly not be forthcoming from those on the Scottish National Benches. Will the Minister confirm that there is no escape from doing this via article 50, to which we are bound by treaty, and whatever other parliamentary processes then come behind it? We have to meet our treaty obligations through invoking article 50, which is the instruction of the British people. Will he ensure that that is put in place as soon as we have our negotiating hand in place?
John Penrose
I agree with my hon. Friend on both those points: consensus is always desirable and to be sought wherever possible, and article 50 is the route for achieving Brexit. He is also right to point out that it is only the tip of a much larger iceberg; there are a whole series of other things that have to wrap around it. We have heard some of those mentioned already during this urgent question, and I suspect that we will hear more of them in due course.
Mr Ben Bradshaw (Exeter) (Lab)
Is it not the case that referendums are advisory and that this Parliament is sovereign? Is it not a constitutional outrage and supreme irony that those on the Conservative Benches who based their argument for Brexit on parliamentary sovereignty now want to deny this House a vote and are suggesting that an unelected Prime Minister, with no mandate, agrees to such a fundamental decision for this country? That is a disgrace, and they must not be allowed to get away with it.
John Penrose
With the greatest possible respect to the right hon. Gentleman, who is extremely experienced, he may be right on strict constitutional legalities but democratically he is fundamentally wrong. We have had a referendum, the people have spoken and it would be unconscionable—it would be impossible—for us collectively to turn around and thumb our noses at the British people and ignore that democratic verdict.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
May I point out that it would be extremely odd, for the first time in this Parliament’s history, to start taking instructions on how to conduct our decision making from the administrative court, as seems to be implied by the case before it? Were legislative consent actually required for the exercise of article 50, that legislative consent was effectively given when we passed the European Union Referendum Act 2015, which established the referendum and put the question before the British people.
John Penrose
I will endeavour to tread carefully because, as I have mentioned, there are cases either in train or planned. I think that the fundamental political and democratic point must be this: the people have spoken, and whichever side of the argument Members of this House or those out in the rest of the country were on, it is now up to all of us to come together, to unite as a country and to make sure that we respect the democratic decision and the democratic will that have been clearly expressed.
Tom Brake (Carshalton and Wallington) (LD)
The Minister is an honest man, and therefore when he says, “Brexit means Brexit”, he knows that there are as many versions of Brexit as there are Members on the Government Benches. He needs to reaffirm parliamentary sovereignty and ensure that Parliament can vote on the Government’s negotiating stance, for instance on the vexed and dangerous question of what happens at the Irish border.
John Penrose
As I said in my opening response to the urgent question, I am sure that there will be many opportunities, on many different occasions, for Members in this Chamber to discuss and debate all sorts of different issues, including the one that the right hon. Gentleman has just mentioned and many others. This negotiation will be an ongoing process, not a single event, and therefore he is absolutely right that there will be many opportunities where specific issues will become salient, where people in this Chamber will have very strong views and where people in devolved Governments will have very strong views. Those views need to be heard and aired throughout the process.
Sir Edward Garnier (Harborough) (Con)
Does my hon. Friend agree that there is just the slightest chance that over the next few weeks we may be capable of generating more heat than light on this subject? It is not Parliament that will be negotiating with the European Union as we come out of it; it is the Government. Will he ask our right hon. Friend the Chancellor of the Duchy of Lancaster to ensure that, while Parliament must be kept informed and may express its view, it will be for Ministers and for the Prime Minister, essentially, to carry out these negotiations once article 50 has been triggered? Parliament should not hamper the negotiating stance—[Hon. Members: “Hamper?”] I think somebody wants their lunch. Parliament should not constrain the negotiating tactics of any Minister.
John Penrose
My right hon. and learned Friend gets the parliamentary award for optimism for saying that there is only the “slightest chance” that we might generate more heat than light on the matter over the next few weeks. He is absolutely right to say that this is something that Ministers need to take forward but, as I said earlier, I am absolutely certain that the Government, the Opposition, the Backbench Business Committee and others will take many different opportunities to make sure that Parliament’s views are forcefully expressed and the issues are debated as we go.
Keith Vaz (Leicester East) (Lab)
The Minister will know that the triggering of article 50 will have profound consequences for the 3 million EU citizens who are living in the United Kingdom. Has the Minister for Europe, who is sitting next to him on the Treasury Bench, had any representations from other EU countries about the position of their nationals here? If not, will we be able to have clarity on whether they have the right to remain? At the moment, Ministers are saying different things about these rights, and we need that certainty before any triggering of article 50.
John Penrose
The point, of course, is that there will be ongoing discussions about this and many other issues. The question of when those discussions might bear fruit, particularly given the fact that there have been some concerns about informal negotiations being inappropriate, is something that will have to be resolved.
At this stage, I give the right hon. Gentleman the same reply that I have given to others: we must ensure that we have a programme, which will be laid out by the new Prime Minister as soon as she is in place. I hope she will be able to give him more detail and clarity on that point as well as many others that will be involved in the negotiations.
Mr Jacob Rees-Mogg (North East Somerset) (Con)
In terms of the doctrine of the sovereignty of Parliament, is it not true that that sovereignty is delegated by the British people, not given to us by divine right? It is absurd to think of the sovereignty of Parliament as being by divine right as it is the divine right of kings. The British people have spoken and given us a mandate, and that mandate must be fulfilled, but the details of that mandate will no doubt be implemented by legislation.
John Penrose
I defer to my hon. Friend and parliamentary neighbour on the legality of where sovereignty begins and ends, and where it is delegated from and to. The fundamental point that is clear from his remarks—and, I hope, from my previous remarks—is that the people have spoken, we are now honour bound to deliver on that democratic decision, and we should not try to resile or step back from it in any way.
Mr Speaker
I expect that the Minister also defers to his hon. Friend on the matter of knowledge of kings.
Caroline Lucas (Brighton, Pavilion) (Green)
Will the Minister consider the proposal put forward today by 1,000 lawyers of establishing of a royal commission or independent body to receive evidence from a wide range of groups, particularly about the risks and benefits of triggering article 50 at various times? Will he ensure that such a body will be able to report before Parliament votes?
John Penrose
I think that I am not being over-cynical if I wonder whether a proposal by 1,000 lawyers for a commission to deliberate at length might be a delaying tactic. The concern will be not to tie the hands of the incoming Prime Minister or her negotiating team in how we approach this matter. As the hon. Member for Sheffield, Heeley (Louise Haigh) rightly pointed out, we must ensure that whatever we do and however we handle this, we aim to get the best deal possible for this country with not just other European member states, but other countries in the world.
Mr Andrew Tyrie (Chichester) (Con)
Quite a bit of controversy is already breaking out and we have scarcely started this debate. The Minister has been doing a great job with his outpouring of common sense on a heap of these questions. Will he confirm that all common sense points to not triggering article 50 until it is in the UK’s national interest to do so, as the Treasury Committee has reported, and as the Governor of the Bank of England and many people who have been closely involved with these issues have concluded?
John Penrose
I am happy to confirm that this is not a question of “if” we leave the EU but “how”, so the calculation that we—particularly the new Prime Minister and her team—need to make is about the best way to structure and time negotiations to maximise our leverage. I am sure that the incoming Prime Minister will have read the Committee’s report with great care, as have we all, and will take those factors into consideration.
Chris Bryant (Rhondda) (Lab)
At the beginning of his first answer, the Minister said that this was not just a legal matter, but a political matter, so I cannot understand for the life of me why the Government are challenging the legal case. Surely sending in lawyers is just a complete waste of money—whether it is 10 lawyers or 1,000, it does not matter. Why are the Government wasting money on trying to assert that this is just a matter of royal prerogative, rather than accepting the political fact that while, yes, Brexit is Brexit—that may be the case—the Minister is far more likely to get a good deal from other European countries if he has managed to bind both sides of this House and both Houses of Parliament into a strong negotiating position?
John Penrose
I had thought, and hoped, that the hon. Member for Sheffield, Heeley was speaking for more Labour Members and that we would be able to achieve a degree of cross-party consensus. It would be helpful to have country-wide unanimity on this issue, so I am sad that there does not seem to be such unanimity on the Opposition Benches. The Attorney General, who is sitting next to me, is convinced that the Government’s case is strongly arguable, and that is why we are taking this case to court.
Philip Davies (Shipley) (Con)
We are in the strange situation that last week the result of the referendum was so catastrophic for Labour that its Members passed a motion of no confidence in their leader, but today that result is neither here nor there, as we can just proceed and keep ourselves in the EU because of parliamentary democracy. Perhaps Labour Members will make their minds up soon. Does not what we have heard today emphasise the point made by my right hon. Friend the Member for North Somerset (Dr Fox)—[Interruption.]
Mr Speaker
Order. I want to hear the hon. Gentleman—[Interruption.]. Order. I do not care whether other people do; we are going to hear the hon. Gentleman. It is as simple as that. I do not care how long it takes.
Philip Davies
Does not what we have heard today show that what my right hon. Friend said was true and that the purpose of these devices is not to help the Government to implement the will of the public, but to ask for the right to try to prevent it from being implemented? If the Government do not implement it because Labour frustrates the process, Labour will be wiped out in the north of England in a future general election. Labour Members might be hellbent on self-destruction, but may I ask the Minister to save the Labour party and implement Brexit in full?
John Penrose
There are many reasons to implement Brexit in full, but that is the first time anyone has urged me to do it to save the Labour party. I am particularly delighted to hear that coming from my hon. Friend. I agree that there will be a nagging concern in some people’s minds—unworthy though it might be—that some of these proposals to delay the decision or subject it to intricate parliamentary procedures might be aimed at frustrating the democratically expressed will of the people, which of course would be democratically entirely wrong.
Mr David Winnick (Walsall North) (Lab)
I supported remain—I have no regrets and make no apology—but is it not absolutely essential that the majority decision, taken rightly or wrongly, is respected, because otherwise it makes a complete mockery of democracy?
John Penrose
That was beautifully and eloquently expressed. We are all, I hope, democrats first and foremost, and whichever side of the referendum debate we were on, we in this House and those more broadly across the country have to respect the democratically expressed will of the British people.
Robert Neill (Bromley and Chislehurst) (Con)
I am glad to see the Attorney General in his place on the Treasury Bench. Does the Minister agree with these propositions put forward by Sir Paul Jenkins, QC, the former head of the Government Legal Service, and many others: first, that article 50 is the only lawful route for exiting the EU; secondly, that that is a matter for the royal prerogative; and, thirdly, that the European Union Referendum Act 2015 is not, of itself, adequate in law to constitute notice under article 50? Finally, does he agree that to repeal unilaterally the European Communities Act 1972 other than through the article 50 process would be a breach of a treaty obligation, which is something that no Government have committed in 300 years and would be wholly unconscionable?
John Penrose
My hon. Friend asks four questions, and the answer to the first three is a straightforward yes. The only gloss I would add to his fourth question about how we might either amend or repeal not just the European Communities Act, but any other measures that need to be amended as a result of Brexit, is that that will inevitably require primary legislation, which of course will be brought forward when the time is right.
Ms Margaret Ritchie (South Down) (SDLP)
The Minister referred to discussions with the devolved regions. Will he outline what discussions have taken place with the Northern Ireland Executive, the Northern Ireland Assembly and the Irish Government, given issues around the need there for free movement of goods, services and people, the loss of which would be detrimental to the whole economy of the island of Ireland?
John Penrose
The hon. Lady is absolutely right. These are extremely ticklish and difficult discussions. I can confirm that discussions have begun, but I cannot, I am afraid, go into huge detail about how far they have got or what the future plans are. If she has any concerns or doubts about how those discussions might be progressing, I would encourage her to talk to me or the Northern Ireland Office because I am sure that we could set her mind at rest.
Mr David Jones (Clwyd West) (Con)
Does my hon. Friend agree that it would be positively contemptuous of the clearly expressed will of the British people were the Government to refuse to trigger article 50? What does he feel would be the response of the British people at the next general election to anyone who encouraged showing such contempt for their views?
John Penrose
My right hon. Friend makes a very important point: it is essential for the health of democracy, as much as for the future direction of this country, that voters understand and believe that we here hold their opinions in high regard and feel morally bound to deliver on them. If we ignore their democratically expressed consent, we will face a much bigger problem than at present, because that would undermine the very foundations of the democratic consent that underpins this place. I cannot think of a more dangerous route for us to go down.
Mr David Lammy (Tottenham) (Lab)
Is not the situation a bit more than ticklish? This is the biggest constitutional change for our country for half a century. Last week, Chilcot criticised the legal processes that led to the Iraq war, criticised the way in which prerogative power worked in the run-up to that war and, most importantly, criticised the fact that there was not a sufficient plan for after the invasion had been completed. On that basis, is the Minister really saying that we should not come back to Parliament so that individual Members can reach a view on whether we should trigger article 50?
John Penrose
I would draw a distinction in my reply between “whether” and “how”. We have been very clear, as has my right hon. Friend the Member for Maidenhead, that the destination is not in doubt: Brexit means Brexit, as I have said several times already. How we get there, however, is a matter for discussion. It is a matter for my right hon. Friend to lay out and I am sure that, once she is behind the door of No. 10, she will do so. At that stage, I hope that the right hon. Gentleman will have more detail about how those discussions and announcements might be made.
Mr Jonathan Djanogly (Huntingdon) (Con)
Switzerland had a referendum that showed it was determined to cap immigration, but because of protracted negotiations with the EU, the EU decided to start retaliatory measures, including the country’s removal from the Erasmus scheme. How long, therefore, does the Minister think we have after activating article 50 before the EU starts retaliatory measures on us?
John Penrose
My hon. Friend asks an extremely pertinent question. That will be one of the matters that the incoming Prime Minister and her negotiating team will factor into their decisions about the timing and order of play of the negotiations. I am afraid that I cannot offer my hon. Friend much more than that now, but the point he raises must be an important case study that will be front and centre of people’s consideration as the decisions are made.
Ann Clwyd (Cynon Valley) (Lab)
The majority of my constituents still feel very angry. They feel that they were misinformed—that is putting it mildly—and therefore think that they need to know the facts. One of the facts pointed out to the Foreign Affairs Committee was that the Foreign Office will need to be doubled in size. Given that the autumn statement said that there would be drastic cuts in Whitehall, should we not have a new autumn statement to spell out the implications of Brexit to the British people?
John Penrose
It is clear that many things will change in the new world that we now face. The country’s trade orientation, foreign policy and so forth will all have to be readdressed and amended, just as many of our businesses will have to reassess how they do business. The right hon. Lady is absolutely right that some consequential changes might be needed, but I say again that I cannot prefigure anything that the incoming Prime Minister may be considering. Like me, the right hon. Lady will have to wait until announcements are made. I will take what she said as a potential submission to the new prime ministerial team, and perhaps it will consider her remarks in that light.
Paul Scully (Sutton and Cheam) (Con)
The Opposition spokesman talked about 170 free trade agreements that will need to be renegotiated, but my understanding is that there are about 167 independently recognised countries outside the EU. The hon. Member for Bishop Auckland (Helen Goodman) suggested that the Government might be something other than inclusive when discussing Brexit, yet about 34 million participants to date have given us a clear message. Does my hon. Friend agree that rather than spending our time on whether we invoke article 50 and whether we adhere to the mandate of the people, we should focus our efforts on securing a looser, collaborative relationship with our European neighbours and grabbing the opportunities from the rest of the world?
John Penrose
My hon. Friend is absolutely right—the focus now must be on how we get this done in the best and most constructive way possible for our nation. There will be opportunities and great new horizons as a result of the decision. We need to make sure we are clear about them and that we are set up in the right way to grab those opportunities as they present themselves.
Wayne David (Caerphilly) (Lab)
As things stand, Britain will have two years to withdraw from the European Union once it invokes article 50, but most analysts say that it will take much longer than two years for Britain successfully to extricate itself and have a new relationship. Have the Government therefore considered approaching member states about a possible extension to that period?
John Penrose
As I understand it, I think that any alteration to the article 50 process requires unanimity from other EU member states, which represents a pretty high bar for any Government. I am sure that that factor will be considered by the incoming Prime Minister and her negotiating team. I am also sure that they will want to consider many other options to maximise our negotiating leverage. As I have said, the hon. Gentleman and I will have to wait until the new Prime Minister is ready to announce precisely how she and her team wish to approach these issues.
Stephen Kinnock (Aberavon) (Lab)
The referendum has been a deeply divisive process that has divided city against town, community against community and nation against nation. Does the Minister agree that we now need a cross-party approach to deal with when to invoke article 50 and the basic negotiating position around that, and how we hold the negotiating team to account? Will he consider setting up a special parliamentary Committee to do both those jobs?
John Penrose
The current Prime Minister has said that he believes it is very important not just for the UK Government to contribute, but for the devolved Governments—and, wherever possible, other parties on a cross-party basis—to contribute so that we can, whenever possible, speak as a nation with one voice. The hon. Gentleman is right to say the referendum was a pretty divisive affair. It is not just political parties that need to knit together again; society needs to knit together again. I am not sure that I would necessarily share the hon. Gentleman’s enthusiasm for a parliamentary Committee as the solution to achieve that, but I share his conviction that a degree of healing is required, and that all of us on both sides of the House have a duty to ensure that our respective parties and the communities that we represent are able to come together for the good of the country.
Andrew Gwynne (Denton and Reddish) (Lab)
More than 60% of my electorate voted to leave the European Union and I very much honour and respect their views. It is clear that the triggering of article 50 is unchartered waters for both this Government and the EU, so would it not make sense for the Government to be in open negotiation with their European counterparts to set out the parameters, process and areas of commonality, and then to come back to the House to announce the likely procedure so that we ensure that we have the very best deal for the people of Denton and Reddish and of the United Kingdom as we take forward the referendum result into reality?
John Penrose
The hon. Gentleman is absolutely right that article 50 is uncharted waters. No one has done this before and we are, of necessity, having to address brand-new problems. I will take the rest of his remarks as a submission to the incoming Prime Minister and her negotiating team. He is absolutely right that whatever decisions they make, and whatever process and timetable they lay out, those will have to be founded on one central principle that I hope we can all sign up to: we need to maximise the negotiating position and negotiating strength of this country as a whole to get the best deal possible.
Catherine McKinnell (Newcastle upon Tyne North) (Lab)
The Minister cannot say what “Brexit means Brexit” really means, so is it not vital that, given we have no idea what the terms of exit will be, this is properly scrutinised and voted on by democratically elected Members of this House?
John Penrose
I think I addressed that in my initial remarks, but I am sure that there will be plenty of opportunities over a long period for Parliament to discuss many facets of the negotiations, and that the hon. Lady and many others will have a chance to make their views known. As for any decisions that might be made, I, like everyone else, will have to wait for the new Prime Minister to lay out her programme and timetable. I am sure that all will be clear at that point, and that we shall be able to address any decision points that may be offered.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
Most of my constituents in both Cardiff and the Vale of Glamorgan voted to remain. Although they are concerned about the result, they would be even more concerned to think that Parliament would have anything less than a full say in this process, not least because many Executive and legislative competences are also devolved to the National Assembly. Will the Minister explain what specific role he expects Welsh Government Ministers and the Assembly itself to have in deciding the final proposal that is put before us?
John Penrose
As I said earlier to the hon. Member for Perth and North Perthshire (Pete Wishart) and, I think, to the hon. Member for South Down (Ms Ritchie), discussions are already under way. We are endeavouring to involve everyone and to seek consensus whenever possible but, ultimately, foreign policy is reserved to the United Kingdom Parliament. While we want to ensure that everyone has a chance to contribute, and that, as far as possible, there is a collective view so that we understand what are the best opportunities for the constituent parts of the United Kingdom, at the end of the day the matter must come back to the United Kingdom Government and Parliament.
Chi Onwurah (Newcastle upon Tyne Central) (Lab)
Brexit means Brexit, but there is no agreed definition of what “Brexit” means, apart from the fact that it involves parliamentary sovereignty. Is the Minister seriously proposing that we should undergo such a momentous seismic change as Brexit without its having been defined to the British people before the referendum, or decided on by Parliament after it?
John Penrose
The hon. Lady is right: the details will become a great deal clearer as the negotiation goes through. We will all discover more about the various facets of how Brexit will affect different parts of our lives as the negotiations near completion. However, I must repeat what I have said several times already: we shall not be able to say how Parliament will engage with that until the new Prime Minister has had a chance to lay out her timetable for the negotiations, whereupon it will be possible to assess when opportunities for debate and discussion will occur.
Kerry McCarthy (Bristol East) (Lab)
This was not the question that I was going to ask, but given the Minister’s response to my hon. Friend the Member for Cardiff South and Penarth (Stephen Doughty), I want to press him on the extent to which devolved institutions will be consulted. Much of the work of some Departments is devolved—food and farming, for example—yet in terms of the European Union, this will be a UK Government negotiating position, and that really does need to be resolved.
John Penrose
The hon. Lady gives a good illustration of instances in which it will be important to ensure that the constituent parts of the United Kingdom are closely involved so that their views can be factored in, whether the issue in question is devolved or non-devolved. There will be plenty of occasions when views will need to be fed back very carefully to inform the discussions and the negotiating team that is undertaking them.
Safety of Prison Staff
(7 years, 9 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Andy Slaughter (Hammersmith) (Lab) (Urgent Question)
To ask the Secretary of State if he will make a statement on the safety of staff in prisons.
The Lord Chancellor and Secretary of State for Justice (Michael Gove)
A central duty of the Ministry of Justice is security on our prison estate. It is imperative that the dedicated professionals who work in our prisons are kept safe. It is also critical that we safeguard the welfare of those who are in custody. It is therefore of profound concern to me that serious assaults against staff in prisons have been on the rise recently. In the 12 months to December 2015, there were 625 incidents, an increase of 31%.
Those who work in our prisons are idealistic public servants, who run the risk of assault and abuse every day but continue in their jobs because they are driven by a noble cause: they want to reform and rehabilitate offenders. That is why we must stand behind them. I know that members of the Prison Officers Association, and other trade unions, want rapid action to be taken to make their work safer; I understand their frustrations, and I am determined to help.
Violence in prisons has increased over recent years for a number of reasons. The nature of the offenders currently in custody is one factor: younger offenders who have been involved in gang-related activities pose a particular concern. Another factor is the widespread availability of new psychoactive substances or NPS—synthetically manufactured drugs which are more difficult to detect than traditional cannabis and opiates. The former chief inspector of prisons has said that NPS are
“now the most serious threat to the safety and security of jails.”
NPS consumption, and indeed violence in prison, are also often a consequence of prisoners’ boredom and frustration, and a lack of faith in the future.
There is no single solution to the problem we face, but we are taking steps to reform our prisons. To take account of our changing prison population, more than 2,800 new prison officers have been recruited since January 2015, a net increase of 530. To keep them safer, we are deploying body-worn cameras as additional protection for staff. In May, we outlawed new psychoactive substances and thus dramatically reduced the opportunities for easy profits to be made from their trade. In June, I allocated an extra £10 million in new funding for prison safety, and the money has gone direct to governors.
All these steps will, I believe, help improve safety, but there are two more critical points to make. First, I want to stress that my Department’s door will be open to staff and their representatives to ensure we work collaboratively to improve conditions for all in our prisons. Secondly, it is because I have seen for myself how important it is to change our prisons for the better that this Government have initiated a major reform programme. We will be replacing ageing and ineffective prisons with new establishments designed to foster rehabilitation. We will give governors greater scope to design regimes that encourage purposeful activity. We will ensure that prisoners are more effectively incentivised to turn their lives around. As we press ahead with this reform programme, I am confident we can ensure that our prisons can become what they should always be: safe and secure places of redemption and rehabilitation.
Andy Slaughter
The situation on our prison estate continues to deteriorate, as the Secretary of State concedes, and I am sorry we have heard nothing from him today that we have not heard before.
Over the weekend, prison staff held crisis meetings across the country amid concerns about their security and safety in the workplace. Incidents of violence and disorder are reported on a daily basis. On Friday around 100 staff at HMP Liverpool met outside their prison at the start of their shift, a pattern that was repeated at many other prisons. A Ministry of Justice spokesman unhelpfully called the action “unlawful” despite admitting that it posed no security risk. I wonder whether the Secretary of State thinks that is an appropriate response to members of staff concerned about their welfare and that of the inmates. According to local staff at Liverpool prison, over the past 12 months there have been more assaults than in the previous 12 years. This includes one member of staff who was stabbed, while others have been spat at, punched and kicked and had urine and faeces thrown over them. On the same day, a squad of specialist prison service riot officers was sent into HMP Birmingham, and in a separate incident in the same prison on the same day a prisoner was found dead in his cell in unexplained circumstances. A Prison Officers Association spokesman said that between 5,000 and 6,000 prison officers had taken part in the pre-shift meetings, with the numbers showing the “strength of feeling” of its members.
The Secretary of State will also be aware that a freedom of information request last week revealed there had been five walkouts in the past five months, including from Wormwood Scrubs in my constituency. Following that walkout in May, and the serious assault on two officers and an urgent question here, the Secretary of State announced £10 million, but, frankly, he has been absent in the last few weeks and we have had an inadequate and reactive response to each crisis.
We need a full response to a growing and increasing crisis and, as the Secretary of State correctly says, a growing number of serious assaults. I hope if we do not hear it today, we will hear that full strategy, and hear it soon, for the safety of our prison officers and prisoners. If we do not have that, he is going to lose control fully of the prison estate.
Michael Gove
I thank the hon. Gentleman for the detail and tone of his remarks. He continues now on the Back Benches the great work he did on the Front Bench, making sure that the condition of our prisons is kept at the forefront of our minds.
May I first say that in the limited time I had available in response to his original urgent question, I was not able to outline all the steps being taken? Thanks, of course, to his diligent work and that of the Justice Committee, a number of areas of concern have been brought to our attention or highlighted or underlined.
We have appointed a highly experienced prison governor, Claudia Sturt, formerly governor of Belmarsh, to lead work specifically to ensure that our prisons are more secure. She has set up a taskforce to visit the prisons that face the greatest challenge. Those visits have so far resulted in prison governors feeling reassured and strengthened that they have the best professional advice to help them deal with these problems. In addition, we have been rolling out something called the five-minute intervention, which is a specific intervention to help prison officers to de-escalate violent incidents. It is being pioneered by a first-rate professional, Russ Trent, who is due to be the governor of HMP Berwyn, the new prison in Wales.
The hon. Gentleman made the point that £10 million was only a start, and it is indeed only a start. I stress that the Treasury has given us £1.3 billion as part of a broad prison reform programme, but I shall not run away from the fact that we have a difficult situation in our prisons. That is one of the reasons that I invited the BBC in to visit our prisons in recent weeks. It is also one of the reasons that I have sought to work across the aisle to ensure that we tackle this problem fairly. I know that the hon. Gentleman is sincere and dedicated in his desire to ensure that our prisons work better, and I look forward to working with him to that end.
Robert Neill (Bromley and Chislehurst) (Con)
The Secretary of State’s full and prompt response to our Select Committee report on prison safety published in May does great credit to his personal commitment to tackling this issue, and I am grateful for his frankness on the level of the challenge that we face. Will he update us on whether he is now able to take on board some of the report’s recommendations? For example, will the Ministry of Justice and the National Offender Management Service now produce a joint action plan to tackle the underlying causes of violence? Will he also address the issues of staff recruitment and retention, and will he agree to produce a quarterly report to the House so that we can measure progress on the action plan against clear, specific targets?
Michael Gove
I am grateful to the Chairman of the Select Committee for making those points. The report was exemplary, and, as I mentioned earlier, it has been a great help to the Ministry. I absolutely agree that we will bring forward an action plan and provide the House with regular updates on the steps that we are taking. He is also right to point out that the recruitment and retention of staff are critical. In response to his questions and those of the hon. Member for Hammersmith (Andy Slaughter), I want to underline the fact that I want to work with the Prison Officers Association and all trade unions to ensure that legitimate concerns—all concerns, indeed—are addressed. I also want to ensure that we continue to attract high-quality people to the Prison Service, because it is a vital job.
Richard Burgon (Leeds East) (Lab)
The situation in our underfunded prisons is deteriorating. There have been consequences of the Government’s decision to cut £900 million from the Ministry of Justice budget. Assaults on staff and on prisoners are up. There are 13,000 fewer prison staff than there were in 2010, but there are more prisoners. The Government have made prisons less safe for staff and for prisoners. It is a service in crisis. On Friday, members of the Prison Officers Association held meetings outside prisons across the country to discuss what they call the “perpetual crisis” in the Prison Service. The Secretary of State has accepted that there are “significant problems”. The chief inspector has said prisons are “a lot more dangerous” and that staff shortages have had an impact. The Justice Committee has demanded an “action plan”. In the light of all this, will the Secretary of State tell us whether he or the National Offender Management Service have spoken to the Prison Officers Association since Friday’s meetings outside the prisons?
What is the Secretary of State’s plan to reduce staff assaults, which have increased by 36% in the past year? On the £10million that he has allocated to staff safety, if he finds, as I suspect he will, that the significantly higher spending he has experimentally allocated to Bristol, Hewell and Rochester does indeed have a much greater impact, will he increase safety spending elsewhere? In relation to the prisons identified for greater operational freedom in the upcoming prison and courts reform Bill—a process the Secretary of State has likened to school academisation—will he confirm that we will not see any watering down of staff terms and conditions or creeping privatisation? Is it not time that this Government stopped failing prison staff, failing prisons and failing our society in this regard?
Michael Gove
First, I welcome the hon. Gentleman to his new role on the Front Bench. I know that he has a distinguished legal career behind him, and that he has represented some of the most vulnerable in our society. His questions today go directly to the heart of the matter and I am grateful to him for giving me this opportunity to respond to them. We have spoken to the Prison Officers Association. Senior figures in the National Offender Management Service have been in touch with the POA, and we will continue to be in touch in the future. When the Prime Minister made a landmark speech on prisons earlier this year, I had the opportunity to talk to senior figures in the Prison Officers Association and found their approach to be constructive and cordial, and I want to maintain good relations with them.
The hon. Gentleman made the point that the £10 million may need to be increased and that we may need to invest more money in staff safety. We will of course monitor how the money is spent. It has been given to individual governors to spend as they think fit, but we will do everything possible to ensure that the resources are there to safeguard not only those who work in our prisons, but the welfare of those in custody.
The hon. Gentleman asked specifically about the prison and courts reform Bill and the principle that the six reform prisons should have a greater degree of autonomy. He asked whether academisation, as an analogy, is a prelude to privatisation. The governors of those six prisons do exercise a greater degree of autonomy, but it is not intended that that should come at the cost of staff terms, conditions, security, safety or prospects. We want to ensure that staff in every prison feel that the idealistic work that they do is valued and rewarded, and that outstanding governors who are taking forward change in such prisons live and breathe respect for their staff every day.
John Howell (Henley) (Con)
The Prisons & Probation Ombudsman told the Justice Committee about the “pervasiveness” of mental health issues within prisons. What is the Secretary of State doing to address that? How is he improving the response of prison staff when assessing such risks?
Michael Gove
My hon. Friend makes a good point. One difficulty is that many of those in custody have mental health problems—undiagnosed in some cases. It is often the case that the prison regime by its very nature and the restrictions that are placed on individuals as part of a sentence may not be the most effective ways of tackling mental health problems and ensuring that offenders do not offend again. We are considering how we can better review mental health provision within the prison estate. More announcements will be forthcoming, but Her Majesty made it clear in the Gracious Speech that improving outcomes for individuals with mental health problems in the criminal justice system is a core mission of this Government over the next 12 months.
Joanna Cherry (Edinburgh South West) (SNP)
Is the Secretary of State prepared to acknowledge that the combination of rising prisoner numbers and shrinking budgets is a major factor affecting the welfare and safety of both prison officers and prisoners? The Scottish Government have committed to significant penal policy reform aimed at reducing reoffending by moving away from ineffective short-term prison sentences in favour of community sentences, which have been shown to be more effective at stopping reoffending.
In June, the Scottish Government announced £4 million of extra funding to allow for an increase in community sentences. Will the Secretary of State acknowledge that the UK Government’s policies and prisons are not working? Will he look instead to the Scottish Government’s approach of reducing the number of people in prison and making more effective use of community alternatives, rather than relying on prison sentences?
Michael Gove
I have an enormous amount of respect for the hon. and learned Lady. She is right that England and Wales can learn much from other jurisdictions. I would not say that Scotland has got everything right on criminal justice and penal policy, but some welcome changes are taking place in Scotland, not least with respect to the care and treatment of female offenders. I hope to have the chance to talk to leaders within the Scottish Prison Service and to visit some Scottish prisons to understand better what is working and to learn from the initiatives that are being piloted.
Philip Davies (Shipley) (Con)
Following that, will the Justice Secretary tell us how the number of attacks on staff in UK prisons compares with the figures for other countries? What lessons might be learned from those countries? I invite him to start by considering the punishments handed down in other countries to prisoners who attack prison staff and to extend sentences much more harshly for prisoners who attack prison staff here. I suspect that harsh sentences may lead to a decrease in attacks on prison staff.
Michael Gove
I am grateful to my hon. Friend, because I know that he wants to operate in a constructive fashion. I am always interested in learning from other jurisdictions. We do not collect statistics on assaults in a way that allows for an easy comparison, but we are changing how we analyse data within the Ministry of Justice and he poses a particular challenge.
I always want to be led by the evidence when shaping policy. The evidence suggests that a lack of hope or an inability to see how actions can lead to eventual redemption often contribute to frustration and violence. My hon. Friend’s point was made in a constructive fashion, and I will get back to him with evidence and comparisons to enable us to conduct this debate better.
Jenny Chapman (Darlington) (Lab)
One of the most distressing things that can happen to a prison officer is going to unlock an inmate only to find that they have taken their own life. The review by Lord Harris on deaths in custody made a clear recommendation that Ministers should attempt to contact and speak with the families of people, especially the young, who have taken their own life in prison. As yet, Ministers have declined to adopt that recommendation, so will they please reconsider?
Michael Gove
The hon. Lady makes a very good point, and the Under-Secretary of State for Justice, my hon. Friend the Member for South West Bedfordshire (Andrew Selous) will be meeting the relatives of someone who took their own life in custody recently. There are sometimes sensitivities about specific cases, but as a general rule this is something that, of course, we would wish to do.
Sir Edward Garnier (Harborough) (Con)
From his experience as Secretary of State, my right hon. Friend will have worked out that there is a catalogue of reasons why the safety of prison staff is placed at risk: overcrowding of prisons; the mental health issues he has described; and the lack of purposeful activity for prisoners, which he has described. Does he also accept that the continuing uncertainty for prisoners on IPPs— indeterminate sentences for public protection—making them the most difficult cohort of prisoners to manage, is something we ought to be dealing with very quickly? Can we not arrange to have them re-sentenced quickly to determinate sentences or put before the Parole Board so that their cases can be reviewed? This is a matter of urgent priority and I urge him to look at the IPP question, which is causing such a lot of disturbance in our prison system.
Michael Gove
My right hon. and learned Friend is a busy man, so he probably will not have had an opportunity to read the speech I gave to the governing governors forum some six weeks ago. In it, I outlined the urgent case for reform of IPP sentencing and said that the former Member for Sheffield, Brightside, Lord Blunkett, had acknowledged that the original intention when he introduced those sentences had not manifested itself in the way in which those sentences were applied. I can say to my right hon. and learned Friend that I will be meeting Nick Hardwick, the new chair of the Parole Board, later this week specifically to expedite some changes which I hope my right hon. and learned Friend and others in the House might welcome.
Mr Speaker
I am sure the right hon. and learned Gentleman is keenly interested in the contents of the speech, and it may be a sentiment more widely shared. If that supposition on my part is judged to be accurate, perhaps the Secretary of State will place copies of the said speech in the Library of the House.
Keith Vaz (Leicester East) (Lab)
We all look forward to reading the speech; whether or not it is in the Library, we will get a copy. The root cause of the problem is overcrowding, which creates stress on the staff and on other prisoners. Currently, there are 13,000 foreign national prisoners in our prisons, and the prisoner transfer arrangement with the EU has been going painfully slowly so far. We have now decided to come out of the EU. What further steps can be taken to get countries to take back their own citizens?
Michael Gove
First, I will, of course, place a copy in the Library. Secondly, for those who are even more eager to read it, I believe a copy is available on the Ministry of Justice website. We will do everything possible to facilitate the widespread dissemination and reading of that speech.
The Chairman of the Home Affairs Committee makes a very good point: there are far too many foreign national offenders in our prisons. I have been working with the Home Secretary to reduce those numbers. I am always loth to mention Albania, but some countries outside the European Union have concluded good bilateral arrangements with this country in order to facilitate the return of criminals, and Albania—outside the EU at the moment—is one such country. It is not necessary to be in the EU to have good bilateral arrangements, but it is vital, as we move to our new relationship with our European neighbours, to ensure that we return those offenders who are not British citizens.
Dr Roberta Blackman-Woods (City of Durham) (Lab)
The safety of prison staff is a huge issue for me, as I have three prisons in my constituency. Does the Secretary of State agree that we will not get the rehabilitation of prisoners that we all want unless prison staff have the time and resources to enable it to happen and both they and prisoners feel safe enough to achieve it, and that this process will not be helped by ongoing reductions in prison staff numbers?
Michael Gove
The hon. Lady makes a fair point. I am delighted that we have been able to give Durham prison in her constituency an additional £220,000 in order to help deal with current problems. More broadly, she is right. Even though staff were reduced in the previous Parliament in order to meet benchmarking requirements, there has been a net increase in the number of prison staff since January 2015, and we will be making more announcements in due course about how we intend to recruit even more high-quality people into that important job.
Christina Rees (Neath) (Lab)
How many times has the National Tactical Response Group been called out this year? Last year there was one call-out for every day of the year. Has this figure gone up?
Michael Gove
I hope the hon. Lady will excuse me as I turn to my notes in order to give her the exact figure. The last year for which we have figures was 2014-15 and the National Tactical Response Group was called out 400 times during that year, so that was just over once every day.[Official Report, 14 July 2016, Vol. 613, c. 4MC.]
Bill Esterson (Sefton Central) (Lab)
In my constituency there is no extra money for HMP Kennet because it is closing. It has been open for only 10 years. In answers to letters that I have written to the right hon. Gentleman’s ministerial colleagues, I have been told that the staff will be expected to relocate to the new super-prison in Wrexham. The problem is that that is more than 70 miles away and there is no prospect of many of those staff being able to relocate. Is that not an example of one of the problems in the planning that the right hon. Gentleman is carrying out? He is closing a prison and the staff will not be able to get to the new one that he is opening. How will that help with problems of both overcrowding and prison staff safety?
Michael Gove
I would be delighted to meet, or have one of my colleagues meet, the hon. Gentleman in order to explain in greater detail the reasons for closing HMP Kennet. One of the things that we need to do is to make sure that we have modern and appropriate prisons for our prisoners. Of course, there will be opportunities not just in HMP Berwyn, the new prison in Wales, but elsewhere for staff who currently work in the hon. Gentleman’s constituency to continue to do the idealistic work for which I thank them.
Mr David Lammy (Tottenham) (Lab)
I have spent a lot of time in prisons over the past few months. There are two things that staff have raised with me. The first is that they are optimistic about the reform context that the Secretary of State has created and he should be congratulated on that. However, the second topic that staff have raised at prisons across the country is staff numbers, which have fallen substantially. In the new Government that we expect to begin shortly, does the right hon. Gentleman hope to see that reform agenda continue? Now that we are moving away from austerity, is it possible that staff numbers might begin to rise again?
Michael Gove
I am very grateful to the right hon. Gentleman for what he says, and for the work that he is carrying out to ensure that black and minority ethnic individuals are treated fairly in our criminal justice system. On the reform programme, I have been delighted by the fact that across this House and throughout the Government there has been strong support for the reform programme that we are undertaking, and I think it will be central to the work of this Government over the next few years. I look forward to working with the right hon. Gentleman and other colleagues to ensure that we make progress.
Andrew Gwynne (Denton and Reddish) (Lab)
It is of paramount importance that the Government do all they can to ensure that prison staff are safe in their place of work. The Secretary of State will know that the recent safety in custody figures were quite shocking. Will he guarantee that when those figures are published in future, there will be fuller scrutiny of those statistics in Parliament, and will he commit to a frequent statement on what the Government are doing to improve the situation?
Michael Gove
Yes, I will do everything possible to make sure that Parliament is fully informed. That is entirely in line with the recommendations, which I welcome, from the Select Committee.
NATO Warsaw Summit
(7 years, 9 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Secretary of State for Defence (Michael Fallon)
With permission, Mr Speaker, I will make a statement on the NATO summit held in Warsaw last Friday and Saturday.
The 2015 strategic defence and security review reaffirmed NATO’s position at the heart of UK defence and security. The United Kingdom remains a leader within the alliance, with the second largest defence budget after the United States, and the largest in Europe. The range of challenges that the alliance faces, including Daesh, migration and Russian belligerence, meant that this summit was of major importance for Euro-Atlantic security. The overwhelming message from Warsaw was one of strength and unity. We believe that the summit has delivered an alliance that is now more capable and that projects stability beyond our borders, based on stronger partnerships, which collectively protect our citizens and defend Europe.
At the Wales summit in 2014, NATO agreed its readiness action plan to ensure that the alliance can respond swiftly and strongly to new challenges. The UK is at the forefront of these efforts: our Typhoons are currently conducting Baltic air-policing missions from Estonia; our ships are making a significant contribution to NATO’s naval forces: and we will lead NATO’s very high readiness joint taskforce next year, with 3,000 UK ground troops ready to deploy within days.
To demonstrate the allies’ solidarity, determination and ability to act in response to any aggression, Warsaw builds on the Wales’ commitments by delivering an enhanced forward presence in Estonia, Latvia, Lithuania and Poland. I am proud that the UK is one of four nations to lead a framework battalion alongside Canada, Germany and the United States. These battalions will be defensive in nature, but fully combat capable. The UK force will be located in Estonia with two UK companies, a headquarters element and equipment including armoured vehicles, Javelin anti-tank guided missiles and mortars. Denmark and France have said that they will provide troops to the UK battalion. In addition, we will also deploy a company group to Poland. That is our response to Russian aggression. NATO’s approach is based on balancing strong defence and dialogue. Dialogue remains right where it is in our interests to deliver hard messages to promote transparency and to build understanding to reduce risks of mis- calculation.
Credible alliance defence and deterrence depend on NATO’s ability to adapt to 21st-century threats through both nuclear and conventional forces. The summit recognised the important contribution that the UK’s independent nuclear deterrent makes to the overall security of the alliance. I can confirm that we expect the House to have the opportunity to vote to endorse the renewal of that deterrent next Monday.
Initiatives on cyber and hybrid warfare among others will give the alliance the capabilities that it needs to respond quickly and effectively. However, modern capabilities require appropriate funding and here good progress has been made against the defence investment pledge, a key commitment from Wales. Following this Government’s decision to spend 2% of GDP on defence and to increase the defence budget in each year of this Parliament, cuts to defence spending across the alliance have now halted, with 20 allies now increasing defence spending, and eight allies committing in their national plans to reaching the 2% target.
Delivering the best for our country also means maximising the talent in our armed forces. The Prime Minister has accepted the recommendation of the Chief of the General Staff to open up ground close-combat roles to women. NATO’s role in preventing conflict and tackling problems at source has become ever more important as threats to alliance security grow out of instability and fragile or weak states. NATO’s defence capacity-building initiative, which was first announced in Wales, is a powerful tool in projecting stability and we in the United Kingdom continue to provide significant support to Georgia, Iraq and Jordan.
Building on that, the allies agreed that NATO will conduct training and capacity building inside Iraq. In Afghanistan, local forces are taking responsibility for providing security across their country. Our long-term commitment, as part of NATO’s Resolute Support mission, is crucial. Next year, we will increase our current troop contribution of 450 by 10% to help build the capacity of the Afghan security institutions.
The summit also reiterated its support for our European partners, including Ukraine and Georgia. I was delighted that Montenegro attended the summit as an observer, as a clear sign that NATO’s door remains open.
However, the scale of Europe’s security challenges means that NATO must work with a range of partners to counter them. This summit sent a strong message of NATO’s willingness to build strong relationships with other international institutions. I welcome the joint declaration by the NATO Secretary-General and the Presidents of the European Council and the European Commission on NATO-EU co-operation. We continue to support a closer relationship between NATO and the EU to avoid unnecessary duplication.
Our strong message to our allies and our partners was that the result of the referendum will have no impact on any of our NATO commitments and that NATO remains the cornerstone of our defence policy. The United Kingdom will be leaving the European Union, but we are not reducing our commitment to European security—we are not turning our back on Europe or on the rest of the world.
HMS Mersey will deploy to the Aegean from late July to continue our support for NATO’s efforts to counter illegal migration. We will also provide a second ship—RFA Mounts Bay—to the EU’s Operation Sophia in the central Mediterranean, and NATO has agreed in principle to provide surveillance and reconnaissance support to that operation too.
It is a United Kingdom priority for NATO to do more against Daesh. NATO’s airborne warning and control system will now support the counter-Daesh coalition. In addition to our own assistance to the Government of national accord, we will consider what NATO can do in Libya—for example, through capacity building of the Libyan coastguard.
It is our firm view that the Warsaw summit successfully demonstrated that the alliance has the capacity, the will and the intent to respond to the range of threats and challenges that it may face. The summit also showed that Britain is stepping up its leading role in the alliance by deploying more forces to NATO’s eastern borders and to NATO’s support to Afghanistan and in countering illegal migration. With that strong UK leadership, Warsaw will be remembered for the concrete steps that were taken to deliver a strong and unified alliance that remains the cornerstone of European defence and security. I commend this statement to the House.
Clive Lewis (Norwich South) (Lab)
First, I thank the Secretary of State and his team for the work that they did at the Warsaw summit this weekend. I would also like to remind him that rumours of my going absent without leave in the muddy fields of Glastonbury were greatly exaggerated.
The Opposition welcome the clear message from the Warsaw summit that NATO is determined to strengthen its commitment to our friends and allies in eastern Europe. Whatever the consequences of Brexit—and there will be some that are unforeseeable—we must not let one of them be that the UK is seen as retreating into isolationism. We therefore welcome the Government’s readiness to make the United Kingdom one of the four contributor nations to the new rotational force announced last year. That force will have an important symbolic value in providing a visible reminder of the article 5 commitment to collective defence.
Members may have noted that I deliberately emphasised the word “collective”, and that is because, in essence, the basic values that underpin NATO—collective endeavour, human rights, liberty and democracy—which were specifically re-emphasised in the communiqué this weekend, are the same values that underpinned two of NATO’s key founders: Clement Attlee’s Labour party and the United States’ new deal Democrats. As such, the Opposition are entitled to share some of the credit for helping to build those values into the alliance—values Opposition Members can genuinely get behind and reaffirm. But let me get back to the detail.
Many questions remain about how the deployments in Estonia and Poland will work in practice, particularly in terms of equipment, training and rules of engagement. As such, I would be grateful if the Secretary of State would commit to providing regular updates to the House as these plans move forward.
In the light of ongoing tensions between NATO and Russia, I was pleased to hear the Secretary of State mention the need for dialogue. That commitment was echoed in the summit communiqué, which recognises the risk of misunderstanding and calls for a renewed commitment to improving dialogue, particularly through the NATO-Russia Council. However, what steps are the Government taking through bilateral channels to reduce the risk of misunderstanding between the UK and Russia, or of a possible miscalculation, on defence matters?
It is now well over a decade since NATO took command of multinational operations in Afghanistan, where more than 450 British servicemen and women have been killed since 2002. As many in the House will know, I spent some time in the Afghanistan theatre on operations. I have some personal experience having served a three-month tour there back in 2009 as part of the NATO deployment. I will draw on that in our future debates. Although the UK’s last remaining combat troops were withdrawn in 2014, hundreds have stayed behind to continue training local Afghan security forces as part of NATO’s support mission. The announcement in Warsaw that a further 50 British troops will be deployed to Afghanistan next year, and the planned withdrawal date pushed back for a second time, will therefore be of concern to many. While I note that UK troops will continue to be deployed in non-combat roles, I would be grateful if the Secretary of State set out the measures that are in place to safeguard against the possibility of mission creep, given the substantial difficulties in handing over responsibility for the security of the country to Afghan forces themselves.
For a number of years, the UK has been the only major NATO power to continue to exclude women from ground close-combat roles. Labour Members therefore welcome wholeheartedly Friday’s announcement to approve the integration of women across all front-line combat roles. This decision is a huge step forward, not just for equality but for the effectiveness of the armed forces. In Iraq, in Afghanistan, and all over the world, women have served our armed forces with professionalism and distinction. I would be grateful for any information that the Secretary of State can provide today, or in the weeks ahead, as to what specific steps he will take to monitor and ensure the smooth transition of this process.
We must never lose sight of the vision of NATO’s founders. They understood that peace was always built on a foundation stone of justice—justice in the form of freedom, of democracy, and of economic fairness. The Secretary of State was right to affirm the UK’s commitment to NATO. I hope that the NATO he affirms is one that stays true to the vision of its founders, because that is a vision that Labour Members share and that I look forward to holding to account in the months ahead.
Michael Fallon
I am grateful to the hon. Gentleman for his comments and welcome him on his first appearance at the Dispatch Box. I think that he is the fourth shadow Defence Secretary in the past couple of years. I also welcome the broad welcome that he has given to this statement. I wholeheartedly welcome his reminder of the original establishment of NATO under a Labour Government who, of course, fully supported the nuclear deterrent at the time, and were ready, like every Labour Government, to commit that nuclear deterrent to the overall defence of the alliance, as well as the defence of this country. I am sure that he will explain all that in a little more detail when we come to the debate on Monday.
The hon. Gentleman asked four specific questions. First, on the battalion to be deployed in Estonia, yes, I will update the House on the precise arrangements for that deployment, which will begin, we hope, in spring next year. As he will understand, there is much detail to be finalised with regard to the command and control relationships and the precise activities that the battalion will be involved in, but, yes, we will keep him and the House up to date on that.
Secondly, the hon. Gentleman asked about the dialogue with Russia. I want to be very clear with the House: because of the annexation of Crimea and the aggression in Ukraine, it cannot now be business as usual with Russia, but there are interests that we have in common, as we saw in the refinement of the nuclear deal with Iran and ongoing discussions about a political settlement in Syria. It is right that we continue to talk to Russia in the areas where we have shared interests. I can confirm that the next meeting of the NATO-Russia Council will be on 13 July, and that we do continue links of the sort he mentioned, at ambassadorial level, to ensure that any misunderstandings can be avoided.
Thirdly, the hon. Gentleman asked about Afghanistan. Let me put on the record my tribute to him for his service in Afghanistan. We are increasing the number of troops deployed in Afghanistan by about 50. There is no danger of mission creep, because those additional 50 troops will be doing what the existing 450 are doing, which is supporting the security institutions, providing advice and support to the fledgling Afghan air force, and continuing the important work of mentoring at the officer academy. A number of other allies have been able to increase their support to Afghanistan. The hon. Gentleman will know, of course, that the alliance also welcomed the change of heart in the American position, which is not going to reduce down to the level originally forecast.
Finally, the hon. Gentleman asked about the decision to open combat roles in the Army to women. I am glad that he has welcomed that. Of course, we will do it on a phased basis, continuing the essential research to set the right physical standards as each role is opened up. I am very happy to keep him up to date on that.
Dr Andrew Murrison (South West Wiltshire) (Con)
I congratulate my right hon. Friend on his statement, and thank him for emphasising the centrality of NATO in our collective defence. What particular discussions has he had with members of the European Union on those parts of the common security and defence policy that may continue to be of mutual benefit? I am thinking in particular of elements of the European Defence Agency and exercising with the EU battlegroups.
Michael Fallon
Let me make it very clear that, until we leave the European Union, we remain full members of it and committed to the security that it adds to that provided through NATO. That includes our participation in the EU battlegroup and in missions such as Operation Sophia in the central Mediterranean, to which we are now committing an additional ship. It is also seen in our continuing work to get the two organisations to work more closely together, avoid unnecessary duplication and co-operate more closely.
Stuart Blair Donaldson (West Aberdeenshire and Kincardine) (SNP)
Paragraph 40 of the Warsaw summit communiqué focuses on NATO’s maritime security. Given that there are no surface vessels or maritime patrol aircraft based in Scotland, the UK Government are clearly failing in their duty. Did the Secretary of State have any discussions with his Norwegian counterpart over her plea earlier this year for increased co-operation in the maritime domain?
Paragraph 10 of the Warsaw summit communiqué lists a number of Russia’s destabilising actions and policies, including the annexation of Crimea; the deliberate destabilisation of eastern Ukraine; large-scale snap exercises; provocative military activities near NATO borders; aggressive nuclear rhetoric; and repeated violations of NATO airspace. Which of those actions has been deterred by Trident?
Finally, paragraph 64 of the communiqué focuses on nuclear non-proliferation. What specific discussions did the Secretary of State have with NATO counterparts on further nuclear disarmament? In the coming weeks, my SNP colleagues and I will vote not to renew Trident. May I invite the Secretary of State and Labour MPs to join me in voting against it, so that we can achieve the alliance’s aim of a world without nuclear weapons?
Michael Fallon
In answer to the hon. Gentleman’s first point, the defence of the United Kingdom is organised on a United Kingdom basis. He should be in absolutely no doubt about that.
On our relationship with Norway, yes, I had a bilateral meeting with the Norwegian Minister. We work extremely closely on defending our respective countries and are looking for further areas of co-operation, particularly in the light of our strategic defence review and Norway’s long-term plan, which was published more recently.
On maritime patrol aircraft, I hope that the hon. Gentleman will have caught up with this morning’s announcement that we are to purchase nine Boeing P-8 aircraft, as announced by my right hon. Friend the Prime Minister with me at the Farnborough air show this morning. I hope it will not be too long before those patrol aircraft are able to help better protect our deterrent, as well as protect our aircraft carriers and conduct other tasks.
Non-proliferation was not subject matter for the Warsaw summit. We remain, in principle, committed to the search for a world without nuclear weapons. However, I have to say to the hon. Member and his party that there are 17,000 nuclear weapons out there and states that are trying to develop nuclear weapons. There remains the danger that others, such as non-state actors or terrorist groups, may try to get hold of nuclear weapons. That is why I will be inviting the House to vote next Monday to continue the principle of the nuclear deterrent that has served this country well and will protect it in the 2030s, 2040s and 2050s.
Bob Stewart (Beckenham) (Con)
Let me say to my right hon. Friend how delighted I am that we have reaffirmed our commitment to the NATO alliance by sending the strong signal of using our troops on the ground in Estonia and Poland. Further, I thank him for making arrangements for French and Danish troops to join our battle group in Estonia. I speak as perhaps the only British officer to have commanded the 1st Parachute Battalion of the French Foreign Legion—albeit briefly.
Michael Fallon
The purpose of this deployment is to reassure our allies on the eastern border of NATO, as much as to make Russia think twice about any further aggression. I can tell my hon. Friend that our deployment in Estonia was warmly welcomed, not simply by Estonia but by the other Baltic states too. We are seeing now a coming together of the NATO countries and a commitment to each other’s formations, whether it is the very high-readiness joint taskforce or the enhanced forward presence. We particularly look forward to working with French and Danish troops alongside our battalion in Estonia next year.
Tom Brake (Carshalton and Wallington) (LD)
The summit reiterated support for Georgia and Ukraine. However, in practical terms, what steps are being taken to support those countries in their bid for NATO membership and to ensure the defence of their borders?
Michael Fallon
Georgia is an enhanced opportunity partner of NATO and a package of measures is in place to strengthen defence co-operation between NATO and Georgia. We are playing a significant part in the training of the Ukrainian armed forces, building up their capacity to deal with the insurgency in eastern Ukraine and to reduce the number of casualties that they were suffering initially. As for future accession to NATO, we have made it very clear that there can be no shortcuts to NATO membership. There are criteria to meet, and any future applications require the unanimous consent of all the existing members. Equally, the accession of Montenegro sends a very clear message that nobody, and certainly not Russia, has any kind of veto on future membership.
David Tredinnick (Bosworth) (Con)
Has my right hon. Friend seen the remarks from the former Soviet President, Mikhail Gorbachev, who has expressed concern that we are moving from a new cold war to a hot one? Speaking as somebody who was a soldier in the cold war, I express grave concern that all we are really doing is irritating Russia by putting a number of troops on its border. We have to recognise that Russia has a zone of influence, which includes Ukraine and Belarus. If we do not find a way of negotiating with Russia, we are only going to make the danger of a new cold war, or possibly a hot war, more likely. We really have to look at these realities.
Michael Fallon
I pay tribute to my hon. Friend’s former service in the military, but I have to say to him, and to Russia, that NATO remains a defensive alliance and is not threatening anybody. However, given the commitments that we have all made to each other under article 5, it is very important that we reassure members, particularly those on the eastern flank of NATO, that we are ready to stand by those commitments and to come to their aid. I must remind my hon. Friend that they, of course, have seen Russia trying to change international borders by force, annexing Crimea and interfering in eastern Ukraine. It is very important that we remind members of NATO that it is committed to defending their territorial integrity, and that we send a message right across Europe to Moscow that we are not prepared to see the sovereign integrity of these countries further impugned.
Mr Kevan Jones (North Durham) (Lab)
The Warsaw conference underlined NATO’s concept of deterrence. Does the Secretary of State agree that for deterrence to be effective, it has to be credible, and that any suggestion that our nuclear deterrent could be delivered other than by continuous at-sea deterrence would not only lead to its credibility being questioned, but threaten the nuclear posture of deterrence by NATO?
Michael Fallon
I absolutely agree with that. The previous coalition Government looked exhaustively at alternative systems for delivering such deterrence. We looked at whether it could be done from the air, from land or with fewer boats, and the overwhelming conclusion of that review was that the simplest and most cost-effective form of deterrence is to maintain our existing four-boat nuclear submarine fleet. That is the purpose of the motion we will be putting before the House on Monday.
Henry Smith (Crawley) (Con)
I am very grateful indeed for my right hon. Friend’s robust statements on the NATO summit. Can he assure me that with the good news of more European nations pledging to spend 2% of their GDP on defence, and with the commitment to Trident, NATO will remain an alliance of co-operation between European states and Atlantic states?
Michael Fallon
I am grateful to my hon. Friend for what he has said, not least because I think we were on opposite sides of the argument during the referendum. The most encouraging thing since the Wales summit—fully confirmed at Warsaw—is the number of European countries that have put plans in place to increase their spending. The general decline of defence spending in Europe has been halted and is being reversed. Allies such as the Czech Republic, France, Latvia, Lithuania, Poland, Romania, the Slovak Republic and Turkey are putting in place plans to get to the 2%, as we have done.
John Woodcock (Barrow and Furness) (Lab/Co-op)
With your permission, Mr Speaker, it might be helpful for me to pass on to the House the news that the Unite trade union has just reaffirmed its strong commitment to the building programme for the submarine fleet, which is going on in Barrow and across the nation. I hope that that will help Labour Members as we seek to fulfil our manifesto pledge to carry on and complete the programme that we began in government.
I turn to the vote that will take place on Monday. What, in the Government’s view, would it do to the UK’s position in the nuclear alliance of NATO if we were suddenly to commit to unilateral disarmament by scrapping the programme to create a new fleet of Successor submarines?
Michael Fallon
On the hon. Gentleman’s first point, let me welcome the decision of Unite to support the renewal of the nuclear deterrent. It is, of course, important for security, and it is also important for the economy. More than 200 companies are already involved in the supply chain and are starting to deliver some of the long-lead items that the House, through its expenditure, has already authorised, and several thousand jobs are beginning to be committed to the renewal of the deterrent. It is important to bear those in mind during the debate on Monday.
On the hon. Gentleman’s bigger point, any decision by this House to resile or withdraw from the position of successive Governments—Labour and Conservative—that we are committed to the nuclear deterrent, and committed to placing that nuclear deterrent in support of the NATO alliance as a whole, would fundamentally undermine that alliance and have serious repercussions for our relationships with our key allies, especially the United States.
John Howell (Henley) (Con)
May I return the Secretary of State to the issue of Ukraine? The belligerence of Russia is of great interest to the Council of Europe, and at its last meeting, Madam Savchenko, the Ukrainian pilot who was arrested by the Russians, was able to join us. What will NATO involvement in Ukraine try to achieve?
Michael Fallon
I had the privilege of meeting Madam Savchenko in Warsaw on Saturday, when she attended with the President of Ukraine and the Ukrainian Defence Minister. Although Ukraine is not a member of NATO, a number of NATO allies are working extremely hard to try to reinforce Ukraine’s ability to defend itself. We are co-ordinating our training effort, and doing what we can to stand behind the territorial integrity of Ukraine, not least through the sanctions that the European Union continues to apply.
Tom Blenkinsop (Middlesbrough South and East Cleveland) (Lab)
May I also welcome Unite’s decision to reconfirm the position that dates back to Ernest Bevin—the former general secretary of what was then the Transport and General Workers Union and today is Unite? Will the Secretary of State say more about the situation post-Brexit? Programmes such as that for the F-35 cost around $100 million per aircraft before the referendum. Will there be a rescheduling of the assessment of those programmes, as well as others in the strategic defence and security review?
Michael Fallon
On the nuclear deterrent, I hope that we will get as large a majority as possible, and that Members across the House will join us in recommitting this country to the nuclear deterrent that has served us so well. We must send a further signal to the rest of the world that Britain is prepared to continue to play its part in the defence of NATO as well as of our own country. On the specific question about the cost of F-35, it is a little too early to be sure exactly where the sterling-dollar exchange rate will end up. Like any large commercial organisation, we take precautions against fluctuations in the currency, but it is too early to say whether that current level is likely to be sustained.
Point of Order
Nia Griffith (Llanelli) (Lab)
On a point of order, Mr Speaker. I have notified my right hon. Friend the Member for Islington North (Jeremy Corbyn) of my intention to raise this issue. On Friday, a member of my staff had his parliamentary pass deactivated, following an email from the office of the Leader of the Opposition to the parliamentary pass office. The email advised the pass office to terminate the passes of a number of staff who work for former members of the shadow Cabinet. May I seek your advice, Mr Speaker, about the propriety of Members seeking to deactivate the passes of other Members’ staff? Can you clarify the rules on that issue, because I was under the impression that authorising passes was the sole responsibility of the sponsoring Member?
Mr Speaker
I am grateful to the hon. Lady for notice of her point of order, and she is correct—that is the basis on which these matters are handled. I am conscious that the passes of the staff of several Members were incorrectly suspended temporarily on Friday. [Interruption.] Order. As soon as the error came to light, the passes were reinstated. We do not discuss security matters on the Floor of the House, so I do not propose to say anymore on the matter. Moreover, I do not need to do so because I have given the information that the hon. Lady sought, and I have specifically answered her point of order about where locus lies. Let us leave it there for now.
Bill Presented
Parthenon Sculptures (Return to Greece) Bill
Presentation and First Reading (Standing Order No. 57)
Mr Mark Williams, supported by Sir Roger Gale, Margaret Ferrier, Jeremy Lefroy, Mary Glindon, Hywel Williams, and Liz Saville Roberts presented a Bill to make provisions for the transfer of ownership and return to Greece of the artefacts known as the Parthenon Sculptures, or Elgin Marbles, purchased by Parliament in 1816; to amend the British Museum Act accordingly; and for connected purposes.
Bill read the First time; to be read a Second time on Friday 20 January 2017, and to be printed (Bill 48).
Wales Bill
(7 years, 9 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
19:08 - The Committee divided: - Ayes: 47 / Noes: 270 - Question accordingly negatived.
19:21 - divided: - Ayes: 210 / Noes: 270 - Question accordingly negatived.
20:53 - The Committee divided: - Ayes: 195 / Noes: 275 - Question accordingly negatived.
21:06 - The Committee divided: - Ayes: 47 / Noes: 274 - Question accordingly negatived.
21:18 - divided: - Ayes: 46 / Noes: 273 - Question accordingly negatived.
Paul Flynn (Newport West) (Lab)
I beg to move amendment 118, page 2, line 28, after “7A)” insert
“and is not ancillary to another provision (whether in the Act or another enactment) that does not relate to a reserved matter”.
Clause 3 establishes the legislative competence of the National Assembly for Wales. This amendment makes clear that the Assembly has power to make provision touching upon reserved matters for the purpose of enforcing provisions in Assembly Acts that do not relate to reserved matters or otherwise making them effective.
The Chairman of Ways and Means (Mr Lindsay Hoyle)
With this it will be convenient to discuss the following:
Amendment 148, page 2, line 33, leave out “subsection (2)(b) does” and insert
“subsections (2)(b) and (2)(c) do”.
The amendment restores the Assembly’s competence by enabling it to legislate in an ancillary way in relation to reserved matters.
Amendment 149, page 2, line 34, leave out from “provision” to end of line 6 on page 3 and insert
“which is within the Assembly’s legislative competence (or would be if it were included in an Act of the Assembly).”
The amendment restores the Assembly’s competence by enabling it to legislate in an ancillary way in relation to reserved matters.
Clause 3 stand part.
Amendment 2, in schedule 1, page 41, line 24, at end insert
“(that is, the property, rights and interests under the management of the Crown Estate Commissioners)
‘(3A) Sub-paragraph (1) does not affect the reservation by paragraph 1 of the requirements of section 90B(5) to (8).”
This amendment is consequential on new Clause (The Crown Estate) which would transfer executive and legislative competence of the Crown Estate in Wales to the Welsh Government and the National Assembly for Wales.
Amendment 6, page 41, line 30 , at end insert—
“2A Paragraph 1 does not reserve the consolidation in English and Welsh of the principal legislation delineating the powers of the National Assembly for Wales and the Welsh Government, including (but not limited to) the Government of Wales Act 2006, the Wales Act 2011 and the Wales Act 2016.”
This amendment would allow the National Assembly for Wales to consolidate in both English and Welsh the statutes bills containing the current constitutional settlement affecting Wales.
Amendment 155, page 42, line 20, leave out “prosecutors” and insert “the Crown Prosecution Service”.
The amendment clarifies the reservation so that “the Crown Prosecution Service” is reserved, rather than “prosecutors” more generally, as this could prohibit Assembly legislation enabling devolved authorities to prosecute, such as local authorities.
Amendment 119, page 42, line 26, leave out sub-paragraphs (2) and (3).
This amendment seeks to allow ancillary provision by removing the exception in paragraph 6(2) and the related definition in paragraph 6(3), so that reliance can be placed on the general power to make ancillary provision made clear by the amendment to clause 3 proposed by amendment 118.
Amendment 83, page 47, line 32, leave out Section B5.
This amendment removes the reservation of crime, public order and policing from the list of reserved powers.
Amendment 122, page 48, line 9, leave out
“The subject matter of Parts 1 to 6”
and insert
“Anti-social behaviour injunctions under Part 1”.
This amendment is intended to narrow the reservation to the system of anti-social behaviour injunctions provided for by Part 1 of the 2014 Act.
Amendment 84, page 48, leave out line 11.
This amendment removes the reservation of dangerous dogs and dogs dangerously out of control from the list of reserved powers.
Amendment 85, page 48, line 15, leave out Section B8.
This amendment removes the reservation of prostitution from the list of reserved powers.
Amendment 86, page 48, line 24, leave out Section B11.
This amendment removes the reservation of the rehabilitation of offenders from the list of reserved powers.
Amendment 117, page 49, leave out lines 5 to 10.
This amendment will remove the reservation of knives from the list of reserved powers.
Amendment 123, page 49, leave out lines 24 to 29.
Paragraph 55 of the new Schedule 7A to be inserted into the Government of Wales Act 2006 by Schedule 1 would reserve the licensing of the provision of entertainment and late night refreshment from the Assembly’s legislative competence. Paragraph 56 would reserve the sale and supply of alcohol. This amendment removes both reservations.
Amendment 116, page 49, leave out lines 24 to 26.
This amendment will remove the reservation of the licensing of the provision of entertainment and late night refreshment from the list of reserved powers.
Amendment 87, page 49, line 27, leave out Section B17.
This amendment removes the reservation of alcohol from the list of reserved powers.
Government amendments 53 to 58.
Amendment 88, page 55, line 5, leave out Section C15.
This amendment removes the reservation of Water and sewerage from the list of reserved powers.
Amendment 89, page 55, line 28, leave out Section C17.
This amendment removes the reservation of Sunday trading from the list of reserved powers.
Amendment 90, page 55, line 32, leave out Section D1.
This amendment removes the reservation of generation, transmission, distribution and supply of electricity from the list of reserved powers.
Amendment 91, page 56, line 27, leave out Section D3.
This amendment removes the reservation of coal from the list of reserved powers.
Amendment 92, page 57, line 2, leave out Section D5.
This amendment removes the reservation of heat and cooling from the list of reserved powers.
Amendment 93, page 57, line 17, leave out Section D6.
This amendment removes the reservation of energy conservation from the list of reserved powers.
Amendment 94, page 57, line 24, leave out Section E1.
This amendment removes the reservation of road transport from the list of reserved powers.
Amendment 161, page 57, line 35, leave out from “roads” to the end of line 36 and insert—
“107A Speed limits
107B Road and traffic signs”
This amendment would make speed limits and road and traffic signs reserved matters.
Amendment 95, page 58, leave out line 36.
This amendment removes the reservation of railway services from the list of reserved powers.
Amendment 96, page 59, leave out line 21.
This amendment is consequential on amendment 61 to Clause 28 which would remove the exception to the devolution of executive functions in relation to Welsh harbours of “reserved trust ports”.
Amendment 140, page 59, line 21, leave out “Reserved trust ports and”.
Section E3 of the new Schedule 7A to be inserted into the Government of Wales Act 2006 by Schedule 1 would reserve certain marine and waterway transport matters from the Assembly’s legislative competence. Paragraph 119 in that Section would reserve trust ports. This amendment removes this reservation.
Amendment 97, page 59, leave out line 23.
This amendment removes the reservation of coastguard services and maritime search and rescue from the list of reserved powers.
Amendment 98, page 59, leave out line 24.
This amendment removes the reservation of hovercraft from the list of reserved powers.
Amendment 141, page 59, line 28, leave out “, reserved trust ports or”.
This amendment is consequential upon amendment 140.
Amendment 142, page 59, line 37, leave out
“that is not a reserved trust port”.
This amendment is consequential upon amendment 140.
Amendment 143, page 60, leave out lines 4 to 5.
This amendment is consequential upon amendment 140.
Amendment 100, page 61, line 21, at end insert—
“Benefits entitlement to which, or the purposes of which, are the same as or similar to those of any of the following benefits—
(a) universal credit under Part 1 of the Welfare Reform Act 2012,
(b) jobseeker’s allowance (whether contributions-based or income based) under the Jobseekers Act 1995,
(c) employment and support allowance (whether contributory or income-related) under Part 1 of the Welfare Reform Act 2007,
(d) income support under section 124 of the Social Security and Benefits Act 1992,
(e) housing benefit under section 130 of that Act,
(f) child tax credit and working tax credit under the Tax Credits Act 2002.
The benefits referred to in paragraphs (a) to (f) above are—
(a) in the case of income-based jobseeker’s allowance and income-related employment support allowance, those benefits as they existed on 28 April 2013 (the day before their abolition),
(b) in the case of the other benefits, those benefits as they existed on 28 May 2015.”
This amendment devolves all working age benefits to be replaced by Universal credit, and any benefit introduced to replace Universal credit.
Amendment 101, page 61, line 21, at end insert—
“Benefits entitlement to which, or the purposes of which, are the same as or similar to those of any of the following benefits—
(a) guardian’s allowance under section 77 of the Social Security Contributions and Benefits Act 1992,
(b) child benefit under Part 9 of that Act.”
This amendment devolves to the National Assembly for Wales, child benefit and Guardian’s allowance including conditionality and sanctions regimes.
Amendment 102, page 64, line 17, leave out Section H1.
This amendment would remove employment and industrial relations from the list of reserved powers.
Amendment 108, page 64, line 17, leave out Section H1 and insert—
“H1 National Minimum Wage
The subject-matter of the National Minimum Wage Act 1998.”
This amendment would devolve employment rights and duties and industrial relations, except for the national minimum wage, to the National Assembly for Wales.
Amendment 124, page 64, line 44, at end insert—
“Terms and conditions of employment and industrial relations in Wales public authorities and services contracted out or otherwise procured by such authorities.”
Section H1 of the new Schedule 7A to be inserted into the Government of Wales Act 2006 by Schedule 1 would reserve employment rights and duties and industrial relations from Assembly’s legislative competence. This amendment provides an exception to ensure that the Assembly retains its legislative competence over terms and conditions of service for employees in devolved public services and industrial relations in such services.
Amendment 99, page 65, line 7, leave out Section H3.
This amendment would devolve employment support programmes to the National Assembly for Wales.
Amendment 109, page 65, line 24, leave out Section J1.
This amendment removes the reservation of abortion from the list of reserved powers, to bring Wales into line with Scotland and Northern Ireland.
Amendment 103, page 66, line 31, leave out Section J6.
This amendment would remove Health and Safety from the list of reserved powers.
Amendment 105, page 67, line 14, leave out Section K1.
This amendment would remove broadcasting form the list of reserved powers
Amendment 107, page 67, line 17, at end insert—
“Exceptions
The regulation of:
(a) party political broadcasts in connection with elections that are within the legislative competence of the Assembly and
(b) referendum campaign broadcasts in connection with referendums held under Acts of the National Assembly for Wales.”
This amendment would devolve competence to the National Assembly for Wales in relation to party political broadcasts for Welsh and local elections.
Amendment 106, page 67, line 29, leave out Section K5.
This amendment would remove sports grounds from the list of reservations
Amendment 110, page 68, line 2, leave out Section L1.
This amendment removes justice from the list of reserved powers.
Amendment 111, page 69, line 25, leave out Section L11.
This amendment removes the reservation of prisons and offender management from the list of reserved powers.
Amendment 104, page 72, line 14, leave out Section N1.
This amendment would remove equal opportunities from the list of reserved powers
Amendment 112, page 73, line 24, leave out “bank holidays”.
This amendment, along with amendment 85, will devolve to the National Assembly for Wales, competence over bank holidays.
Amendment 113, page 73, line 27, at end insert “bank holidays”.
This amendment, along with amendment 112, will devolve to the National Assembly for Wales, competence over bank holidays.
Amendment 114, page 74, line 7, leave out Section N8.
This amendment will remove the reservation of the Children’s Commissioner from the list of reserved powers.
Amendment 115, page 74, line 11, leave out Section N9.
This amendment will remove the reservation of teacher’s pay and conditions from the list of reserved powers.
That schedule 1 be the First schedule to the Bill.
Amendment 120, in schedule 2, page 77, line 17, at end insert—
“1A Paragraph 1 does not apply to a modification that is ancillary to a provision made (whether by the Act in question or another enactment) which does not relate to reserved matters if it is a modification of the law on reserved matters in paragraph 6 or 7 of Schedule 7A.”
This amendment provides an exception for ancillary provision about certain justice matters that is not subject to a necessity test.
Amendment 121, page 77, line 18, leave out “a” and insert “any other”.
This amendment is consequential upon amendment 120.
Amendment 156, page 77, line 21, leave out from “matters” to end of line 26.
The amendment removes the necessity test in relation to the law on reserved matters.
Amendment 157, page 78, line 2, leave out paragraph 4 and insert—
“4 (1) A provision of an Act of the Assembly cannot make modifications of, or confer power by subordinate legislation to make modifications of, the criminal law. (See also paragraph 6 of Schedule 7A (single legal jurisdiction of England and Wales).)
(2) Sub-paragraph (1) does not apply to a modification that has a purpose (other than modification of the criminal law) which does not relate to a reserved matter.
(3) This paragraph applies to civil penalties as it applies to offences; and references in this paragraph to the criminal law are to be read accordingly).”
The amendment inserts a restriction so that the Assembly cannot modify criminal law unless it is for a purpose other than a reserved purpose. This would bring it into line with the private law restriction.
Amendment 34, page 79, line 29, leave out from “Assembly” to end of line 39.
The amendment removes the requirements relating to the composition and internal arrangements of the Assembly Committee with oversight of the Auditor General and/or their functions.
Amendment 35, page 80, line 41, at end insert—
“(i) subsection 120(1) as regards a modification that adds a person or body;”
The amendment will enable the Assembly to amend sections 120(1) of the 2006 Act which provide for ‘relevant persons’ which receive funding directly from the Welsh Consolidated Fund.”
Amendment 36, page 80, line 42, at end insert—
(iii) subsection 124(3) as regards a modification that adds a person or body;”
The amendment will enable the Assembly to amend sections 124(3) of the 2006 Act which provide for ‘relevant persons’ which receive funding directly from the Welsh Consolidated Fund.
Amendment 37, page 81, line 22, leave out from “taxes” to end of line 23.
The amendment removes the requirement for Secretary of State consent for the Assembly to amend the provisions of Part 5 of the 2006 Act which are not specifically referred to in paragraph 7(2)(d) and section 159, where the amendment is incidental to, or consequential on, a provision of an Act of the Assembly relating to budgetary procedures.
Amendment 128, page 82, line 30, leave out paragraph (c).
This amendment is consequential upon amendment 127.
Amendment 127, page 82, line 44, at end insert—
‘( ) Paragraph 8(1)(a) and (c) does not apply in relation to the Water Services Regulation Authority.”
This amendment would extend the existing exception for the Water Services Regulation Authority to include the matters that would otherwise be outside competence by virtue of paragraph 8(1)(c) of Schedule 7B.
Amendment 129, page 83, line 42, leave out paragraph (c).
This amendment removes the restriction in paragraph 11(1)(c) of the new Schedule 7B to the Government of Wales Act 2006 to be inserted by Schedule 2 to the Bill which would prevent the Assembly from legislating to remove or modify functions of a Minister of the Crown exercisable in relation to water and sewerage matters (including control of pollution) and matters relating to land drainage, flood risk management and coastal protection.
That schedule 2 be the Second schedule to the Bill.
New clause 7—Levies in respect of agriculture, taking wild game, aquaculture and fisheries, etc.—
“(1) In Schedule 7A to the Government of Wales Act 2006, section A1 is amended as follows.
(2) In the Exceptions, after the exception for devolved taxes insert—
““Levies in respect of agriculture, taking wild game, aquaculture and fisheries (including sea fisheries) or a related activity: their collection and management.”
(3) After the Exceptions insert—
“Interpretation
“agriculture” includes horticulture, fruit growing, seed growing, dairy farming and livestock breeding and keeping, and the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds.
“aquaculture” includes the breeding, rearing or cultivation of fish (of any kind), seafood or aquatic organisms.
“related activity” means the production, processing, manufacture, marketing or distribution of—
(a) anything (including any creature alive or dead) produced or taken in the course of agriculture, taking wild game or aquaculture, or caught (by any means) in a fishery,
(b) any product which is derived to any substantial extent from anything so produced or caught.””
This new clause would give the National Assembly for Wales general legislative competence in respect of agricultural, aquacultural and fisheries levies.
New clause 10—Water Services Regulation Authority—
“(1) In section 27 of the Water Industry Act 1991 (general duty of the authority to keep matters under review)—
(a) in subsection (3), after “may” insert “subject to subsection (3A),”;
(b) after subsection (3), insert—
“(3A) The Secretary of State must obtain the consent of the Welsh Ministers before giving general directions under subsection (3) connected with—
(a) matters in relation to which functions are exercised by water or sewage undertakers whose area is wholly or mainly in Wales,
(b) licensed activities carried out by water supply licensees that use the supply system of a water undertaker whose area is wholly or mainly in Wales, or
(c) licensed activities carried on by sewerage licensees that use the sewerage system of a sewerage undertaker whose area is wholly or mainly in Wales.”;
(c) in subsection (4), in both places where it appears, after “Secretary of State” insert “, the Welsh Ministers”.
(2) In section 192B of the Water Industry Act 1991 (annual and other reports)—
(a) in subsection (1), after “Secretary of State” insert “and the Welsh Ministers”;
(b) in subsection (2)(d), for “as the Assembly” substitute “or activities in Wales as the Welsh Ministers”;
(c) in subsection (4), for “Assembly” substitute “Welsh Ministers”;
(d) after subsection (5) insert—
“(5A) The Welsh Ministers shall—
(a) lay a copy of each annual report before the Assembly; and
(b) arrange for the report to be published in such manner as they consider appropriate;
(c) in subsection (7), omit “the Assembly,””.
(3) In Schedule 1A to the Water Industry Act 1991 (the Water Services Regulation Authority)—
(a) in paragraph 1—
(i) in sub-paragraph (1), after “Secretary of State” insert “and the Welsh Ministers acting jointly”;
(ii) in sub-paragraph (2), omit paragraph (a);
(b) in paragraph 2(2), after “Secretary of State” insert “and the Welsh Ministers acting jointly”;
(c) in paragraph 3—
(i) in sub-paragraph (2), paragraph (a), after “Secretary of State” insert “and the Welsh Ministers”;
(ii) in sub-paragraph (2), paragraph (b), after “Secretary of State” insert “and the Welsh Ministers acting jointly”;
(iii) omit sub-paragraph (3);
(d) in paragraph 4—
(i) in sub-paragraph (1) and (2), in each place where it appears, after “Secretary of State” insert “and the Welsh Ministers acting jointly”;
(ii) in sub-paragraph (3), for “determines” substitute “and the Welsh Ministers acting jointly determine” and at the end insert “and the Welsh Ministers acting jointly”;
(e) in paragraph 9(3)(b), for “Assembly” substitute “Welsh Ministers”.”
This new clause would amend the Water Industry Act 1991 to confer functions relating to the Water Services Regulation Authority (OFWAT) (which exercises functions in England and Wales) onto the Welsh Ministers and it would adjust the functions of the Secretary of State to better reflect the current devolution of water matters to Wales.
Amendment 61, in clause 28, page 23, line 32, leave out from “Wales” to the end of line 33.
This amendment removes the exception to the devolution of executive functions in relation to Welsh harbours of “reserved trust ports”.
Amendment 134, page 23, line 38, leave out subsection (4).
Clause 28(4) provides an exception to the general transfer of functions by clause 28 so that where a function relates to two or more harbours the function is transferred only to the extent that both or all of the harbours to which it relates are wholly in Wales and are not reserved trust ports. This amendment is partly consequential upon amendment 61, but it would also ensure that the Welsh Ministers retain functions where one harbour is in Wales and the other is not.
Amendment 62, page 23, line 40, leave out “and are not reserved trust ports”.
See amendment 61.
Amendment 63, page 24, leave out line 6.
See amendment 61.
Clause 28 stand part.
Amendment 64, in clause 29, page 24, line 13, leave out
“, other than a reserved trust port,”
See amendment 61.
Amendment 65, page 24, line 17, leave out
“, other than reserved trust ports”.
See amendment 61.
Amendment 66, page 24, line 21, leave out
“or a reserved trust port”.
See amendment 61.
Amendment 67, page 24, line 25, leave out
“other than a reserved trust port”.
See amendment 61.
Amendment 68, page 24, line 26, leave out subsection (5).
See amendment 61.
Amendment 69, page 24, line 31, leave out
“other than a reserved trust port”
See amendment 61.
Clauses 29 to 31 stand part.
Amendment 137, in clause 32, page 25, leave out lines 34 to 39 and insert—
(a) will be wholly or partly in England or in waters adjacent to England up to the seaward limits of the territorial sea, and.””
This amendment is consequential upon amendment 61.
Amendment 71, page 25, line 39, leave out “a reserved trust port”.
See amendment 61.
Amendment 138, page 25, line 41, leave out from beginning to end of line 3 on page 26 and insert—
(a) the harbour facilities are wholly or partly in England or in waters adjacent to England up to the seaward limits of the territorial sea, and.””
This amendment is consequential upon amendment 61.
Amendment 72, page 26, line 2, leave out from “and” to end of line 3.
See amendment 61.
Amendment 73, page 26, line 4, leave out subsection (4).
See amendment 61.
Clauses 32 to 35 stand part.
New clause 1—The Crown Estate—
“After section 89 of the Government of Wales Act 2006, insert—
“89B The Crown Estate
(1) The Treasury may make a scheme transferring on the transfer date all the existing Welsh functions of the Crown Estate Commissioners (“the Commissioners”) to the Welsh Ministers or a person nominated by the Welsh Ministers (“the transferee”).
(2) The existing Welsh functions are the Commissioners’ functions relating to the part of the Crown Estate that, immediately before the transfer date, consists of—
(a) property, rights or interests in land in Wales, excluding property, rights or interests mentioned in subsection (3), and
(b) rights in relation to the Welsh zone.
(3) Where immediately before the transfer date part of the Crown Estate consists of property, rights or interests held by a limited partnership registered under the Limited Partnerships Act 1907, subsection (2)(a) excludes—
(a) the property, rights or interests, and
(b) any property, rights or interests in, or in a member of, a partner in the limited partnership.
(4) Functions relating to rights within subsection (2)(b) are to be treated for the purposes of this Act as exercisable in or as regards Wales.
(5) The property, rights and interests to which the existing Welsh functions relate must continue to be managed on behalf of the Crown.
(6) That does not prevent the disposal of property, rights or interests for the purposes of that management.
(7) Subsection (5) also applies to property, rights or interests acquired in the course of that management (except revenues to which section 1(1) of the Civil List Act 1952 applies or are to be paid into the Welsh Consolidated Fund).
(8) The property, rights and interests to which subsection (5) applies must be maintained as an estate in land or as estates in land managed separately (with any proportion of cash or investments that seems to the person managing the estate to be required for the discharge of functions relating to its management).
(9) The scheme may specify any property, rights or interests that appear to the Treasury to fall within subsection (2)(a) or (b), without prejudice to the functions transferred by the scheme.
(10) The scheme must provide for the transfer to the transferee of designated rights and liabilities of the Commissioners in connection with the functions transferred.
(11) The scheme must include provision to secure that the employment of any person in Crown employment (within the meaning of section 191 of the Employment Rights Act 1996) is not adversely affected by the transfer.
(12) The scheme must include such provision as the Treasury consider necessary or expedient—
(a) in the interests of defence or national security,
(b) in connection with access to land for the purposes of telecommunications, or with other matters falling within Section C9 in Part 2 of Schedule 1,
(c) for securing that the management of property, rights or interests to which subsection (5) applies does not conflict with the exploitation of resources falling within Section D2 in Part 2 of Schedule 1, or with other reserved matters in connection with their exploitation, and
(d) for securing consistency, in the interests of consumers, in the management of property, rights or interests to which subsection (5) applies and of property, rights or interests to which the Commissioners’ functions other than the existing Welsh functions relate, so far as it affects the transmission or distribution of electricity or the provision or use of electricity interconnectors.
(13) Any transfer by the scheme is subject to any provision under subsection (12).
(14) The scheme may include—
(a) incidental, supplemental and transitional provision,
(b) consequential provision, including provision amending an enactment, instrument or other document,
(c) provision conferring or imposing a function on any person including any successor of the transferee,
(d) provision for the creation of new rights or liabilities in relation to the functions transferred.
(15) On the transfer date, the existing Welsh functions and the designated rights and liabilities are transferred and vest in accordance with the scheme.
(16) A certificate by the Treasury that anything specified in the certificate has vested in any person by virtue of the scheme is conclusive evidence for all purposes.
(17) The Treasury may make a scheme under this section only with the agreement of the Welsh Ministers.
(18) The power to make a scheme under this section is exercisable by statutory instrument, a draft of which has been laid before, and approved by resolution of, the National Assembly for Wales.
(19) The power to amend the scheme is exercisable so as to provide for an amendment to have effect from the transfer date.
(20) If an order amends a scheme and does not contain provision—
(a) made by virtue of subsection (12) or (19) of that section, or
(b) adding to, replacing or omitting any part of the text of an Act,
then, instead of subsection (18), the instrument containing the legislation shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(21) For the purposes of the exercise on and after the transfer date of functions transferred by the scheme under this section, the Crown Estate Act 1961 applies in relation to the transferee as it applied immediately before that date to the Crown Estate Commissioners, with the following modifications—
(a) a reference to the Crown Estate is to be read as a reference to the property, rights and interests to which subsection (5) applies,
(b) the appropriate procedure for subordinate legislation is that no Minister of the Crown is to make the legislation unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament,
(c) a reference to the Treasury is to be read as a reference to the Welsh Ministers,
(d) a reference to the Comptroller and Auditor General is to be read as a reference to the Auditor General for Wales,
(e) a reference to Parliament or either House of Parliament is to be read as a reference to the National Assembly for Wales,
(f) the following do not apply—
(None) in section 1, subsections (1), (4) and (7),
(None) in section 2, subsections (1) and (2) and, if the Welsh Ministers are the transferee, the words in subsection (3) from “in relation thereto” to the end,
(None) in section 4, the words “with the consent of Her Majesty signified under the Royal Sign Manual”,
(None) sections 5, 7 and 8 and Schedule 1.
(22) Subsection (7) is subject to any provision made by Order in Council under subsection (9) or by any other enactment, including an enactment comprised in, or in an instrument made under, an Act of the National Assembly for Wales.
(23) Her Majesty may by Order in Council make such provision as She considers appropriate for or in connection with the exercise by the transferee under the scheme (subject to subsections (5) to (8)) of functions transferred by the scheme, including provision taking effect on or before the transfer date.
(24) An Order in Council under subsection (23) may in particular—
(a) establish a body, including a body that may be nominated under that section as the transferee,
(b) amend, repeal, revoke or otherwise modify an enactment, an Act or Measure of the National Assembly for Wales, or an instrument made under an enactment or Act or Measure of the National Assembly for Wales.
(25) The power to make an Order in Council under subsection (24) is exercisable by Welsh statutory instrument subject to the affirmative procedure.
(26) That power is to be regarded as being exercisable within devolved competence before the transfer date for the purposes of making provision consequential on legislation of, or scrutinised by, the National Assembly for Wales.
(27) In this section—
“designated” means specified in or determined in accordance with the scheme,
“the transfer date” means a date specified by the scheme as the date on which the scheme is to have effect.””
This new clause mirrors the Scotland Act 2016 in transferring executive and legislative competence of the Crown Estate in Wales to the Welsh Government and the National Assembly for Wales.
Paul Flynn
Since we met in Committee last week, we have had the wonderful celebration of the Wales team’s great achievement in the European cup, which is a matter of enormous pride to us as a nation. I was delighted to see the celebrations on Saturday, which were the biggest thing to happen in Cardiff since VE-day and VJ-day, which I am sure we both remember, Mr Hoyle, if not since when Cardiff won the FA cup in 1926. These events will bring many benefits for the people of Wales. We feel pride not just in the skills of our team, but in the behaviour of our fans.
I saw a performance by the Secretary of State on television yesterday in which he was dancing with a ball on his head and foot. It seemed to be a wordless message; I did not quite get the point. Given these uncertain political times, he might have been auditioning for a future job as a circus performer, but perhaps there was a subliminal message that had he been substituted for Aaron Ramsey, the result of the Portugal game might have been different. None the less, we have had a moment of great happiness for our country. It is a joy to think that the beautiful national language in our anthem was probably heard by more people than at any time in its 3,000-year history. That intrigued many people, and Wales has been given a much sharper identity that will bring about practical benefits.
The Bill’s is proceeding in a consensual way. A great political tumult is going on about our ears, in various forms, but here is an oasis of calm and good sense, as all parties support a beneficial Bill that will give Wales further devolution. Progress on that is slow and endless, but the Bill is a step forward.
I will speak first to amendments 118 and 119. Amendment 118, together with consequential amendments to paragraph 6 of proposed new section 7A to the Government of Wales Act 2006 under schedule 1, and to paragraph 1 of proposed new schedule 7B under schedule 2, take us back to issues flowing from the Government’s insistence on retaining the single legal jurisdiction of England and Wales. In accepting that position, as we must following last Tuesday’s Division, we must now ensure that the Assembly has, within the single jurisdiction, powers that enable its legislation to be enforceable and effective, which is what amendment 118 would achieve.
In our view, the Bill as drafted would restrict the Assembly’s legislative competence inappropriately and reverse the competence given to the Assembly under the 2006 Act, section 108(5) of which allows the Assembly to make what might be termed “ancillary” provisions. At present, the Assembly has competence to legislate on matters relating to one or more of the listed subjects in part 1 of schedule 7 to the 2006 Act. That Act also provides that the Assembly has powers to make provision about non-devolved matters when that is done to make a devolved provision effective or to enforce a provision if it is otherwise consequential or incidental to the devolved provision. My understanding is that this is not the UK Government’s intention, meaning that our old friend unintentional consequences might well apply.
I am sure that the Government do not, in common with all parties in the House, intend to prevent the Assembly from making provision to enforce or to make effective devolved legislation. However, the Bill currently either prevents that, or is unclear about whether the Assembly will have the same ability as at present. Under the reserved power model, an Assembly Act will be outside competence if it relates to a reserved matter in proposed new schedule 7A. There is no express equivalent in the Bill to section 108(5) of the 2006 Act. Provisions relating to reserved matters will be outside competence and will not be law even if the intent of the provision in question is confined to making legislation effective or to enforce it. Other provisions are designed to address this issue, but Welsh Government officials have provided the Wales Office with several examples of when the Bill as drafted would have prevented uncontentious provisions in Assembly Acts from being included in that legislation.
These are not hypothetical problems. We have a strange history of the consequences of legislation. We have sometimes had legislation that was cumbersome and slow, while we have also seen judge-driven legislation involving Acts that were subject to adjudication by people outside Wales. Unless the Bill is amended as we propose, the Assembly’s ability to make its legislation enforceable and effective will be inappropriately constrained, and I do not believe that that is the Secretary of State’s intention. We shall not press the amendments to a Division, but I urge the Secretary of State to give very careful consideration to the issues that they raise, to instruct his officials to discuss them further with Welsh Government officials and to table amendments on Report that reflect an agreed position on this important issue.
Let me mention some of the general principles that should apply to our consideration of the schedule of reserved matters. In a reserved power model, it is for the UK Government to explain why the relevant subject matter must be reserved to the centre—to the UK Parliament and Government—for decision. Much of the schedule’s content is uncontroversial. It is common ground that matters such as foreign affairs, the armed forces and the UK’s security system should be determined at a UK level. On other matters, however, the situation is more contested. If reservations affect the Assembly’s existing competence, it is vital that the case for them is made explicitly and that the drafting of the relevant provision is precise and specific. That is essential to protect the Assembly’s ability to legislate coherently and within its competence.
Amendment 83 deals with policing, which is an interesting subject area in which change is desirable. The UK Government’s own Silk commission recommended devolution of policing on the basis that it is a public service that is a particular concern to people in their daily lives, and therefore similar to health, education and the fire service. That conclusion was reached in the light of extensive evidence, including from professional police bodies, chief constables and police and crime commissioners. I understand that the four present PCCs in Wales are in favour of such a change, and opinion polls show clear public support for it.
Silk noted that devolution would improve accountability by aligning police responsibility with police funding, much of which already comes from devolved sources. In short, he argued that devolution would allow crime and the causes of crime to be tackled holistically under the overall policy framework of the Welsh Government. As Silk noted, present arrangements are “complex”, “incoherent” and “lack transparency”.
Policing is the only major front-line public service that is not at present the responsibility of the devolved institutions in Wales. That anomalous position means that it is significantly more difficult to achieve advantages of collaboration with other blue light services, which is strongly advocated for England in current Government policy, as well as with other relevant public services. Deleting the reservation would address that anomaly, but responsibility for counter-terrorism activity should not be devolved—I would continue to argue that it should be reserved under paragraph 31 of new schedule 7A. The Assembly would be able to legislate in respect of bodies such as the National Crime Agency and the British Transport police only with the consent of UK Ministers, because they are “public authorities” within the meaning of paragraph 8 of new schedule 7B, which restricts the Assembly’s powers in respect of such bodies.
After reflecting on the Silk commission’s recommendations, what is envisaged is the devolution of responsibilities predominantly for local policing. The key point is that devolution would enable police services in Wales to work even more closely alongside other devolved public bodies, with greater opportunities to secure improved community safety and crime prevention.
In England—this is a fine example on which we can base our recommendations—the UK Government are pushing forward the devolution of policing and justice powers with the greatest enthusiasm. Only last week, it was reported that the Minister responsible for prisons—the Under-Secretary of State for Justice, the hon. Member for South West Bedfordshire (Andrew Selous)—declared himself as
“a firm fan of devolution”.
Having signed over new powers to the mayor of Greater Manchester, he hailed
“a new dawn for the justice system”
that is
“run by locals, for locals”
and is an effective justice system that meets the needs of local people. However, in a reserved power model of devolution for Wales, there is an overriding imperative to keep the control of these matters in Whitehall. Where is the consistency and fair treatment for Wales? If something is good enough for Manchester, surely it is good enough for Wales.
Amendment 122 deals with antisocial behaviour. Whatever the outcome on policing, it is imperative that we do not reduce the Assembly’s existing competence for dealing with antisocial behaviour in devolved contexts. That is why there needs to be an amendment to paragraph 41 of new schedule 7A, which relates to antisocial behaviour. As drafted, the Bill would reserve matters that are currently within the Assembly’s legislative competence, such as antisocial behavioural matters relating to housing or nuisance. That would represent a significant reduction of the Assembly’s existing competence, so the Welsh Government amendment would narrow the reservation to more closely reflect the current situation.
Amendment 123 is on the vexed subject of alcohol. As drafted, the Bill would reserve the sale and supply of alcohol, and the licensing of provision of entertainment and late-night refreshment. The amendment would delete the reservations and allow the Assembly to legislate on those matters.
Alcohol misuse is a major public health issue and a principal cause of preventable death and illness in Wales. It can lead to a great many health and social harm problems, in particular for a significant minority of addicts and people who drink to excess for other reasons. Given those impacts and the direct link with devolved responsibility for public health and the NHS, there is a pressing need to tackle alcohol misuse, so the Assembly and Welsh Government must have the full range of tools at their disposal. Policies that control the way in which alcohol is sold and supplied are widely acknowledged to be among the most effective mechanisms for tackling alcohol-related harms. Regulating the availability of alcohol is an important way to reduce the harmful use of alcohol, particularly by tackling easy access to alcohol by vulnerable and high-risk groups. Licensing controls are an essential tool which must form part of the Welsh Government’s strategy to tackle alcohol- related abuse. The reservations place unnecessary and inappropriate constraints on action to tackle alcohol availability in Wales. Those powers are devolved in Scotland and in Northern Ireland, where similar public health challenges were faced, and they should also be devolved in Wales.
Jonathan Edwards (Carmarthen East and Dinefwr) (PC)
The hon. Gentleman mentions Tryweryn, and it is of course 50 years since Gwynfor Evans won that famous by-election in Carmarthen in 1966. The major stimulus of that great victory that changed Welsh, and, arguably, UK, politics was, of course, the drowning of Tryweryn. Does the hon. Gentleman think it would be a fitting memorial to that great victory by Gwynfor Evans that this Bill finally contains the devolution of water resources to Wales?
Paul Flynn
I think that would be entirely appropriate. The hon. Gentleman reminds us of matters that were subjects of great passion at the time. I believe they did—as many points in history have—concentrate the feelings of those in Wales about their national identity and what was seen to be an injustice against the people of Wales. I remember the events vividly.
Susan Elan Jones (Clwyd South) (Lab)
On the subject of Tryweryn, will my hon. Friend be so kind as to put on record his admiration for Lord Thomas William Jones who was of course at the time the Member of Parliament for Meirionnydd and chaired the action committee? Originally, of course, he was a native of Ponciau as well,
Paul Flynn
I am very happy to record that. It is also worth mentioning that Tryweryn was opposed by every Welsh Member of this House. That opposition was not confined to any one group or party, although there were certain people who led it, as my hon. Friend has suggested. I look back with pride to the time when Labour MPs and peers took part in the early days of establishing a Welsh identity, particularly in the north Wales area. We had a large number of Welsh-speaking Labour MPs here, and they could only dream about a day like today when we are passing the legislation that their generation sadly failed to do, even though they and organisations such as Cymru Fydd were full of high hopes. We are now taking these steps forward, and the dreams of past generations are being fulfilled and honoured.
The scope of the Assembly’s legislative competence in this field is interesting. The Welsh Government are seeking full devolution of water and sewerage to be aligned with the geographical boundary with England, as set out in the Silk report and the UK Government’s St David’s day Command Paper. A joint Governments water and sewerage devolution programme board was set up following the publication of the St David’s day paper to consider the alignment of legislative competence with the national border. The programme focused on the impact on consumers and engaged with the regulator, consumer representatives, the water companies and both Governments. The work of the programme has now concluded, and I understand that the evidence confirms that these changes can be achieved with minimal impact on the consumers of water and sewerage services, so legislative competence for water should be aligned with the national border.
I shall take this opportunity to mention the related aspects of policy on water, including new clause 10 and the amendments to clause 44. Clause 44 would amend section 114 of the Government of Wales Act 2006 by adding to the grounds on which the Secretary of State can intervene to prevent the Presiding Officer from submitting an Assembly Bill for Royal Assent. Section 114 currently allows such intervention if, inter alia, the Secretary of State has reasonable grounds to believe that the Bill contains provisions which might have a seriously adverse impact on water resources, supply or quality in England. The Wales Bill would add to this by allowing intervention if a Bill might have a seriously adverse impact on sewerage services or systems in England.
In the view of the Welsh Government, with which I totally agree, the intervention power in respect of water should be replaced by a memorandum of understanding between the Welsh and UK Governments on how cross-border water issues should be managed. This was also the view of the Silk commission, which recommended that
“a formal intergovernmental protocol should be established in relation to cross-border issues”.
It also recommended that
“the Secretary of State’s existing legislative and executive powers of intervention in relation to water should be removed in favour of mechanisms under the inter-governmental protocol”.
It follows that the Welsh Government are opposed to the proposed extension by clause 44 of these intervention powers to sewerage, and would also wish to see sections 114 and 152 of the 2006 Act amended to remove these intervention powers in relation to water.
Hywel Williams (Arfon) (PC)
The hon. Gentleman has mentioned sections 114 and 152. I should like to draw to his attention our amendment 81, which I hope will be debated later and which I hope to press to a vote. It would remove those sections from the legislation. I do not want to pre-empt the debate now, but I want to give him fair warning that we will be taking that stance, which would achieve precisely the end that he has just described.
Paul Flynn
I am grateful to the hon. Gentleman for pointing that out. We agree with many of the amendments that he and his party have tabled, although we want to have further consultations on some of them. The speed at which the Bill is going through—although very agreeable—means that we have not yet consulted certain groups or individuals. We might not support the hon. Gentleman’s amendments in the Lobby, but we agree with a great many of them. However, we hope to divide the Committee on our amendment 123 later.
Mr David Jones (Clwyd West) (Con)
I will speak briefly to amendment 161 in my name and those of my hon. Friends the Members for Brecon and Radnorshire (Chris Davies) and for Vale of Clwyd (Dr Davies). It would amend schedule 1 to the Bill by reserving the setting of speed limits in Wales and the design of road and traffic signs. The whole purpose of devolution should be to make life not more difficult but easier. We will be debating a great many practical amendments to the Bill this evening and this is one where the practical purpose of devolution would be better served by reserving such competences.
Dealing first with speed limits, I strongly suggest that it would be highly counterproductive for speed limits to differ between England and Wales because the road systems of England and Wales are closely integrated. Every day, many thousands of commuters travel backwards and forwards across the border. At certain times of year, such as holiday periods, there are considerable numbers of visitors from other parts of the United Kingdom and the continent of Europe. Such people are not confined to the principal arterial routes of the M4 and the A55, because several other important routes—going both east to west and north to south—cross the border. I am particularly thinking of the A483, the principal route between Manchester and Swansea that crosses and re-crosses the border at several points, and the A490, another well-known border route. To have different national speed limits at distances of possibly every two or three miles would be at the very least confusing and at the very worst positively dangerous.
The context of England and Wales is different from the context of England and Scotland because the integration of the road network between England and Wales is far closer. Given the practicalities, it makes no sense whatsoever to devolve the setting of speed limits to Cardiff.
Hywel Williams
I am following the right hon. Gentleman’s argument with considerable interest. Is he saying that motorists are unable to cope with speed limit changes that are signalled by appropriate signs? I know of a stretch of road in my constituency where the limit goes from 40 mph to 30 mph to 20 mph and then back to 30 mph and then 40 mph over a distance of about a mile.
Mr Jones
I think it is fair to say exactly that; the hon. Gentleman will remember the former chief constable of North Wales who generated substantial funds out of motorists’ inattention to speed limits. My point is not so much about local speed limits but about national speed limits. It is far more sensible if the national speed limit is set by the Department for Transport in London—if necessary, in consultation with the Welsh Assembly Government. Given that there is such a closely integrated main transport road network between the two nations, it makes no sense to have differential speed limits.
The second point I wish to make is about road signs and I do so principally on the same grounds; as we have such a closely integrated road network, there is the potential to cause considerable difficulty if the Welsh Government were to decide, for whatever reason, completely to redesign road signs. Again, that would be not only confusing, but positively dangerous. The competence for the design of road signs should remain with the DfT in London, although there should be consultation with the Welsh Government.
Hywel Williams
Is the right hon. Gentleman’s contention based on any research? I recall, and so will he, the extensive debate in Wales about having Welsh language road signs or bilingual signs. Research was done on various aspects of that, by the Road Research Laboratory, the AA and various people, and they predicted all kinds of doom should we have bilingual signs. Can he point us to any similar research on road signs or differential speed limits?
Mr Jones
I have no objection whatever to bilingual road signs—they should be positively encouraged. This is not so much about the language as about the design of the signage. Most of our road signs follow standard European norms, although they may not in the future. If we are to have consistency and avoid danger to motorists, we should have consistency in the design of road signage.
Chris Davies (Brecon and Radnorshire) (Con)
My constituency contains roads that traverse both England and Wales. What a pity it would be if our gorgeous countryside was to be littered with even more road signs, up and down those roads, up and down Wales, and up and down the Marches. What a great shame it would be for the visitors who come to Wales for that wonderful experience.
Mr Jones
I am sure we could have fewer signs, although we might have more. My concern is that they should not be so different as to cause accidents on the part of motorists wondering what the heck a sign meant as they passed it. On practicality, there is not a persuasive case being made here; I never really understood the case for the devolution of road signs.
Kevin Brennan (Cardiff West) (Lab)
Is the far more distracting and dangerous thing in country fields not all these Tory posters we get at election time? They cause far greater danger and distraction to motorists than any road signs.
Mr Jones
I have never received anything but praise for Conservative signage, and I received even more praise for the vote leave signs that were notable by their presence throughout Wales.
This is a probing amendment and I do not intend to press it to a vote, but I would be grateful to hear from Ministers the rationale for these two proposals. Let me say again that at the very least they are confusing and at the very worst they have the potential to be positively dangerous.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
I must take this opportunity to congratulate the Welsh team on giving us the brightest, most joyful memories of the past few weeks—it is safe to say that.
I rise to speak to the amendments standing in my name and those of my Plaid Cymru colleagues. They seek to amend schedule 7A of the Government of Wales Act 2006 and, thus, relate to clause 3 of this Bill, which deals with the legislative competence of the National Assembly for Wales. The vast majority of our amendments in this group seek to omit certain reservations from that schedule. The amendments are intended in some cases to restore competence in areas that are already devolved. In others, they are intended to devolve competence to the Assembly in areas that are devolved to Scotland. If the Government are not prepared to give the Welsh Assembly parity with the Scottish Parliament in these areas, we would ask for specific reasons to be given in each instance. Both the Welsh Affairs Committee in this place and the National Assembly’s Constitutional and Legislative Affairs Committee have written reports on the draft Wales Bill, with both calling on the UK Government to provide individual justifications for each of the reservations now contained in schedule 7A. As such, it is a great disappointment to my colleagues and I that the Government have not seen fit to provide us with these justifications. I invite the Secretary of State to explain why the Government have not been forthcoming in this instance. If valid justifications cannot be provided, the Government should amend the schedule so as to omit those areas outlined in our amendments.
Plaid Cymru has not been alone in saying—over many years—that the National Assembly should move to a reserved powers model. Indeed, the independent, cross-party Silk commission made just such a recommendation. Legal experts and much of civil society in Wales, recognise that adopting a reserved powers model should, in theory, provide greater legal clarity and workability. The idea of moving towards a reserved powers model has also been taken in Wales to symbolise a shift in Westminster’s attitude towards the Assembly, because it was assumed to be synonymous with a maturing of relations between the two institutions. Rather than having to justify devolving an area of competence, Westminster would be compelled to justify reserving an area of law; again, that should have represented a significant attitudinal shift, and a recognition of greater parity. The sheer length of the list of reserved areas in schedule 1 has made a mockery of that notion.
It should therefore have come as no surprise to the Wales Office that the original draft Wales Bill was met with such dismay by the Welsh Assembly and by civil society in our nation. The dismayingly long list of reservations, and the way in which the Bill went so far in some cases as to curtail powers already devolved, would fundamentally undermine the Assembly’s competence. It would do the opposite of what was, presumably, intended. Although we are grateful that the previous Secretary of State announced a pause in introducing the legislation, we still believe that schedule 7A shows a paucity of ambition for Wales and her legislature, and that is why we have drafted the amendments in this grouping.
Amendments 83, 86, 110 and 111 should be considered together, as they seek to devolve aspects of the justice system to the Assembly: the legal profession and legal services are dealt with in amendment 110; crime, public order and policing are dealt with in amendment 83; the rehabilitation of offenders is dealt with in amendment 86; and prisons and offender management are dealt with in amendment 111. As has been pointed out in this House on many occasions, and as was championed by my predecessor, Elfyn Llwyd, Wales is the only legislature that has no separate or distinct legal jurisdiction of its own. The matter of a separate legal jurisdiction was debated last week, so I will not repeat my arguments. Although I accept that the Tories fundamentally disagree with the need for a separate jurisdiction, I remain somewhat confused by the position of the official Opposition, who said last week that they supported it but abstained because the Government do not support it. If the official Opposition can only vote in favour of measures that are supported by the Government, they are not well fitted to being the official Opposition. However, given that our amendment was defeated last week, we will use the Report stage of the Bill to bring forward proposals on a distinct, rather than separate, jurisdiction. I hope that the House will be more open to working with us when that time comes.
As is well known, the Silk commission recommended the devolution of policing and related areas of community safety and crime prevention, and my party is resolute in our standpoint that Wales, like the other nations of the United Kingdom, should have responsibility for its police forces.
We are presenting amendment 83 at a time when it is being proposed that policing is devolved to English city regions—Manchester and Liverpool, for example. If the policing of these cities can be held to account in a devolved landscape, why not the policing of Wales?
Hywel Williams
Does my hon. Friend not think it scandalous that there is no provision for women prisoners in Wales? There are very few women prisoners, but they are held in England in Styal and in Eastwood Park outside Gloucester. That causes problems for prisoners’ families, particularly from the west of Wales.
Liz Saville Roberts
Indeed. We are aware that in the north that there is no prison for women or for young offenders. There are many steps afoot, which are to be welcomed, to improve how women who enter the criminal justice system are treated in Wales, alongside imprisonment. HMP Styal is a long way from people’s homes and there must be a better way to deal with offenders’ families.
Mr Mark Williams (Ceredigion) (LD)
The hon. Lady mentioned the rehabilitation of young offenders. Devolution of these matters would support the critical interrelationship between health and education services in making rehabilitation successful. Recognition of that fact is a gross omission from the Bill.
Jonathan Edwards
As always, my hon. Friend is making a compelling case, full of strong arguments. Does she agree that it is slightly ironic that a referendum has just been won by those arguing for the UK to leave the European Union, partly on the basis of democracy and sovereignty, yet here we are, debating a Wales Bill which, compared with the settlement for Scotland and Northern Ireland, seems to deny sovereignty and democracy to Wales?
Liz Saville Roberts
With the Bill we are moving ahead in small steps—inching forward, painfully. I await the time when we will move ahead in a way that grants sovereignty to the people of Wales.
Many of the amendments that I have discussed so far were recommended by the Silk commission, as I mentioned previously. Other amendments in the group include amendment 85, which would remove prostitution from the list of reserved powers; amendment 117, which would remove the reservation of knives; and amendment 109, which would remove the reservation of abortion, to bring Wales into line with Scotland and Northern Ireland. Again, I challenge the Secretary of State to stand up and tell us why he voted for Scotland to have those powers, but is now telling us in Wales that we cannot have equivalent powers.
Amendment 155 is distinct in that it seeks to clarify a reservation contained in schedule 7A, and not to omit it entirely. The amendment would clarify as a reserved matter “the Crown Prosecution Service”, rather than the broader term “prosecutors”, as currently drafted. This amendment is crucial, as the existing wording of the schedule could prohibit Assembly legislation from enabling devolved authorities, such as local authorities and Natural Resources Wales, to prosecute. I hope that the Government will take note of this distinction and amend the schedule accordingly.
Amendment 156 would remove the necessity test in relation to the law on reserved matters. The test of necessity is objectionable on grounds of clarity and workability, as it is capable of a number of different interpretations. One possible interpretation is extremely restrictive and would represent a reduction in the Assembly’s current competence. The difference between a “reserved matter” and the “law on reserved matters” is explained in paragraphs 409 to 411 and 413 and 414 of the explanatory notes to the Bill.
The notes give the example of an Assembly Bill which related entirely to planning, which is not a reserved matter, but which modified a provision of a UK Act concerning telecommunications. That modification might be within the Assembly’s competence, as its purpose might relate entirely to planning, and so it would meet the test set out in new section 108A(6) of the Government of Wales Act 2006, inserted by clause 3. However, by modifying a provision of a UK Act of Parliament, which concerned a reserved matter, it would modify the “law on reserved matters”. The Assembly should be able to do so in a purely ancillary way, without also having to show that the modification made has
“no greater effect…than is necessary”.
An equivalent to the Bill provision is contained in the Scotland Act 1998. However, in the context of the Scottish devolution settlement, it is much less restrictive, as the Scottish Parliament has competence over considerably greater fields, including, of course, justice matters, and the Scottish system of civil and criminal law. Therefore, what might appear to be wider latitude for the Assembly would in practice still amount to narrower competence than that of the Scottish Parliament.
Amendment 157 would remove the criminal law restriction in paragraph 4 of schedule 7B and replace it with a restriction which provides that the Assembly cannot modify criminal law unless that is for a purpose other than a reserved purpose. It reflects the Assembly’s current competence—that is, the criminal law is a silent subject, and the Assembly can modify the criminal law if it relates to a devolved subject, or if the modification is ancillary. The Assembly, therefore, could not modify the criminal law if it was for a reserved purpose, thus protecting the criminal law around the 200 or so reservations in the Bill. The amendment would also make it clear that the Assembly could not modify the criminal law for its own sake: there must be a devolved purpose behind the modification of the criminal law. It would align the criminal law restriction with the private law restriction in paragraph 3 of schedule 7B. This would provide consistency and clarity.
I have already spoken of my party’s dismay that the Bill threatens in places to dilute, rather than augment, the legislative competence of the Assembly. In this vein, a number of the amendments in this group seek to clarify the Assembly’s powers in relation to its internal functions, as well as its overall competence to legislate. Amendments 148 and 149 seek to restore the Assembly’s competence closer to its current level. Currently, the Assembly is able to affect, in a minor way, matters that are listed as exceptions from competence in schedule 7 to the Government of Wales Act 2006. Most of these exceptions have been converted into reservations in the proposed new settlement—for example, consumer protection. However, under the new settlement, the Assembly would have no competence to legislate in a way that touches on reserved matters at all.
The Assembly can currently legislate in relation to “silent subjects”—that is, topics that are not listed either as subjects of competence, or as exceptions from competence, in schedule 7 to GOWA. The Assembly can do so only where it is also legislating on a subject that is specifically devolved by schedule 7. Many of these silent subjects—for example, employment rights and duties—have been converted into reservations in the Bill. The amendment would restore the Assembly’s competence to affect those topics in a purely ancillary way. However, that ancillary competence would still be narrower than the Assembly’s present competence to legislate on “silent subjects” when that legislation also relates to expressly devolved subjects.
In an attempt to allow the aforementioned institution to have control and oversight over its law making, amendment 6 would give the Assembly the power to consolidate, in both English and Welsh, the statutes containing the current constitutional settlement affecting Wales. No matter what our position on empowering the Assembly, I am sure we can all agree that it is important, whatever settlement we have, that that settlement is easily understood. It is disappointing that this Bill does not consolidate all existing legislation, but the amendment would allow the National Assembly to do that, in the interests of clarity. It would not allow the National Assembly to go beyond current legislation and broaden its competence.
Amendments 34 to 37 would amend paragraph 7 of schedule 2, which sets out the sections of the Government of Wales Act 2006 which the Assembly will have competence to modify. Paragraph 7(2)(d) specifically refers to those sections of part 5 of the 2006 Act which are amendable without restriction. As it stands, this does not include the ability to amend sections 120(1) or 124(3) of the Government of Wales Act 2006 which provide for “relevant persons”—otherwise known as “direct funded bodies”—which receive funding directly from the Welsh consolidated fund. That means, for example, the Welsh Government, the Assembly Commission, the Auditor General and the public services ombudsman for Wales.
Amendments 35 and 36 would allow the Assembly competence to add to, but not remove from, the list of “relevant persons”. It would allow it to enable a body that is independent of the Welsh Government also to be financially independent where that is deemed appropriate. Any use of such competence to add to the “relevant persons” would require an Act of the Assembly.
Paragraph 7 of schedule 2 provides that the remaining provisions of part 5 of the Government of Wales Act 2006 are amendable where the amendment is incidental to or consequential on a provision of an Act of the Assembly relating to budgetary procedures, and the Secretary of State consents to that amendment. I see no reason why the consent of the Secretary of State should be required to an amendment that will have no impact beyond the Assembly’s financial procedures, so amendment 37 removes that requirement.
On the remaining amendments in this group tabled in my name and the names of my hon. Friends, as I have already said, the majority of these amendments highlight areas of competence that are devolved to the Scottish Parliament, yet for some unstated reason are being reserved to Westminster in the case of Wales. No justification has been given for reserving those matters. Consequently, I shall list a number of amendments: 84, 87, 88, 90, 91, 92, 93, 94, 95, 97, 98, 106 and 103. I give the amendment numbers for a reason. It feels like the Secretary of State is allowing Whitehall to pick and choose the powers it wants to hold on to. We argue strongly that he must draw up a list of reservations based on principles. These reservations make no practical sense and the absence of principle is obvious. They range from the reservation of dangerous dogs to hovercraft, sports grounds and health and safety. We need a reason why those areas should be reserved.
In addition, there are amendments 105, 107, 104, 112, 113 and 89, which is on Sunday trading and safeguards the long-standing tradition in Wales of protecting shop workers’ terms and conditions, and amendments 114 and 115. Over and above that, Plaid Cymru has long argued that Department for Work and Pensions functions should be devolved to the Assembly. Thus amendment 100 would devolve all working age benefits that are to be replaced by universal credit and any benefit that is introduced to replace universal credit. Amendments 101, 102, 108 and 99 all relate to those areas of DWP functions that we have long argued should be devolved.
Amendments 96, 61 to 63 and 69 deal with the newly created Welsh harbours of “reserved trust ports”. Once again, this creation has no justification. A port will now be devolved unless it has a turnover of above a certain threshold. Again, that is the case not for Scotland or Northern Ireland, but only for Wales. It is yet another example of Westminster holding on to as much power as possible while appearing to be offering significant devolution. Once again, I challenge the Secretary of State to tell us why this is necessary in Wales, when he voted to devolve full control to Scotland.
Amendment 2 is consequential on new clause 1, which seeks to devolve Executive and legislative competence of the Crown estate in Wales to the Welsh Government and the National Assembly for Wales, as has been done in Scotland. New clause 7 would devolve general legislative competence in respect of agricultural, aquacultural and fisheries levies. Again, those are areas that Plaid Cymru has long argued should be devolved to the National Assembly.
Before I come to a close, I wish to note concerns expressed to me by the Welsh language commissioner regarding the Bill’s potential effect on the National Assembly’s powers to legislate in matters concerning the Welsh language. A possible effect of schedule 2 is that the National Assembly, should it wish to legislate for the Welsh language, would require the consent of the relevant UK Minister to confer, impose, modify or remove within that legislation the Welsh language functions of Ministers of the Crown, Government Departments and other reserved authorities. Under the current settlement, that ministerial consent is required only when legislating to impose Welsh language functions on Ministers of the Crown. The ministerial consent provisions of the Wales Bill in relation to the Welsh language would appear to be applicable to a wider range of persons than is currently the case, and would thus be more restrictive. I hope that that can be considered in the later stages of the Bill.
The amendments in this group should not be considered as mere separate, distinct “tweaks” to the Wales Bill. Rather, we present them as a collection of amendments, which, by their sheer number, make evident the many ways in which the current proposed legislation is deficient. No justification has been given by the Government as to why these many policy areas have been reserved, and no justification has been given as to why the Welsh Assembly should not be granted the same competence as the Scottish Parliament in these areas.
Dr James Davies (Vale of Clwyd) (Con)
Although I have misgivings about a number of elements of this Bill, I wish to speak very briefly on amendment 161, which addresses the proposed transfer of powers over national speed limits from Westminster to Cardiff Bay. I have already spoken about this issue during the pre-legislative scrutiny of the Welsh Affairs Committee and also at the Welsh Grand Committee.
To be clear, the power to set specific speed limits, such as 20 mph zones outside schools, or 40 mph or 50 mph zones as preferred for reasons of safety, quite rightly already lies with local authorities and the Welsh Assembly Government. As it stands, the Wales Bill proposes transferring powers over national speed limits. Those include 30 mph speed limits in built-up areas and 60 mph limits in non-built-up areas, and of course a 70 mph limit on dual carriageways and motorways. In my mind, those are etched on the brains of all of us via the Highway Code, and, in the absence of any signage, they are usually clear, based on the type of road.
We all live on a small island, and more than 200 roads straddle the England and Wales border. In the case of many smaller roads, the border is not, at present, marked by any signage at all. In some cases, the border cuts across housing estate roads, or even runs lengthwise along roads and splits them in half. Roads across the UK are essentially subject to the same safety criteria as vehicles. Taking all that into account, it is clear to me that the prospect of additional different national speed limits in England and Wales simply would be neither desirable nor realistic.
Hywel Williams
The hon. Gentleman describes the complexity of the border in some areas, but does he have no confidence in the Welsh Assembly to administer different speed limits sensibly?
Dr Davies
It is perfectly possible that it can be done, but I just do not see the point. It would create extra confusion, and there would be a plethora of signs at the border where currently there is none. There would also have to be a huge information exercise, which would, in many cases, fail to get to the users of those roads.
Welsh devolution was meant to improve the lives of people, but it is very difficult to see how the devolution of a national speed limit, among other items in the Bill, would bring that about. It surely needs to be accepted that this is a matter most sensibly overseen at UK level. I respectfully urge the Government to reconsider.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
It is a pleasure, Mr Hoyle, to serve under your chairmanship today.
I wish to speak specifically in support of amendment 124 in the name of my right hon. and hon. Friends. I know that a number of Members wished to add their name to the amendment. It does not look as though that has been done, so I wanted to make it clear that it has my full support.
The amendment relates to the experience that many of us had during the passage of the Trade Union Bill. We had extensive discussions around the relative competence of devolved Administrations and the UK Government over trade union and industrial relations and employment matters that related to devolved public services. I want to draw a very clear distinction here. I am not in favour of having some sort of potential beggar thy neighbour approach on employment and industrial relations across these islands. It is important that there are common standards and provisions that do not go into some sort of race to the bottom. I also believe in the Welsh Government and the Welsh Assembly having full power over the partnerships and industrial relations practices that they choose to pursue in areas where there is clear devolved competence such as in the public services, particularly in health and education, but also in other areas.
During the passage of the Bill, the Government regularly used the excuse that they were not interested in the positions of the Welsh Government, the Scottish Government or other Governments on issues such as check-off and facility time in the public services because those were exclusively reserved. However, the Welsh Government, the Scottish Government and others made it clear that they did not believe that this Parliament and the UK Government had full legislative competence in those areas, particularly in relation to the administration of public services.
That is crucial, because the Welsh Labour Government have pursued a different approach to industrial relations, which has led to an absence of some of the strikes and industrial disputes we have seen in other parts of the UK, and we had a clear example in the health service. The Welsh Government have taken a sensible partnership approach with the trade unions and a sensible approach to issues such as facility time and check-off. They have properly recognised the importance of those things, and particularly of partnership working, as opposed to the confrontational approach taken by the Government in Westminster at various points, and I would not want to see that undermined in any way.
Amendment 124 therefore makes it clear that the Assembly would retain its legislative competence over terms and conditions of service for employees in the devolved public services and over industrial relations in those services. That is entirely reasonable. This is not about a complete devolution of these issues—it is important that we retain common standards—but about taking a sensible approach and allowing the Assembly to handle relationships in, for example, the Welsh NHS, our schools and our further education institutions in the more positive and constructive way they have done.
The amendment would also enable the Welsh Government to take the action they clearly want to, without people resorting to the courts, as we have seen on other matters. The UK Government famously took the Welsh Government to court over the Agricultural Wages Board, which was a wholly foolish decision. The Welsh Government were trying to take a different approach—the right approach—but the UK Government wanted to waste tens of thousands of pounds of taxpayers’ money attempting to sue the Welsh Government. That is why, in areas such as this, we have to have a clear distinction in legislation, and why we should not attempt to hamstring devolved Administrations in areas where they have clear competence. In that way, we can avoid the resort to the courts and the expending of public money that would otherwise occur.
The amendment has the support of many of the trade unions in Wales, which have practised the different type of industrial relations I described, and I declare my interest as a proud member of the GMB, which is very supportive of the amendment. I hope the Government will accept that there is a clear distinction here and that there is a clear place for these responsibilities in relation to the public services where Wales has taken a different route. I therefore urge the Government to accept the amendment.
Mr Mark Williams
It is good to have this opportunity to say a few words about this mammoth group of amendments. I want to speak in support of a range of amendments to schedule 1 that remove certain reservations. I endorse amendment 83, on policing; amendment 112, on antisocial behaviour; amendment 84, on dangerous dogs; amendment 85, on prostitution; amendment 86, on the rehabilitation of offenders; amendment 117, on knives; amendment 123, on entertainment and late-night refreshment; amendment 116, on licensing; amendment 87, on the sale and supply of alcohol; the amendments on water and sewerage; amendment 89, on Sunday trading; amendment 90, on electricity; amendment 91, on coal; amendment 92, on heating and cooling; amendment 93, on energy conservation; amendment 94, on road transport; amendment 161, on speed limits; amendment 95, on rail services; amendment 141, on trust ports; amendment 97, on coastguards; amendment 98, on hovercraft; amendment 114, on the Children’s Commissioner; amendment 115, on teachers’ pay; amendment 113, on time; and amendment 112, on equal opportunities.
When I last read out the list of reservations in the Welsh Grand Committee, when we had the ill-fated draft Bill, it was somewhat longer, and I was saved from hyperventilation only by the right hon. Member for Clwyd West (Mr Jones), who helped me out. The Government should therefore be praised and congratulated to a small degree on reducing the length of the list of reservations, which is what the Select Committee said they should do.
I will not go too much into the specifics of the amendments, other than to say that I still question whether there was a write-around to various Departments. Who was calling the shots on the different subjects? Was it the former Secretary of State and his team? Was it our friends in the Assembly Government? Was it officials and Ministers in other Departments? Like my neighbours from Plaid Cymru, I would like to see the justification for the reservation list as it has been presented.
I was fully aware of the St David’s process. We looked through Silk systematically, and we looked at every one of Silk’s recommendations. If there was a consensus between the four parties, we would proceed; if there was not, we would not. However, in either eventuality, officials would go away and talk to Departments, so my hunch—my suspicion—is still that certain Departments were involved, not least the Department of Justice, given the discussions we had when we previously sat in Committee on a distinct or separate jurisdiction, and it is great to hear that, on Report, we will be discussing the need for a distinct jurisdiction in a way we did not then.
If these powers—these reservations—were controlled in Wales, would that mean the unravelling of our constitutional arrangement? Would it mean the end of the Union if we devolved the power over hovercraft, time or the Children’s Commissioner? Should there not be a principle—I suggest there should be—that if something is good enough to be devolved to Northern Ireland and Scotland, it should be devolved to Wales as well? Better still, perhaps we should have started from the principle that all powers are devolved and that it is the duty of the Wales Office and Westminster to argue the case for reserving them to Westminster. Whitehall would not have had a difficult time—from some of us at least, and I part company with my friends in Plaid Cymru on this —convincing us that defence should be reserved. However, I would love to hear the argument for why most of these other powers are still being reserved to this place.
Many of these items were referred to in Silk—for instance, ports and their development, harbour orders and the oversight of trust ports. There is no mention in Silk of reserved ports at Milford Haven. Silk also talked about speed limits and drink-driving limits. I respect those hon. Members who moved amendment 161, but they should have more faith in their Front Benchers, in the Department for Transport and, indeed, in our friends in the Cynulliad. I remember sitting, as the Liberal, in the St David’s day discussions at Gwydyr House, and the Conservatives, the Labour party and Plaid Cymru were all united on the Government’s suggestion. Members must have more faith in members of their own parties.
Silk talked about water and sewerage. He asserted that they should be devolved, but that the boundary for legislative competence should be aligned with the national boundary—a tall order indeed. He called for further consideration of the practical issues of alignment, with particular interest given to the interests of consumers, and for discussions with the regulator, consumer representatives, water companies and both Governments. When we discussed these matters, it was agreed that, to get consensus between the four parties, a joint Government water and sewerage devolution board would be established to consider aligning legislative competence with the national border. That work has now concluded, and I would be grateful to hear the Government’s interpretation of the conclusions. Is it not true that the conclusions that have been reached could be enacted with minimal impact on the consumers of water and sewerage services? Why, therefore, have this reservation?
I want to talk specifically about teachers’ pay and conditions. The issue is dear to my heart because I was a teacher before coming to this place. I taught in England and in the great county of Powys—indeed, I taught in the great constituency of Brecon and Radnorshire, at an excellent school called Ysgol Llangorse. I had a seamless move across the border from England into Wales, and I was able to benefit from remaining on the same teaching pay spine—it must be said that I had a bit of a promotion at Llangorse, for which I was very grateful—with the same conditions. I should also say, although not to infuriate friends on the Conservative Benches, that I remain a very proud member of NASUWT and pay my subs regularly.
Mr David Jones
As a matter of pure interest, which of the current bank holidays would the hon. Gentleman propose to dispense with in order to create one on St David’s day?
Mr Williams
I remember the right hon. Gentleman making that point in a previous Westminster Hall debate. I am not going to make that judgment because it is for the National Assembly. When the Under-Secretary responded to my debate, he talked about a review, but regrettably its results were parked in the proverbial long grass and are now in a cul-de-sac. This is a matter not for me, the right hon. Gentleman or the rest of us sitting on these green Benches, but for colleagues and friends in the Cynulliad.
Mr Williams
Without digging into the depths of the argument, I have made the position clear. Let the tourist industry make its representations to Ministers in our Cynulliad in Cardiff, not here. Let us not sit here, viceroy-like, dictating to the National Assembly. We should let the Assembly have that discussion with the tourist operatives, with the responsible Minister engaged with them, and then it can make the decision. It is a decision not for the right hon. Gentleman and me, but for our friends in the Assembly. That is what devolution means.
I want briefly to talk about policing. Silk said that:
“policing and related areas of community safety and crime prevention should be devolved”.
I must describe—I do not know whether Chatham House rules applied to our discussions in Gwydyr House, but they probably did—the genuine shock and anguish that was felt when we reported back on this matter to our National Assembly colleagues. Two of us from each party were sitting in an office somewhere in this House that I had never been to where big board meetings happen. There was shock and dismay that matters of youth justice were not, as recommended by the Silk commission, followed through in the St David’s day document. I understand how the Government have reached this position, and how the process was set in train when they talked to their colleagues in the Ministry of Justice, but that does not negate the case. Youth justice, of all issues, given its links between education, skills and health as part of rehabilitation, was not followed through in a devolutionary way.
I will now conclude my remarks, although such is the list of reservations that we could go on for hours. I hope that the Minister will respond to some of the concerns that many of us still have about the list, slightly shortened though it is.
Susan Elan Jones
One could talk about a lot of aspects in the Bill, as we know, because at one time or another most of us have done so. I will therefore concentrate on one particular amendment: amendment 123, which has been signed by my hon. Friend the shadow Secretary of State and others, which concerns the devolution of licensing of the provision of entertainment and late-night refreshments, and the sale and supply of alcohol.
My hon. Friend is a great scholar of Welsh history, so I am surprised that he did not mention that the first Wales-only legislation came with the Sunday Closing (Wales) Act 1881. That means that there is real sense of history behind this amendment. Most of us would agree that it makes perfect sense to devolve such provisions to the Assembly’s legislative competence so I, for one, strongly support the amendment. We must recognise that there needs to be a greater debate about this whole subject, because alcohol abuse has relevance to health services as well as local government services. We are not living in the days of the 1881 Act, following which areas voted on whether to be wet or dry. People from dry areas would often travel a little further along the lanes to get to a wet area. However, we are now dealing with problems of alcohol abuse and of pre-loading in many of our communities. Years ago, the mudiad dirwest—the Welsh temperance movement—would often decry other cultures and say, “Fancy the French—they give wine to their children!” In reality, alcohol and food have always gone together naturally in many continental cultures, but that is not the case with pre-loading. We need to think about that very seriously indeed.
We also need to consider our rural areas. I am sure that all of us take very seriously issues relating to drink or drug-driving. Those of us who represent rural and semi-rural areas will know from talking to our constituents and others that some people still take chances on country roads and drive when they are above the legal limit. I appreciate that the culture has changed for the better in many ways and that fewer people do that, but it is still a problem in many of our rural communities. Frankly, if someone in a car finds themselves on a narrow single lane faced by a drink-driver, their chances of survival are fairly low.
Devolving the relevant powers would affect how we consider health, social care and local government provision. Great problems are connected to alcohol and drug abuse. I do not wish to sound like a member of the Committee that considered the 1881 Act, because I think that many of us welcome wine, real ale and the conviviality provided by food and drink, but we do not welcome alcohol or drug abuse. We would, however, welcome sensible devolved provisions to make tackling those problems easier.
The Secretary of State for Wales (Alun Cairns)
It is a pleasure to welcome you to the Chair, Mr Hoyle, and to respond to Members’ comments about the amendments. I echo what was said about the Welsh football team. The Prime Minister has already congratulated them, and it is a pleasure for me to do so as Secretary of State for Wales.
The amendments go to the heart of the new devolution settlement for Wales that the Bill puts in place. Clause 3 and schedules 1 and 2 insert new section 108A and new schedules 7A and 7B into the Government of Wales Act 2006 to provide for a reserved powers model of Welsh devolution. The Bill devolves significant new powers and will enable the Welsh Government and Assembly Members to legislate on the things that really matter to Wales.
Clause 3 sets out the parameters of the legislative competence of the Assembly under the reserved powers model. An Act of the Assembly will be outside competence—it therefore will not be law—if it falls foul of any one of the five tests set out in paragraphs (a) to (e) of new section 108A(2). I will first say something about how it is intended that each of those tests will work before turning to the proposed amendments to the clause.
The five tests are separate and independent assessments, each of which must be satisfied for a provision to be within competence. The first test is that an Assembly Act provision cannot form part of a legal jurisdiction other than that of England and Wales. We debated many aspects of that during our first day in Committee.
Test 2 is that an Assembly Act provision cannot apply
“otherwise than in relation to Wales”.
There is an exception to that prohibition, however, because new section 108A(3) states that an Assembly Act provision can apply beyond Wales, but only when it is ancillary to a provision that is within competence and if there is no greater effect beyond Wales than is necessary to give effect to that provision. It is worth noting that we have used the word “ancillary” as shorthand for the Assembly’s existing enforcement and consequential-type powers under section 108(5) of the Government of Wales Act 2006.
Liz Saville Roberts
I appreciate that the right hon. Gentleman has listed a number of tests, but does he agree that, for them to be justifications in a reserved power model, we should see how the reservations apply to each area?
Alun Cairns
I will cover those points, but I have sought to underline the importance of the tests because they are so fundamental to the reserved powers model. Of course, the reservations will be equally fundamental. The hon. Lady mentioned a significant number of them. As I make progress, I will cover many of the points she made and invite her to intervene then.
Amendments 118 and 119, tabled by the main Opposition party, and Plaid Cymru’s amendments 148 and 149 seek to broaden the Assembly’s competence significantly by enabling it to legislate in relation to reserved matters so long as the provision is ancillary to a provision on a devolved matter. These amendments would drive a coach and horses through the key principle underpinning the new model, which is a clear boundary between what is devolved and what is reserved. They would give the Assembly the power to make unfettered changes to reserved matters such as the justice system, which we debated in detail last week, provided only that some connection to a devolved provision was established. What is more, they are simply not needed. We want to ensure that the Assembly can enforce its legislation and make it effective. We provide for this in paragraphs 1 and 2 of new schedule 7B by enabling the Assembly to modify the law on reserved matters. This is suitable to ensure that the Assembly’s devolved provisions can be enforced without compromising the principle of reserved matters.
I turn now to the proposed new schedule 7A to the Government of Wales Act, which sets out the reserved matters, referred to in general in the legislation as the “reservations”. These matters must be seen through the prism of the purpose test. A reservation is a succinct description of the subject area covered. It includes reserved authorities carrying out functions relating to that subject and criminal offences relating to that subject.
The general reservations in part 1 of the new schedule reserve the fundamental tenets of the constitution: the Crown, the civil service, defence and the armed forces, the regulation of political parties, and foreign affairs. As a single legal jurisdiction operates in England and Wales, we also reserve matters such as courts and non-devolved tribunals, judges, and civil and criminal proceedings. However, we have made appropriate exceptions to these reservations to enable the Assembly to exercise devolved functions. For example, the Assembly can confer devolved functions on the courts or provide for appeals from devolved tribunals to reserved tribunals.
Amendment 6, tabled by Plaid Cymru, seeks to modify these core reservations by allowing the Assembly to consolidate the constitutional arrangements for Wales. It surely must be a fundamental principle that the UK’s constitutional arrangements, including Parliament’s authority to devolve its own powers, are reserved. We have a constitutional settlement for Wales, the Government of Wales Act 2006 as amended, and amendment 6 is simply not necessary.
Part 2 lists the specific reservations. We want there to be no doubt where the boundary of the Assembly’s legislative competence lies. The list is lengthy because it is quite specific in its reservations and provides exceptions to those reservations. Previously, in the draft, there were some broad headlines, but the current Bill is far more specific, which necessitates further detail on what is included.
Jonathan Edwards
During this afternoon’s debate, the Secretary of State has been challenged on many of the reservations listed in part 2. In the interests of transparency, and before we get to the remaining stages of the Bill, will he commit the Wales Office to publishing a document outlining why each reservation has been made?
Alun Cairns
The hon. Member is aware that I have an open style and am happy to maintain dialogue and work with all opposition parties, as well as with the Welsh Government, in seeking to come to an accommodation. However, hovercrafts, for example, have been highlighted a couple of times. That reservation relates to technical standards and is about a distinct class of transport, such as ships in relation to shipping and planes in relation to aviation. Therefore, although, on the face of it, one might ask what the purpose of a reservation is, very often there are technical issues well beyond that. I am happy to continue a dialogue in that respect, as we continue to do with the Welsh Government.
Paul Flynn
Will the right hon. Gentleman consider breaking the pattern we have had of passing Wales Bills and, then, five years later, coming back to try to undo the damage we have done with the previous Bill? Will he accept the spirit of unanimity on this side of the Committee when we point out the problem with many of these reservations? Take, for instance, the reservation on dangerous dogs, as was mentioned by the hon. Member for Ceredigion (Mr Williams). If there is any issue on which this Parliament has proved its legislative incompetence over the years it is the Dangerous Dog Act 1991. That is an example of how not to legislate. Wales could do better perhaps.
Alun Cairns
The hon. Member is well aware that 90% of the Welsh population live within 50 miles of the border between England and Wales. Clearly, some reservations are sensible so that people can walk their dogs across that boundary; otherwise, it could lead to significant complications. The hon. Member raised that specific practical example, and I am happy to maintain the dialogue on that.
Mr Hoyle, you would not believe it, but the vast majority of reservations are not contentious. They simply reflect those areas of policy that are best legislated on a Wales basis or at a UK level, and the further powers that are being devolved in the Bill. Constructive discussions on the reservations will continue between the UK Government and the Welsh Government, and, happily, with Opposition Members. I recognise that some reservations reflect the difference in policy between us. Others are subject to further detailed discussions, which I am happy to continue. In the context of the purpose test, the list of reservations before us today will ensure greater clarity and certainty in determining what is within the competence of the Assembly and what is not.
I turn now to the amendments to schedule 1.
Hywel Williams
The Secretary of State says with a flourish and extreme confidence that the list of reservations is sensible. If so, why is he so reticent about publishing his reasoning? He asserts, but he does not explain.
Alun Cairns
The hon. Gentleman will know that I am happy to continue open dialogues. As Secretary of State, that is the style I have sought to use, to build on that set by my predecessor. I hope that the hon. Gentleman will want to continue working in such an open and constructive way.
Alun Cairns
I would like to make further progress, if I may.
A whole host of amendments have been tabled in relation to policing and justice. The St David’s day process found no consensus to devolve the criminal justice system in Wales. The Government gave a clear manifesto commitment that policing and criminal justice will remain reserved. In our first day in Committee last week, I made clear the Government’s commitment to maintain the single legal jurisdiction of England and Wales. Crime, public order and policing are inextricably linked to the criminal justice system. There already exists an All Wales Criminal Justice Board, which consults fully with the Welsh Government and extends to prison provision. The Welsh Government are also in regular dialogue with the National Offender Management Service about its functions.
Amendment 116, tabled by Plaid Cymru, and amendment 87, tabled by Labour, seek to remove the reservations for late-night entertainment and alcohol licensing respectively. There was much debate within this group surrounding this. The Government consider both subjects to be closely connected to policing and maintaining public order. Given that policing and criminal justice remain reserved matters, late-night entertainment and alcohol licensing should also be reserved under the principle that has been established.
Amendment 155, tabled by Plaid Cymru, seeks to reserve “the Crown Prosecution Service” rather than “prosecutors” in the general reservation on the single legal jurisdiction. There is no intention to prevent the Assembly from continuing to specify devolved prosecutors for devolved offences in the legislation. The reservation of prosecutors would not prevent the Assembly from legislating to, for example, make local authorities in Wales the prosecuting authority for particular devolved offences, as was highlighted by the hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts). I agree, however, with the underlying policy intention of the amendment and will consider further, before Report, whether the reservation of prosecutors should be modified. I am happy to return to this at that stage.
Government amendments 53 to 58, tabled in my name, seek to put Wales in the same position as Scotland in respect of the reservations in C5, which reserves all prohibition and regulation of imports and exports in and out of the United Kingdom. It does, however, allow the Assembly to control movements of certain things, such as plants, animals, foods and fertilisers, for specified purposes. The amendments seek to put the Assembly in the same position as the Scottish Parliament by extending its competence to regulate movement of these things both within Wales and in and out of Wales.
Significant attention has been given to transport reservations, with a number of amendments being tabled by both Plaid Cymru and the Labour party. The transport reservations were subject to close scrutiny when the Bill was at a draft stage, and there is no basis on which to devolve railway services, coastguard services or aspects of road transport, as the hon. Member for Arfon (Hywel Williams) proposes. It is not what the Silk commission recommended, and my focus has been on delivering powers for a purpose.
Mr David Jones
The Secretary of State mentioned the Silk commission’s recommendations, but he will recall that I asked for the rationale. I wonder whether he could explain it, please.
Alun Cairns
I am happy to explain that given that local authorities already have the power to vary speed limits, it is a logical, sensible extension to give further powers to the Welsh Government in this area.
Time does not permit me to address in detail all the remaining amendments to schedule 1. That is in part because hon. Members from Plaid Cymru seem to seek the devolution of just about everything, and they seem to want to reverse the principles on which the Bill is based. I am pursuing a pragmatic, practical approach as we amend and develop the Bill, so I reject the amendments to devolve Sunday trading, the generation, transmission, distribution and supply of electricity, coal, heat and cooling networks, energy conservation, working-age benefits, child benefit, guardians allowance, most employment and industrial relations, employment support programmes, abortion, health and safety, broadcasting, safety at sports grounds, equal opportunities, bank holidays and the Children’s Commissioner.
Amendment 124, which was tabled by the hon. Member for Newport West (Paul Flynn), seeks to carve out from the employment reservation terms and conditions of employment in relation to Wales public authorities. The Government believe strongly that the underlying legislative framework of rights and responsibilities in the workplace must be reserved for the labour market to work most effectively across Great Britain.
Stephen Doughty
Does the Secretary of State accept that, as a Minister told me during proceedings on the Trade Union Bill, the reserved powers granted under the legislation effectively allow any Minister in the UK Government to undermine a partnership or industrial relations decision made by a Welsh Minister in the running of the Welsh NHS or the education service, for example?
Alun Cairns
The hon. Gentleman will be familiar with the legislative background of the Government of Wales Act 2006, and the Bill seeks to expand on the 2006 Act in relation to employment rights. There was no intention in that Act to devolve those purposes, and we have continued the principle that was well established by the previous Labour Government.
I shall deal with amendments on three further areas. First, in relation to amendment 88, which was tabled by members of Plaid Cymru, and amendments 127 to 129 and new clause 10, the Government are considering the conclusions of the joint Governments’ programme board in relation to the Silk recommendations on water and sewerage. The joint committee reported only a couple of weeks ago, and it is only appropriate that the Government give proper, full consideration to that report. I hope that we can find a consensus among the Welsh Government and the opposition parties on a way forward, but there are a whole range of technical issues that need further consideration.
Secondly, in response to amendment 107, I assure the hon. Member for Arfon that the Assembly will have the competence to legislate in relation to party election broadcasts at Assembly and local government elections in Wales. Party political broadcasts are considered to be part of the conduct of elections, and there is no need to modify the broadcasting reservation to achieve that. Thirdly, on amendment 115, which relates to teachers’ pay, I am in principle in favour of devolving teachers’ pay and conditions, but there is a case for further discussions between the UK Government and the Welsh Government about how that can best be achieved.
Finally, new clause 1 and consequential amendment 2 are intended to devolve the management functions of the Crown Estate commissioners in relation to Wales to Welsh Ministers or to a person who is nominated by them. That broadly reflects the provisions in the Scotland Act 2016. The devolution of the Crown Estate in Scotland was recommended by cross-party consensus in the Smith agreement but, as hon. Members know, the St David’s day process found no similar consensus in respect of Wales.
Paragraph 1 of proposed new schedule 7B to the Government of Wales Act 2006 will prevent an Assembly Act from modifying the law on reserved matters. Paragraph 2 will provide flexibility for an Assembly Act provision to be able to modify the law on reserved matters, where doing so is ancillary to a provision that does not relate to a reserved matter and there is no greater effect on reserved matters than is necessary to give effect to the purpose of the provision. The restriction relating to the private law in paragraph 3 and the restriction concerning the criminal law in paragraph 4 are intended to provide a general level of protection for the unified legal system of England and Wales while enabling the Assembly to enforce its legislation.
The protected areas of private law include core subjects such as the law of contract and property. However, the Assembly is given the power to modify the private law where the purpose of doing so does not relate to a reserved matter. Importantly, the Assembly is not permitted to modify the private law for its own sake and cannot make wholesale changes to the private law, such as the wholesale rewriting of contract law. Any modification of the private law must be for a range of devolved purposes.
On the criminal law side, in paragraph 4 the serious offences protected from modification include treason, homicide offences, sexual offences and serious offences against the person. It is right that these serious offences remain consistent across the UK. In addition, the Assembly will not be able to alter the law that governs the existing framework of criminal law, such as sentencing and capacity to commit crimes.
I am conscious of the fact that a whole host of issues have been raised, so I will conclude. This has been a full and wide-ranging debate. I hope I have been able to assure the Committee that the reserved powers model will provide a clear, robust and lasting devolution settlement for Wales. I urge Opposition Members to withdraw amendment 118.
Paul Flynn
We will press amendment 123 to a Division, but I beg to ask leave to withdraw amendment 118.
Amendment, by leave, withdrawn.
Clause 3 accordingly ordered to stand part of the Bill.
Schedule 1
New Schedule 7A to the Government of Wales Act 2006
Amendment proposed: 83, page 47, line 32, leave out Section B5. —(Liz Saville Roberts.)
This amendment removes the reservation of crime, public order and policing from the list of reserved powers.
Question put, That the amendment be made.
The Parliamentary Under-Secretary of State for Wales (Guto Bebb)
I beg to move, That the clause stand part of the Bill.
The Temporary Chair (Sir Alan Meale)
With this it will be convenient to discuss the following:
Clauses 23 to 27 stand part.
Amendment 74, in clause 36, page 29, line 17, leave out from “wind” to end of line 18.
This amendment removes the 350 megawatts limit on the Welsh Government’s legislative competence in the field of energy.
Amendment 75, page 29, line 21, leave out from “zone” to end of line 22.
See amendment 74.
Amendment 76, page 30, line 2, leave out paragraph (c).
This amendment is consequential on amendments 74 and 75.
Amendment 77, page 30, line 16, leave out from “waters” to end of line 21.
This amendment is consequential on amendments 74 and 75.
Amendment 78, page 30, line 37, leave out from “waters” to end of line 39.
This amendment is consequential on amendments 74 and 75.
Amendment 79, page 30, line 40, leave out sub-paragraph (a)(ii).
This amendment is consequential on amendments 74 and 75.
Amendment 80, page 30, line 47, leave out from “waters” to end of line 48.
This amendment is consequential on amendments 74 and 75.
Clause stand part.
Clause 37 stand part.
Government amendments 47 to 49.
Clause 38 stand part.
Amendment 158, in clause 39, page 32, line 23, leave out “or (4A)” and insert “to (4D)”.
See amendment 160.
Amendment 159, page 32, line 27, at beginning insert
“subject to subsections (4B) to (4D),”.
See amendment 160.
Amendment 160, page 32, line 31, at end insert—
“(4B) Where Welsh Ministers are minded to grant planning consent for the construction or extension of a station generating electricity from wind which would have a capacity greater than 50 megawatts, they must not determine the application unless—
(a) they have sent to the Secretary of State—
(i) a copy of any representations made to them in respect of the application;
(ii) a copy of any report on the application prepared by an officer of the Welsh Government;
(iii) a statement of the decision they propose to make; and
(iv) where they propose to grant consent, a statement of any conditions they propose to impose and a draft of any planning obligation they propose to enter into and details of any proposed planning contribution; and
(b) either—
(i) a period of 14 days has elapsed beginning with the date notified in writing by the Secretary of State to Welsh Ministers as the date on which he received the documents referred to in paragraph (a); or
(ii) the Secretary of State has notified Welsh Ministers in writing that he is content for them to determine the application in accordance with the statement referred to in sub-paragraph (a)(iii) and, if applicable, the matters referred to in sub-paragraph (a)(iv).
(4C) Within the period of 14 days set out in paragraph (4B)(b)(i) the Secretary of State may direct Welsh Ministers empowered to determine the application for the construction or extension of a station generating electricity from wind which would have a capacity greater than 50 megawatts—
(a) to withhold consent for a further period up to six months;
(b) to provide further information about the application; and
(c) where he makes a direction under paragraph (4C)(a) within the period specified in the direction to direct them to—
(i) grant consent subject, if necessary, to the conditions set out at paragraph (4B)(a)(iv); or
(ii) refuse consent.
(4D) The Secretary of State may give a direction to Welsh Ministers that applications for consent for the construction or extension of stations generating electricity from wind which would have a capacity less than 51 megawatts must be determined by local planning authorities and must not be called in or determined by Welsh Ministers.”
Clause 39 would devolve powers for onshore wind development approval to the Welsh Assembly. This amendment empowers the Secretary of State to be notified and veto projects considered a Nationally Significant Infrastructure Project (NSIP). The Secretary of State would be given two weeks to inform Welsh Ministers that he wished to consider a project and he would have up to six months to direct refusal of the application. The amendment also empowers the Secretary of State to require Welsh Ministers to devolve approval for projects not considered a NSIP to local council level.
Clause stand part.
Clauses 40 to 43 stand part.
Amendment 81, in clause 44, page 34, leave out line 37 to line 5 on page 35 and insert—
“Omit sections 114 and 152 of the Government of Wales Act 2006.”
This amendment removes the power of the Secretary of State to veto any Welsh legislation or measures that might have a serious adverse impact on water supply or quality in England.
Amendment 125, in clause 44, page 34, line 38, leave out from “(1),” to end of line 40 and insert “omit paragraph (b).”
This amendment removes both the extension of the power in section 114 of the Government of Wales Act 2006 that would be introduced by clause 44(1) and the power in section 114 to block Assembly Bills in respect of water matters.
Amendment 126, page 34, line 41, leave out subsection (2) and insert—
‘( ) Omit section 152 of the Government of Wales Act 2006 (intervention in case of functions relating to water etc).”
This amendment removes both the extension of the power in section 152 of the Government of Wales Act 2006 that would be introduced by clause 44(2) and the power in section 152 of the Government of Wales Act 2006 to intervene in the exercise of devolved functions in respect of water matters.
Clause stand part.
Clause 45 stand part.
Amendment 130, in clause 46, page 35, line 33, leave out “consult” and insert “obtain the consent of”.
Clause 46 would require the Secretary of State to consult the Welsh Ministers before establishing or amending a renewable energy scheme as it relates to Wales. This amendment would require the Secretary of State to obtain the consent of the Welsh Ministers instead.
Amendment 132, leave out lines 1 to 3.
New section 148A(3) of the Government of Wales Act 2006 (as inserted by Clause 46) provides an exception to the consultation requirement for renewable energy schemes in respect of any levy in connection with such a scheme. This amendment is partly consequential upon amendment 130, but it would also mean that there would be a requirement for the Secretary of State to obtain the consent of the Welsh Ministers for any levy in connection with a renewable energy scheme as it relates to Wales.
Amendment 131, page 36, line 17, leave out subsection (2).
This amendment is consequential upon amendment 130.
Clause stand part.
Clauses 46 to 50 stand part.
Amendment 144, in clause 51, page 39, line 2, at end insert—
“( ) If a statutory instrument containing regulations under subsection (2) includes provision within devolved competence or provision modifying a devolution enactment, the Secretary of State must send a copy of the instrument or, if subsection (8A) applies, a draft of the instrument to the First Minister for Wales and the First Minister must lay it before the Assembly.”
This amendment and amendments 145, 146 and 147 are intended to apply appropriate Assembly procedures to regulations which make provision within the Assembly’s competence or which adjust the Welsh devolution settlement by modifying the Government of Wales Act 2006 or the Wales Act 2014 and provide for regulations containing provisions of this kind that amend primary legislation to be subject to an affirmative Assembly procedure, and for regulations containing provisions of the same kind which modify subordinate legislation to be subject to a negative Assembly procedure.
Amendment 147, page 39, line 2, at end insert—
“( ) In this section ‘devolution enactment’ means a provision contained in—
(a) the Government of Wales Act 2006 or an instrument made under or having effect by virtue of that Act;
(b) the Wales Act 2014 or an instrument made under or having effect by virtue of that Act.
( ) For the purposes of this section—
(a) ‘modifying’ includes amending, repealing and revoking;
(b) ‘within devolved competence’ is to be read in accordance with subsections (7) and (8) of section 17, but no account is to be taken of the requirement to consult the appropriate Minister in paragraph 11(2) of Schedule 7B.”
See the statement for amendment 144.
Amendment 150, page 39, line 4, leave out “primary legislation” and insert “an Act of Parliament”.
The amendment introduces separate provisions for the use of the power in clause 51 in relation to an Act of Parliament.
Amendment 82, page 39, line 6, after “Parliament” insert
“and the National Assembly for Wales.”
This amendment ensures that when exercising the power to amend, repeal, revoke or modify any Acts or Measures of the National Assembly for Wales, the Secretary must seek the permission of the National Assembly, as well as both Houses of Parliament.
Amendment 145, page 39, line 6, at end insert—
“(6A) A statutory instrument containing regulations under subsection (2) that includes—
(a) provision within devolved competence modifying any provision of primary legislation, or
(b) provision modifying any devolution enactment in primary legislation,
may not be made unless a draft of the instrument has been laid before and approved by a resolution of the Assembly.”
See the statement for amendment 144.
Amendment 151, page 39, line 6, at end insert—
“(6A) A statutory instrument containing regulations under subsection (2) that includes provision amending or repealing any provision of a Measure or Act of the National Assembly for Wales may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament and the Assembly.”
The amendment provides that where the Secretary of State uses the power in clause 51 to make regulations that amend or repeal an Assembly Act or Assembly Measure, then the regulations must be approved by the Assembly and each House of Parliament.
Amendment 152, page 39, line 7, at beginning insert “Subject to subsection (7A),”.
The amendment is linked to the provision that where the Secretary of State uses the power in clause 51 to make regulations that amend or revoke subordinate legislation made by the Welsh Ministers or the Assembly, the regulations would be subject to annulment by the Assembly and each House of Parliament.
Amendment 146, page 39, line 9, leave out
“, is subject to annulment in pursuance of a resolution of either House of Parliament”
and insert
“or the Assembly, is subject to annulment in pursuance of a resolution of—
(a) either House of Parliament, and
(b) if it includes provision that would be within devolved competence or provision modifying a devolution enactment, the Assembly.”
See the statement for amendment 144.
Amendment 153, page 39, line 10, at end insert—
“(7A) A statutory instrument containing regulations under subsection (2) that includes provision amending or revoking subordinate legislation made by—
(a) the Welsh Ministers, or
(b) the National Assembly for Wales as constituted by the Government of Wales Act 1998,
if made without a draft having been approved by a resolution of each House of Parliament and the Assembly, is subject to annulment in pursuance of a resolution of either House of Parliament or the Assembly.”
The amendment provides that where the Secretary of State uses the power in clause 51 to make regulations that amend or revoke subordinate legislation made by the Welsh Ministers or the Assembly, the regulations would be subject to annulment by the Assembly and each House of Parliament.
Amendment 154, page 39, line 11, leave out subsection (8).
The amendment removes the definition of “primary legislation”.
Clause stand part.
That schedule 5 be the Fifth schedule to the Bill.
Clause 52 stand part.
Government amendments 59 and 60.
That schedule 6 be the Sixth schedule to the Bill.
Government amendments 50 to 52.
Amendment 12, in clause 53, page 40, line 8, at end insert—
‘(4) Section 16(6) comes into force on the day appointed by the Treasury by order under section 14(2) of the Wales Act 2014 for the coming into force of sections 8 and 9 of that Act.”
The new limits proposed by New Clause 6 on borrowing by the Welsh Ministers are calculated by reference to the financial consequences of commencing the income tax provisions of the Wales Act 2014. This provision ensures that the new borrowing limits come into effect at the same time as commencement of the income tax provisions.
Clause stand part.
Clause 54 stand part.
New clause 4—Assignment of VAT—
“(1) The Government of Wales act 2006 is amended as follows.
(2) In section 117 (Welsh Consolidated Fund), after subsection (2) insert—
‘(2A) The Secretary of State shall in accordance with section 64A pay into the Fund out of money provided by Parliament any amounts payable under that section.’
(3) After that section insert—
‘117A Assignment of VAT
(1) Where there is an agreement between the Treasury and the Welsh Ministers for identifying an amount agreed to represent the standard rate VAT attributable to Wales for any period (“the agreed standard rate amount”), the amount described in subsection (3) is payable under this section in respect of that period.
(2) Where there is an agreement between the Treasury and the Welsh Ministers for identifying an amount agreed to represent the reduced rate VAT attributable to Wales for that period (“the agreed reduced rate amount”), the amount described in subsection (4) is payable under this section in respect of that period.
(3) The amount payable in accordance with subsection (1) is the amount obtained by multiplying the agreed standard rate amount by—
10
SR
where SR is the number of percentage points in the rate at which value added tax is charged under section 2(1) of the Value Added Tax Act 1994 for the period.
(4) The amount payable in accordance with subsection (2) is the amount obtained by multiplying the agreed reduced rate amount by—
2.5
RR
where RR is the number of percentage points in the rate at which value added tax is charged under section 29A(1) of the Value Added Tax Act 1994 for the period.
(5) The payment of those amounts under section 64(2A) is to be made in accordance with any agreement between the Treasury and the Welsh Ministers as to the time of the payment or otherwise.’
(4) The Commissioners for Revenue and Customs Act 2005 is amended as follows.
(5) In subsection (2) of section 18 (confidentiality: exceptions) omit ‘or’ after paragraph (j), and after paragraph (k) insert ‘, or
(l) which is made in connection with (or with anything done with a view to) the making or implementation of an agreement referred to in section 117A(1) or (2) of the Government of Wales Act 2006 (assignment of VAT).’
(6) After that subsection insert—
‘(2B) Information disclosed in reliance on subsection (2)(l) may not be further disclosed without the consent of the Commissioners (which may be general or specific).’
(7) In section 19 (wrongful disclosure) in subsections (1) and (8) after ‘18(1) or (2A)’ insert ‘or (2B).’”
This new clause would allow the payment into the Welsh Consolidated Fund of half the receipts of Value Added Tax raised in Wales, on the lines of section 16 of the Scotland Act 2016.
New clause 5—Tax on carriage of passengers by air—
“(1) In Part 4A of the Government of Wales Act 2006, after Chapter 4 insert—
Chapter 5
Tax on carriage of passengers by air
116O Tax on carriage of passengers by air
‘(1) A tax charged on the carriage of passengers by air from airports in Wales is a devolved tax.
(2) Tax may not be charged in accordance with that provision on the carriage of passengers boarding aircraft before the date appointed under subsection (6).
(3) Chapter 4 of Part 1 of The Finance Act 1994 (air passenger duty) is amended as follows.
(4) In section 28(4) (a chargeable passenger is a passenger whose journey begins at an airport in the United Kingdom), for “England, Wales or Northern Ireland” substitute “England or Northern Ireland”.
(5) In section 31(4B) (exception for passengers departing from airports in designated region of the United Kingdom) for “England, Wales or Northern Ireland” substitute “England or Northern Ireland”.
(6) Subsections (3) to (5) have effect in relation to flights beginning on or after such date as the Treasury appoint by regulations made by statutory instrument.’”
This new clause would make air passenger duty a devolved tax in Wales, on the lines of section 17 of the Scotland Act 2016.
New clause 6—Lending for capital expenditure—
“In section 122A(1) and (3) of the Government of Wales Act 2006 (lending for capital expenditure), for ‘£500 million’ substitute ‘£2 billion’.”
Section 122A of the Government of Wales Act 2006 (inserted by section 20(10) of the Wales Act 2014) makes provision for limits on borrowing by the Welsh Ministers for capital expenditure. This new clause changes the limit on the aggregate at any time outstanding from £500 million to £2 billion.
New clause 8—Corporation tax—
“(1) In Part 4A of the Government of Wales Act 2006, after Chapter 4 insert—
‘Chapter 4A
Corporation Tax
116P Corporation tax
A tax charged on trading profits in Wales is a devolved tax.’”
This new clause would make corporation tax a devolved tax.
New clause 9—Trading profits taxable at the Welsh rate—
“After part 8B of the Corporation Tax Act 2010 insert—
“Part 8C
357Y The Welsh rate
‘(1) The Welsh rate of corporation tax for a financial year is—
(a) if a resolution of the National Assembly for Wales—
(i) sets a rate under section 357YA for the year, and
(ii) is passed before the beginning of the year,
the rate set by the resolution;
(b) if the Welsh rate for the year is not determined under paragraph (a), but the Welsh rate for one or more earlier financial years was determined under that paragraph, the rate for the most recent of those earlier years;
(c) otherwise, the main rate.
(2) For the purposes of subsection (1)(a)(ii), a resolution passed before the beginning of a financial year is treated as not having been so passed if it is cancelled by a resolution under section 357YA that is itself passed before the beginning of the year.
357YA Power of National Assembly for Wales to set Welsh rate
(1) The National Assembly for Wales may by resolution set the Welsh rate for one or more financial years specified in the resolution.
(2) The Assembly may by resolution cancel a resolution under subsection (1).
(3) A resolution under this section may not be passed by the National Assembly for Wales except in pursuance of a recommendation which is made by Welsh Ministers and which is signified to the National Assembly for Wales.
(4) This section authorises the setting of a nil rate.
357YB Welsh rate supplementary provision
(1) The Secretary of State must lay draft regulations before the House of Commons and the National Assembly for Wales within twelve months of this Act coming into force.
(2) The Secretary of State must seek the consent of the Treasury before laying draft regulations under this section.
(3) The Secretary of State may make regulations under his section only if both the House of Commons and the National Assembly for Wales have approved those regulations in draft.
(4) Regulations under this section may make any necessary provision, including modifying or amending any enactment, that the Secretary of State or the Treasury considers necessary for the introduction of a Welsh rate of corporation tax.
(5) Regulations under this section may, for example, include—
(a) provision for the application of the Welsh rate of corporation tax to Welsh profits;
(b) provision about the operation of certain reliefs for trading losses that are given against profits;
(c) definitions of “Welsh company”, “qualifying trade”, “small or medium-sized enterprise” and “Welsh employer”;
(d) provision about whether a company has a Welsh regional establishment;
(e) rules for determining whether profits or losses of a trade are “Welsh profits” or “Welsh losses”;
(f) rules applying in the case of a Welsh company that is a small or medium-sized enterprise;
(g) rules applying in the case of a Welsh company that is not a small or medium-sized enterprise;
(h) the treatment of intangible fixed assets in relation to Welsh companies;
(i) provision about R&D expenditure credits and relief for expenditure relating to research and development;
(j) provision about relief for expenditure relating to the remediation of contaminated or derelict land;
(k) provision about film tax relief, television production, video games development and theatrical productions;
(l) provision about profits arising from exploitation of patents etc.;
(m) rules for determining whether profits or losses of a trade are “Welsh profits” or “Welsh losses” in the case of a company that is a partner in a Welsh firm;
(n) definitions of “excluded trade” and “excluded activity” (profits of which are not Welsh profits); and
(o) provision about the meaning of “back-office activities” (profits imputed to which may be Welsh profits).’”
This new clause mirrors the approach of the Corporation Tax (Northern Ireland) Act 2015 in defining a Welsh rate of corporation tax, but leaves the details to be set out in secondary legislation.
Guto Bebb
It is a pleasure to serve under your chairmanship this evening, Sir Alan.
Clause 22, alongside detailed technical provisions in part 2 of schedule 5, devolves onshore petroleum licensing in Wales to Welsh Ministers, fulfilling the St David’s Day commitment. Clause 23 is necessary to facilitate a smooth transfer of existing onshore licences. Clause 24 transfers to Welsh Ministers the regulation-making powers in the Infrastructure Act 2015 with respect to the right to use deep-level land below 300 metres for the purpose of exploiting onshore petroleum.
The St David’s day agreement stated that responsibility for speed limits in Wales should be devolved. It also committed the Government to consider the Smith agreement, to determine which recommendations for Scotland should also apply to Wales. As a result of this work, powers over traffic signs, including pedestrian crossings, will also be devolved. Clause 25 and section E1 of schedule 1 devolve these powers by reserving only powers relating to the exemption of vehicles from speed limits and certain traffic signs—for example, emergency vehicles attending incidents.
Together, the clause and the schedule have the effect of devolving to the Assembly and Welsh Ministers legislative and executive competence in respect of substantially all the provisions of the Road Traffic Regulation Act 1984 that concern speed limits and traffic signs. This means the Assembly will be able to legislate in respect of substantially all aspects of speed limits and traffic signs on all roads in Wales.
Clause 26 fulfils a St David’s day commitment and implements a Silk commission recommendation to devolve the registration of local bus services, including the relevant functions of the traffic commissioner. Devolution of bus registration is achieved by the matter not being listed as a reserved matter in schedule 7A. Clause 26 gives effect to the devolution of the relevant traffic commissioner functions to Welsh Ministers. Clause 27 also fulfils a St David’s day commitment and a Silk commission recommendation by devolving the regulation of taxi and private hire vehicle services in Wales to Welsh Ministers.
This complements the devolution of legislative competence to the Assembly for taxi and private hire vehicle licensing in new schedule 7A. Taxi and PHV services are currently licensed by local authorities under legislation that covers England and Wales outside London. Local licensing authorities set their own policies and standards. I therefore support these clauses standing part of the Bill.
Paul Flynn
These considerable and weighty clauses will bring significant benefits to the people of Wales. We are grateful for the improvements that have taken place as a result of the Government accepting the criticisms made of the draft Bill. Real progress is being made.
The main issues I wish to raise with this group of amendments involve energy, because there is a great opportunity for Wales to become a powerhouse for energy for the whole United Kingdom. For too long, we have neglected the vast energy of the tide that sweeps around the Welsh coast at different times of the day, providing pulses of energy that could be coupled with demand-responsive schemes such as pumped storage schemes in order to give completely demand-responsive electricity not only cleanly, but by providing renewable power in an entirely predictable way—the tide will always come in.
We have made huge strides in Wales on hydro schemes in Rheidol, Ffestiniog and Dinorwig. The possibility of using the topography of Wales to produce energy has been long neglected. When we look at the problems of the Port Talbot steelworks, we need to realise that washing along the shore of those steelworks is the highest rise and fall of tide in the world. They are in trouble because their energy is so expensive, yet a source of energy is available on their doorstep—free, British, eternal and absolutely predictable.
Amendments 130 to 132 deal with renewable energy schemes. These Welsh Government amendments would create a duty on the Secretary of State to consult Welsh Ministers before establishing or amending a renewable energy incentive scheme in Wales. As drafted, the clause excludes the requirement for the Secretary of State to consult in relation to the creation of a levy to fund an incentive scheme.
The obligation merely to consult is insufficient in respect of this important matter. The Energy Act 2013 provides that the Secretary of State must consult Welsh Ministers before making regulations in relation to contracts for difference. This is a fairly fresh concept, but it has been used widely by this Government and the previous one. Interested parties should also be consulted before a renewables obligation closure order is issued. When the UK Government announced the early closure of the renewables obligation scheme for onshore wind in 2015, there was no prior consultation with Welsh Ministers. We therefore think it essential that, as part of establishing an appropriate devolution settlement for energy, the requirement is put on a firmer and clearer footing. The amendment therefore provides that the Welsh Ministers’ agreement must be sought in relation to renewable energy incentive schemes in Wales either proposed or, in the case of existing schemes, proposed for amendment.
We further propose the omission of clause 46(3), which inappropriately limits the scope of the responsibility of the Secretary of State to engage constructively with Welsh Ministers. We see no reason, and none is offered in the explanatory notes accompanying the Bill, why that engagement should not extend to the consideration of matters relating to levies to fund renewable energy incentive schemes.
Amendments 144 and 147 relate to clause 51. Clause 51 provides the Secretary of State with order-making powers to make consequential provision following the enactment of the Wales Bill. This includes powers to amend, repeal, revoke or otherwise modify primary or secondary legislation as he considers appropriate. Affirmative procedure in both Houses is provided for where the amendment or repeal of primary legislation is envisaged in any such order. There is, however, no provision for Assembly approval of a draft order that would repeal or modify Assembly legislation. Furthermore, as the Bill is drafted, the Secretary of State could propose orders making modifications to the Acts of Parliament underpinning the Welsh devolution settlement without requiring the Assembly’s consent, although parliamentary consent would be needed. Even if such modifications were contained in a parliamentary Bill, the Assembly’s consent would be required. This is wrong in principle. If the Secretary of State wishes to take powers by order to make amendments, up to and including repeal, to Assembly legislation, that should be possible only with the consent of the Assembly itself. If orders are proposed that would make changes to the parliamentary legislation establishing the Welsh devolution settlement, they, too, should require Assembly consent before they can be made. The Welsh Government amendments would give effect to those important principles.
I welcome the agreement in this House across all parties. Plaid Cymru introduced a slightly tribal note by attacking Labour for not going to the same lengths that it has gone to in some of its amendments, but I think Labour has taken a pragmatic view. Where the Government made it clear they are not going to change their minds, we have tried to introduce amendments that are halfway between the Opposition and Government positions, and which might be acceptable to the Government. It should not be concluded from that that we have shown any lack of enthusiasm for the process of devolution.
Plaid Cymru’s amendment 74 relates to energy limits. The Welsh Government would have no powers over schemes above 350 MW. That is a very low level. It would include the tidal lagoon in the constituency of my hon. Friend the Member for Swansea East (Carolyn Harris), but it would not include the two tidal lagoons planned for either side—the Cardiff side and the Newport side—of the River Usk. The two schemes have enormous possibilities to produce huge amounts of electricity, particularly if they are linked with pumped storage schemes in the valleys. If the pulse of electricity comes in the early hours of the morning when it is not required, the energy can be used to pump the water up to the adjacent hills very close to the shore in Newport, and then drawn down to produce electricity throughout the day. This is a form of energy production that we have long, long neglected. We have ignored the power of the tide and we have used other, polluting forms of energy.
Chris Davies
I rise to speak to my amendments 158, 159 and 160. The Committee knows I have many concerns about the Bill and I have stated them very clearly over the past few weeks and months.
Today, I turn to the devolving of wind energy to the Welsh Assembly, which is of great concern to the people of Brecon and Radnorshire in mid-Wales, whom I represent. This is not a common-sense approach to energy. I was very concerned to hear the hon. Member for Newport West (Paul Flynn) state that Wales could be the energy centre of Great Britain. That makes the people I represent fear that the whole of mid-Wales will be covered with wind turbines. I am sure he is referring to other matters—I hope he is—but we have to remember the way that Cardiff Bay has looked at mid-Wales over the years. We are fearful that we will be littered, covered and blanketed with wind turbines.
We all have a great confidence in the Secretary of State, so I would like to see him have a veto over a UK-wide energy plan that is in the national interest. To have powers particular to the Welsh Assembly does not fit in with the strategic plan for power in Great Britain as a whole—that is the underlying concern. Cardiff Bay should not just be able to make those points and make arrangements for Wales; it needs to be done by Britain as a whole. A veto would give local people an appeal over proposals that may not be in the UK-wide interest. It would also allow local people to have a say in local decisions.
Before coming into this place, I was a councillor on Powys County Council. There was a possibility—more than a possibility—that planning permission was going to be granted so that the whole of mid-Wales would be covered in turbines. The council had to contribute £4 million to fight a legal case against the Government of the day. That money would have been better spent—as we know, Powys is under-utilised as far as money from the Assembly is concerned—on providing local services to local people, instead of having to fight a legal case against wind turbines. For many reasons, I would therefore like the Secretary of State to hold a veto. I repeat the fact that we have confidence in him. We had confidence in his predecessors and I have no doubts that we will have confidence in future Secretaries of State, so let the power stay there.
Paul Flynn
Wales suffered for centuries the dirt, the pollution and the danger of extracting coal from the ground, while the comfort and the money made from it was enjoyed throughout the United Kingdom. Nobody wants to go back to that. The sources of power I specifically mentioned were hydropower and tidal power. They are not only very good neighbours but they can enhance the landscape by providing lakes and other facilities. The hon. Gentleman should concentrate on the wider picture and see the possibilities, through the amendment, that the Welsh Government could develop.
Chris Davies
I agreed with most of what the hon. Gentleman said, but I do not think he listened to what I said. I am talking specifically about wind energy, to which my amendment relates, not about hydro-energy, off-coast energy or land energy.
I ask the Secretary of State to retain the possibility of a veto. I will not press the amendment to a vote—I am sure that you and many others will be delighted to hear that, Sir Alan—but I hope that the Secretary of State will look at the clause again.
Hywel Williams
I want to speak to amendments 74 to 80, 81 and 82, 151 and 154, which I tabled along with my hon. Friends.
I welcome clauses 22, 23 and 24, which confer competence on Welsh Ministers in relation to onshore petroleum licensing, including hydraulic fracturing, or fracking, about which the Welsh people care a great deal. If the people of Wales do not want fracking, our Government should be able to ensure that it does not happen. Given that the Welsh Government and the National Assembly as a whole voted unanimously against fracking in Wales, I hope that the Secretary of State will work with his Cabinet colleagues to ensure that until the Bill is passed, the United Kingdom Government honour that unanimous opposition in Wales and no new licences are issued there. I hope that, at the end of the debate, either the Secretary of State or the Under-Secretary will give some indication that that will be the case.
I also welcome clause 26. Some time ago, I had a meeting with the traffic commissioner for Wales, who was based in Birmingham at the time. He was very unhappy about being traffic commissioner for Wales, and pointed out that not only did he work from Birmingham, but he lived in Derby, which is a considerable distance from Wales. Many years ago, the Welsh Affairs Committee called for the commissioner to be moved to Cardiff, and I am glad that the clause achieves a great deal more than that.
Amendments 74 and 75, and consequential amendments 76 to 80, would remove the 350 MW limit on the Welsh Government’s legislative competence in the field of energy. I would happily put a fiver on what is on the Under-Secretary of State’s notepad: my guess is that he intends to say that the limit was recommended by the Silk commission. I wish I had put that fiver down, because I see that the Under-Secretary is smiling.
Of course I accept that the Silk commission recommended the limit, but let us return for a moment to the purpose and the terms of the commission. It was set up by the coalition Government, with a Conservative Secretary of State for Wales. It consisted of one nominee from each of the four main parties at the time, including the Secretary of State’s and mine, along with various academic and other experts. It consulted widely and extensively with the political parties, civic society, academia and industry experts, as well as the public. Its two reports represented a consensus, reflecting not only the views of the political parties but, crucially, those of the public and of experts—that is, the views of civic society in general.
With that purpose in mind, the players in all four political parties had to compromise, and all four—including the Secretary of State’s party and mine—did so, in order to achieve a national consensus. That was a contrast with the St David’s day process, in which I played a minor part. At the time, the Secretary of State appeared to hand a veto to each party in respect of what it wished to reject. Labour used its veto to the full, which reflected the stance of the then shadow Secretary of State, as a self-confessed “proud Unionist”. It seemed to me that the veto extended to Whitehall Departments, in terms of which matters they wanted to reserve.
As was clear from my earlier intervention on the Secretary of State, I am still slightly unconvinced about this process—
Alun Cairns
What example has there been of devolution to Wales in the past where the Secretary of State has really sought to bring about agreement throughout the House on a pragmatic, practical way forward, rather than bulldozing one particular model over another?
Hywel Williams
I was very glad to play a minor part in the St David’s day process, as was my colleague at the time, Elfyn Llwyd. I think there was a structural deficiency in that process, in that if individual parties wanted to veto a particular matter, they could do so—fine: that was what the process was about—but, to my mind at least, one party made rather a meal of that dispensation, and vetoed a great deal that could quite reasonably have been included. The criticism of the first draft of the Bill reflects that, but the current version is a great improvement, and I am happy to pay tribute to the Secretary of State and his predecessor for their achievement.
Some parties compromised on policing, and some on broadcasting. My party compromised on energy. We have always believed that Wales’s natural resources should be in the hands of the people of Wales, and that the people of Wales are best placed to make decisions about how best to put those resources to use. That is our historic stance. We have never believed in placing a limit on that principle, above which the people of Wales should no longer have a say. We never thought that that was a good idea, and never thought that it was necessary. However, we compromised, for the good of the Silk process and to ensure good order and progress. We agreed to the arbitrary limit of 350 MW in return for the support of others on policing and broadcasting.
The Secretary of State has chosen not to follow that consensual path, and to pick and choose from the Silk Commission’s recommendations which matters to accept and which to forgo. Indeed, he has chosen to ignore the majority of what Silk had to say. He cannot now reasonably defend that Westminster power grab and attack Plaid Cymru by claiming that he is only following the commission’s recommendations. We shall see what the Under-Secretary of State has to say about that one.
Clause 36 must be understood as it stands. Having voted to give Scotland complete control over its natural resources, with no limits, the Secretary of State is proposing to devolve energy in Wales only up to a limit of 350 MW, with anything above that threshold being reserved to Westminster. Why does he believe that Scottish natural resources should be in the hands of the people of Scotland, but Wales’s natural resources, above the limit, should be deemed to be the preserve of Westminster? Does he think that the people of Wales cannot be trusted with any energy projects above 350 MW? Do we suffer from some congenital infirmity in that respect? For that matter, why should it be 350 MW rather than 351, or 349? Perhaps the Under-Secretary of State will enlighten us. What factual evidence has he to justify that figure?
The hon. Member for Newport West (Paul Flynn) referred to the Swansea Bay tidal lagoon. It is proposed that the lagoon should be devolved to Wales, but that the proposed Cardiff and Colwyn Bay tidal lagoons, which are identical apart from scale, should be reserved to Westminster. What is the rhyme or reason for that? What practical reasons are there for such a distinction?
Let me give another practical example. In my constituency, there is a great capacity for hydro-electric power. The Dinorwig scheme, which has been mentioned, is a massive scheme that can power Manchester for five hours at the throw of a switch. It takes eight seconds for the turbines to start turning. It is an astonishing scheme, which I think is one of the great energy production secrets of Wales. I understand that the switch is thrown in Connah’s Quay and not in London, and that it controls not only Dinorwig but the Stwlan facility in Blaenau Ffestiniog, as well as Maentwrog. So here we have an astonishingly good scheme and the potential for several more, some of the same scale but also some smaller ones.
Mr David Jones
I shall speak briefly in support of amendments 158 to 160 in the name of my hon. Friend the Member for Brecon and Radnorshire (Chris Davies). He has dealt very well with the thrust of the amendments and I do not wish to repeat what he has said. However, I would like to focus on proposed new subsection (4D) which provides:
“The Secretary of State may give a direction to Welsh Ministers that applications for consent for the construction or extension of stations generating electricity from wind which would have a capacity less than 51 megawatts must be determined by local planning authorities and must not be called in or determined by Welsh Ministers.”
As I mentioned on Second Reading, there have been unintended consequences of the Energy Act 2016, which is a development of UK Government policy that provides that all applications for onshore wind generating stations should no longer be governed by the Planning Act 2008, but should instead be determined by local planning authorities. This applies also in Wales, but as a consequence of Welsh legislation, the Welsh Government have designated all wind farm developments in Wales as so-called developments of national significance, which fall to be considered by the Welsh Government.
My hon. Friend the Member for Brecon and Radnorshire is right to insert this provision. We both come from parts of Wales where the development of wind farms has caused huge problems. They have been disproportionately scattered across rural Wales and there are large areas that almost literally have a turbine on every hillside. Local communities certainly want these applications to be determined at local level, and it is entirely right that the Welsh Government, having taken it upon themselves to adopt this power, should now have it taken away from them. The power should be returned to local authorities.
As I have suggested, this has been an example of the law of unintended consequences. I am absolutely sure that the Government did not expect that, as a consequence of the Energy Act 2016, all such applications would fall to be determined by the Welsh Government. That is what has happened, however, and local communities have been disfranchised. This proposal is therefore a sensible one, and I ask my right hon. Friend the Secretary of State to give consideration to it. If he cannot accept it this evening, will he take it away and come back with another proposal on Report to address the concerns that I have outlined?
Jonathan Edwards
I rise to speak to new clauses 4, 5, 8 and 9. I also refer Members to my speech on new clauses 2 and 3 and income tax during our first day in Committee last week.
New clause 5 would devolve air passenger duty to Wales. In 2012, the Silk commission recommended the devolution of a block of financial powers, including air passenger duty, to the National Assembly. That was a carefully crafted package of measures. Those minor taxes were clearly listed as pressing, and the commission recommended that they be devolved in the next possible legislative vehicle, which happened to be the 2013 Finance Bill. For whatever reason, however, APD was missing from that Bill and a Plaid Cymru amendment that would have included it was defeated.
On the publication of its recommendations, the commission had cross-party and governmental support. However, four years on, I am disappointed that the Government have turned their back on the commission and its recommendations. They are instead simply cherry-picking the amendments that will be the least disruptive to the current devolution arrangement for Wales. In that period, we have had a Northern Ireland Act and two Scotland Acts through which APD was devolved to those countries and, needless to say, Labour and Tory MPs based in Wales supported those Acts. Wales is, once again, getting the short end of the stick when it comes to devolved taxation.
I am disappointed that the hon. Member for Cardiff Central (Jo Stevens) is not in the Chamber. Although she is apparently oblivious to her party’s inability to support the devolution of APD twice in the previous Parliament, she has rightly stated:
“Air passenger duty has already been devolved to the Northern Ireland Assembly and…to the Scottish Parliament, but despite this, the Budget did not propose that it be devolved to the Welsh Assembly.”—[Official Report, 25 May 2016; Vol. 611, c. 521.]
She asked for it to be devolved, and that is an unimpeachable argument—I agree with every word she said.
Mr David Jones
Has the hon. Gentleman given any consideration to the impact that his proposals might have on north Wales’s local airports in Liverpool and Manchester?
Jonathan Edwards
The whole point of devolving APD to Wales is to allow Welsh Ministers to set their own priorities for the aviation industry in Wales. At the end of the day, it will be up to Welsh Ministers to consider the most appropriate APD policy for Wales to maximise revenues from their own public asset. Let us remember that Cardiff airport is owned by the people of Wales. Clearly, increasing footfall at the airport could generate substantial revenues elsewhere, primarily by boosting economic performance across the whole of the economy, especially in the Secretary of State’s own Vale of Glamorgan constituency.
I am not privy to the Cardiff airport’s strategic planning, but my understanding is that the element of APD that the airport is most interested in is long-haul taxation. As I mentioned, the airport has a superb runway that can accommodate transatlantic flights, which Bristol airport cannot. If Cardiff were to develop that angle of its business, that could surely be of use to Bristol airport, if transport links between both airports could be improved. There lies a challenge for the Welsh Government, because our international airport urgently needs public transport upgrades to get people from Cardiff—and indeed Swansea—to and from the airport. The current infrastructure is awful, compared with that of Belfast, Glasgow and Edinburgh.
Recent public opinion polls suggest that 78% of Welsh voters agree that APD should be devolved. That does not quite compare with the percentage who support the introduction of Welsh bank notes, but that incredibly high number is still a clear indication of public opinion. It takes a brave politician to ignore opinion poll figures of those proportions.
Furthermore, the National Assembly should have more responsibility for the money it spends. The Secretary of State for Wales himself has said that increasing its taxation responsibilities makes the Assembly “truly accountable” to the people of Wales, so why not include air passenger duty in the list of devolved taxes? Why continue to limit the financial responsibilities of the Welsh Government? Jane Hutt, the former Minister for Finance and Government Business in the Welsh Government, who I am not in the habit of quoting, has said:
“It is…disappointing that the UK Government has decided to continue its procrastination over the devolution of Air Passenger Duty. This discriminatory approach is unacceptable and unjustifiable”.
We have seen during the progress of the Bill that what the Labour Government say in Wales does not necessarily translate into voting behaviour where it counts down here in Westminster. Official Opposition Members might be relieved to hear that I do not intend to press the new clause to a Division, but I will return to the matter on Report. I hope that, in the meantime, the Secretary of State will listen to one of the most important strategic players in his constituency and his country, and I look forward to him bringing forward Government amendments to devolve APD before the Bill completes its progress through the House.
I now turn my attention to new clause 4, which would equalise the situation between Wales and Scotland when it comes to VAT revenues. The Scotland Act 2016 stated that revenues from the first 10 percentage points of the standard VAT rate would be devolved by the 2019-20 financial year. The current UK VAT rate is 20% and half of all the VAT raised in Scotland will be kept in Scotland. It is important to note that the Scottish Government will have no ability to change VAT rates.
Sales taxes in the United States are state taxes, not federal taxes, so different states have different levels of their version of VAT. We propose equalising the situation with Scotland because although EU rules prohibit different sales tax levels within the boundaries of a member state, adopting the Scottish model could pave the way, in a post-Brexit scenario, to devolving VAT in its entirety to Wales, to Scotland and to Northern Ireland. In a post-Brexit UK, it seems clear that significant political and fiscal power will have to be conceded by Westminster unless the post-Brexit vision is an even more lopsided state in which power and wealth are even more concentrated in London and the south-east.
The Scottish model has some incentivising benefits as it would help to galvanise the Welsh Government to boost the spending power of our citizens by basing a job creation strategy around well-paid jobs and seriously getting to grips with our low-wage economy. As page 4 of Cardiff University’s excellent “Government Expenditure and Revenue Wales 2016” report states:
“VAT was the largest source of revenue in Wales (raising £5.2 billion), followed by Income Tax (£4.6 billion) and National Insurance Contributions (£4.0 billion). The composition of revenues in Wales is markedly different from the UK as a whole. Large direct taxes…make up less of a share of total Welsh revenue, while a greater share is raised through indirect taxes”.
The report’s point is that indirect taxes such as VAT generate more revenue in Wales than direct taxes such as income tax. The report also indicates that Welsh tax revenues have grown by 12.3% since 2011, the main component of which was VAT revenues.
As long as we have a Tory UK Government, economic growth will continue to be based around consumer spending. If that is the case, it is all the more important that the people of Wales directly benefit from that growth and from their own spending power. Denying Wales the same powers as Scotland on VAT seems to be a deliberate attempt to undermine revenues for the Welsh Government.
New clause 4 is probing, so I will not be pressing it to a vote at this stage, but I look forward to hearing the UK Government’s justification for why they have not given Wales the same status as Scotland, especially considering the good performance of Wales—for whatever reason—in generating VAT revenues. I may return to this matter during the Bill’s later stages.
Similarly probing are new clauses 8 and 9, which would devolve corporation tax to mirror the situation in Northern Ireland. As a proud Welshman, I want my country to succeed. I desperately want our GDP to increase and to close the gap between the GDPs of Wales and the UK. If that is to happen, we unquestionably have to make Wales a more attractive place to do business. I want to make Wales the most attractive place in the UK to do business, and I hope that the Secretary of State for Wales would want the same for his country.
Most other countries are able to set their own rates of corporation tax. It is a lever with which a national Government can influence their country’s desirability to potential investors, but Wales is restricted from doing so. We are forced to compete with the other UK nations with our hands tied behind our backs. Northern Ireland has a huge competitive advantage over Wales, and we know about the rate in the Republic of Ireland, with which we share a sea border. We cannot build a High Speed 2 for Wales. We cannot electrify our railways and we cannot offer tax incentives. We are constantly forced to come to Westminster with a begging bowl. We are still waiting for even an inch of electrified railway. We are still not getting full Barnett consequentials from HS2, let alone getting our own high-speed rail, and we are once again being told that we cannot use corporation tax as a way of attracting business.
Alun Cairns
I am listening carefully to the hon. Gentleman’s proposal on devolving corporation tax. How would Wales cope with the significant volatility of corporation tax income?
Jonathan Edwards
I am grateful for that intervention because it provides a great insight into the Secretary of State’s thinking. If that is his argument on fiscal powers, he should align himself with the Labour party, which opposes Wales having income tax powers for exactly the same reason. This is about whether one believes that the Welsh Government can use such levers effectively to create jobs in our country. That intervention is indicative of the Secretary of State’s mindset.
Given that corporation tax is devolved in Northern Ireland, I hope that the Secretary of State will do his job, stand up for Wales and make it a devolved tax in Wales, as was recommended by the Silk commission’s report.
Glyn Davies (Montgomeryshire) (Con)
Thank you, Sir Alan, for calling me to speak in this hugely important debate. All Welsh Members recognise the Bill as an attempt to create a stable, long-lasting devolutionary settlement for Wales that provides financial accountability to the Welsh Government. I associate myself with many of the comments from both sides of the Committee, although I do not agree with everything that has been said.
I want to refer specifically to amendments 158 to 160, which have featured quite a lot in today’s debate. I have been inspired to speak in part by the contribution of the shadow Secretary of State for Wales, in which he was positive about energy. There is real potential for Wales to become an energy giant. I have been to Dinorwig about three times and have been inspired by the history of what Wales has achieved in energy production. We have even had—the shadow Secretary of State will not agree with me on this subject—nuclear energy generation in Wales on a considerable scale. It has formed part of a real decarbonisation effort, which I have supported and which we may well carry on at Wylfa B. We have the Swansea Bay tidal lagoon project and other such projects, and there is wonderful potential for Wales if they go ahead. At this stage, the issue is clearly one of whether they will become financially viable. There is no doubt that the tidal range is amazing, and I certainly hope that those schemes can be approved and that Wales can carry on its history of making a contribution to energy generation.
I am also inspired by those who tabled the amendments, including my hon. Friend the Member for Brecon and Radnorshire (Chris Davies) and my right hon. Friend the Member for Clwyd West (Mr Jones). The devolution of energy is a difficult issue for me, and I want to run through the reasons why. My concern is about onshore wind farms and the implications of onshore wind, particularly for my constituency. I am desperately keen to support the devolution process and keen that the Wales Bill be successful, particularly in relation to financial accountability. The Bill will enable the Assembly to become a Parliament and to grow up. However, the Welsh Government’s history when it comes to onshore wind causes huge problems, certainly in my constituency. They are landscape vandals—landscape philistines. That has been the general approach of the Welsh Government to onshore wind in my constituency. There are probably more wind turbines in Montgomeryshire than anywhere else in Wales.
Turning to the scale of what the Welsh Government want, they wanted another 500 turbines and a 40 km, 400 kV cable into Shropshire, which would have devastated my entire constituency. Powys County Council had to spend a huge amount of money simply to defend its constituency. The Ministers know what I am about to say, as they have heard me say it before. The only reason I can support this Bill is, ironically, that the Welsh Government have behaved in a centralising way when the UK Government devolved power to local authorities to decide on onshore wind farms. On the same day they devolved this to local authorities in Wales, the Welsh Government took that power back to themselves, like some old Soviet republic grabbing power to itself and away from the people. It was scandalous but the Welsh Government did that.
Guto Bebb
We have had a decent debate about the issues relating to this group of amendments. Clause 36 is a carefully drafted clause, which, again, gives effect to the St David’s day commitment on energy consenting. The combined effect of subsections (1) to (6) is to disapply the Secretary of State’s power under the Planning Act 2008 to grant development consent for electricity generating stations in Wales and in the Welsh inshore and offshore zones, not exceeding a capacity of 350MW. This is a compromise, but one based on the views expressed by Silk and the St David’s day agreement, which was attempting to reach a consensus. Development consenting for all onshore wind-powered generating stations in Wales has already been devolved through the Energy Act 2016, and I shall say more about that in a moment in relation to some of the amendments put forward by Conservative Members.
Amendments 74 to 80 were tabled by the hon. Member for Arfon (Hywel Williams), and they again seek to reopen the issue of the political consensus we found under Silk and as part of the St David’s day process. It is important that we recognise that the Bill is attempting to move forward on the basis of consensus, whereas the amendments are trying to open up the whole issue once more. Clearly, we have to accept that the electricity transmission system in England and Wales is thoroughly integrated, and we must keep that in mind when we legislate on this issue. It is also important to highlight that the consensus on the 350MW figure is appropriate, given that we are dealing with a system that is interrelated and interdependent. It is moving significant changes and decision-making powers to Wales, but it is also recognising the importance of what might be seen as a strategic energy development. One of more than 350MW is considered to be strategic, whereas one of less than that can be done on a Welsh basis.
We have rightly talked a lot about hydroelectric generation in this debate. I am proud that my constituency has several sites that are open to development for hydro energy production. A 350MW rule would imply that all those developments could be decided upon in Wales, which is a major development. The biggest challenge we would have would be ensuring that the electricity infrastructure to take energy out of the Conwy valley was up to speed.
Hywel Williams
Perhaps this is a mischievous point, but may I ask the Minister this: if 350MW and over is “strategic”, was 50MW and over strategic in the past? If so, what has changed?
Guto Bebb
It should be stated that a former Secretary of State for Wales and former leader of this party had long argued that there was a need to look at a higher limit. It is fair to say that the process of devolution is an ongoing one, and it is highly unreasonable to criticise the fact that we are moving towards a situation where very large developments of hydro power in north Wales could be decided upon in Cardiff.
Paul Flynn
As the process is ongoing, do we not have a responsibility to catch up with information that was not available to the Silk commission? I do not think that the Newport barrage and Cardiff barrage were envisaged at that time. How does it make sense for the Welsh Government to have control over the Swansea lagoon, but not over the Newport and Cardiff lagoons?
Guto Bebb
I am very sympathetic to the concept of tidal lagoons, but, as the hon. Gentleman will be aware, a review is being undertaken at this time and I would not want to prejudge it. It is being undertaken by Charles Hendry, who is well respected across this House.
Clause 37 allows Welsh Ministers to make declarations extinguishing public rights of navigation, so as to ensure safety out to the seaward limits of the territorial sea in relation to generating stations up to 350MW. Clause 38 aligns, in a single authority, the ability to consent both to a generating station itself and the associated overhead line which would connect that station to the transmission system. It does so by removing consenting applicable requirements under either the Electricity Act 1989 or the Planning Act 2008 for certain associated overhead lines with a transmission capacity of up to 132kV necessary for connecting generating stations of up to 350MW capacity. This is an attempt to generate a one-stop shop for energy opportunities of that size in Wales. The Silk commission rightly identified that a one-stop shop should be developed, and the Bill tries to deliver that in a Welsh context.
Government amendments 47 to 49 correct an inadvertent constraint in the current drafting of clause 38 by removing the presumption that Welsh Ministers are the devolved consenting authority.
On clause 39, the Planning Act 2008 introduced the concept of “associated development”—development that the Secretary of State could consent to as part of the development consent orders which underpin and facilitate major development projects. The ability to grant associated development allows for more of the complete projects to be delivered within a single consent, to try to make the situation easier for developers. In Wales, the benefit of this approach has hitherto been restricted only to certain activities around the construction of underground gas storage facilities. Clause 39 amends relevant definitions in the Planning Act 2008 to extend the scope of associated development in Wales to include activities accompanying generating projects above 350 MW and larger overhead lines connections of 132 kV. Again, it fulfils a St David’s day commitment and implements a Silk commission recommendation.
I think it is fair to say that amendments 158 to 160, tabled by my hon. Friend the Member for Brecon and Radnorshire (Chris Davies), seek to re-open matters which have already been debated in the context of the Energy Act 2016. That Act delivered the Government’s manifesto commitment to give local people the final say on wind farm applications. It also ensured that in Wales it is for the Assembly and Welsh Ministers to decide how decisions are taken. I see no basis for rowing back from that position now, but I agree wholeheartedly with my hon. Friend that the Welsh Government should ensure that local people in Wales have the final say on these matters.
In our discussion of the Bill, we have talked about the importance of financial accountability, but this is also a case of political accountability. In my constituency, Aberconwy, we had the development of the Gwynt y Môr wind farm. I think I am right in saying that every single councillor in the Conwy local authority area voted against the development, but it was imposed by diktat by the then Energy Secretary. The important point is that the changes and the power given to local communities as a result of Acts passed by the coalition Government were a direct response to that political need for change. If the Assembly Government are guilty of taking powers into their own hands, there is political accountability there which needs to be challenged and needs to be part of the political discourse in Wales.
The Energy Act has ended subsidy for new onshore wind. If an onshore wind project does not already have planning permission, it is not going to be eligible for subsidy under the renewables obligation. In all the circumstances, therefore, the amendment should not be pressed to a vote.
Clauses 40 and 41 devolve further powers to Welsh Ministers in respect of equal opportunities. The powers follow as closely as possible the approach adopted in Scotland, but the two approaches are not identical. Clause 40 covers the operation of the public sector equalities duty. It removes the requirement in section 152 of the Equality Act 2010 that the Welsh Ministers consult a Minister of the Crown prior to making an order amending the list of Welsh public authorities that are subject to the duty, replacing it with a requirement to inform.
Clause 41 provides for the commencement and implementation of part 1 of the Equality Act 2010 in Wales. Part 1 imposes a duty on certain public bodies to have due regard to socio-economic considerations when making strategic decisions. Clause 41 allows the Welsh Ministers to bring part 1 into force in Wales on a date of their choosing. It also enables Welsh Ministers to amend the 2010 Act to add or remove relevant authorities that are to be subject to the duty, without first consulting a Minister of the Crown.
Clauses 42 and 43 extend Welsh Ministers’ existing responsibilities for marine licensing and marine conservation in the Welsh inshore region to the Welsh offshore region. The clauses fulfil St David’s day commitments and implement recommendations in the Silk commission’s second report.
Clause 44 enables the Secretary of State to intervene on legislation or Executive activities where she has reasonable grounds to believe that these might have a serious adverse impact on sewerage in England. As part of this Bill, legislative competence for sewerage will be devolved, subject to the matters set out in C15 of new schedule 7A. These powers of intervention are similar to those already held by the Secretary of State in relation to water. They may be used where an Act of the Assembly, or the exercise, or failure to exercise, a relevant function might have a serious adverse impact on sewerage services and systems in England.
Amendments 81,125 and 126, tabled by the hon. Member for Arfon, seek to take forward the recommendations of the Silk commission in relation to water and sewerage. The Silk report recognised that water and sewerage devolution is complex and that further work to consider the practical implications was needed. The Government set up the Joint Governments Programme Board with the Welsh Government to look at these issues and report on the likely effects that implementing the commission’s recommendations would have on the efficient delivery of water and sewerage services, consumers and the water undertakers themselves. As my right hon. Friend the Secretary of State explained earlier, that work has concluded and the Government are considering the evidence before deciding whether and how the recommendations will be taken forward. We will consider carefully the interests of customers and businesses on both sides of the border before reaching that decision. It should be stressed that this issue is under consideration.
Liz Saville Roberts
Will this material be available when we are next discussing the Bill? If I remember correctly, I first heard about that working group when we were discussing the 50 years since Capel Celyn. As we are now nine months down the road, it would be appropriate for it to be reported to the House before the Bill comes to the end of its journey.
Guto Bebb
I thank the hon. Lady for her question. Her recollection is correct. We have only just received the report, so consideration of it must now take place. It is now with the Wales Office, and, after it has been considered, we will, in the manner described by my right hon. Friend the Secretary of State, discuss the contents of the report with other parties who have an interest in the Wales Bill.
Clause 45 fulfils a St David’s day commitment and a Silk commission recommendation to devolve to Welsh Ministers the power to make building regulations for “excepted energy buildings” such as generating stations and gas storage facilities. Clause 46 formalises the current differing arrangements for consulting the Welsh Ministers on renewable energy incentive schemes.
Amendments 130 to 132, which were submitted by the Opposition, would require the Secretary of State to gain the consent of Welsh Ministers, rather than to consult them. Energy policy is a reserved matter as regards Great Britain. Maintaining consistency provides for workable schemes, certainty to the industry and fairness to consumers. It is right that responsibility for renewable energy incentive schemes should rest with UK Ministers. I hope that that comment has been welcomed by my hon. Friend the Member for Montgomeryshire (Glyn Davies).
Clause 47 implements for Wales the conclusions of the HM Treasury review of the Office for Budget Responsibility, published last year. The OBR has a statutory duty to carry out a number of core functions, including to produce fiscal and economic forecasts. This clause ensures that it will continue to receive information from Wales as necessary to fulfil that duty. It reflects the increased fiscal devolution to the Assembly, and the Welsh Government’s competence for economic development. These roles mean that the OBR is more likely to require and use information held in Wales to fulfil its remit.
Clause 48 increases the accountability of Ofgem to the Assembly. Clause 49 provides that where a coal operator wants to mine in Wales, it must seek the approval of Welsh Ministers as part of its application for a licence. Clause 50 increases the accountability of Ofcom to the Assembly and Welsh Ministers. It goes further by giving Welsh Ministers the power to appoint one member to the Ofcom board who is capable of representing the interests of Wales.
Clauses 51 and 52 and schedule 5 and 6 make consequential and transitional provision relating to the Bill. Clause 51 allows the Secretary of State to make consequential amendments by regulations in connection with this Bill, and through amendments 82, 144 to 147 and 150 to 154, the Opposition parties are seeking to give the Assembly a role in approving those regulations. Amendments 144 to 147 would require the Assembly also to approve those regulations where such consequential amendments are within the Assembly’s competence or where they alter the Assembly’s competence. Amendments 82 and 150 to 154 would achieve the same with regard to consequential amendments that amend Acts or measures of the Assembly or secondary legislation made by the Welsh Ministers.
Clause 51 is a fairly typical consequential provision that ensures that the Government are able to tidy up the statute book where required in connection with this Bill. Indeed, similar provisions are included in Assembly legislation as well. Giving the Assembly a role in approving the Secretary of State’s regulations made under this clause would be as unjustified as giving Parliament a role in approving Welsh Ministers’ regulations made under Assembly Acts. It would also make the process far more complicated and time consuming than it needs to be. In reality, we would discuss any proposed changes that impacted on the Assembly’s competence with the Welsh Government before regulations were laid.
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Great Western Railway’s Bicycle Policy
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Mr Ben Bradshaw (Exeter) (Lab)
I am going to tell the House a story about myself—although it is not just about me but about the thousands of people who use the Great Western Railway service every year, and the many thousands who have signed a petition protesting about its so-called new policy.
I have not owned a car for more than 20 years. Before being elected to the House and every week since then, I have cycled from this place to Paddington railway station, put my bicycle on a train, travelled back to Exeter, taken my bicycle off the train, and gone about my constituency business. At the end of the weekend, I have done the same in reverse. First Great Western—or Great Western Railway, as it has now rebranded itself—has had a perfectly good and workable cycling policy, which has encouraged people to book a space in advance but has allowed people such as me to turn up and, if there is space in the cycling carriage, to put their bicycles on board. There is a designated space at the front of the train, with room for six bicycles.
In the nearly 20 years for which I have represented Exeter in the House, I have generally not reserved a space. I can count on the fingers of one hand the number of occasions on which I have arrived at Paddington or Exeter and not been able to get my bike on to a train because it has been full. There are nearly always spaces in the cycle carriages. So the House will understand why, when I was told by a Great Western Railway employee at Exeter station in April that the company was about to introduce a compulsory booking system for people with bicycles, I was somewhat concerned. I immediately asked to speak to a senior manager, who reassured me that this was not the case, and that discretion would be allowed. However, I took the precaution of writing to the managing director of Great Western Railway asking him to repeat that assurance. I explained to him the scenario that I have just outlined: it seemed to me to be ridiculous—Orwellian, even—that if people turned up at a station with a bicycle and there were spaces in the carriage designed for carrying bicycles, they should not be allowed to take their bicycle with them.
The managing director gave me a very reassuring response. On 26 April, he wrote:
“We understand that there will be times when booking is not possible and space is available on board.”
Booking, of course, is not possible for people like me, and many of the thousands of other people who do not know what train they will be able to catch. The business of the House is very unpredictable, as are my constituency commitments.
The managing director went on to say:
“Station staff have been briefed to allow bikes on board if this is the case, and we are checking that this message has reached colleagues, and you should not therefore have any issues travelling without booking a space for your cycle if there is space on board.”
That was back in April. I have to say that, in spite of that reassurance from Mark Hopwood, I was subsequently inundated with emails, letters, tweets and Facebook messages from other people in my position, who told me that they had encountered difficulty getting their bikes on to a train without a reservation, even when there were spaces on board.
I wrote my letter to Mr Hopwood from a train on which I had put my bicycle, without a reservation, and there were spaces on board. To this day, at many Great Western Railway stations, there are signs and tannoy announcements saying “You cannot put your bike on this train unless you have a reservation”. That is a lie. It is not true. It is not the policy, as Mr Hopwood told me in his letter. But it is still being represented as the policy at stations, in tannoy announcements and in messages. So it is not surprising that there is confusion among GWR staff.
I was then contacted by a constituent of the hon. Member for Bristol North West (Charlotte Leslie), who has also been lobbied on this. Sadly, she is unwell and cannot be here today. Her constituent had received a missive from another GWR management member that completely contradicted the assurance I had been given by Mr Hopwood. He said: “To be clear, we require you to reserve your bicycle on our high-speed trains, as our publicity states.” He went on to say, or to imply, that this was about preparing for the introduction of the new high-speed trains, which we are very much looking forward to serving our part of the world in the far south-west. I understand, however—the Minister may like to clarify this in her reply—that they are not due to come into service for another two years, so I was not quite sure why he was preparing for this event.
Simon Pritchard goes on to explain in his email that the reason they are doing this is that in the new high-speed trains the cycle spaces, instead of being in a designated carriage at the front of the train, will be in three separate areas along the train—two in each area, or more if the train is longer—so in order to try and avoid the chaos and confusion that would ensue from people trying to get their bikes on a train if they had not booked, they were trying to encourage people to book in advance. That is all very well, and I will come back to it in a moment.
Another problem that has exacerbated this whole issue is that it is incredibly difficult, complicated and clunky to book a bicycle on a train. People either have to telephone, although the telephone service operates only within certain working hours, or they can book online, but that can be done only when booking a ticket. So the only way people returning from a journey who already have a ticket can book is by phone, which, as I have said, does not operate for many hours of the week, or by going to a station. Of course, that is massively inconvenient for customers.
I went back to Mr Hopwood to seek clarification. I applied for this Adjournment debate, too, in the hope that this might make something happen. Indeed, as is so often the case when one secures an Adjournment debate, I received another letter from Mr Hopwood today, written last Friday, which is moderately reassuring. He has invited me to a meeting with cycling groups, which I am very happy to take up. He says that this discretion of people being allowed to take their bicycles on a train without a booking will continue, and implies it will do so until the new trains are introduced. He goes on to say they are working on a reservation system that will allow customers to take a bike on a train independently from their ticket purchase at short notice, even after the train has started its journey. Up until now, people have only been able to book a bike on a train up to two hours before that train has started its journey. On the long journey from Penzance to Paddington that is completely impractical because by the time the train has started its journey and someone has decided what time train they are going to get, the train has already left the station at Penzance so they cannot book their bike on. He also says that there will be an online service, a telephone service and service at stations and that they hope to have this facility available to customers by the start of the December timetable.
That is a welcome improvement and concession by GWR, which I am convinced has happened only as a result of the pressure put on it by customers who have used its service over the years. Mr Hopwood then argues that this will provide the flexibility cyclists have asked for and allow bookings to be made much closer to departure. If that is the case, it is an improvement. However, he also goes on to claim that the requirement to book space on long-distance services is not unusual and he says that other railway companies—he quotes more than three, but the three I am concentrating on are the three I know: CrossCountry, Greater Anglia and South West Trains—also have mandated bicycle reservations.
Well, I can tell Mr Hopwood that I took my bicycle on a CrossCountry service on Saturday without a reservation. I have taken it up to Norwich on Greater Anglia in the past six months without a reservation, and I have also taken it on South West Trains without a reservation in the past six months, so what he says is simply not the case. At a time when we should be encouraging people to use sustainable transport and to travel sustainably, rail companies should be bending over backwards to encourage people to use their bicycles.
Dr Sarah Wollaston (Totnes) (Con)
I thank the right hon. Gentleman for securing the debate and absolutely agree with everything he has said so far. Does he agree that it was clear from the Get Britain Cycling inquiry that he and I served on in the previous Parliament that active travel to work is a key aspect of encouraging people to get cycling, and that the health benefits that that brings are not in dispute?
Mr Bradshaw
Yes, I completely agree. I have described the system as Orwellian partly because of the confusion and the contradictory messages that are being given to the public, but the hon. Lady is exactly right that this is a moment in our history when we should be encouraging people to use sustainable transport and to take their bikes on trains. If there is space on trains, people should be allowed to put their bikes on to them.
This is a classic example of a big organisation announcing a policy without consulting any of the people who use the service and without thinking through its implications and repercussions. It then has to backtrack and try to clarify the situation, but does not really clarify it properly. It ends up thinking, “Oh dear, we’ve got ourselves into a bit of a mess here. How are we going to get out of this?” If only it had consulted the people who actually use the service, it could have avoided this situation. I can think of many examples of this happening in public life. I am sure that the Minister, who has a lot on her plate at the moment, can think of some as well.
The company has introduced this mandatory reservation system, which turns out not to be mandatory, in advance of the introduction of the new trains, but why on earth did it not wait until the trains were actually introduced? Instead, it has introduced the policy now, which has been confusing and might put people off taking their bikes on trains. It is okay for me because I have this letter from Mr Hopwood saying that I can take my bike on a train without a reservation if there is space for it. I have put a copy of it on my iPhone so that if I ever have any problems, I can flash it at the guard and say, “Look, I have an assurance from your boss that this is okay.” I have also put a photograph of the letter on Twitter and elsewhere. For the ordinary tourist or non-regular traveller, however, the policy will be a real deterrent to their doing exactly what the hon. Member for Totnes (Dr Wollaston) has said is the right thing to do.
I ask Great Western Railway to issue a clear, comprehensive clarification of its policy, and to make it absolutely clear publicly in the notices that it puts in railway stations and in the announcements on the tannoy, which are still inaccurate, that people can still put a bicycle on its trains without a reservation until the new trains are introduced. Also, as I mentioned a moment ago, Mr Hopwood is wrong about the practice on CrossCountry, Greater Anglia and South West Trains. Those trains already have a system whereby bicycles can be accommodated, with two at the front, two in the middle and two at the back. That is the system that Great Western is about to introduce. It is not difficult for someone to put their bicycle on a train if there is a space for it; they just need to move up and down the platform and put it into the space. This idea that people should be required to book in advance because of the new configuration of the trains, even if no one else has booked and spaces are available, is Orwellian and against the whole thrust of Government policy.
I hope that the Minister, given all the other problems on the railways that she is facing, will be able to have a quiet word with Great Western Railway and sort this issue out to reassure people who, like me, have been using the system perfectly happily for many years. This unnecessary change has created an almighty mess and confusion, and I hope that she will be able to get Great Western to see sense.
The Parliamentary Under-Secretary of State for Transport (Claire Perry)
I thank the right hon. Member for Exeter (Mr Bradshaw) for his long-term commitment to using the railways—like me, he is an assiduous user of Great Western Railway—and to cycling. There is a reason why the right hon. Gentleman looks as good as he does; I imagine that a lot of it is down to him cycling around the Exeter hills and dales. His commitment to his constituents is great. This debate is a perfect example of how something that might seem quite minor to many will be important to a relatively small number of people. By calling a debate and focusing on the issue, changes can actually happen. I want to address some of the main points and then some of the facts that the right hon. Gentleman said that he heard from the company.
It is not for the Government to specify every exact detail of a franchise holder’s interaction with its customers, but we set out the broad direction of travel, which is that customers with bicycles must be permitted on trains. I am the first to recognise the importance of sustainable travel, which my hon. Friend the Member for Totnes (Dr Wollaston) mentioned, and of joining up cycling and railway experiences as part of decarbonising our transport sector and contributing to good health. For many years, various policies have been applied across the country. We have benefited from the 40-year-old high-speed trains that have that wonderful guard’s van. They are almost an anachronism, but they have meant that cyclists can put their bikes all in one place in a way that is relatively easy to manage.
The right hon. Gentleman has experience of other operators, but it seems as though Great Western Railway is falling in line with other long-distance operators, including Virgin Trains East Coast and Virgin’s west coast franchise, that require reservations for all or part of some of their services. When its policy is implemented, 70% of Great Western Railway’s services will still take bicycles without a reservation.
When I was on the platform of Pewsey station on Saturday waiting to catch the 8.12 up to London, I heard the announcement mentioned by the right hon. Gentleman. I tend to read my ministerial box in advance, so I thought that I must mention it in my response to his debate. The announcement did make it sound as though the policy was mandatory, but what he knows, and what Great Western Railway has been at pains to point out, is that this is, in a way, rolling the turf for the introduction of the new intercity express programme trains, which we are all very much looking forward to. They will not have the guard’s van, but will instead have cycle spaces dotted around the carriage formations. The right hon. Gentleman says that it is perfectly okay for cyclists to push their bikes up and down, but we want the trains to run on time. We therefore want the loading of people, luggage and bicycles to be as efficient as possible, so there is some merit in the reservation system. The new trains will have more seats, more spaces and more frequent services to the right hon. Gentleman’s constituency, and we are all looking forward to that.
Although I am looking to Great Western Railway to solve these issues, I was particularly interested to hear about the right hon. Gentleman’s experience of the implementation, because the policy does sound confusing and inconsistent. I have heard from the company that it absolutely recognises those points. It has no doubt been nudged by the right hon. Gentleman’s campaigning and by his securing of this debate, as it is improving its booking system. I went online myself and found that it is possible to reserve a cycle space when making an advance booking, but it is not possible to book if someone is not quite sure which train they will be taking. I welcomed the company’s announcement that it will have a system in place by December through which people can make bicycle reservations almost as they show up to the station. I had also heard that the phone system was inadequate, so I was pleased to hear from the company that it has changed suppliers. No longer will it be sending calls over to India; they will be dealt with onshore. The right hon. Gentleman and other keen cyclists should be able to look forward to better, more consistent contact with the call centre.
It is important to recognise that the company, like many others, is doing a lot to invest in cycling, in addition to providing new cycle spaces on the new trains. I am intrigued about looking at new ways of solving this problem, because I find that although there are dedicated cycle spaces on many trains, and many rail users have folding bikes which can, in theory, fit in overhead compartments, all too often people will be on trains with bikes stuck in the aisles—that occurs particularly on crowded commuter trains going up the east coast. It would be great to see some innovation in rolling stock to allow bicycles to be accommodated in a different way, so I am encouraging the industry to think about how to do that.
I also recognise that companies are working hard to encourage people to cycle to stations and then leave their bikes there. I suspect that the right hon. Gentleman is in a minority in actually bringing his bike up to London. That shows what a dedicated cyclist he is, as many others leave their bike at the station. It is noteworthy that the company has already invested in 750 cycle spaces in the past two years and secured funding for another 600 spaces at 21 stations. It is also working with bike hire companies and on Brompton docks in many locations, as well as supporting a new innovative hire scheme at Bainton Bikes in Oxford, which uses Danish technology—in essence we are talking about a dedicated hire bike that can be secured to a regular, stand-alone cycle rack. That has lots of applications right across the country.
The company that we are discussing, like many others, is committed to improving the experience of cyclists who use its services, but I take the right hon. Gentleman’s points very seriously. I commend him for securing the debate and for making changes happen with the company already. As a keen cyclist, albeit not one who is brave enough to take my bike on the trains, and a keen user of Great Western Railway, I will be watching the implementation of and improvements to this policy with great interest.
Question put and agreed to.
Draft Major Sporting Events (Income Tax Exemption) Regulations 2016
(7 years, 9 months ago)
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The Financial Secretary to the Treasury (Mr David Gauke)
I beg to move,
That the Committee has considered the draft Major Sporting Events (Income Tax Exemption) Regulations 2016.
It is a pleasure to serve under your chairmanship, Sir Edward. The draft regulations will provide an income tax exemption for overseas sportspeople competing in the London anniversary games 2016 and the world athletics championships 2017. The exemption will apply only to competitors resident outside the United Kingdom; it will apply to any income that a competitor receives while competing in the events or from activities that they perform to promote or support them.
Both the anniversary games and the world athletics championships are events of the highest international standard and will attract the greatest athletes in the world. Both events will be hosted in the Queen Elizabeth Olympic park in Stratford, the iconic venue of the extraordinarily successful 2012 London Olympic and Paralympic games. Members of the Committee will be aware that it has been the policy of successive Governments to provide an income tax exemption for visiting athletes in such major sporting events. In recent years, tax exemptions have been granted for competitors in a series of high-profile events, so it is entirely appropriate for the Government to provide similar exemptions for these two major international events.
The draft regulations mark an important departure by providing the exemptions through secondary legislation. The power to do so was introduced by the Finance Act 2014 and these regulations mark the first occasion on which that power has been exercised. I emphasise that, although the process for granting tax exemptions has changed, the reason for granting them remains the same. As I have said on previous occasions, the policy criteria for sport tax exemptions fall into two broad categories: first, where such an exemption is a necessary condition of a bid to host an internationally mobile event at the highest level of world sport; and secondly, where the event in question provides an exceptional opportunity to prolong the legacy of the 2012 Olympic and Paralympic games. The 2017 world athletics championships fall squarely within the first category, and the 2016 London anniversary games are entirely consistent with the second. This year’s anniversary games will run from 22 to 23 July and the 2017 world athletics and para-athletics championships will run from 14 July to 13 August.
Similar exemptions were put in place for the London anniversary games in 2013 and 2015. However, as the 2016 Olympics will start in Rio de Janeiro next month and so bring to an end the four-year Olympic cycle, it is appropriate that, as the Government announced in the autumn statement last year, this will be the last year in which the exemption will be granted for the London anniversary games.
The exemptions provided by the draft regulations demonstrate the Government’s continuing commitment to ensuring that the UK is an attractive location for major international sporting events. I commend them to the Committee.
Rebecca Long Bailey (Salford and Eccles) (Lab)
It is a delight to serve under your chairmanship, Sir Edward. It is also a pleasure to be back in a Committee with the Financial Secretary to the Treasury after what I hope was a welcome rest over the weekend for both of us.
The draft regulations exempt non-resident competitors in the 2017 world athletics and Paralympics championships and the 2016 anniversary games from income tax on their earnings from the event. The idea of exempting earnings from major sporting events from income tax for non-UK residents is not new; indeed, it goes back to 2006 and 2010, when the Labour Government introduced special provisions to exempt non-residents who were coming to the UK to take part in certain sporting events—the 2012 London Olympics and the 2011 champions league final. Exemptions of that kind have historically been made through primary legislation in Finance Bills, but the Government announced in the 2014 Budget that they would legislate to enable income and corporation tax relief to be given in relation to major sporting events via secondary legislation. Provision to that effect was made in section 48 of the Finance Act 2014 and the draft regulations are the first set of exemptions made by virtue of the powers granted.
The Minister will be aware that the Opposition were not opposed to the principle of providing tax exemptions for certain sporting events, but we expressed concern about the uncertainty regarding the Government’s approach to selecting such events. During the passage of the Finance Act 2014 we moved an amendment to publish a formal review of those decisions every five years. Speaking for the Opposition at the time, my hon. Friend the Member for Newcastle upon Tyne North (Catherine McKinnell) stated
“tax exemptions for sporting events have been dealt with on an ad hoc basis in Finance Bill to Finance Bill. As a result, some athletes and professional sportsmen and women have benefited from exemptions from some sporting events, while others have not.”
She also said:
“Clause 45 and our amendment 13 address this piecemeal legislation relating to sporting events and the fact that the issue recurs at every Finance Bill.”
At that time we questioned what other sporting events the Government envisaged becoming eligible for tax exemptions for non-resident competitors and whether the Government planned to extend the number and range of events that were eligible. Our amendment would have required a review of how the power was being used in that respect. Sadly, the Government did not support the amendment at the time, stating:
“The Government might use the power only once in the next five years, for example, so undertaking to publish reviews to such a schedule would not be proportionate.”––[Official Report, Finance Public Bill Committee, 8 May 2014; c. 238-239, 243-244.]
I appreciate that the Government have only used the power once since it was introduced—in the statutory instrument before us today, which makes provision only for the 2017 world athletics and Paralympics championships and the 2016 London anniversary games—but will the Minister confirm whether the Government have plans to extend the scope of those tax emptions beyond football, athletics and the Olympic and Commonwealth games?
I am particularly concerned about the gender inequality inherent in the relief. Will the Minister confirm whether women’s events are being treated equally? For example, was the UEFA women’s Champions League final held at Stamford Bridge in London on 23 May 2013 given the same tax exemption as the 2013 men’s Champions League final held at Wembley? I understand that it was not. Why do the Government deem the men’s game to be a major sporting event but not the women’s? The impact assessment for that specific legislation stated that the measure was likely to affect more men than women. Those anomalies are exactly why the Opposition called for a review of the legislation every five years, so that we could see the Government’s approach to selecting events. It seems to me that there is an ingrained gender inequality that the Government must address, and I welcome the Minister’s comments in that regard.
I am also concerned that no tax information and impact note has been published for the instrument, despite the explanatory memorandum stating it would be published on the usual section of gov.uk. Prior to coming to the Committee, the only available note I could find there related to the 2014 Act and not the statutory instrument. Will the Minister confirm what impact analysis has been carried out, especially on equality? Will he also clarify what measures are in place to ensure that this relief and others are not used for tax avoidance?
Turning to the events listed in the statutory instrument, it is my understanding that the tax exemption was a condition of the international bidding process for all countries that wanted to host the 2017 world athletics championships. Which international bodies made the exemption a condition of the bidding process? While no doubt appreciating the economic benefit that such sporting events bring to local economies, does the Minister think it right that international sporting bodies should force Governments across the world, not just in the UK, to make an income tax exemption a requirement of hosting specific sporting events?
The Government state that the exemption for the 2016 anniversary games is designed to support the legacy of the 2012 London Olympic and Paralympic games, which were great sporting events that many people across the country thoroughly enjoyed. As an aside from the regulations, I would be interested generally to know whether the Government have made any assessment of the economic effect of the legacy of the games in the immediate Newham area.
The regulations are a continuation of the policy of both the previous Government and the last Labour Government of exempting from income tax non-resident competitors’ earnings from some major sporting events, and we will not oppose them. However, I hope that the Minister can give satisfactory reassurances on the concerns that I have outlined.
Mr Gauke
I thank the hon. Member for Salford and Eccles for essentially supporting the regulations. She raises several questions, at the heart of quite a lot of which is a point about the criteria that apply to these tax exemptions, so let me set those out briefly. I direct her to the explanatory notes published alongside the 2014 Finance Bill, which state:
“The Government’s policy is to grant certain tax exemptions for sporting events if the event is: world-class, internationally mobile, and where exemption by the host country is a requirement of a bid to host the event. In addition the Government has provided exemptions for events which were or are exceptionally well-placed to extend and preserve the legacy of the London 2012 Olympic and Paralympic Games.”
That is the basis on which decisions are made. Tax exemptions for major sporting events are considered on a case-by-case basis and those criteria are applied. There is certainly no discrimination against women’s sports. There is no gender inequality in the sense that any event that meets the relevant criteria and qualifies for an exemption will get an exemption. I hope that that reassures the hon. Lady.
The hon. Lady also raised the issue of a tax information and impact note. There is in fact such a note for the regulations, which sets out our thinking and assessment of their impact. I hope that that is helpful.
The regulations will help to ensure that we provide certainty and that the two events to which they relate, in which both men and women compete, are successful. I will be grateful if the Committee supports the draft regulations.
Question put and agreed to.
Ministerial Correction
(7 years, 9 months ago)
Ministerial CorrectionsRead Full debate Read Hansard Text
Foreign and Commonwealth Office
(7 years, 9 months ago)
Ministerial CorrectionsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Ellwood
The Government are certainly co-operating fully with the Intelligence and Security Committee’s inquiry. The ISC has confirmed to the Government that it has received all but one of the relevant documents to date, but if it requires any further documents, it only needs to let the Government know.
[Official Report, 29 June 2016, Vol. 612, c. 443.]
Letter of correction from Mr Ellwood:
An error has been identified in the response given to the right hon. Member for Orkney and Shetland (Mr Carmichael) during the Adjournment debate on UK involvement in rendition.
The correct response should have been:
Mr Ellwood
The Government are certainly co-operating fully with the Intelligence and Security Committee’s inquiry. The ISC has confirmed to the Government that it has received all the relevant documents to date, but if it requires any further documents, it only needs to let the Government know.
Westminster Hall
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School Penalty Fines and Authorised Absence
(7 years, 9 months ago)
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Westminster Hall is an alternative Chamber for MPs to hold debates, named after the adjoining Westminster Hall.
Each debate is chaired by an MP from the Panel of Chairs, rather than the Speaker or Deputy Speaker. A Government Minister will give the final speech, and no votes may be called on the debate topic.
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Steve Double (St Austell and Newquay) (Con)
I beg to move,
That this House has considered e-petition 129698 relating to school penalty fines and authorised absence from school.
It is a pleasure to serve under your chairmanship, Mr Hanson, and a privilege again to have the opportunity to debate this subject, which looks like it is simply not going to go away. It is evident that parents from all around the country feel strongly, which is why we get to debate it again. We are here as a result of the online petition titled, “No more school penalty fines and bring back the 10 day authorised absence”, which has received more than 200,000 signatures to date. I am sure that we are all clear on the background, but let me put on the record that the petition states:
“Back in 2013 the government changed the law on taking your children out of school in term time so that now you receive a penalty fine of £60 per child”,
which can increase if the fine is not paid within a certain time.
Before the change in the law, which was passed by way of a statutory instrument and without the impact assessments being considered, headteachers had the discretion to allow up to 10 days off for pupils in special circumstances. That approach was rooted in common sense: teachers know the pupils, know the families they come from and know the communities that they are a part of. Sadly, we now have a Big Brother blanket ban on all family holidays in term time that gives the message that the state knows better than parents what is right for their children.
As we know, the rule was turned on its head by a recent court ruling, which judged that it was unlawful to fine parents for taking their children out of school when their children are regularly attending school. Confusion now reigns. We recently heard from Devon County Council that, until the details of the new law are made clear, it has suspended issuing any new penalty notices and cases to be heard in court will be adjourned. Cornwall Council has apparently been accused of going soft on fining parents. Although I welcome the decisions that these two south-west councils have taken, for the sake of fairness and clarity, schools and parents across England need to know where they stand.
Mr Russell Hobby, the general secretary of the school leaders’ union, the National Association of Headteachers, stated that, as we approach the holiday season, the recent ruling had
“created confusion for schools and parents”
and that
“the system of fines is clearly too blunt an instrument and in many cases it drives a wedge between schools and families.”
Swift action is needed to clarify the position for families, schools and all concerned.
The Minister knows that I care deeply about this—we have discussed and debated it before—partly because of the negative effect on the people of my constituency in Cornwall. I have made that case and spoken about the impact on the tourist industry many times before. I do not intend to repeat those arguments, but I want to address what I believe are some of the key arguments and some of the points that parents up and down the country feel very strongly about. I believe that we need to return to a policy that brings back common sense and a degree of flexibility.
I believe that the policy devalues the place of the family. The Government do not know what is best for my or anyone else’s children. Every child is unique and every family is different. This one-size-fits-all blanket ban does not allow for the uniqueness of every child and every family. It is not the Government’s role to tell parents what is best for their children.
The Minister for Schools (Mr Nick Gibb)
Does my hon. Friend accept that it is the Government’s role to say that education should be compulsory from the age of five to 16?
Steve Double
I thank the Minister for that intervention. Of course I agree with him that we value compulsory education in this country and that it has a very important part to play. However, compulsory education does not happen only in the classroom—it does not mean that children should be stopped from taking a family holiday, which, I would argue, has an equally important role in their upbringing.
One parent who was fined for taking his child to a sporting world championship that a family member was competing in wrote these words to me:
“The notion that a state official can criminally enforce their perspective on which family members are important to a child is very disturbing coming from a democratic government…By focusing on what is an ‘exceptional circumstance’, and trying to eliminate cheap holidays, the law has sent schools down the path of criminally enforcing ethics, family values, the intimate details of children’s lives and relationships, without any qualifications or regard for academics, the wellbeing of the child, or the integrity and dignity of the family structure.”
Simon Danczuk (Rochdale) (Ind)
The hon. Gentleman is doing an excellent job in leading this debate. Does he agree that the policy is far too draconian? I have two young children and the headteacher at their school is excellent and sensible, but that is not always the case. Should parents not be given more credibility in terms of being able to make the right decision for their children?
Steve Double
I agree with the hon. Gentleman. The one-size-fits-all blanket approach is draconian, and often penalises the wrong people and leaves no grounds for the school and headteachers to decide what is best for the individual child.
Just last week I spoke to a primary school headteacher in my constituency and was surprised by what he said:
“The best thing that could happen to some of the children in my school would be for their parents to take them”
on a week’s holiday “even in term time”. That was a headteacher who knows the children at his school, knows the families and the pressures and challenges they face, and knows the community that they are a part of. I challenge the Minister: does he agree with that headteacher? Is there ever a case, a situation or a set of circumstances where the best thing for a child would be to miss a week of school in order to have a holiday with their parents?
Lilian Greenwood (Nottingham South) (Lab)
I am trying to understand the hon. Gentleman’s arguments and ask for clarification. Is he suggesting that parents should have an absolute right to take their children out for up to 10 days without any reference to the advice of the headteacher, or is he saying that the headteacher or another member of staff should be able to exercise a view on whether that request is authorised?
Steve Double
I will come to that later, but I make the point now that, of course, we are not talking about a free-for-all where parents can just take their children out whenever they like. I am arguing that we should give the discretion back to headteachers, with a degree of flexibility, so that they can decide what is right for each child in each unique set of circumstances and in each family situation, and, taking all matters into consideration, decide what is best for that child, rather than have a blanket ban.
Imran Hussain (Bradford East) (Lab)
The hon. Gentleman is making a very persuasive case and is concentrating in particular on the family holiday entitlement, but can I bring him to another area? What about when parents have to take children out in exceptional circumstances? There is an absolute lack of clarity about what constitutes exceptional circumstances and there is no consistency. Does he agree that there need to be national guidelines to determine what exceptional circumstances are?
Steve Double
I suspect the Minister will say that guidelines have been provided, but in my experience, most headteachers say that, even when they follow the guidelines and exercise their discretion in saying what exceptional circumstances apply, they get criticised for exercising it when there is an Ofsted inspection. There seems to be a lack of consistency, which is why I argue for putting the discretion back in the hands of headteachers. Give them the freedom—they know the pupils and the families, so let them decide what is best for their pupils.
The Government have made great claims about the importance of the family and the value of a strong stable family to a child’s life and, indeed, to the wider community. I wholeheartedly support that, but it is sad that the family test was not in place when the rule was introduced in 2013. If it were, what would the outcome have been? I take the view that the family test would severely challenge the policy because of its impact on families’ lives. We live in a time when we are getting busier and busier. Time together as families is more precious than ever, so holidays together play an even more important part in the life of many families. It is clear to most people that time away is time to strengthen family relationships and time for parents to focus on their children. The value of that is immeasurable.
The simple fact is that, for many families, the choice is either a holiday during term time or no family holiday at all. For some people, that is due to their work situation—it is just not possible for many parents to take time off during school holidays. That is particularly true in my constituency, where people work in the tourist industry, but it is also true for many public sector workers in the NHS, the police and other sectors. For other families, it is simply a case of economics. A holiday during the peak season can be two or three times the price of a holiday during term time. For many families, it is just not affordable to take a holiday in the peak season. The Family Holiday Association reports that about 7 million families in the UK are simply unable to afford a week’s holiday.
It is easy for MPs, Government Ministers and education officers, who earn more than five times the salary of the average person in my constituency and, indeed, people in many other parts of the country, to say that people should only take a holiday out of term time. As someone suggested to me recently, the problem does not affect those in private education, as private schools have longer school holidays anyway. I am sorry to say that the situation simply shows that we do not understand the reality of life for many families. It is not a case of just looking for a cheap holiday. For many families, it is the only holiday they can afford, so it is a matter of a term-time holiday or no holiday.
We are discriminating against those on low incomes by saying that if they cannot afford the high prices charged during the school holidays, they do not deserve a family holiday. The policy is making the situation worse. By focusing all demand on the few weeks of school holidays, the rules of supply and demand mean that the prices go up during those weeks, and the drop in demand during term times means that the prices go down in those weeks. The differential between a term-time week and a school holiday week is widening. The message from the Government to our children is quite simple—that time in the classroom is more important than time away with their parents. Quite frankly, that is wrong.
My second point is that the policy denies the value of a holiday to a child’s development and education. Education does not take place only in the classroom. Although no one would deny the importance of children learning maths, English and the other core subjects, we should also accept that there are other equally important aspects of any child’s education. Education should be about preparing our children for life, work, being a good citizen and playing their part in the world. It is not just about passing exams. The opportunity to travel—to other countries or to other parts of this country—can and does play a valuable part in any child’s upbringing.
Stephen Timms (East Ham) (Lab)
I am listening carefully to the hon. Gentleman’s case. A lot of my constituents—families with grandparents outside the UK in Pakistan, India and Bangladesh—will be encouraged by what he is saying. However, he seems to envisage a difficult role being placed on headteachers. Is he suggesting that any family could take their child out of school for a week or a couple of weeks if that works for them? Should there not be some encouragement for families to keep their children in school if that is at all possible?
Steve Double
Clearly we do not want a free-for-all. I am arguing for discretion to be put back into the hands of headteachers, which was the case before the rule was introduced in 2013. To my observation—I have been a school governor for nearly 20 years—it was working perfectly well. Even in a place such as Cornwall, where there was high demand for taking children away in term-time because parents worked in the tourist sector, there was still conversation and co-operation between the parent and the school. It was not a free-for-all. There was co-operation between parents and schools, and I am asking for the same now.
As the NAHT says, we are driving a wedge between the family and the school, which is damaging to, rather than supportive and encouraging of, children’s education. We are creating tensions between the school and the family, which has to be detrimental to the child’s education.
Rosie Cooper (West Lancashire) (Lab)
I have a constituency case in which a mother and the child’s father, from whom the mother had separated, were fined. The mother’s husband was also fined but he has no parental control at all. In that case, three people were fined. Does the hon. Member for St Austell and Newquay (Steve Double) agree that there is a fundamental lack of transparency, fairness and consistency in how the fines are being applied, and that headteacher involvement would start to address some of those ridiculous situations?
Steve Double
The hon. Lady makes a good point. One problem with the policy is that it is being applied inconsistently by different local authorities. Since I stuck my head above the parapet on the issue, hundreds of parents have contacted me with many different stories about how the policy is being applied. The case mentioned by the hon. Lady is a good example of inconsistency, as three parents have been fined for the same child. Greater clarity is needed. I agree that the answer is to give discretion back to headteachers and let them make the decision.
Many headteachers up and down the country are asking for their discretion back because they understand the tensions that the policy causes between schools and families. One of the most important things in a child’s education is that their parents are engaged with their education, which means having a good positive relationship with the school. That is far more important than what school a child attends or even how many days they are at school. If there is a positive, co-operative relationship between the parents and the school, the child will usually do well at school. Where tension is created, the relationship is damaged, which has to be detrimental to the child’s education.
Rosie Cooper
I have a letter from the Minister—I took the matter up with the county council, as the education authority—who says:
“Individual local authorities determine the circumstances in which parents can be fined”.
But staff at the local authority tell me that they have no involvement, that schools only apply the fines and that the Government set the policy. We really are in a mess and we need greater clarity to even begin to understand how the system is working.
Steve Double
Again the hon. Lady makes a good point, and one that I have come across as I have tried to follow the chain of responsibility. I have met with headteachers, Ofsted and local authority leaders, and there is a lack of clarity about who is responsible—it is a vicious circle. Sadly, that comes down to the ruling and the situation with the Department for Education, which made the blanket ban, and that is the very point that I am challenging.
The policy undermines the place of family and devalues the importance of family holidays in any child’s upbringing. The policy does not enjoy broad support: parents hate it; many headteachers I talk to dislike it hugely and want it to be changed; and even the Local Government Association does not support it. David Simmonds from the LGA said:
“The increase in fines reflected tighter enforcement by schools that are under pressure from Ofsted to meet attendance targets, as well as a rising school population”.
He called for more flexibility in the rules to allow heads to take account of family circumstances where absence is unavoidable. He said that heads
“should be trusted to make decisions about a child’s absence from school without being forced to issue fines and start prosecutions in situations where they believe the absence is reasonable.”
That is a common-sense approach.
I am sure that we all want a good education for all children in this country, but that is not what we are debating. The Government are trying to reduce truancy, which is a persistent problem for a very small number of students, but this blanket approach is not the way to achieve that; it is a blunt instrument hitting the wrong people. There is a big difference between truancy and parents who simply want to be able to spend a holiday with their children. It should be noted that children who are persistently absent are less likely than other children to go on a family holiday. Before the regulations were introduced, authorised family holidays accounted for 7.5% of all absences from primary schools, dropping to 2.5% of all absences from secondary schools, but absence for family holidays was lower, at 1.9%, for persistently absent pupils, compared with 8.2% for other pupils. The policy is focusing on the wrong families; it is hitting the wrong people.
Michelle Donelan (Chippenham) (Con)
Given that holidays outside term time are much more expensive, does my hon. Friend accept that children who are restricted from taking time to go on holiday, which can be educational and enriching, tend to be socially deprived and from impoverished backgrounds? We are limiting their life chances with this policy.
Steve Double
My hon. Friend makes a good point. We are hitting the wrong people with this policy. The children of families who, because of the economics and the price, can afford to take them on holiday only during term time are possibly the ones who need such holidays the most in order to enrich their experience of the world, to strengthen their family relationships and to expand their knowledge and appreciation of the world, but they are the ones who are being excluded from such highly valuable experiences by this policy.
By stating that a family holiday is not a valid reason for an authorised absence from school, we are not addressing the real issue of persistent truancy. The assumption that absence is the main cause of falling attainment is just that—an assumption that has no evidence to support it. Stephen Gorard, professor of education at Durham University, has said:
“There is an association between the proportion of absence and the aggregate level of attainment of students who’ve had that level of absence but it would be wrong to assume that it was necessarily causal. We don’t know that the absences are the reason for the lower attainment. They could both be indicators of something else such as background characteristics and of course it’s also possible that children who aren’t doing well at school after a time begin to drift away and perhaps take time off. It could be that the causal mechanism is the other way around.”
This policy cannot be considered in isolation. We cannot just take a narrow approach that says, “This is the way to ensure that children attend school regularly,” without considering the wider impact on other aspects of family life and society.
Derek Thomas (St Ives) (Con)
I thank my hon. Friend for pursuing this good cause. Does he agree that the policy has an adverse impact on NHS services? The population of areas such as Cornwall increases significantly during the summer holiday months, which places extra pressure on health services at the very time when medical staff are forced to take their holiday.
Steve Double
My hon. Friend makes an excellent point on an issue I am only too aware of. In Cornwall, and I suspect in other parts of the country, families are forced to take their holiday just at the time when we need more NHS staff. Hospitals and other services struggle to maintain staffing levels for that very reason. The Government need to take a joined-up approach and consider the impact not only on the Department for Education but on other organisations, such as the NHS.
We are still waiting for the Government’s response to the recent court ruling, and it would be helpful if the Minister could provide an update today. If, as he has previously stated, his intention is to reinforce the rule, can he confirm that that will require primary legislation, as the court indicated? If so, will he confirm that the process will include a full impact assessment of both the economic and the social impacts and that the family test will be rigorously applied? Will he confirm that he will consult widely not only with schools but with family groups and the tourism industry?
Along with families across the country, I hope that the Minister will now choose a different response. The petition calls for 10 days of authorised leave each year for a family holiday, but I am not sure whether that is necessarily the correct approach. The right approach is to return the decision to the discretion of headteachers, who should be allowed to make the decision based on their knowledge of the children and families involved. Headteachers should be given the flexibility to decide, in co-operation with parents, what is right and best for the children in their school. Once again, I ask the Minister to reconsider the Government’s position on this issue, to recognise the very real concerns of parents and to accept that this policy was rushed through without the consultation and assessment that it should have had. Take this opportunity, in light of the recent court ruling, to think again. Accept that truancy and persistent absence are different from a family holiday. Repeal this ruling and return flexibility and common sense. Allow families who want nothing more than to spend a week on holiday with their children the right to do so without the fear of being made into criminals.
Peter Heaton-Jones (North Devon) (Con)
It is a pleasure to serve under your chairmanship, Mr Hanson. I congratulate my hon. Friend the Member for St Austell and Newquay (Steve Double) on securing this important debate. We are both south-west MPs, and this issue has particular resonance and significance in a region where tourism is an incredibly important part of the economy. I thank the Minister for being here and for meeting me to discuss a particular case. The meeting was useful, and I will mention more details of the case in a moment. I know he is listening, and I know he is open to some of our suggestions.
I am sure I speak for my hon. Friend the Member for St Austell and Newquay when I say that we seek to be helpful. We are not seeking to cause problems, to rebel for the sake of it or to make a nuisance. All south-west MPs and Members from all areas of the country are being contacted by many thousands of worried parents and headteachers about their real concerns with the current position, and it is incumbent on us to inform the Minister and the Government of those concerns. I do not seek to create difficulty; I merely seek to raise an issue that many of my constituents, and I am sure many constituents of right hon. and hon. Members on both sides of the House, have raised.
Lilian Greenwood
I have a great deal of sympathy with some of the hon. Gentleman’s points, but will he concede that headteachers are also expressing concern that the current uncertainty, as well as the change requested by the petition, could make it more difficult for them to encourage good attendance, which they believe is important for the good achievement and progress of their pupils?
Peter Heaton-Jones
I will discuss the specifics of the petition in a moment, but as I said in my opening remarks, it is not just parents but headteachers who are contacting us to express concerns about the status quo.
It is important to point out that nobody here, including my hon. Friend the Member for St Austell and Newquay, is arguing that education should not be compulsory. Of course it should. Nobody is arguing, either, that parents should have an automatic right to decide that they want to take their children out of school for a set number of days a year.
That goes exactly to the point made by the hon. Member for Nottingham South (Lilian Greenwood). Like my hon. Friend the Member for St Austell and Newquay, I do not agree with the headline of the petition, which mentions bringing back the 10 days of authorised absence. We could argue for some time about whether it ever existed in the first place, but I do not support that idea. I do not believe that parents should expect an automatic right to a certain number of absence days a year, or that a headteacher should expect to approve them. I want common sense. I want the responsibility to go back to individual headteachers and individual parents, so that they decide what is right for individual children in individual cases. I keep using the word “individual” deliberately, because we cannot have a one-size-fits-all policy that seeks to impose a centrally decided rule on all children in all circumstances. We need the common sense of individual discretion back in the system.
Michelle Donelan
Does my hon. Friend accept that the policy must be applied on a case-by-case basis, and that more trust in and respect for our teachers and parents is necessary? If requests were considered case by case, headteachers could consider the age and stage of the child, their needs and their other absences throughout the year.
Peter Heaton-Jones
My hon. Friend makes an important point. I do not know whether she saw my remarks in advance, but I was coming on to say that what I want is a world where we recognise that the best people to make decisions for children in individual cases are their parents and their headteacher. Those are the people who should be making such decisions, and they need the discretion to do so.
Now, however, everyone is confused by the vacuum created following the Isle of Wight court case. As my hon. Friend the Member for St Austell and Newquay suggested, we need some certainty from the Minister—I am sure that he will be able to provide it—about the Government’s position on the court case, which has left people concerned. In particular, the fear among headteachers to whom I have spoken is that under the existing regulations, if they authorise absences from their school, they will be penalised when Ofsted comes and looks at their absence statistics. Headteachers are rightly worried about the implications of that for the rest of their school.
We need a clear indication from the Minister that when headteachers decide that they wish to authorise an absence in individual circumstances, Ofsted will not count it against the absence figures for their school as a whole. Headteachers need the certainty that if they feel it is right to make a particular decision in the case of a particular child, they can do so without being penalised from above.
My hon. Friend the Member for St Austell and Newquay mentioned the situation in Devon. Due to the uncertainty brought on by the Isle of Wight case, Devon County Council has now suspended all actions against parents, some of whom have been summonsed to court or made a first appearance before magistrates. That is absolutely the right thing to do in the circumstances, but I am afraid it merely adds to the sense of confusion.
One case that hon. Members may have seen reported widely in the national media at about the same time as the Isle of Wight case was that of my constituents Edward and Hazel Short. Mr and Mrs Short have two daughters, Nicole and Lauren, aged 16 and 15 respectively. Nicole and Lauren have represented England at volleyball. They are budding national athletes. This piece of paper in front of me—which is from the Daily Mirror, just to prove that there is absolutely no political bias in my choice of media—describes Nicole and Lauren as
“being hailed as stars of the future.”
This is their story: Nicole and Lauren were invited on a three-week training session. Two of the weeks coincided with school term time, and six and a half days’ absence from school would have been required. Their headteacher decided that he was not in a position to authorise their absence, and a fixed penalty notice of £60 was issued. Mr and Mrs Short decided not to pay it, and the next thing they knew, Devon County Council summonsed them to appear in court. They appeared before north Devon magistrates. They still did not accept the fine, and said that they would fight their case all the way.
Devon County Council then summonsed Mr and Mrs Short further to appear in court this month. When the finding in the Isle of Wight case went against the Government, as my hon. Friend said, Devon County Council decided that Mr and Mrs Short’s case, and a number of others with which it was currently dealing in the same way, would be suspended and no further action would be taken.
Lilian Greenwood
My understanding is that headteachers have the authority to allow a request for leave during term time in exceptional circumstances. Is the hon. Gentleman aware of why the headteacher, knowing that those young people had the potential to represent their country, did not consider the circumstances exceptional?
Peter Heaton-Jones
It is a perfectly reasonable question. I tried to answer it in advance by saying that there is always a concern about what Ofsted’s view will be when it considers absences on the school roll across the board. All headteachers are extremely concerned that if they authorise such an absence, it will count against them when their overall absence statistics are considered.
Let me be clear: I have no criticism whatever of the school or the headteacher for the decision that they made. They felt that they had no choice but to do so; that is the point. The issue of choice is fundamental. Parents and headteachers should, in exceptional circumstances, have the freedom and choice to allow absence. That is what they are currently being denied, and in my view that cannot be right.
I raise that case in particular not only because it is in my constituency but because it specifically did not involve giving the children a holiday; that was not the purpose of the absence request. Yet it is absolutely the case that in Devon, in the constituency of my hon. Friend the Member for St Austell and Newquay and many other constituencies, the tourism sector plays a vital role in the local economy, and it is being badly affected by the current situation. By some measures, one in six jobs in my constituency depend either directly or indirectly on the tourism sector. It is a vital driver of the local economy, and many families in my constituency work in it.
Not only does the current situation create the problem that many families are unable to take advantage of cheaper holidays during term time, but for the many hundreds—indeed, probably thousands—of families who work in the tourism sector in my constituency, there is no way that they can go away during the school holidays. That is the time when they run their family businesses, so they are impeded in their ability to take their children away. I am afraid that by not helping them do so, we are not helping the holiday business.
I have read the transcript of a previous discussion in the main Chamber between my hon. Friend the Member for St Austell and Newquay and the Minister. The point was made that we need the Government to think carefully about changing the regulations, due to their effect on the tourism industry. I hope the Minister will not mind my quoting him. He said:
“I do not believe that we should be returning to the Dickensian world where the needs of industry and commerce take precedence over the education of children.”
No one is suggesting that. No one is suggesting that children should be allowed to be taken away from school to satisfy the wishes of a few small businesses. This is a bigger issue than that. In the same discussion, he also said:
“I doubt that the Cornish tourism industry will be best pleased by his”—
my hon. Friend’s—
“assertion that tourism in Cornwall is dependent on truanting children for its survival.”—[Official Report, 19 May 2016; Vol. 611, c. 139-40.]
The Cornish tourism industry is not, and I am delighted to say that the Devon tourism industry is not. In particular, the north Devon tourism industry is not; that is the best place to spend a holiday.
The point is that we are talking not about truanting children but about the right of parents and teachers to agree, in a few cases, that it is appropriate in the circumstances for children to be taken out of school for a family holiday if they might otherwise miss out on one. That is the point. Families and children are missing out on a family holiday through no fault of their own and face the risk of being dragged before the courts or fined substantial amounts of money. Headteachers feel that they are having taken away from them the right to make individual decisions in individual circumstances.
Perhaps another result of this debate will be that holiday companies, airlines and those that offer package holidays take a long hard look at themselves. They should not be charging such vastly inflated prices during school holidays. I shall cite one example, which I raised the last time we debated this subject. I think you were in the Chair for at least some of that sitting, Mr Hanson; forgive me for outlining this particular circumstance again, but it tells the story rather well. A package holiday to Spain for a family of two adults and two children beginning on 14 July would have cost £1,300. The same holiday, with identical flights and accommodation, beginning just two weeks later when the school holidays had begun, would have cost £2,000. That is a 60% mark-up. It would not be allowed in any other retail business, and we should not put up with it. It is not just the Government who I ask, respectfully, to think again about where we are; the holiday industry needs to take a long, hard look at itself as well.
Steve Double
Does my hon. Friend agree that part of the problem with holiday prices is that many tourist resorts, especially in places such as Cornwall, are forced to try to make enough money during the six or seven weeks of the school summer holidays to cover their overheads for the whole year? They have to put up their prices because numbers have dropped so much that they can no longer recover the revenue they used to make during the shoulder months of June and September. All their revenue is focused on such a small time period that they inevitably have to put up prices.
Peter Heaton-Jones
Absolutely. Many businesses in such resorts find themselves in that position. That feeds back into the point I made earlier: because the season is now so focused, families who run tourism businesses in my constituency and that of my hon. Friend have no choice. There is no way they can possibly go on holiday during the school holidays, so they have to request to take their children out of school, otherwise they will not be able to enjoy a holiday.
It is absolutely right that the Government have a duty to ensure that children have full academic attendance and a full school record. I am not arguing with that, but there must be some carrot and some stick. My fear is that, with the 2013 guidelines, the balance has shifted rather too much towards the stick approach, which I do not think is valuable or helpful.
Let me go off script for a moment. I am a bit of an old-fashioned Tory sort of boy, and I like less government. I like smaller government. I like government that does not just sit in Westminster bringing a clunking fist down rather hard on parents, families and working people who are just trying to do the right thing. I have an uneasy sense that the current regulation and policy are on the wrong side of that. I passionately believe that, as a Conservative Government, we should be helping hard-working people who occasionally have no choice but to take their children out of school. As in the case of my constituents, Mr and Mrs Short, they might do so not for a holiday but for a perfectly reasonable sporting endeavour. I am not sure how we have reached the point where, as a Government, we are saying, “We, centrally, know better than you.”
Mr Gibb
This debate boils down to two phrases: “in special circumstances” and “in exceptional circumstances”. It is about the difference between the words “special” and “exceptional”, so the way my hon. Friend is describing matters exaggerates the issue. Even he believes that headteachers should grant term-time holidays not in all circumstances but in special circumstances. The Government believe that they should be granted only in exceptional circumstances.
Peter Heaton-Jones
I thank the Minister for his views. I shall simply say this: at the moment, we are in a mess. Teachers, headteachers, schools and parents do not know where they stand. I take his point, which is perfectly reasonable. I do not agree that I am exaggerating the situation, though, because I have been on the receiving end—as I am sure other hon. Members have—of hundreds of emails, letters and phone calls from parents and headteachers who are deeply worried about the position in which they now find themselves. That is not an exaggeration.
Imran Hussain
Does the hon. Gentleman agree that when a family go to Pakistan to visit family members and there is an unexpected death in the family in Pakistan, that is an exceptional circumstance? That family were fined on their return. If that is not an exceptional circumstance, what is?
Peter Heaton-Jones
I thank the hon. Gentleman for that intervention. The Minister said that this debate boils down to the definition of “exceptional circumstances”; under any definition, what the hon. Gentleman has just described would be exceptional.
It is absolutely right that the Government have a duty to ensure that parents send their children to school and that children have a full academic record, but my fear is that the 2013 guidelines put us in a field of unintended consequences. They are having a serious effect on many families in my constituency and further afield whose only crime is to want to take a holiday when they can, or to take their children away based on some other perfectly reasonable grounds or exceptional circumstances. The guidance is well intended, but I fear that, in the lack of flexibility that is being applied to its interpretation in some quarters, it is having unintended consequences. Otherwise innocent parents, who simply want the best for their children and are the right people to know what is best for them, are being criminalised. I hope I can work with the Minister, co-operatively, to put things right.
Lilian Greenwood (Nottingham South) (Lab)
I shall make just a couple of brief remarks. First, I should say that I have not been contacted by individual parents wanting to express concerns, although I note that hundreds of them have signed the petition. I have a great deal of sympathy with parents, particularly those on low incomes, who want to give their children the opportunity to go on holiday and cannot afford to do so during peak periods when, as has been stated, the costs of some holidays are exceptionally high. I have, though, been contacted by the portfolio holder for schools at Nottingham City Council, and I have discussed the matter with a headteacher at one of my local schools. It is important to bring their representations to the Minister, even though I fear that many of my constituents will not thank me for doing so.
I understand that good attendance is vital to good educational attainment, which Nottingham City Council has been working hard to improve. The Minister will be aware that our city needs to make improvements and is very committed to doing so. The local authority has been working very hard to improve school attendance, which has involved fining parents for unauthorised absences when they take their children out of school without permission. I know that many parents will see that as very harsh and as a large stick; I myself do not like the idea that parents face fines. However, I understand the need to encourage parents to realise that getting their children to school on a regular basis, so that they do not miss time in the classroom, is exceedingly important.
The judgment in the Isle of Wight case has created huge uncertainty. Perhaps the most important issue for local authorities and headteachers is to have a degree of certainty and I hope that the Minister can tell us what he intends to do to provide it.
Sam Webster, who is the portfolio holder for education, employment and skills at Nottingham City Council and therefore responsible for schools, has said that it is
“worth noting that 90% attendance”—
which is the attendance rate in some of our schools—
“is not good and is the equivalent of a child having a day off every 2 weeks.”
I think that those of us who are parents appreciate that if our child had a day off school every two weeks, that would have an impact on their educational attainment, no matter how valuable the experience that they may be having in their time off school.
Last year, Nottingham City Council was the most improved local authority in terms of school attendance and I hope that the Minister welcomes that. However, the current uncertainty could see the good progress that has been made being lost. Councillor Webster’s call is
“for Government to act urgently to give greater clarity and ideally bring forward a change to the wording of the legislation.”
I hope that when the Minister sums up, he will respond to that concern, which has been raised by the portfolio holder responsible for schools in Nottingham.
The second point I will make was initially made to me by Giles Civil, the headteacher at Highbank Primary and Nursery School in Clifton, which is in my constituency. Giles has been the headteacher there for a couple of years now. It is a challenging school, which did not have great standards before his arrival and consequently progress has been challenging. Nevertheless, the school, which has fewer than 300 pupils, has managed to raise pupil attendance from 92%, the rate when Giles arrived there two years ago, to 94.8% last year. Obviously, there is still significant room for progress. Giles said to me that
“A school year is 190 days”,
but he also pointed out that for his school:
“total unauthorised absence for this year…is 939 days.”
As he explained, that is the equivalent of “4.9 school years.”
Giles feels that it is a real slog to raise achievement and that school attendance is absolutely vital. However, he also feels that the change has taken away his stick, if you like, and that it is important there is clarity on this issue, because he wants to raise attendance at his school and he is working in a number of ways to do so. Therefore, it is necessary to get some clarity from the Government.
As I say, I do not like the idea that parents are being fined, and the opportunity to take children away on holiday is really vital. I hope that the Government can consider how they can make holidays more affordable for parents and I also hope that the holiday industry will listen, as the hon. Member for North Devon (Peter Heaton-Jones) said, and consider the impact that the current situation is having. Nevertheless, attendance is important and headteachers and local education authorities obviously need to be given clarity and some power or some guidance that allows them to improve attendance, as the current situation has created unnecessary uncertainty.
Mr Andrew Turner (Isle of Wight) (Con)
This is the first time that I have served under your chairmanship, Mr Hanson, and it is a pleasure to do so.
I thank my hon. Friend the Member for St Austell and Newquay (Steve Double) for securing this debate. As you know, Mr Hanson, the debate arises from an e-petition about fining parents who take children on holiday during term time that was signed by almost 200,000 people. One person keenly involved in this debate is my constituent, Mr Jonathan Platt. He is currently being taken to the Supreme Court for refusing to pay a fine because he took his daughter on holiday. This situation troubles me considerably. Even after taking the holiday in question into account, Mr Platt’s daughter’s attendance was good and because of that the Isle of Wight’s magistrates court decided that there was no case to answer.
Mr Turner
No. Mr Platt used the term “good” to describe his child attending school all-year round except for a fortnight, which is not the same as one day a fortnight, and there was no evidence from any quarter to question that description.
Isle of Wight Council wanted a different interpretation of the law and so it took Mr Platt’s case to the High Court. The High Court found that it was not acceptable for the authority
“to criminalise every unauthorised holiday by the simple device of alleging…that there has been no regular attendance in a period limited to the absence on holiday.”
The judgment said that regular attendance must be measured over a longer period of time, and Mr Platt’s daughter’s attendance record was satisfactory in that respect.
The High Court’s judgment did not find favour with either Isle of Wight Council or the Department for Education. The Department has now provided the council with funding and legal support to take the case to the Supreme Court. Mr Platt is being given no such help; he is fighting this battle using private resources and not public money. The state is throwing the book at him for daring to stand up to the authorities and being found right—not once, but twice. So this is a real David and Goliath situation.
I am a former teacher and both my parents were teachers, too, so I understand the importance and value of education. I have experienced at first hand the difficulties of teaching a class where not all the children are in the classroom full-time. However, I have also seen the immense value of family holidays, in educational and other terms.
I have listened to the Government’s argument about the relationship between attendance and attainment. It exists, but it is not a simple picture. As the latest research from the Department itself says:
“There are a range of pupil, school, parental and societal characteristics that are likely to affect attainment in varying degrees.”
It is the interplay of factors that cannot be judged in Whitehall. Schools can collaborate with parents to ensure that a child’s education will be enriched by a family holiday and of course the child can be set work to be completed while they are away.
However, if the headteacher cannot justify that the holiday is being taken in “exceptional circumstances”, then parents can be criminalised under legislation introduced by statutory instrument in 2013. For many years, parents have been legally responsible for their child’s regular attendance at school, and headteachers are accountable for the performance of their school and their pupils. So it should be headteachers, working with parents, who decide whether or not to allow a family holiday, or any other kind of absence, after taking into account all the individual circumstances.
Before being elected to this House, I ran the Grant Maintained Schools Foundation and I am proud that this Government have taken forward the principle that we worked so hard to promote—greater autonomy and decision making in schools. So I find it incomprehensible why, on this particular issue, the Government insist that they know better than headteachers what is best for individual children.
There is a misconception that prior to 2013 parents had a right to take their children out of school for up to 10 days for a holiday. That was never the case. Headteachers were able to agree to a child being absent on a family holiday in “special circumstances”. It has been said, including by my right hon. Friend the Minister for Schools himself during a debate last October, that the 2013 amendments “clarified” the situation, but I disagree. A change from “special circumstances” to “exceptional circumstances” is a material difference, and it has given rise to markedly different approaches from local education authorities.
We now have a postcode lottery that determines whether a parent is prosecuted. For example, I understand that in the west country Cornwall has issued four “school fines” in the last three years, but Devon, which is just next door, has issued 1,386 such fines in the last year alone. The variation is great even among just primary schools on my island. In one school, the parents of 176 pupils received fines over three years, while another school did not issue any fines at all. That cannot have been the Government’s intention—or, if it was, they are not explaining it well.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
Does the hon. Gentleman agree that the rules that are applied in many local authorities at the moment discriminate against those who simply cannot afford a family holiday during the school holidays? Does he also agree that quality of life, particularly in childhood, is just as important as, and can enhance, the quality of education?
Mr Turner
I agree with both those points and I hope that I make them myself.
It has been said that before 2013 some headteachers felt pressurised into authorising family holidays. I have been a Member of this House for 15 years and I have never had a headteacher say that to me, but it does sound as though it happens occasionally. I believe, however, that the introduction of the holiday fines by statutory instrument in 2013 was like using a cannon to try to kill a fly. The fines are inappropriate and unworkable, and have widespread damaging consequences.
Imran Hussain
The hon. Gentleman is absolutely right to point out the inconsistency that we have between districts. On his point about the fines, Bradford is joint second regarding the number of fines administered and it has high levels of deprivation. Does he agree that the amount of the fine—for the average family with three children it is £360, which then doubles to £720—is so grave that in some low-income families it has a negative impact, ultimately, on the children themselves?
Mr Turner
That is something that headteachers should be aware of. Either Bradford is dictating to headteachers that they must do certain things, or it is the Department for Education’s decisions being interpreted in that way. The headteachers do have the authority, and they can say no.
I have great respect for the Minister for Schools. He has achieved some great things during his time in post, but I urge him to consider the outcome of this battle between David and Goliath and, even now, find another way forward, such as scrapping the school fines introduced in 2013 and trusting headteachers to do their job. If he will not do that, can he please tell us today what he will do if the Supreme Court agrees with the magistrates and the High Court and upholds their view—and mine—that an unauthorised family holiday does not necessarily allow the state to criminalise parents who otherwise ensure a child’s regular school attendance?
Finally, I would like to say that my constituent, Mr Platt, wished to be here for the debate but his daughter is taking part in her school sports day. As a responsible parent, who recognises that a wide range of experiences contributes to a good education, he has put attending the sports day ahead of being here today. He sends his apologies.
Marion Fellows (Motherwell and Wishaw) (SNP)
It is a pleasure to serve under your chairmanship, Mr Hanson. I find myself yet again commenting on English education and looking at it with a different set of eyes, which I hope some Members throughout the Chamber will benefit from.
It is obvious from the debate that this is a difficult problem that is not easily solved. There is no blanket ban in Scotland, and no automatic fines for parents who take their children out of school without authorisation. Local authorities judge how to treat unauthorised absences. The hon. Member for St Austell and Newquay (Steve Double) made a passionate and informed speech, and as he said, the subject is not going to go away—almost 200,000 people have signed a petition on this difficult ongoing issue.
Parents need to know where they stand, and swift action is needed because of the Isle of Wight decision, which the hon. Member for Isle of Wight (Mr Turner) referred to. The hon. Member for St Austell and Newquay said that we need common sense, and as I listened to the hon. Member for North Devon (Peter Heaton-Jones) it became more and more apparent that swift action is needed. They both have constituencies with tourism issues, and the regulations cause conflict for those who work in the tourism industry and those who support it.
Another important point is that it is sometimes not a holiday that is being considered but a trip that would make people better at their sport—volleyball, in the case that was mentioned. Andy Murray would not have got to where he was yesterday had he not been given leave at various times to attend tennis camps and pursue his sporting prowess. It seems unfair that regions in England treat unauthorised absences in such different ways, as can be seen from the number of fines that are issued in schools in the Isle of Wight and across Devon and Cornwall. The Minister should be able to respond to that situation and consider it with a bit more care.
The main point I have taken from the debate is that headteachers should be given back discretion, because they best know their own pupils and what works for them. That might well help the hon. Member for Bradford East (Imran Hussain), who is no longer in his place. One of his interventions regarded family bereavements causing people to go to Pakistan with their children, and those families then coming back to face horrendous fines.
Lilian Greenwood
Does the hon. Lady agree that it sounds like the problem is with headteachers’ confidence to use their discretion, rather than with their not having that discretion, which exists at the moment to consider exceptional circumstances?
Marion Fellows
I definitely agree with the hon. Lady. I find it strange that in the system in England, which is so different from the one in Scotland, authority is devolved away from local authorities and down to schools.
It is important that we listen to the almost 200,000 people who signed the petition, because this is a real-life issue for them and their families. Of course educational attainment is important, and of course there are links to attendance—as a former lecturer in a further education college, I can vouch for that—but when headteachers authorise absences for good reasons and teachers know about those reasons, they can provide homework and catch-up sessions, so students can generally catch up. I very much take on board what the hon. Member for Isle of Wight said: a two-week absence should be seen as a 14-day absence across the whole school year. If a student is attending regularly, a one or two-week holiday might not make much different to their attainment.
It is not acceptable to criminalise parents for taking holidays. Parents know what is best for their children, and in that regard I suppose I should declare an interest having, a long while ago, taken my children out of school for a family holiday. I could not have gone away later because I was pregnant with my third child and wanted him to be born in Scotland, not in Scarborough, which was where we were headed.
It is absolutely essential that we, including the Minister, take on board the fact that there is a real difficulty across the UK, not just in England, as parents do their level best to provide for their children in what are, for many, cash-strapped times. We have heard examples of how much additional money is needed to go on holiday in term time. A spokesman for the National Parent Forum of Scotland has said:
“We all know how important family time is, particularly when money is short. But we’d encourage parents to avoid taking their children out of school during term time, as it does impact on their learning.
It would be helpful if holiday companies did not increase their prices so much during school holidays.”
Perhaps the Government should look at that issue.
Gavin Newlands
On that point, we heard earlier about the difference in the price of holidays in and out of term time—a 60% increase, I think. When my family looked at holidays this year we found that the exact same holiday, going from the same airport, with the same room, departing three and a half hours later, was £2,400 more expensive. The prices were £3,700 and £6,100. That is a 62% increase in the space of three hours, let alone three weeks or three months. My hon. Friend is absolutely correct in what she is saying about the holiday companies.
Marion Fellows
My hon. Friend is absolutely right. We have all been in such circumstances, so perhaps the Government should review how much holidays cost in and out of term time and see whether anything can be done to average prices out across the year. In Scotland, we have struggled for many years with higher holiday and flight costs than England, even to the United States. It costs much more to fly to Miami from Glasgow than it does from London, yet Glasgow is much closer to Miami than London. It is an ongoing issue.
The UK Government should not leave cost increases to the market, but should look at the problem in much more depth. We should remember that although attendance is important, so is understanding why parents lie and are prepared to pay fines to secure holidays at a more reasonable cost or to go on holiday at a time that suits their circumstances. I hope the Minister will take on board what Members from all parts of the House have said and look again at what has been described as a blanket ban across England that reduces the role of teachers, who understand the students under their care.
Angela Rayner (Ashton-under-Lyne) (Lab)
It is a pleasure to serve under your chairmanship, Mr Hanson. Many Members have spoken in this important and relevant debate, which, as the hon. Member for North Devon (Peter Heaton-Jones) said, has revealed that the Government have got it all in a bit of a mess. Nearly 200,000 signatures on the petition is not to be sniffed at, and those concerns deserve to be heard, and heard they have been in the many contributions Members have made.
The current situation is confused and confusing, as the hon. Member for St Austell and Newquay (Steve Double) outlined in his opening remarks. The only thing that is clear is that the Government acted with the best of intentions in 2013 when they changed the legislation. As their answer to the online petition reveals, they did so to try and correct the
“widespread misconception that parents were entitled to take their children on holiday during term-time.”
The Government argue that such a misconception had taken hold because headteachers had previously been allowed to grant up to 10 days’ leave for special circumstances.
The Government decided to come down hard. The result, as their response to the petition illustrates, has been fairly decisive: the number of persistent absentees is down by up to 40%; 6 million fewer school days have been lost; and pupils are missing fewer days at school today than they did in 2010 and are therefore receiving less interruption to their education. There are other results: £5.6 million was paid out by the public in fines last year, which was a 267% increase; 90,000 parents have been fined; and a High Court case has been lost, with possible Supreme Court hearings looming. Parents have no real certainty on where they stand. No wonder there is confusion, but let me make it clear that the Opposition support the Government’s attitude to school attendance. All the evidence shows that regular attendance at school helps ensure our children reach their full potential and can make their way in the world as adults. Indeed, education is the only available path out of the poverty and low aspiration that affects too many of our young people these days.
The hon. Member for North Devon made it absolutely clear that he is seeking to be helpful and that parents, teachers and heads across the country have expressed real concerns. As he stated—I agree with him—we need common sense and clarity, especially around the reaction of Ofsted. I hope the Minister will clarify that important point in his response. Despite the hon. Member for North Devon being an old-fashioned Tory guy, I am pleased and reassured that the Conservatives have clarified that they do not intend to go back to Dickensian times and stick kids up chimneys.
My hon. Friend the Member for Nottingham South (Lilian Greenwood) made some excellent points on how good education is vital for good attainment. She reminded us of the huge effort made by Nottingham City Council and many councils up and down the country to ensure that we have high attendance. They are worried that all their hard work could be lost without urgent clarity from the Government regarding the recent case.
The hon. Member for Isle of Wight (Mr Turner) expressed concerns about a case in his constituency and made a point on what “regular attendance” means. I hope Mr Platt’s daughter has had a good sports day and that she may represent us in the Olympics in the future.
School brings consistency and routine. Every day of school missed can affect a pupil’s chances of developing as well as their classmates, of passing their exams and of gaining good qualifications with which to build their young lives. Seven million parents know the benefits of regular attendance. After all, schools are in session for just 190 out of 365 days a year.
Mr Andrew Turner
The problem is that the hon. Lady is talking generally, but we are talking individually. If she can, she needs to explain the proposal for individual heads, not for the 7 million pupils in the whole country.
Angela Rayner
I make it absolutely clear—Members have already done so—that headteachers have discretion where there are exceptional circumstances. Headteachers have the power and discretion to sanction absences. The difficulty is the definition of exceptional circumstances, as we heard in some of the contributions. According to the proposer of the petition, a cancer diagnosis apparently does not constitute exceptional circumstances, which is deeply regrettable. I sincerely hope that that incident is as rare as parents taking their children on unauthorised absences.
Michelle Donelan
Does the hon. Lady agree that it is preposterous to say, in an era when we trust so much responsibility day in, day out to our headteachers and teachers to look after children and ensure that their wellbeing is safeguarded and their educational needs are met, that we cannot trust those very same people to make a decision or call whether an absence is in the child’s best interests, based on their age, stage of education and other absences throughout the year? Does it not perhaps go so far as to patronise the teaching professions?
Angela Rayner
We have to weigh that against the evidence that says that every day lost through a child’s absence can have a significant impact on their education. The Government’s response has to be to set guidelines, but headteachers and the community of course have an obligation as part of that. That is still within the remit and powers of the current legislation.
Steve Double
The hon. Lady makes the point that every day a child is absent from school affects its education, but the reason for the absence should be taken into consideration. If the child is absent but participating in something that is fundamentally going to be good for their wellbeing and development as a person, that could be beneficial to their overall education and not necessarily always detrimental.
Angela Rayner
The hon. Gentleman makes a compelling case. There are various reasons why children could be absent from school. From today’s contributions, one of the compelling reasons why people have said they would like to be able to take their children out of school is the motivation of parents to take their children on a family holiday. I completely understand and sympathise with that situation. I have been a parent for many years, and prior to coming to this House, I was on a low income. I understand and feel their frustration at the rise in cost—in some instances it is an increase of as much as 150%. That makes most holidays unaffordable for most hard-working families.
Like other Members, I want the Minister to tell us what talks are under way to work with the travel industry to try to mitigate the cost of holidays for families who have already withstood austerity and are living on the breadline.
I also understand the concern about the level of the fines. If the fine is not paid, the parent can be prosecuted and fined up to £2,500. They can also receive a community order or even be jailed for up to three months, so I share the concerns that many Members have raised.
Following the High Court’s ruling in favour of Mr Jon Platt, the Government have made it clear that they are now considering changing the legislation and strengthening the statutory guidance given to schools and local authorities. We welcome any attempts to clear up any confusion and to remove the doubt and uncertainty about the legal position as we await a final decision on Mr Platt’s case. In the meantime, no one should be in any doubt that parents must ensure their children go to school. This is non-negotiable. Only schools can authorise absence. They have discretion in exceptional circumstances and they will hopefully use that wisely. The vast majority of parents accept that, and they accept that in a decent, law-abiding society, where our children are the country’s most precious asset, sending their children to school is the right thing to do.
The Minister for Schools (Mr Nick Gibb)
It is a pleasure to serve once again under your chairmanship, Mr Hanson. I welcome the response to the debate from the hon. Member for Ashton-under-Lyne (Angela Rayner). I predicted that she would make a formidable shadow Secretary of State, despite the odd circumstances of her appointment, and today she has reconfirmed my view. I welcome her support for the Government’s policy, particularly her support for the Government’s attitude to attendance. She clearly shares our concern that attendance is key.
The hon. Lady raised the example of a diagnosis of cancer as not being regarded as exceptional. I refer her and other Members taking part in the debate to the National Association of Head Teachers advice and guidance, which, at point 10, states:
“Families may need time together to recover from trauma or crisis.”
A cancer diagnosis is therefore regarded as an exceptional circumstance, and attending hospital or illness is of course a reason to authorise absence.
I thank my hon. Friend the Member for St Austell and Newquay (Steve Double) for leading this important debate. The subject is close to his heart—we debated the issues fairly recently on 19 May and also in an urgent question that he raised on the Floor of the House. The debate gives me the opportunity to restate the Government’s position on school attendance for parents, schools and local authorities, particularly as I know some parents and schools have been confused by the recent High Court judgment in the Isle of Wight term-time holiday case. I hope I can fulfil the request from the hon. Member for Ashton-under-Lyne to provide clarity on that. I am grateful to my hon. Friend the Member for North Devon (Peter Heaton-Jones) for his constructive approach and to other hon. Members who have taken part in the debate.
The e-petition states:
“No more school penalty fines and bring back the 10 day authorised absence.”
My hon. Friend the Member for St Austell and Newquay referred to the 200,000 people who signed the petition. We take that very seriously, but it is a small proportion of the parents of 8.4 million school-age children in this country. My hon. Friend the Member for North Devon said that he does not agree with the part of the petition that refers to bringing back the 10-day authorised absence—nor does my hon. Friend the Member for St Austell and Newquay, nor the Government today and nor the Government in 2013.
In 2013, the Government clarified the law to address what was a widespread misconception that parents were entitled to take their children on holiday during term time. No such entitlement has ever existed in law. Teachers and schools support the increased clarity. As anyone who works in schools knows, education is cumulative, and unauthorised absences have a significantly adverse effect on the child who is absent as they miss vital stepping stones towards understanding curriculum content. Unauthorised absences also damage the education of the rest of the class as teachers have to spend time trying to help the absent pupils catch up when they return. The Government clarified the law to ensure that headteachers retained the discretion to authorise a leave of absence by considering the merits of each request and deciding whether it qualifies as an exceptional circumstance. Children should not miss school unless the circumstances are genuinely exceptional.
I refer my hon. Friend the Member for North Devon to point 3 of the NAHT guidance:
“If an event can reasonably be scheduled outside of term time then it would not be normal to authorise absence.”
The converse is that, if an event cannot reasonably be scheduled outside of term time, such as a championship or a sporting event of high significance to the child or indeed to the country, then of course it would fall within point 3 of the guidance, although it is ultimately a matter for the discretion of the headteacher.
The regulatory changes that we introduced in 2013 have been very successful. Since their introduction, as the hon. Member for Ashton-under-Lyne said, the rate of absence due to term-time holidays has decreased by more than a third. The number of persistent absentees in England’s schools has dropped by more than 40%, from 433,000 in the academic year 2009-10 to 246,000 in 2014-15. Some 6.8 million days were lost due to authorised and unauthorised term-time holiday absence in the 2012-13 academic year. That fell to 4.1 million days in 2014-15—a drop of 2.7 million days—meaning more children sitting in more classrooms for more hours. That has been driven particularly by a drop in absence due to authorised term-time holidays, with only 3.4% of pupils missing at least one session due to authorised term-time holidays in 2014-15, down from 15.1% in 2012-13.
My hon. Friend the Member for St Austell and Newquay correctly cited statistics that showed that the rate of agreed term-time holidays is lower for persistent absentees than for other pupils: 0.5% due to family holidays by persistent absentees versus 1.9% for other pupils. However, the situation is reversed for unauthorised term-time holidays: 0.6% of all possible sessions missed for persistent absentees versus 0.3% for other pupils.
[Steve McCabe in the Chair]
The Government acknowledge that family holidays can be enriching experiences, but the school year is designed to give families numerous opportunities to enjoy holidays without having to disrupt children’s education. Parents should plan their holidays around school breaks and avoid seeking permission from schools to take their children out of school during term time unless there are exceptional circumstances. I recognise that the cost of holidays is a frustration that many parents share, and I certainly encourage travel operators to do what they can to provide value for money to families, but ultimately, in a competitive market in which British businesses are in competition with others across the globe, it is for those businesses to decide their prices based on demand across the year.
Tourism is a key industry that supports almost one in 10 jobs in the United Kingdom. That is why the Government are encouraging more visitors to discover more of our country, as set out in the five-point plan that the Prime Minister announced in July 2015. Holiday sales in the UK continue to be buoyant, suggesting that there is sufficient supply and strong demand. There were more than 124 million overnight domestic trips in Britain in 2015—a 9% rise on 2014 and the highest figure since 2012. The amount spent was also up 9% to £25 billion, a record £19.6 billion of which was spent in England.
If parents and schools want different term dates so they can take holidays at less busy periods, we encourage them to discuss that with their local authority. The authority to change term dates sits with academies, voluntary-aided schools and local authorities. Decisions about term dates are best taken locally, especially where the local industry—for example, tourism—creates a compelling reason to set term dates that differ from those of the rest of the country.
As of January 2016, about 81% of secondary and 41% of primary schools, educating 57% of all mainstream registered pupils, have the responsibility for their own term and holiday dates. That includes all academies and free schools, and other schools where the governing body is the employer of staff, such as foundation or voluntary-aided schools. Some of those schools have led the way in making innovative changes in the interests of pupils and parents.
Steve Double
I understand the point that the Minister is making about varying term times, but it presents real difficulties. For instance, a primary school in my constituency that the Prime Minister praised for changing its half-term dates had to revert back after two years because of the pressure on parents with children at other schools that did not change their term dates. It created more problems than it solved.
Mr Gibb
My hon. Friend raises a real, practical issue about having different term dates in different parts of the country. That is something that the local authority and academies have to take into account when they consider changing term dates to reflect an industry or tourist needs in a particular region. They will have to weigh up the comparative advantage of that inconvenience versus the convenience of the industry that supplies the jobs in that area. That is why the decision needs to be taken locally by people who know how to weigh up those advantages and challenges.
That happened, for example, in Landau Forte Academy in Derby, which has operated on a five-term year since 1992. Eight-week terms are followed by two-week breaks and a four-week summer holiday. The academy feels that a shorter summer holiday is particularly beneficial for pupils from low-income backgrounds, who might not otherwise receive any stimulating activities in the holidays. It takes into account the dates of other local schools to ensure there is always some overlap of holidays. For example, one of its two weeks in October is always half term for other Derby schools.
Bishop Bromscombe School in St Austell, for example, improved school attendance by moving to a two-week May and June half term that allows parents to holiday outside peak times—[Interruption.] I assume that that is the school that my hon. Friend was talking about. It has now reversed that decision. If I had been quicker, I would have omitted that paragraph from my response.[Laughter.] I could, I am sure, cite other examples from around the country of schools that have taken advantage of that freedom.
Our reforms have put teachers in charge of their classrooms and headteachers in charge of their schools. Many measures are available to improve school attendance. Only when all other strategies to improve attendance have failed should sanctions such as penalty notices or prosecution be used. Schools, local authorities and the police have been able to issue penalty notices for unauthorised school absence since September 2004. There were 151,000 penalty notices issued for unauthorised absence in the 2014-15 academic year, up 54% from the 98,000 issued in 2013-14, indicating a continuation of the upward trend since 2009-10. The increase in 2014-15 was greater than the yearly increases prior to 2012-13, but it is lower than the increase of 88% between 2012-13 and 2013-14.
I believe it is right that local authorities and schools are actively addressing pupil absence. The impact of that can be seen in the historical downward trend in the absence figures, which show that, since 2009-10, almost 200,000 fewer pupils are persistently absent.
Although the Government are disappointed with the High Court judgment on school attendance, we are clear that children’s attendance at school is non-negotiable, and we will take the necessary steps to secure that principle. I recognise that the High Court judgment has created uncertainty for parents, schools and local authorities. Given its importance, it is essential that the matter is clarified, which is why we decided to support Isle of Wight Council’s request for permission to appeal to the Supreme Court, and why I wrote to all schools and local authorities in England to make it clear that the High Court judgment does not establish that a pupil’s attendance above 90% is regarded as regular attendance.
Headteachers are responsible for deciding whether there are exceptional circumstances that merit granting a pupil leave of absence. My letter concluded by explaining to local authorities receiving requests for refunds that the decision in the Isle of Wight case does not require them to refund penalties that have already been paid. The Department for Education expects applications for such refunds to be refused.
Lilian Greenwood
I agree that 90% does not constitute sufficiently regular attendance. Do the Government intend to amend the current legislation to define the term “regular” to give local authorities and schools the clarity that they are looking for?
Mr Gibb
The Government will set out our next steps in due course and will make an announcement. In the meantime, as I have said, I have written to local authorities and schools setting out the current position, notwithstanding the Isle of Wight case. We have supported the Isle of Wight’s decision to appeal to the Supreme Court. That is the Government’s position, but we will have more to say about next steps in due course.
The Government’s commitment to reduce overall school absence is part of our ambition to create a world-class education system. That cannot be achieved if children’s education is disrupted due to preventable absences. The evidence is clear: every extra day of school missed can affect a pupil’s chance of gaining good GCSEs, which has a lasting effect on their life chances. That is why we take this issue so seriously.
Steve Double
I thank all right hon. and hon. Members for their contributions to the debate, which has been well informed and clear. I also take the opportunity to thank all the members of the public who signed the petition—nearly 200,000 people—and Dave Hedley from Nottingham, who started it.
We all agree that we want children to attend school regularly and as much as possible. The reasons for persistent absence need to be addressed, but there are clearly a variety of views on whether the existing Government policy is the best way to achieve that.
The Minister made the point that a lot boils down to our view of the difference between “exceptional” and “special”. The more that can be done to make the Government’s view of exceptional circumstances clear, the better, so that we can have real clarity. However, what I pick up from headteachers, as many Members have said, is that the real issue is about Ofsted. Where headteachers exercise their discretion, Ofsted appears to take a different view. Anything that can be done to help Ofsted support headteachers a bit more will, I am sure, be much appreciated.
Personally, I still believe that it is strange for us to trust schools to set their own term dates, as the Minister said, but not to trust headteachers to decide what is right and best for individual pupils. I encourage the Minister to look at the situation again, not only to clarify it but to see whether we can bring more common sense and flexibility into it, allowing headteachers to exercise their discretion. They are the ones who know pupils the best.
Question put and agreed to.
Resolved,
That this House has considered e-petition 129698 relating to penalty fines and authorised absence from school.
Written Statements
UK Steel Industry
The Secretary of State for Business, Innovation and Skills and President of the Board of Trade (Sajid Javid)
Since Tata Steel announced its intention to restructure its UK operations, the Government have worked closely with Tata, potential buyers and other stakeholders including the trade unions and the Welsh Government, to ensure a sustainable future for the business. We remain committed to that objective, and to ensuring the continuation of primary steelmaking in South Wales.
Following the referendum on the UK’s membership of the EU, and a review of the bids received for Tata Steel UK, the board of Tata Group announced on Friday 8 July its intention additionally to explore options for retaining ownership of the business with strategic partners, including through a possible joint venture with ThyssenKrupp AG. Discussions are at a preliminary stage.
Tata has also announced its intention to sell separately its speciality steel business based in Rotherham and Stocksbridge, as well as two mills that produce steel pipes based in Hartlepool. Around 2,000 of Tata’s UK workforce are employed in the businesses that will be sold. None of the businesses that will be sold are supplied with steel from Port Talbot, and are separate business units within the group.
I met the Chairman of Tata Group in Mumbai on 8 July. During that meeting, Tata Group confirmed again their commitment to achieving an outcome for their UK operations that provides the business with the best long term prospects for a competitive and sustainable future.
The Government are committed to working with Tata to achieve that objective. We will remain in close contact with Tata during the sale process for the speciality steel and pipes business units, and as they develop their plans for the strip products business. The Government’s offer of support via an equity stake and/or loans on commercial terms to a future owner of the strip products business, which includes the operations at Port Talbot, remains.
Separately, the Government continue to work with the wider steel sector to improve the business environment in the UK, with a focus on ensuring their competitiveness in the long term. The Steel Council met for the second time on 8 June to consider the recommendations of its working groups. The vast majority of these recommendations are reflected in the UK Steel manifesto which was published last week, which I welcome.
We are already taking forward many of these recommendations and the Council has agreed to develop a common vision for the future of the sector in the UK, which will provide clarity around what Government, the companies and the workforce must do to ensure the steel industry remains competitive and more sustainable in the future. My Department will shortly commission further research to assist the sector in the development of its vision.
[HCWS79]
Post-16 Skills Plan
(7 years, 9 months ago)
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The Minister for Skills (Nick Boles)
As a country, one of the most important challenges we face is reforming the skills system. Such reform is crucial if we are to ensure our country’s future prosperity and improve the life chances of millions of people.
We have a critical need for highly skilled people, trained effectively, to grow the economy and raise productivity. Weaknesses in the UK’s skills base have contributed to its long-standing productivity gap with France, Germany and the US. While international comparisons highlight our strong performance at graduate and higher skills levels, we perform poorly at the intermediate, skilled technician level. Indeed the UK is forecast to fall from 22nd to 28th out of 33 OECD countries for these intermediate-level skills by 2020[i]. Following the vote to leave the European Union, it will become more important than ever that we have a highly skilled workforce that boosts the productivity of the country and allows us to trade competitively across the world.
There is also a compelling moral case for change. Skilled employment leads to prosperity and security for individuals, while unskilled employment often means the opposite. We need to give all young people and adults the opportunity to gain the skills, knowledge and behaviours needed for the world of work.
We made significant improvements to the skills system in the last Parliament. We grew investment in apprenticeships, for example, and removed from performance tables thousands of poor-quality qualifications, that offered little or no advantage in the jobs market, as a result of the Wolf Report[ii]. But there are still serious issues which must be tackled. Technical education remains the poor relation of academic education, and there are key challenges we must overcome, including:
standards and qualifications are not always set by employers; instead they are too often set by a confusing mixture of awarding organisations and intermediary bodies which have not provided an effective voice for business;
the system is too complex and often difficult to navigate for both young people and adults looking to retrain; and
we have too little dedicated technical education at advanced levels (levels 3, 4 and 5) to meet this country’s need for technician-level skills, and study programmes are not always designed to deliver what is needed to move to skilled employment.
On Friday 8 July I published, and laid before Parliament, a Post-16 Skills Plan. This is our ambitious framework to support young people and adults in England to secure a lifetime of sustained skilled employment and meet the needs of our growing and rapidly changing economy.
The Skills Plan builds directly on the recommendations of an independent panel on technical education. The panel was chaired by Lord Sainsbury of Turville and its members were: Baroness Wolf of Dulwich, Sir Roy Griffiths Professor of Public Sector Management at King’s College London; Bev Robinson, Principal and Chief Executive at Blackpool and The Fylde College; Simon Blagden, Non-executive Chairman at Fujitsu UK; and Steven West, Vice-Chancellor and President at University of the West of England. The panel consulted widely, its deliberations were non-political and its conclusions are pragmatic. Its recommendations draw from international best practice and will place our system on a par with the best in the world.
Together, the Skills Plan and Sainsbury report set out a holistic strategy to tackle the current flaws with the skills system by:
building on the apprenticeship ‘Trailblazer’ approach by putting employers at the heart of the system and empowering them to take the lead in setting the standards in technical education;
ensuring that, alongside the already well-established academic option, this country has a high-quality technical option which aligns apprenticeships and college-based learning;
building on the experience of other countries with successful skills systems by developing a new framework of 15 technical routes to skilled employment, with each route grouping together skilled occupations where training requirements are similar;
developing a strong, dynamic, financially sustainable and locally responsive training provider base through area reviews and other reforms; and
putting in place a wider set of systemic changes, including making more data available and reforming careers guidance to inform student choice, and ensuring we have the right funding and accountability arrangements in place.
The Skills Plan is our overarching framework, with a common set of principles and a guiding vision. I am confident that it can lead to lasting change. We will work closely with employers, colleges and other training providers to develop detailed plans, and publish more detail later in the year.
The Report of the Independent Panel on Technical Education will be placed in the Libraries of both Houses.
This statement has also been made in the House of Lords.
[i]UKCES (2014) UK Skill Levels and International Competitiveness, 2013 available online at: https://www.gov.uk/government/publications/uk-skills-levels-international-comparisons-and-competitiveness
[ii]The Review of Vocational Education - The Wolf Report (2011), available online at: https://www.gov.uk/government/publications/review-of-vocational-education-the-wolf-report.
[HCWS80]
Deputy Chair of the Boundary Commission for Wales
(7 years, 9 months ago)
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The Lord Chancellor and Secretary of State for Justice (Michael Gove)
I should like to inform the House that I have made the following appointment under Schedule 1 to the Parliamentary Constituencies Act 1986:
The honourable Mr Justice Lewis has been appointed as Deputy Chair of the Boundary Commission for Wales, effective from 1 August 2016 until 31 July 2019.
[HCWS82]
Governments Amendments to Wales Bill: Analysis of English Votes for English Laws
(7 years, 9 months ago)
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The Secretary of State for Wales (Alun Cairns)
I am pleased to announce the publication of analysis of English Votes for English Laws in relation to Government amendments to the Wales Bill at Commons Committee.
The English Votes for English Laws process applies to public Bills in the House of Commons. To support the process, the Government have agreed that they will provide information to assist the Speaker in considering whether to certify a Bill or any of its provisions for the purposes of English Votes for English Laws.
The memorandum provides an assessment of tabled Government amendments to the Wales Bill, for the purposes of English Votes for English Laws, ahead of the second day of Commons Committee. The Department’s assessment is the amendments do not change the territorial application of the Bill.
This analysis reflects the position should all the Government amendments be accepted.
The memorandum can be found on the Bill documents page of the Parliament website at: http://services.parliament. uk/bills/2016-17/wales.html and I have deposited a copy in the Library of the House.
[HCWS81]
Grand Committee
Children and Social Work Bill [HL]
(7 years, 9 months ago)
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The Deputy Chairman of Committees (Lord Bichard)
My Lords, welcome to the Grand Committee. If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Clause 12: Functions of the Panel
Amendment 105
Lord Ramsbotham
“a “place of detention” means police custody, the prison estate, mental health detention, immigration detention and military detention;”
Lord Ramsbotham (CB)
My Lords, I am aware that my noble friend Lady Meacher and others have indicated their intention to oppose the proposition that Clauses 12 and 13, to which my amendments in this group refer, should stand part of the Bill. In advance of that debate, I will offer a brief explanation of what my amendments are designed to ensure.
Amendments 105 and 107 are linked to Amendment 135, which was tabled on Monday by my noble friend Lady Howarth of Breckland, in that they relate to a specific recommendation in the recent UN Rights of the Child report that the United Kingdom should ensure automatic review of child deaths in institutions. Amendment 105 is a description of what is meant by a place of detention, to which Amendment 107 refers. If my amendments are accepted, Amendment 105 should appear in new Section 16B(9), after Amendment 107, which will appear in new Section 16B(8) —to thoroughly confuse the Committee.
Like my earlier Amendment 92A, Amendment 109 is designed to bring existing statutory guidance into primary legislation. Noble Lords will recall the very disturbing footage of the physical and emotional abuse of children in Medway Secure Training Centre broadcast in a BBC “Panorama” programme in January of this year. The Ministry of Justice’s usual response to such allegations is to convene an in-house National Offender Management Service panel, which is not the same as a national Child Safeguarding Practice Review Panel.
During my time as Chief Inspector of Prisons, this was exemplified by the refusal of successive Home Secretaries to allow judicial review of the circumstances leading to the murder in Feltham of a young prisoner, Zahid Mubarek, by a known racist psychopath, until ordered to do so by the Law Lords then sitting in this House. This resulted in 78 recommendations for future improvement, plus the naming of 28 individuals who had failed in their duty—serious matters that might otherwise have remained hidden. Both incidents show why it is so important that the new arrangement, and this legislation, should include children in places of detention.
Amendment 109A is designed to ensure that concerned individuals and organisations have a channel through which to share significant information. The amendment allows for boundaries for public notification to be set by statutory guidance in order to protect the national panel from inappropriate referrals.
Finally, Amendment 110 clarifies that a regulated setting, in respect of a local authority’s duty to notify the Child Safeguarding Practice Review Panel of a child’s death, includes places of detention, as listed in Amendment 105. I beg to move.
Baroness Walmsley (LD)
My Lords, my Amendment 106A is in this group. It was Amendment 108 but for some reason has been retabled. The arrangements for the national review panel appear to omit its opportunity to review cases of serious mistreatment and/or physical injury caused by restraint in youth custody institutions or other kinds of institutions. This amendment makes it clear that these cases should be looked at by the panel because they raise serious issues of national policy and practice. I do not think that it should be restricted to just deaths in custody, as suggested by my noble friend Lord Ramsbotham, although I fully support what he said about that.
The noble Lord, Lord Ramsbotham, referred to the BBC “Panorama” programme about the Medway Secure Training Centre. Reports obtained through Freedom of Information Act requests reveal that children in custody suffered serious physical injuries following restraint on three separate occasions in 2013-14 and on four separate occasions in 2014-15. As the noble Lord, Lord Ramsbotham, mentioned, Ministers will often refer to the National Offender Management Service. But that is not a safeguarding panel. One of 10 recommendations made by Her Majesty’s Inspectorate of Prisons, following its review of the new system of restraint in child custody, urged more effective independent oversight of restraint by local safeguarding children boards and local authorities.
The Government have tabled an amendment to abolish LSCBs, which makes it even more important that this new arrangement of a national panel includes harms to children in custody and other institutions, not just deaths. This matter is of a very serious nature and is not really suitable for review at local level. The children in these institutions are often not located in their home authority, so it is essential that the new national panel looks at these cases—unless, of course, these clauses do not eventually stand part of the Bill, which will be debated later.
Baroness Meacher (CB)
My Lords, I must first apologise that I was unable to be present when my opposition to Clause 11 was debated. Unfortunately, I have a serious family health problem which has prevented me from being present or even doing any work on this Bill until today, I have to confess. I will speak briefly to oppose the proposition that Clauses 12 and 13 should stand part of the Bill. I assure the Minister that the aim here is not to have the clauses struck out but to provide an opportunity to explore the implications of the two clauses as they are worded and to enable noble Lords to raise any general concerns ahead of Report.
I recognise the need to establish a stronger statutory framework that will introduce greater accountability for the three key agencies involved in safeguarding children—local authorities, the local police and the local health service, as proposed by Alan Wood—though I understand that there are concerns that other services should also be incorporated. However, the single purpose of a new framework, as made clear in new Section 16B(2), is absolutely rightly specified as,
“to ascertain what (if any) lessons can be learned from the case about the way in which local authorities or others should work to safeguard children”.
I hope we can explore how, in drawing out and disseminating the lessons from tragic events, we as a society can avoid increasing the blame culture, which has affected social workers and other public servants so severely in recent years. If we do increase the blame culture, the risk is that good social workers and other public servants will walk away from their jobs, as many public servants have done in recent years; others will simply not take up these professions; and the net result will be that the risks to children will increase rather than diminish. I know that that is absolutely not what the Government want to achieve—but there is a very serious point here, which I hope the Government will take on board.
If a social worker working with a family where a child unfortunately dies or is severely injured does fall short in some way, it is surely a matter for that social worker’s managers. It should not be a matter for national politicians and a national panel—whose role, as the Bill makes clear, must be solely to ensure that lessons are learned and disseminated. At a national level, the worst of all this is what happens when the media get involved—and they will get involved: they just do. That can wreck the lives of front-line workers to the point from which, to some degree, they never recover. I really do believe that it is that bad.
The review will of course need to establish whether any failings were a reflection of procedural issues, system failures or a lack of adequate resources. All of that is right and proper, but somehow we need to protect the individuals, not from proper disciplinary action or whatever is appropriate but from this national glare and utter devastation of their lives. If they have made an error, they probably did not intend to. So we have to get this right. It is terribly important that we do and I do not believe that the wording in the Bill achieves that at the moment.
Subsection (4) of new Section 16B inserted into the Children Act 2004 by Clause 12 requires the panel to publish the report on supervised child safeguarding in practice reviews. Alternatively, subsection (5) states:
“If the Panel consider it inappropriate to publish the report, they must publish any information relating to the lessons to be learned from the case”.
Is it really ever necessary or appropriate to publish a whole report on a specific case, which would inevitably involve publishing material about an individual front-line worker? The only national interest is in the lessons to be learned—the material that would be published under subsection (5). So I would welcome the Minister’s view as to whether subsection (4) could be deleted from the Bill. This would focus the minds of members of the panel on their sole role. It would also go some way to reassuring front-line staff that the Government are not aiming to focus national media and political attention on blaming an individual front-line worker. That is the key point that I hope we can think about in relation to these clauses.
My other point is a concern of the Local Government Association that the national panel, as outlined in the Bill, is too closely controlled by the Secretary of State. Again, this risks politicising the serious case review process, and the concern is again for the protection of front-line staff. But it is also very important to ensure that all the lessons are learned from these reviews, so it is absolutely vital that these reviews are seriously and really independent of government control. A review may need to comment on the impact of national policies on safeguarding failures and make recommendations for policy reform as well as procedural changes that are needed.
The Government have tabled Amendment 114, which risks placing too great an emphasis on the actions of individual practitioners in determining the cause of failures. We need to maintain the systems approach that we have had when undertaking these reviews. A focus on an individual’s failure in a particular area will have no relevance to the authorities in other parts of the country. Will the Minister look at the wording of Amendment 114 with this concern in mind?
The NSPCC has questioned whether it is right to limit the role of the national review panel to those cases that involve a death or serious injury, as raised by the noble Baroness, Lady Walmsley. With the focus clearly on lessons to be learned, it may be important to include cases involving near misses or areas where a lot of children have suffered some harm. It may help to clarify that in the Bill.
Finally, it seems important to clarify further the dissemination activities that will be required of the panel. Somehow this business of learning the lessons seems to be somewhat skated over. The Bill needs to make absolutely clear how this country will learn from these serious cases. That is what the panel needs to do.
Lord Watson of Invergowrie (Lab)
My Lords, we are content to support the amendments in this group that were ably moved and explained by the noble Lord, Lord Ramsbotham, and the noble Baronesses, Lady Walmsley and Lady Meacher. I wish to comment on Amendments 105 and 107. The noble Lord, Lord Ramsbotham, when discussing the rights of the child in this Committee recently urged the Government to ensure the automatic review of child deaths in institutions. The two amendments in the name of the noble Lord, Lord Ramsbotham, would ensure that that continued to happen.
I am sure all noble Lords will have received a six-page letter from the Minister this morning, looking at what we have done on the Bill so far. The last page of the letter refers to the United Nations Convention on the Rights of the Child, on which he seeks to give reassuring commitments that the Government are indeed moving forward in a number of fields with regard to the rights of children.
Lord Watson of Invergowrie
None the less—I understand the laughter from other noble Lords—there are interesting developments on my side of the fence, too. The Committee will forgive me for not commenting on that.
What the Minister said in his letter was reassuring. None the less, the amendments of the noble Lord, Lord Ramsbotham, would ensure an automatic review of child deaths, which obviously is a serious matter that I do not mean to treat lightly at all. Those are the two amendments that I wanted to specify, but all the amendments listed would strengthen the section of the Bill. For that reason, as stated earlier, we are pleased to support them.
As noble Lords will know, my noble friend Lord Hunt is a signatory to the proposal to oppose the question that Clauses 12 and 13 stand part of the Bill, and it is to this that I now wish to speak. We have concerns about the manner in which the functions of the Child Safeguarding Practice Review Panel are to be established. Clause 12(1) states that the Secretary of State shall have power delegated to her to decide what the functions of the panel shall be. The functions are not set out in any detail; the Secretary of State is to be given the right to decide how the functions are to operate. The Delegated Powers and Regulatory Reform Committee stated in its report on the Bill:
“The arrangements made by the Secretary of State will determine more precisely how those functions are to be exercised, and will accordingly play a significant role in shaping what the Panel is required to do and how it is required to do it”.
The committee goes on to say that as a result, it believes that the arrangements made by the Secretary of State should be contained in a statutory instrument subject to the affirmative procedure. So do we, which is why we believe Clause 12 must be strengthened.
We also have objections to the guidance issued by the Secretary of State to the panel, as outlined in new Section 16B(8) in Clause 12. Again, our concerns are shared by the Delegated Powers and Regulatory Reform Committee, which commented that as the guidance clearly must operate hand in glove with the arrangements being made by the Secretary of State in relation to the panel, the guidance, too, should be subject to parliamentary scrutiny, this time by negative resolution.
The same could be said in respect of Clause 13 and the definition of “regulated setting”, relating to the death of a child. “Regulated setting” is not defined in the Bill, which the DPRRC regards as a major failing. The committee says:
“The definition of ‘regulated setting’ is fundamental to determining the scope of a local authority’s duty to provide information about cases”,
within this section of the Bill. That gives the Secretary of State unlimited discretion to determine what falls within the definition, and the committee goes on to say that the delegated power conferred by Section 16C(3) of the Children Act 2004 is inappropriate in providing for the definition of “regulated setting” to be set out in regulation.
More seriously—not least, I suspect, for the Department for Education—the committee proceeds effectively to rubbish the department’s claim that:
“This is a narrow power which will only provide for a list of regulated settings, not raising matters of substance which the House will need to debate”.
The Delegated Powers Committee does not just describe that power as a wide one; it concludes that it is a Henry VIII power, which means that it should be subject to affirmative procedure.
The number of delegated powers contained in the Bill was the subject of some dispute, shall we say, between noble Lords and Ministers at Second Reading. Doubtless we could schedule a separate debate in Committee to resolve just how many there are but, with the exception of the Ministers, every noble Lord who has taken part in debates on the Bill will agree that however many there are, there are too many.
The definition of a Henry VIII clause is of course one that seeks to amend primary legislation by secondary legislation. I cannot resist quoting the comments of the noble and learned Lord, Lord Judge, who spoke strongly against such clauses when he was Lord Chief Justice. He stated:
“You can be sure that when these Henry VIII clauses are introduced they will always be said to be necessary. William Pitt warned us how to treat such a plea with disdain. Necessity is the justification for every infringement of human liberty: it is the argument of tyrants, the creed of slaves”.
That may be just a little strong for this Bill but the message is quite clear. There are more egregious examples elsewhere in the Bill of the abuse of parliamentary procedures through secondary legislation—but, for the reason I have outlined, we believe that the definition of “regulated setting” has to be on the face of the Bill.
As was stated in Committee last week, there are concerns over the establishment of the Child Safeguarding Practice Review Panel, partly because of the fear that it could be used to blame, or perhaps even scapegoat, social workers if a high-profile local case is referred to the new national panel without full knowledge of the local elements of the case. That is why the greatest attention must be given to defining the arrangements and functions of the panel as clearly as possible and, where they cannot be placed on the face of the Bill, to ensuring that there is adequate parliamentary scrutiny of those aspects of the Bill. For these reasons, we do not believe that Clauses 12 and 13 should stand part of the Bill.
Baroness Pinnock (LD)
My Lords, I support everything that previous speakers have said about both the amendments and in opposition to Clauses 12 and 13. During our last day in Committee, I made the case that in principle the proposal for the national safeguarding panel failed because it did not take sufficient account of local accountability, local knowledge and local professionals who have a duty to safeguard children in their area. The Wood report, from which a lot of the changes proposed by the Government come, is clear on some of these issues. One factor that it picks out in its analysis of local safeguarding children’s boards is that a review by the Local Government Association found,
“dissonance among the partners between the accountability and the authority of an LSCB”.
The report goes on to say that,
“the duty to cooperate has not been sufficient in ensuring the coherent and unified voice necessary to ensure multi-agency arrangements are consistently effective”.
So from the Wood report we hear that local accountability is one issue that has been raised. The LSCBs are not sufficiently accountable locally, and that has, in part, led to their lack of effectiveness.
The proposals in these clauses move power and accountability, in the most serious cases, from the local to the national level and put it in the hands of the Secretary of State. I think that that places too much power at the national level and not enough locally, and it is also in danger of politicising the whole process, reflecting what the noble Baroness, Lady Meacher, said, with which I totally agree. The lack of elected representation on the current safeguarding boards has resulted in them being ineffective. Currently, the boards consist of professionals and there is no full representation of non-professionals—that is, elected representatives—who are also corporate parents. It seems to me that a lack of challenge from non-professionals, who are corporate parents, has contributed to this lack of effectiveness of the safeguarding boards.
I will make a further comment, which is reflected in the Wood report, about the membership of the local boards and the duty to co-operate. The Government’s proposals in later amendments would remove the requirement for some of the professional organisations to be members of the local panels. One of those, the probation service, has in my council area—I draw the Committee’s attention to my entry in the register of interests as a local councillor in the Borough of Kirklees—since the fundamental changes to the service not attended the local safeguarding children boards. The later government amendments remove that requirement. It is a big mistake not to require the probation service to attend to discuss safeguarding children.
Clause 12, which lays out the functions of the new national panel, falls far short of what is required. Let us consider what has happened with serious case reviews over the past 30 years—probably and sadly—from the Climbié and Baby P reports to the many, many others that we can all draw to memory. They have all issued recommendations to which everybody has agreed but which no one has implemented effectively. Everyone says, “These are good; we must do that”, but they are not implemented.
The big failure in Clause 13, which is why I will oppose it standing part, is that nowhere does it say how learning will be effectively implemented. We can all learn, and social workers across the country will have read the 48—I think—recommendations in the Baby P report, but implementing them is the difficult bit. The Wood report refers to that and makes a powerful case for thinking in much greater detail not about the learning—the learning has been done—but the implementation. In all these cases, similar recommendations are made about the need to co-operate and the lack of collaboration and communication. We have yet to crack how to put that into effect.
If we are serious about child protection and safeguarding children, one element which must feature is how the recommendations are to be put into effect, monitored and reviewed. If we do not do that, we will never move forward. That is my fundamental reason for supporting the proposition that Clauses 12 and 13 should not stand part of the Bill.
Lord Mackay of Clashfern (Con)
My Lords, I strongly support what has just been said. Over the years—it goes back quite a long way—there have been very serious cases of child injury and, sadly, in most of the cases, child deaths. There has been no shortage of inquiries. All sorts of very distinguished people have been asked to inquire into the situation. As the noble Baroness, Lady Meacher, said, there is always a focus on the individual social worker. Managers somehow stand a little back from the situation to let the light shine on the individual. That is a natural protection that management is apt to have and one that we must think about.
I strongly support the view that any number of lessons have been learned, in the sense that reports have told us what was wrong and what should be different. But I know of absolutely no mechanism to make sure that these recommendations are acted on and that something actually happens. We have only to look at some of the earliest reports in relation to this to see that very clear recommendations were made. The report is published, the public and the press comment on it—and then it is forgotten until the next one. Surely if we are to set up a national body of this sort, we should incorporate within it a clear mechanism for bringing the recommendations forward for implementation.
Lord Warner (Non-Afl)
Will the Minister think about a very simple question? If you take powers to bring things up to national level and away from local level, I suggest that you then have an obligation to monitor what happens to the output from that new national body and to account yourself for whether anything has been implemented. Can the Minister explain to the Committee a little more about how that aspect of all this is going to work?
The Parliamentary Under-Secretary of State, Department for Education (Lord Nash) (Con)
My Lords, in this group Amendments 105, 107, 108, 109, 109A and 110 concern places of detention, serious child safeguarding cases and serious harm. I am grateful to the noble Lord, Lord Ramsbotham, and the noble Baroness, Baroness Walmsley, for these amendments. I particularly thank the noble Lord, Lord Watson, for his very encouraging opening remarks—but I understand that the new Prime Minister will not be in No. 10 until Wednesday evening, so noble Lords will probably have to put up with us at least until then.
Before I turn to these amendments, I confirm that I would be delighted to convene a meeting to give noble Lords more detail on the Child Safeguarding Practice Review Panel. A meeting was specifically requested at our last Committee session by the noble Lord, Lord Warner, and the noble Baroness, Lady Pinnock, but the invitation obviously extends to all noble Lords.
I will begin with Amendments 105, 107 and 110 concerning places of detention. I had hoped that I had reassured noble Lords about the independence of the Child Safeguarding Practice Review Panel at the end of the last Committee sitting—particularly the noble Lord, Lord Watson, and the noble Baroness, Lady Howarth, who raised these concerns. As I said then, the establishment of a strong, independently operating national panel is essential. Because of its independence, the panel will have the autonomy to use its judgment about the circumstances in which it deems it necessary to carry out a national review, although we intend to provide guidance that will aid its decision-making in this regard. I assure the noble Lord that we will take particular care to reflect on the importance of children held in detention, and to consider carefully the ways in which the guidance for the panel reflects not just the deaths of children, but children who have been abused or neglected.
The existing 2015 statutory guidance, Working Together to Safeguard Children, sets out that a serious case review should always be carried out when a child dies in custody, in police custody, on remand or following sentencing in a young offender institution, a secure training centre or a secure children’s home. The same applies where a child dies who was detained under the Mental Health Act. We will want to consider carefully how any new guidance produced for the panel takes this into account, bearing in mind the panel’s basic functions of the panel.
On Amendment 109A, I can assure the noble Lord, Lord Ramsbotham, that anyone may notify the panel of serious events in institutional settings, or indeed of such events in any place. Clause 13, as drafted, deals with requirements on local authorities but does not prevent others making direct notifications. In respect of the proposal to add a specific reference to guidance, I assure the noble Lord that Clause 12 already provides for the panel to have regard to any guidance issued by the Secretary of State in respect of its functions, and Clause 13 provides the same in respect of local authorities’ duty to notify. We will make it clear that others may notify the panel of events directly.
I now turn to Amendments 108 and 109. Amendment 108 seeks to add to the definition of serious child safeguarding cases by including specific reference to cases where physical injuries or harm are caused by unlawful or abusive restraint in any institutional setting. Amendment 109 seeks to broaden the scope of the definition of serious harm to include both ill treatment and the impairment of physical health. I agree entirely with the premise behind the amendments. However, inevitably, any such definitions cannot be exhaustive and include all circumstances, or cover all settings within which children might suffer injury or harm.
The definition in Clause 12 of serious child safeguarding cases includes reference to children who have been seriously harmed. This is based on the definition set out in the current safeguarding statutory guidance, Working Together to Safeguard Children, which was drawn up following consultation last year. The definition of serious harm includes the factors stated in subsection (9). The wording proposed is not intended to cover all scenarios. Great consideration was given to the factors to be included in the definition of both serious child safeguarding cases and serious harm for the purposes of the clause. It will be for the panel to consider each case in line with these definitions to identify serious child safeguarding cases and determine what form of review is required. We expect that to include cases where factors such as those outlined by the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Walmsley, are a feature.
Clause 12 sets out the functions of the new panel. The panel will identify serious child safeguarding cases in England that raise issues that are complex or of national importance. The purpose of any such review will be to ascertain how practice by local authorities or others to safeguard children can be improved as a result of learning from the cases. I assure the noble Baroness, Lady Meacher, that this is about improvements in practice that can be disseminated nationally, not about the blame or public censure of individuals. Any disciplining of individuals will be done through the usual employment processes where they are working, or with reference to professional bodies, if needed. Reports on serious cases should not name individuals, whether they are professionals, children or family members. Writing reports in a way that ensures individuals are not named has been a long-standing convention in serious case reviews, and this should continue under the new arrangements. I assure the noble Baroness that the guidance will make this point absolutely clear.
As for her point about Amendment 114, we will come to it in detail in two groups’ time.
Baroness Meacher
I am aware that this practice has gone on—you have anonymity, and so on—yet somehow the media or national politicians get the names of the front-line people and their lives are wrecked. Therefore, there needs to be very clear separation of those matters that remain local and do not find their way up to the national panel, national politicians and the rest of it, most particularly the media. I hope that the Minister would be able at least to reflect on that or perhaps give us some reassurance. As for keeping anonymity, the media know jolly well how to find out people’s names—they crawl around, as the Minister well knows. We need procedures and practices that make very clear the single objective of the national panel—to learn lessons and disseminate—and that it does not need all the information about an individual. Somehow, a wall needs to be created to safeguard those people, otherwise we will not have front-line staff.
Lord Nash
I will reflect and look into that in more detail. Once it is in the public domain that a particular instance is being investigated, knowing the media, however much you try to protect an individual’s identity, I cannot see quite how one can do it—but I will certainly look at it. The noble Baroness raises a very important point which we are aware of.
I should add that the Government have now responded to the Delegated Powers and Regulatory Reform Committee, in answer to some of the points made by the noble Lord, Lord Watson. The response confirmed the Government’s intention to bring forward an amendment at a later stage to modify the provisions to ensure that the arrangements to which the clause refers be subject to affirmative parliamentary scrutiny.
Lord Nash
Yes is the answer.
Clause 13 requires local authorities to notify the panel of events in their area where a child has died or suffered serious harm and is known or suspected to have suffered abuse or neglect. The clause will place the process of notifying such events to the panel on a statutory footing for the first time, demonstrating the importance that the Government attach to this process and leaving no room for doubt as to whether to report an incident.
If this part of the process is not made a statutory duty on local authorities, there is a risk that some events may not be notified, thereby reducing the likelihood of events being scrutinised and action taken to reduce the likelihood of such an event taking place in future. The DPRRC also commented on this clause in its report. The Government’s response to the report confirms an intention to look again at the definition of regulated setting, as well as agreeing that any future amendments to the definition should be by the affirmative procedure. We intend to return to this matter at a later stage.
The noble Baroness, Lady Pinnock, asked about the importance of taking into account local issues. The panel will make its decision on the basis of information from local areas. It will include the probation service in the list of relevant agencies. We will come shortly to a set of government amendments that respond directly to Alan Wood’s recommendations on local accountability. If I may, I will cover the rest of her points then.
She also asked a very good question, supported by my noble and learned friend Lord Mackay, about how learning will be implemented. Our whole reform to social work and the point of the national panel is to improve implementation. Our new What Works centre for children’s social care will have a key role in disseminating learning and making sure that it is acted upon. As under current arrangements, local safeguarding will be expected to report on practice improvements identified through the reviews and on action taken in response.
My noble and learned friend Lord Mackay commented on the guidance. I will not talk about guidance in general, but we have significantly reduced the statutory guidance on child protection in the past five years, and we keep it constantly under review. I hope that the explanation of Clauses 12 and 13 provides reassurance about the Government’s intentions, and I therefore urge the noble Lord and the noble Baroness not to press their amendments.
Baroness Walmsley
For the sake of an accurate record, may I point out that Amendment 108, referred to by the Minister, was retabled as Amendment 106A?
The noble Lord suggested that the national panel would have the discretion to choose whether to investigate situations such as those described in my amendment involving,
“harm caused by unlawful or abusive restraint in any institutional setting”.
If we eventually have a national panel, this is exactly the sort of situation they should look into, because it is a matter of national policy and because children in such institutions come from a range of different local authorities. Despite the guidance, very often they are not located in their home authority. My point is that these cases should be investigated by the national panel on all occasions; it should not just be left to its discretion.
Lord Ramsbotham
I am grateful to the Minister for his carefully considered response. I just hope that between now and the next time we meet, there will not be a fourth huge volume of government policy for us to consider during the passage of the Bill. I am sure it is very reassuring to think that the Department for Education is producing all this stuff, but I must say that it would have been helpful to have had it before we began our deliberations, rather than having it fed in during Committee.
When the noble and learned Lord, Lord Mackay, was speaking, I could not help but reflect on my hopes when we introduced the corporate manslaughter legislation. I hoped that it would provide the stick to make certain that the outcomes of such investigations were taken seriously. But nothing has yet happened to bring corporate manslaughter charges against the managers under whom these unnatural deaths have taken place. It is something that is worth considering.
I was going to comment on my noble and learned friend Lord Judge’s remarks in the discussion on Clause 15. But, as the noble Lord, Lord Watson, mentioned his comments on the regulation, I will repeat what I said at Second Reading. I quoted the noble Baroness, Lady Smith of Basildon, who, during the debate on the balance of power between the Government and Parliament, said of this Bill that there were,
“more provisions for the Secretary of State to use regulations than there are clauses in the Bill, including on issues that should be considered matters of significant policy”.—[Official Report, 9/6/16; col. 860.]
I also quoted my noble and learned friend Lord Judge, who, in addition to making some devastating comments about the increasing number of Henry VIII clauses in current legislation, highlighted the number of them in this Bill and asked,
“when are we going to actually achieve something before our ... arrangements disappear into some vague unknown future?—[Official Report, 9/6/16; col. 875.]
I must admit that I am extremely alarmed at the number of them in the Bill, not least because the impact assessment on the Bill states:
“The Bill’s contents have been reviewed and ruled out of scope for the regulatory impact assessment exercise”.
To my mind, nothing could be more inappropriate because the regulatory impact assessment really needs to be carried out in spades on this Bill, as many noble Lords have said.
I am grateful to the Minister for offering his meeting on the national safeguarding panel, to which I look forward. In the meantime, and until Report, I beg leave to withdraw my amendment.
“( ) The Panel may enforce the duty under subsection (2) against the person or body by making an application to the High Court or the county court for an injunction.”
Lord Nash
My Lords, I will speak to this amendment, which enables a request for information by the Child Safeguarding Practice Review Panel to be enforced. It is essential that the panel is able to request information to enable it to perform, or assist it in performing, its functions. This may also include normally privileged information, which is frequently an integral part of what has to be considered as part of the review process. This is already set out in Clause 14.
This amendment enables the panel to apply to the court for an injunction, should a person or body refuse to comply with a request by the panel for information. In the case of normally privileged information, the panel will consider the reasons for that. It may ask the person or body to justify any refusal, but may ultimately compel that information to be provided. As previously discussed, however, this provision would not apply to the judiciary, whose independence is a constitutional matter.
The Wood review highlighted the critical importance of effective and speedy sharing of information and data in relation to protecting and safeguarding children. This clause will underline the importance of sharing relevant information with the panel, backed up with the power of enforcement. I beg to move.
Lord Warner
My Lords, we had a good go over the issue of the judiciary on our last Committee day. The Minister slid very quickly over this particular issue in his remarks—namely, that judges are exempt. Can he pray in aid what the provisions are that stop a review panel looking at the conduct of a judge? We spent a lot of time on the case of Ellie Butler, but that was clearly a case where the practice of the judge could be called into question—not just on the individual circumstances but on the systems issue of whether the judge could actually replace social workers who had been protecting the child for some period and bring into being a new review of the child’s circumstances by a set of private social workers, for whom the child was a new client. That is a systems issue; it is not just about the judgment of the judge but about a piece of practice that seems to me to be at least arguable. Why, in that set of circumstances, should the judiciary be exempt from review by this panel?
Lord Hunt of Kings Heath (Lab)
My Lords, I have just picked up the debate we had in Grand Committee on 6 July, when the noble Lord, Lord Warner, raised the issue of legal and medical privilege. Then the noble Lord said he did not think that anything needed to be added to the Bill, although he recognised that guidance would need to be given to the panel in respect of the information it requests.
I assume that there will now be a considerable time between Committee and Report. I understand that this is a very complex matter. The question of the independence of the judiciary is clearly paramount; equally, my noble friend has made an important point about the need for the panels to obtain relevant information. So, rather than a quick letter, I hope that the Minister will agree to consider this important matter in some depth.
“Local arrangements for safeguarding and promoting welfare of children
After section 16D of the Children Act 2004 (inserted by section 14 of this Act) insert—“Safeguarding partners for local authority areas16E Local arrangements for safeguarding and promoting welfare of children(1) The safeguarding partners for a local authority area in England must make arrangements for—(a) the safeguarding partners, and(b) any relevant agencies that they consider appropriate,to work together in exercising their functions, so far as the functions are exercised for the purpose of safeguarding and promoting the welfare of children in the area.(2) The arrangements must include arrangements for the safeguarding partners to work together to identify and respond to the needs of children in the area.(3) In this section—“relevant agency”, in relation to a local authority area in England, means a person who—(a) is specified in regulations made by the Secretary of State, and(b) exercises functions in that area in relation to children;“safeguarding partner”, in relation to a local authority area in England, means—(a) the local authority;(b) a clinical commissioning group for an area any part of which falls within the local authority area;(c) the chief officer of police for a police area any part of which falls within the local authority area.””
Lord Nash
My Lords, I would like to speak at some length to Amendments 113 to 120, and I will include Amendments 133 and 134 as they are related but purely technical amendments.
Amendment 113 is central to the new arrangements. It requires the safeguarding partners, namely the local authority, chief officer of police and clinical commissioning groups to work together, along with the agencies they consider to be appropriate, to make arrangements to exercise their functions to safeguard and promote the welfare of children in the area. These safeguarding partners must also make arrangements to identify and respond to the needs of children in the area.
In May this year, the Government published the Wood review into the role and functions of LSCBs. This review, through extensive consultation, identified the key role of local authorities, police and health services in the safeguarding and welfare of children. The review found that without the agreement and full collaboration of these three bodies, the strategic decisions necessary to underpin effective practice cannot be taken. The new clause gives these key safeguarding partners the flexibility to determine which other relevant agencies they need to work with, and to decide how they can work together most effectively to identify and respond to the needs of children in their local area.
The new clause will allow the Secretary of State to specify in regulations the agencies which exercise functions in relation to children. This will, of course, include relevant agencies such as schools, youth offending and justice agencies and a range of others which exercise functions in relation to the welfare of children. The key change here compared with existing arrangements is that local areas would decide which agencies to involve and in what ways, rather than having a list imposed on them by central government. We intend that statutory guidance will specify that the safeguarding partners will be expected to consult locally before making the arrangements.
Evidence suggests that too many local safeguarding children boards are currently ineffectual and that significant reform is required. The Wood review found that the organisational boundaries between local authorities, police and health services too often act as a barrier to effective multiagency working. This provision would place upon these three key safeguarding partners an equal responsibility to work together. It will enable their vital contributions towards the safeguarding and promotion of the welfare of children to be better co-ordinated and deployed, and reduce the duplication of existing work. It will provide greater flexibility for local areas to arrange their services according to local assessment and agreement.
Amendment 114 sets out the requirement on safeguarding partners within a local authority area to carry out local child safeguarding practice reviews. This proposed new clause links closely to Clauses 11 to 14, which set up the independent Child Safeguarding Practice Review Panel and a system of national reviews, and sets out a requirement for the safeguarding partners to make arrangements for local reviews. Most reviews into serious cases will take place at local level. Safeguarding partners will identify serious child safeguarding cases which raise issues of importance for that area and supervise the review of the cases as they so determine. The primary focus of such reviews will be on how practice by local authorities or other local bodies can be improved as a result of the case. If the safeguarding partners identify a serious child safeguarding case which they think may raise issues that are complex or of national importance, or where it becomes apparent that a case raises such issues, they will be free to refer it to the Child Safeguarding Practice Review Panel.
Baroness Pinnock
I thank the Minister for his very detailed explanation of these amendments, which are aimed at putting in place new arrangements for local safeguarding children boards. I have a number of questions and would be grateful if the Minister could respond to them so that I can fully understand and appreciate the implications of what is being proposed.
First, I thank him for his assurance about local accountability. However, one element is not specifically referred to in the detail that he gave about the composition of the new panels, and that is whether the panel could include local elected representatives. I referred to this in a previous discussion and raise it again because the safeguarding boards currently consist of professionals—for example, social workers, the police, health service workers and members of the probation service—but no non-professional, on the basis of local knowledge, can challenge what goes on. Such a challenge from a non-professional standing up for local people is very important in terms of safeguarding, even more so as local elected representatives have a duty as corporate parents and they are judged on how they fulfil that role. I think that the addition of non-professionals would enhance the status of the panel. It would be not just a collection of professionals taking responsibility but a collection of professionals plus some local representation saying, “This is not good enough. What are you going to do?”. They could do that if they were effective local representatives, and I would like to hear what the Minister has to say on that.
I turn to my second query. I totally understand the proposals for greater flexibility in composition and geographic areas, and so on. In principle I do not have a problem with that because the Wood report says, and my own experience tells me, that the current arrangements can become a bit bureaucratic—a case of going through the motions, rather than dealing with the issues. For me that is not an issue but, from what I heard the Minister say, under the new arrangements there will be three statutory representatives—from the police, the health service and local authorities—and they will consult on what other representation there should be, which is welcome. My query concerns whether any additional members from those organisations would be required to attend or whether they would just be asked to attend.
Lord Hunt of Kings Heath
My Lords, that was an interesting contribution by the noble Baroness, Lady Pinnock. I particularly wish to pick up the issue of challenge. Whether or not it is right for local authorities to be members of these bodies is one thing, but I have no doubt that the issue of challenge is a very important one. I would like to hear from the Minister about how we ensure that that takes place.
First, on the issue of bringing these together in areas larger than one single local authority, like the noble Baroness, Lady Pinnock, I consider that if this is a sensible approach to deal with some of the current boundary issues, that is fine. However, if there were an underlying view within the department that we had too many and it wanted them to be reduced in large numbers—central government departments often believe that—then I would worry. Ideally, we want one local authority to be seen to be responsible, rather than a number of them. The whole argument for bringing in these new arrangements, particularly in relation to Amendment 113, is to streamline the process so that there is much clearer accountability. I hope that we are not going to lose that straightforward accountability because we think we need to make it much easier for chief constables to be able to discharge their responsibility.
My second point is this. I have no objection to the formulation of safeguarding partners and their ability to invite any other relevant agencies that they consider appropriate. I took the point made by the noble Baroness in an earlier debate about the boards of probation officers. However, I ask the Minister: when those are set up, could his department actually monitor who the safeguarding partners designate as relevant agencies so that we can at least keep track nationally of what is happening? If we found that the probation services were not really part of any of these bodies at local level, I would begin to worry.
Thirdly, I have a question on Amendment 119, which mentions guidance. Will the Minister explain the status of that guidance—is it advisory or is it statutory?
Lord Warner
My Lords, could I ask a number of questions, particularly in relation to Amendment 116, on information? Before doing so, I will leave the noble Lord with a thought about my experience of local safeguarding boards in Birmingham, when I was the Children’s Commissioner there. A common feature of that board, which covers a very big area—I suspect it is a common feature of many other of those boards—was that often there was no consistency in who turned up for the meetings between the different agencies. There is a moving cast of characters turning up at these boards on behalf of particular agencies. Unless we can ensure greater consistency, we will not make those boards more effective.
On Amendment 116, I am not sure whether the Minister knows that some of us have been involved for a very long time—it seems as though it is since Adam and Eve—in trying to get the public agencies to accept a common identifier for children. If we want information to flow smoothly and quickly between agencies for children, particularly those who are at risk and in the child protection system, we need to listen to some of the people who have been working on this, such as Sir Cyril Chantler, an eminent paediatrician often used by the Government to undertake inquiries, to progress that. If you talk to paediatricians who have been involved in this area, the common villain of the piece—I use the term loosely—is the Department for Education, which simply will not accept that the NHS identifier is the best one to use because all children have one. Will the Minister take this back to his department and have another go? If he wants information to flow smoothly in child protection cases between the agencies, let us move towards using the NHS number as a common identifier. I assure him that that will get the information moving much faster through all the agencies concerned.
Baroness Tyler of Enfield (LD)
I shall add one more question to those posed by this very important set of amendments about how to improve local arrangements and have more effective multiagency safeguarding. I can think of nothing more important than that this works.
When I looked again at Alan Wood’s very interesting report, I saw two sentences that so far have not been picked up in this debate. They read:
“I would also add that national government departments do not do enough to model effective partnership working between themselves for local agencies. The join up demanded of local partners is not particularly evident at national level”.
For the new arrangements to work, and it is critical that they do, it is vital that government departments are modelling more effective collaboration in the area of safeguarding. I would be grateful to the Minister if, when he responds, he could tell us what steps government departments are taking nationally to model this behaviour.
Lord Nash
My Lords, I am grateful for this debate. On the points raised by the noble Baroness, Lady Pinnock, local arrangements may include elected representatives but this is a matter for local determination. On her second point, Amendment 113 gives the safeguarding partners flexibility to determine who the other relevant agencies are but, having determined that, those relevant agencies have to co-operate.
On the publication of annual reports, my answer says that this enables public scrutiny as it is transparent. As for the point made by the noble Lord, Lord Hunt, about how local areas organise themselves—the noble Baroness also asked about flexibility on the areas to align operational reach—I can confirm that the local authority area will be the key area and accountability will be to the local authority. It is designed to ensure flexibility within that structure but, to answer the noble Lord’s point, there is no hidden agenda. We are concerned here purely with the matter of improving child safeguarding.
The noble Baroness asked about monitoring progress and reviews. I already covered some of that in my answers about the What Works centre for children’s social care. The duty remains for local arrangements to report on their practice and action taken in response. The second question asked by the noble Lord, Lord Hunt, was who the safeguarding partner will designate as a relevant agency so that it can keep track of what is going on. I will certainly look at that. His third question was about Amendment 119 and whether the guidance will be statutory. It will.
The noble Lord, Lord Warner, made a point about Amendment 116 and a common identifier and whether we could not use the NHS identifier. Obviously, we want this to work well. That is an entirely new point to me; I will take it back and look at it in some detail.
Lord Hunt of Kings Heath
My Lords, as we are in Committee I say to the Minister that the latest report of the Delegated Powers and Regulatory Reform Committee has miraculously reached me and that it comments on his Amendments 113 and 115. It refers to two instances where the committee considers that the delegated power conferred in the amendments is inappropriate. I do not expect him to respond today, clearly, but I hope that between now and Report he will give that some attention.
Lord Nash
We are considering that report and we will respond in due course. On the point made by the noble Baroness, Lady Tyler, about national government departments modelling effective collaboration, we are indeed taking considerable steps to work together effectively, in particular with the Home Office and the Department of Health. In view of what I have said, I hope noble Lords will support the amendment.
Baroness Pinnock
In response to my question about local elected representation, the Minister said that that ability was currently there. Yes it is, but as observer status. If there is to be an opportunity to challenge it, the membership of that board needs to be on the same level. An observer status puts the individual in a much lesser category of importance on that body. In order to have elected challenge on the panel, they ought to be full members of the board.
Baroness Pinnock
I totally welcome that and thank the Minister for his response.
“Local child safeguarding practice reviews
After section 16E of the Children Act 2004 (inserted by section (Local arrangements for safeguarding and promoting welfare of children) of this Act) insert—“16F Local child safeguarding practice reviews(1) The safeguarding partners for a local authority area in England must make arrangements in accordance with this section—(a) to identify serious child safeguarding cases which raise issues of importance in relation to the area, and(b) for those cases to be reviewed under the supervision of the safeguarding partners, where they consider it appropriate.(2) The purpose of a review under subsection (1)(b) is to ascertain what (if any) lessons can be learned from the case about the way in which persons in the area should work to safeguard and promote the welfare of children.(3) Where a case is reviewed under the supervision of the safeguarding partners, they must—(a) ensure that the reviewer provides a report on the outcome of the review;(b) ensure—(i) that the reviewer makes satisfactory progress, and(ii) that the report is of satisfactory quality;(c) provide the report to the Secretary of State and the Child Safeguarding Practice Review Panel.(4) The safeguarding partners must publish the report, unless they consider it inappropriate to do so.(5) If the safeguarding partners consider it inappropriate to publish the report, they must publish any information relating to the lessons to be learned from the case that they consider it appropriate to publish.(6) The Secretary of State may by regulations make provision about—(a) criteria to be taken into account by the safeguarding partners in determining whether serious child safeguarding cases raise issues of importance in relation to the area;(b) the appointment or removal of a reviewer by the safeguarding partners, including provision for a reviewer to be appointed by the safeguarding partners from a list provided by the Secretary of State;(c) the time when a report is to be provided to the Secretary of State or the Child Safeguarding Practice Review Panel, or published;(d) the procedure for a review;(e) the form and content of a report.(7) In this section “reviewer” means any one or more persons appointed to review a case under the supervision of the safeguarding partners for a local authority area.””
“Further provision about arrangements
After section 16F of the Children Act 2004 (inserted by section (Local child safeguarding practice reviews) of this Act) insert—“16G Further provision about arrangements(1) This section applies in relation to arrangements made under section 16E or 16F by the safeguarding partners for a local authority area in England.(2) The safeguarding partners must publish the arrangements.(3) The arrangements must include arrangements for scrutiny by an independent person of the effectiveness of the arrangements.(4) The safeguarding partners and relevant agencies for the local authority area must act in accordance with the arrangements.(5) Subsection (6) applies where a person is specified in regulations under section 16E(3) for the purposes of the definition of “relevant agency”.(6) The regulations may make provision for the enforcement against the person of the duty imposed by subsection (4), if the Secretary of State considers that there would otherwise be no appropriate means of enforcing that duty against the person.(7) At least once in every 12 month period, the safeguarding partners must prepare and publish a report on—(a) what the safeguarding partners and relevant agencies for the local authority area have done as a result of the arrangements, and(b) how effective the arrangements have been in practice.””
“Information
After section 16G of the Children Act 2004 (inserted by section (Further provision about arrangements) of this Act) insert—“16H Information(1) Any of the safeguarding partners for a local authority area in England may, for the purpose of enabling or assisting the performance of functions conferred by section 16E or 16F, request a person or body to provide information specified in the request to—(a) the safeguarding partner or any other safeguarding partner for the area,(b) any of the relevant agencies for the area,(c) a reviewer, or(d) another person or body specified in the request.(2) The person or body to whom a request under this section is made must comply with the request.(3) The safeguarding partner that made the request may enforce the duty under subsection (2) against the person or body by making an application to the High Court or the county court for an injunction.(4) The information may be used by the person or body to whom it is provided only for the purpose mentioned in subsection (1).””
“Funding
After section 16H of the Children Act 2004 (inserted by section (Information) of this Act) insert—“16I Funding(1) The safeguarding partners for a local authority area in England may make payments towards expenditure incurred in connection with arrangements under section 16E or 16F— (a) by making payments directly, or(b) by contributing to a fund out of which the payments may be made.(2) The payments that may be made include payments of remuneration, allowances or expenses to a reviewer or an independent person.(3) The safeguarding partners for a local authority area in England may provide staff, goods, services, accommodation or other resources to any person for purposes connected with arrangements under section 16E or 16F.(4) Relevant agencies for a local authority area in England may make payments towards expenditure incurred in connection with arrangements under section 16E—(a) by making payments directly, or(b) by contributing to a fund out of which the payments may be made.(5) In this section an “independent person” means an independent person mentioned in section 16G(3).””
“Combining safeguarding partner areas and delegating functions
After section 16I of the Children Act 2004 (inserted by section (Funding) of this Act) insert—“16J Combining safeguarding partner areas and delegating functions(1) The safeguarding partners for two or more local authority areas in England may agree that their areas are to be treated as a single area for the purposes of sections 16E to 16I and subsections (3) to (5) of this section.(2) References in sections 16E to 16I and in subsections (3) to (5) of this section to a local authority area are to be read in accordance with any agreement under subsection (1).(3) Where a local authority is a safeguarding partner for the same local authority area as another local authority (as a result of an agreement under subsection (1)), the authorities may arrange for one of them to carry out functions under sections 16E to 16I on behalf of the other.(4) Where a clinical commissioning group is a safeguarding partner for the same local authority area as another clinical commissioning group, the groups may arrange for one of them to carry out functions under sections 16E to 16I on behalf of the other.(5) Where a chief officer of police is a safeguarding partner for the same area as another chief officer of police, the officers may arrange for one of them to carry out functions under sections 16E to 16I on behalf of the other.””
“Guidance by Secretary of State
After section 16J of the Children Act 2004 (inserted by section (Combining safeguarding partner areas and delegating functions) of this Act) insert—“16K Guidance by Secretary of State(1) The safeguarding partners and relevant agencies for a local authority area in England must have regard to any guidance given by the Secretary of State in connection with functions conferred on them by sections 16E to 16J.(2) Guidance given by the Secretary of State in connection with functions conferred by section 16F may include guidance about—(a) circumstances in which it may be appropriate for a serious child safeguarding case to be reviewed; (b) matters to be taken into account in deciding whether a review is making satisfactory progress or whether a report is of satisfactory quality.””
“Interpretation
After section 16K of the Children Act 2004 (inserted by section (Guidance by Secretary of State) of this Act) insert—“16L Interpretation of sections 16E to 16KIn sections 16E to 16K—“reviewer” has the meaning given by section 16F(7);“safeguarding partner”, in relation to a local authority area, has the meaning given by section 16E(3);“serious child safeguarding cases” has the meaning given by section 16B(9);“relevant agency”, in relation to a local authority area, has the meaning given by section 16E(3).””
“Child death reviews
After section 16L of the Children Act 2004 (inserted by section (Interpretation) of this Act) insert—“Child death review partners for local authority areas16M Child death reviews(1) The child death review partners for a local authority area in England must make arrangements—(a) for the review of each death of a child normally resident in the area;(b) for the analysis of information about such deaths generally.(2) The purposes of a review or analysis under subsection (1) are—(a) to identify any matters relating to the death, or the deaths generally, that are relevant to the welfare of children in the area or to public health and safety, and(b) to consider whether it would be appropriate for anyone to take action in relation to any matters identified.(3) Where the child death review partners consider that it would be appropriate for a person to take action as mentioned in subsection (2)(b), they must inform that person.(4) The child death review partners for a local authority area in England must, at such intervals as they consider appropriate, prepare and publish a report on—(a) what they have done as a result of the arrangements under this section, and(b) how effective the arrangements have been in practice.””
Baroness Evans of Bowes Park (Con)
My Lords, I shall speak to Amendments 121 to 125, regarding child death reviews in the multiagency local safeguarding arrangements. These proposed new clauses require the child death review partners—the local authority and clinical commissioning groups in a local authority area—to carry out a review of each death of a child normally resident in the area. They will be required to analyse the information obtained from child death reviews to identify issues that are relevant to the welfare of children in the area or to public health and safety and, in doing so, to consider whether it would be appropriate for anyone to take action in relation to any matters identified.
Amendment 122 will enable the child death review partners to request information and enforce compliance from any person or body in pursuance of their functions. Amendment 123 will allow child death review partners to agree to make payments to support the joint working arrangements which they are establishing for the reviews. Amendment 124 will allow the child death review partner areas to be made up of more than one local authority area, where there is more than one local authority or clinical commissioning group. This proposed new clause will allow the relevant child death review partner to delegate the review functions to one local authority or one clinical commissioning group. This is a practical provision, which enables the child death review partners to utilise more streamlined arrangements in a manner which they consider would work best for their area. These proposed new clauses do not change the individual existing responsibilities of each partner to exercise their functions with regard to child death reviews.
Amendment 125 will require child death review partners to have regard to any statutory guidance issued by the Secretary of State in regard to their functions. I believe that the partners will find guidance of this sort helpful in aiding their decision-making.
The death of any child is a tragedy, whether it is as a result of a health condition, an accident or abuse and neglect. Parents and the professionals who support them through this extremely difficult time will want full details of what happened in their case and to know whether anything could have been done to prevent this death happening. England was the first country in the world to put in place arrangements that provide comprehensive understanding of the causes of child deaths, and we need to build on the knowledge that we have gained so far. Collating and analysing information locally and sharing between areas are vital steps to help us to understand why children die.
In May this year the Government published the Wood review into the role and functions of local safeguarding children boards and child death overview panels. The review found that over 80% of child deaths have medical or public health causations, but the gathering of data on child deaths and the analysis of them is incomplete and inconsistent. As a result there is a gap in our knowledge, and professions are not sufficiently extracting learning from the data that are available in order to reduce the number of child deaths each year.
These new clauses bring the two key child death review partners together and place upon them equal responsibility to work together. They will enable health partners to continue to support the analysis of information on health-related child deaths at local and national level. Hospitals of course routinely analyse the data on child deaths. Local authorities need to be partners to ensure that factors relating to public health and safeguarding are similarly identified. This will also allow local authorities to promote learning and dissemination within their local area. For these reasons, the Government believe it is imperative that child death reviews remain on a statutory footing to secure the best outcomes for all children. I beg to move.
Baroness Hughes of Stretford (Lab)
My Lords, I have a question about these clauses, which are generally welcome. The more information we have about child death comprehensively, the easier it will be to take any necessary action. As I read the clauses, however, although I may have missed something, I cannot see what the review partners will be required to publish. Subsection (4) in new Clause 16M of the Children Act 2004 in Amendment 121 says they must,
“prepare and publish a report on … what”,
the partners,
“have done as a result of the arrangements … and how effective the arrangements”—
which I take to be partnership—“have been”. However, I can see nothing in here about the kind of analysis that the Minister was just referring to—the kinds of deaths that have occurred, for what purposes, the demographic and other characteristics of the children and so on. Could she enlighten us about what will be required in terms of general access to the information that has been collected here?
Lord Hunt of Kings Heath
My Lords, I would like to add another point. Here we are talking about child death review partners, and in the previous debate we were talking about safeguarding partners. I wonder if this is a concept that might be used with regard to the earlier part of the Bill relating to corporate parenting. The Minister will know that we had amendments to Clauses 1 and 2 around corporate parenting, the argument being that in order to discharge corporate parenting roles properly the local authority needs the support of core partners in the local area, including the health service and other agencies. I think we have all agreed that nothing should be done to dissipate the role of the corporate parent by, if you like, detracting from the local authority’s responsibility. However, I wonder if the concept of safeguarding partners and death review partners is an approach that we might consider. I realise that this is not the point to discuss corporate parenting, but it is an interesting concept that we might think about when we return to the subject.
Baroness Evans of Bowes Park
I thank noble Lords for their interventions. Perhaps I can take away the comments from the noble Lord, Lord Hunt. In answer to the noble Baroness, Lady Hughes, the child death review partners will be required to publish information on what more local authorities and CCGs can do to prevent deaths, including analysis and data. I am happy to come back to her with some further information following this discussion.
“Information
After section 16M of the Children Act 2004 (inserted by section (Child death reviews) of this Act) insert—“16N Information (1) Any of the child death review partners for a local authority area in England may, for the purpose of enabling or assisting the performance of functions conferred by section 16M, request a person or body to provide information specified in the request to—(a) the child death review partner or any other child death review partner for the area, or(b) another person or body.(2) The person or body to whom a request under this section is made must comply with the request.(3) The child death review partner that made the request may enforce the duty under subsection (2) against the person or body by making an application to the High Court or the county court for an injunction.(4) The information may be used by the person or body to whom it is provided only for the purpose mentioned in subsection (1).””
“Funding
After section 16N of the Children Act 2004 (inserted by section (Information) of this Act) insert—“16O Funding(1) The child death review partners for a local authority area in England may make payments towards expenditure incurred in connection with arrangements under section 16M—(a) by making payments directly, or(b) by contributing to a fund out of which payments may be made.(2) The child death review partners for a local authority area in England may provide staff, goods, services, accommodation or other resources to any person for purposes connected with arrangements under section 16M.””
“Combining child death review partner areas and delegating functions
After section 16O of the Children Act 2004 (inserted by section (Funding) of this Act) insert—“16P Combining child death review partner areas and delegating functions(1) The child death review partners for two or more local authority areas in England may agree that their areas are to be treated as a single area for the purposes of sections 16M to 16O and subsections (3) and (4) of this section.(2) References in sections 16M to 16O and in subsections (3) and (4) of this section to a local authority area are to be read in accordance with any agreement under subsection (1).(3) Where a local authority is a child death review partner for the same local authority area as another local authority (as a result of an agreement under subsection (1)), the authorities may arrange for one of them to carry out functions under sections 16M to 16O on behalf of the other.(4) Where a clinical commissioning group is a child death review partner for the same local authority area as another clinical commissioning group, the groups may arrange for one of them to carry out functions under sections 16M to 16O on behalf of the other.””
“Guidance and interpretation
After section 16P of the Children Act 2004 (inserted by section (Combining child death review partner areas and delegating functions) of this Act) insert— “16Q Guidance and interpretation(1) The child death review partners for a local authority area in England must have regard to any guidance given by the Secretary of State in connection with functions conferred on them by sections 16M to 16P.(2) In this section and sections 16M to 16P “child death review partners”, in relation to a local authority area in England, means—(a) the local authority;(b) any clinical commissioning group for an area any part of which falls within the local authority area.””
“Abolition of Local Safeguarding Children Boards
(1) Omit sections 13 to 16 of the Children Act 2004 (Local Safeguarding Children Boards).(2) In Schedule 1 to the Local Authority Social Services Act 1970 (social services functions of local authorities), in the entry relating to the Children Act 2004—(a) for “13 to 16” substitute “16A to 16Q”;(b) omit “targets for”;(c) omit “, and to Local Safeguarding Children Boards”.”
Lord Nash
This new clause is purely technical, but fulfils some important functions. Subsection (1) means that the existing provision for LSCBs, as set out in Sections 13 to 16 of the Children Act 2004, will be repealed. Local authorities will no longer be required to establish LSCBs. Instead, they will work with chief constables and clinical commissioning groups to set out Working Together arrangements, as specified in amendments to the Bill that we have previously discussed.
Subsection (2) amends the Local Authority Social Services Act 1970 to redefine social services functions by removing the reference to LSCBs and including provisions in relation to joint working arrangements in child death reviews that are the subject of amendments to the Bill. Where the term “social services functions” is used in legislation in respect of local authorities, the arrangements which these amendments provide for will be included. This is consistent with existing provisions for local authority functions relating to LSCBs.
An example of the importance of this provision is the Secretary of State’s intervention powers where local authorities are failing properly to fulfil any of their social services functions. The amendment means that should local authorities fail to fulfil their functions as set out in Sections 16A to 16Q of the revised Children Act 2004, the Secretary of State will be able to issue a suitable statutory direction. I should stress that this provision relates only to local authority functions. It does not cover any failures by clinical commissioning groups or chief constables in these arrangements. Existing provisions for intervention—sitting elsewhere—already cover other such failures. I beg to move.
Lord Watson of Invergowrie
My Lords, the Minister said that this is a technical amendment. Yes, it is, but the introduction of the Child Safeguarding Practice Review Panel will see the disappearance of local accountability for the most serious child abuse. The current process has an independent chair appointed by a national panel of experts, who are themselves independent. That means that local knowledge is retained, because representations can be made by those who are involved with the child and indeed the family, and, importantly, those who have an understanding of local characteristics. If the local safeguarding children boards are scrapped, how can the Minister reassure us that the local input will not be lost?
Baroness Bakewell of Hardington Mandeville
I will also speak to Amendment 126. I believe the relationship between what is currently the local safeguarding board and the national one is very clearly understood, with clear roles and responsibilities for each. My county council’s view, from experience, is that safeguarding absolutely must be owned by the local agencies that are responsible on the ground for improving safeguarding. The national safeguarding panel should therefore have a role in understanding local issues. I am concerned that, if the intention is to centralise at the national level, the national panel might not have the capacity or the local knowledge and experience to review and intervene in a timely way. I agree entirely with the comments made by the noble Lord, Lord Watson.
Lord Nash
On the points that have just been made, I thought we had discussed them at considerable length two groups ago. In answer to the noble Baroness, Lady Pinnock, I said that the panel is perfectly free to have elected representatives on it, as distinct from the current situation with LSCBs. They would not have to be co-opted, but can be full members of the panel. We have also made it clear, as we have discussed in some detail, that the panel can involve relevant agencies as it sees fit. As the whole point is to improve the analysis of what happens at local level, I feel that we have covered this issue. If the noble Lord or the noble Baroness thinks that we have not done so, I am happy to write to them with more details.
Lord Wills
“Whistleblowing arrangement in relation to looked after children and children at risk
The Secretary of State shall issue a code of practice on whistleblowing arrangements which can be taken into account by courts and tribunals when the issue of whistleblowing arises in public bodies providing social services and children’s services, and local authorities, in relation to looked after children and children at risk.”
Lord Wills
My Lords, as I said at Second Reading, the Bill is missing a crucial opportunity to introduce protections for the young people whom it is designed to support. These amendments would provide that opportunity. The importance of whistleblowing in exposing malpractice and wrongdoing and in improving the delivery of public services has been recognised by successive Governments for the past 20 years or so. The previous Labour Government brought in the Public Interest Disclosure Act and this Government have done more, insisting that they want to protect whistleblowers further. The current Prime Minister, for example, said:
“We will always back whistleblowers when they challenge poor standards, particularly in large organisations”.—[Official Report, Commons, 26/2/14; col. 257.]
When he announced new plans for the takeover of poorly performing children’s services last year, he highlighted that one of the “sharper triggers” for this,
“could include complaints from whistle-blowers”.
But whistleblowers in local authorities still lack some crucial protections that will encourage them to make such disclosures in the public interest. These gaps in protection not only discourage individual cases of whistleblowing and damage individual whistleblowers, they inhibit the creation of an effective culture in organisations that encourages transparency. Over and over again we have seen the consequences—repeated failures in the National Health Service, police wrongdoing after the Hillsborough disaster, and the scandal of MPs’ expenses when the fees office was well aware of the scams that went on but never blew the whistle.
Large organisations that serve the public in both the public and private sectors are powerful institutions, often driven by a potent internal culture. Every case of whistleblowing challenges the powerful vested interests which so often run such organisations. As I have often said in debates on these issues, too often after a scandal has been revealed, abuses have been tackled and the guilty punished, and after all the fine words about whistleblowing have been spoken, it is all too easy for those dominant interests to revert to carrying on much as they did before. The powerful never like being challenged.
These amendments would provide extra protection for those working in public bodies providing social services or children’s services, and local authorities, in relation to looked-after children, children at risk and social workers in two ways. First, they would require the Secretary of State to issue a code of practice on whistleblowing arrangements that can be taken into account by courts and tribunals when the issue of whistleblowing arises. Secondly, they would provide protection against employment blacklisting of whistleblowers.
Amendments 127 and 137 would embed a code of practice into statute so that it would be taken into account by courts and tribunals. This was a key recommendation of the whistleblowing commission set up by the whistleblowing charity Public Concern at Work, chaired by the former Appeal Court judge Sir Anthony Hooper and whose members included the noble Lord, Lord Burns. The commission drafted a 15-point code of practice providing practical guidance to employers, workers and their representatives, and set out guidance for raising, handling, training and reviewing whistleblowing in the workplace. This could act as a model for these amendments. A statutory code of conduct sends out to all organisations a powerful signal about the importance that Parliament attaches to providing adequate protections for whistleblowers to help drive necessary cultural change within organisations to encourage responsible whistleblowing.
Amendments 128 and 138 would provide improved protection for whistleblowers who are job applicants. This is a critical gap in protection for whistleblowers. Unlike in other areas of discrimination law, job applicants are not considered workers under the Public Interest Disclosure Act, which provides protection where a worker secures a position and is then victimised, forced out or dismissed if the employer becomes aware of an instance of whistleblowing in a previous job role. If an individual is labelled a whistleblower, it can be very difficult for them to get work because they can find themselves blacklisted—not through a formal, centralised database but informally. The amendment would plug the loophole identified in the case of BP plc v Elstone where the Court of Appeal stated that the situation was created because the drafting of the Public Interest Disclosure Act had not considered the situation of a job applicant being victimised by raising concerns in a previous job.
Following the Francis report into the Mid Staffordshire NHS Trust, the Government finally recognised this anomaly and introduced new protections for whistleblowing job applicants—but they covered only the NHS. There is no logical reason why such protections should be so restricted. Actionable offences of sex and race discrimination are not restricted to the NHS, so why should discrimination against whistleblowers be?
The amendment addresses this anomaly for those working in public bodies, providing social services and children’s services, and local authorities, in relation to look-after children, children at risk and social workers. If the Bill is to realise its welcome objectives, it needs to encourage a culture of transparency among all those charged with delivering them. The amendments would help to do so, and I hope that the Minister will feel able to accept them.
The Earl of Listowel (CB)
My Lords, this of course brings back memories of the home for adults with learning disabilities that was so well documented on the “Panorama” programme a while ago. While I support the principles that the noble Lord has just laid out, I would point out that many people working in this area nowadays will be working for private businesses. Most children’s homes are in private hands and many foster care agencies are now private, so in that sector there may be well laid-out regulations regarding whistleblowers. Perhaps the Minister could write to us, or have further conversations, to reassure me, at least, that there are whistleblowing protections for those working in the private sector with vulnerable children.
Baroness Wheeler (Lab)
My Lords, we are very pleased to support this group of amendments, to which my noble friend Lord Watson has added his name. My noble friend Lord Wills has made a strong case for seizing the opportunity under the Bill of extending the whistleblowing arrangements and protections currently applicable in the NHS to those working in public bodies providing social services and children’s services, and local authorities, in respect of looked-after children and children at risk of harm, and well as to social workers. The Francis report into the Mid Staffordshire NHS Trust was the trigger for enhancing important whistleblowing protections in the NHS, and it is right that we now have similar effective arrangements covering the provision of vital social services.
Under Amendments 127 and 137, which would bring in new clauses after Clauses 14 and 26, the Secretary of State would be required to issue a code of practice on whistleblowing arrangements that could be taken into account by courts and tribunals when whistleblowing arises in public bodies providing social services and employing registered social workers. My noble friend rightly refers to the whistleblowing commission’s code of practice for employers, workers and trade unions, published by the charity Public Concern at Work, which could provide the model or framework for the proposed code. It would also underline that protection for whistleblowers is a statutory requirement with parliamentary enforcement. The commission’s recommendation was that the code should be “rooted in statute”, and we support that.
Current protections offered to staff who challenge poor standards of care, both those covering widespread systemic failure and those involving day-to-day concerns about unsafe or poor practice, are certainly inadequate for those making disclosures in the public interest. The joint Community Care/UNISON workplace zone on whistleblowing underlines that many social workers and care professionals are too afraid to blow the whistle on poor practice. Their regular surveys of social workers give detailed accounts of staff trying to report their concerns, only to come up against bullying colleagues, managers with what they refer to as “selective hearing” and processes that protect the organisation over its staff—the pervasive and powerful organisational culture that my noble friend has identified as operating in workplaces, particularly in large-scale institutions where you have to be very brave and persistent to raise concerns.
The CQC’s quick guide to whistleblowing and the Ofsted reports on whistleblowing about safeguarding in local authority children’s services would give little comfort and reassurances to potential whistleblowers regarding their future security and career. Ofsted has no regulatory powers to investigate whistleblowing complaints but can use them as a trigger to bring forward inspections of council services. The CQC guide outlines clearly the procedures to take but its preface stresses to the staff member raising the issue:
“We don’t have any powers to protect you from action taken against you by your employer”.
The proposed code of practice on whistleblowing arrangements, with the enforcement of the Secretary of State providing guidance that can be taken into account by courts and tribunals, would help to provide reassurance to potential whistleblowers and provide practical guidance to both employers and staff.
Amendments 128 and 138 specifically address the discrimination that whistleblowers who have made a protected disclosure under the Employment Rights Act 1996 in their previous employment can face when applying for a job. The current exclusion of job applicants not considered workers under the Public Interest Disclosure Act can result in whistleblowers being blacklisted and finding it virtually impossible ever to get work again. As noble Lords have stressed, this situation should not be allowed to continue.
One of the key provisions of whistleblowing policies is the requirement for employers to provide assurance to the worker that he or she will not suffer detriment for having raised a concern—in other words, to make every effort to provide protection to whistleblowers who feel they may be vulnerable. These amendments would help to address the current gaps in providing the protection that whistleblowers urgently need and deserve.
Baroness Pinnock
My Lords, I shall not repeat what many other noble Lords have said about whistleblowing, but confirm that we on this side totally support what has been said and the amendments that have been tabled.
Baroness Evans of Bowes Park
I am grateful to the noble Lord, Lord Wills, for these amendments and to noble Lords for their contributions. I assure noble Lords that whistleblowing is an important issue and one that we are taking very seriously. Every child deserves to be safe, and those organisations entrusted to protect our children must work as effectively as possible to achieve that.
Registered social workers work with some of the most vulnerable people in our society, supporting children, adults and their families, often at the most difficult times in their lives. It is important that registered social workers and other employees work in a culture of openness, where they feel confident to speak out when they are concerned about the practices of their employing organisation. They should be able to raise concerns free from fear and victimisation, as the noble Baroness said, with processes and procedures that encourage, support and protect employees when they do so. Disclosures can help to improve the services provided to children, adults and families and safeguard the vulnerable from abuse and neglect.
With regard to Amendments 127 and 137, I agree with the principle that there are clear expectations on local authorities and other public bodies on whistleblowing issues related to child protection and social work. We have a framework of employment protections for whistleblowers and I agree that it is important that employers should act in accordance with that. The coalition Government reviewed the statutory framework in relation to whistleblowing in 2014, following the report of the whistleblowing commission, as the noble Lord said, and the Government’s call for evidence on the matter. The Government concluded that the right balance was to be struck by guidance and a non-statutory code of practice, rather than a statutory code of practice recommended by the commission. The Government published that guidance and statutory code in March 2015.
I am afraid to say to the noble Lord that we are not persuaded of the need to reopen this question in the context of the Bill. If the noble Lord has concerns about the practices specifically of local authorities and public bodies that provide children’s services and employ social workers, we would be happy to consider them. There may be more that we can do, for example, to draw our guidance to the attention of those bodies and ensure their compliance with it.
In relation to the question asked by the noble Earl, Lord Listowel, we confirm that whistleblowing protections in the Employment Rights Act apply to all employers, both private and public.
On Amendments 128 and 138, I share the noble Lord’s concern that those who make a protected disclosure under the Employment Rights Act should not suffer adverse treatment in their current employment or their future career. I understand that some workers have been concerned that whistleblowing may lead to them being placed on some form of informal blacklist that will prevent them getting other employment in the sector. We would be extremely interested in any evidence of that happening and would be very concerned if it was found to be the case.
As the noble Lord and the noble Baroness, Lady Wheeler, mentioned, provision has already been made to protect job seekers in the National Health Service from such discrimination, following the report into whistleblowing in the NHS undertaken by Sir Robert Francis QC, Freedom to Speak Up.
I believe that the Department of Health will shortly be consulting on the necessary secondary legislation. We will be interested to see the issues raised during that consultation. Together with any examples of whistleblowers who have suffered in this way in children’s services, this will inform our consideration of any case for future change. I have asked Department for Education officials to work with colleagues from the Department for Business, Innovation and Skills and the Department of Health, and to contact the noble Lord to discuss further the issues arising from these four amendments.
Although I understand that some of my response will not be welcomed by the noble Lord, Lord Wills, I hope he sees that we are taking action and will take further action, and therefore feels able to withdraw his amendment.
Lord Wills
My Lords, I am very grateful to everyone who has taken part in this short debate and for the support I have had from all sides of the Committee. I am also very grateful to the noble Baroness. As she suspected, I am not particularly happy with the response; nevertheless, there were a few little glimmers of light, for which I am truly grateful.
I am baffled by the Government’s continued resistance to these points. I understand that it is not just a matter for the Department for Education; I have raised this issue on other occasions in relation to other departments. For some reason, the Government are digging in on this matter and I really do not understand why. I do not understand their resistance to a statutory code of conduct. As I said, it is important that it is placed in the Bill because that would send a very powerful signal to all these organisations that Parliament takes this issue very seriously. Guidance is all very well but, as we know, all too often in many spheres of public life it goes by the wayside in the face of all the other pressures on public organisations. A statutory code of conduct is qualitatively different and, frankly, I do not understand why the Government continue to resist it.
Nor do I understand why they are taking so long to rectify the anomaly in protecting job applicants. This was raised in previous debates and the Government dug in very resolutely, in the way that the noble Baroness has done, until the Francis report arrived. When that report said that many of the tragedies that took place in Mid Staffordshire NHS Trust could have been prevented if there had been a proper culture of whistleblowing, the Government immediately switched round and provided protection for NHS workers. I know that the noble Baroness is doing her best with the briefing that she has been given; nevertheless, she has still not produced any good reason why workers in the NHS should be protected, yet workers in equally sensitive and equally important areas of public service—all the areas covered by the Bill—are not. The signal that the Government are sending out, and I cannot understand why they want to go on doing so, is that somehow these matters are less important than the matters covered by the NHS. Clearly, that is not the case.
When the noble Baroness calls for evidence, almost by definition it will come only after a tragedy such as happened in Mid Staffordshire has occurred. I ask the question that I have asked other Ministers: do they really want to be on the record as denying an opportunity to put right this anomaly, only for some distinguished person at a public inquiry following a terrible tragedy—sadly, there almost certainly will be such a tragedy at some point in the future—to look at it all and say, “If only there had been a culture to encourage whistleblowing and transparency, we might have prevented some of these terrible circumstances”? Why do Ministers still resolutely turn their face against this?
The glimmers of light that the noble Baroness has produced today are a tiny, tiny step forward from the previous response that I have had from Ministers, so I am grateful for her commitment to continue to look at this issue. However, I urge her and all Ministers to take this more seriously and not to wait for another disaster and then to be forced into taking action, just as the Francis report forced the Government to take action after the Mid Staffordshire incident. Having said all that, I may try again in the future but, in the meantime, I beg leave to withdraw the amendment.
Lord Watson of Invergowrie
My Lords, I shall speak to Amendments 129 and 132 in my name and that of my noble friend Lord Hunt. I am also a signatory to Amendment 131 in the name of my noble friend Lord Wills, but I shall have less to say on that.
As regards the third and fourth subsections in Amendment 131, the huge controversy surrounding Clause 15 and the Government’s intention to enable local authorities to be exempted from providing local child protection and other children’s services requires a firmer base than a local authority simply approaching the Secretary of State to seek permission to do so. Some form of independent oversight is necessary to assuage the widespread concern among charities and other organisations prominent in the sector, not to mention local authorities themselves, as to the possible effects of Clause 15. It is essential that, as advocated in Amendment 132, a local authority is not exempt from corporate parenting principles—a subject on which we talked at length in previous sittings—just because it has been exempted from some of its statutory responsibilities. An assurance from the Minister on this point, even if he does not accept the amendment, would be valuable.
The Government have not made a case as to why Clause 15 is necessary. The Minister needs to explain to noble Lords precisely what problem this proposal is designed to address. As to the underlying premises of Clause 15, frankly, who knows? Suggestions have been put forward by several people and organisations. They vary from requirements in primary and secondary legislation blocking the delivery of effective children’s services to the suggestion that it might make it more attractive for private companies to get involved in the delivery of social work services.
No evidence has been published by the Government to support the notion that legislation is an impediment. Indeed, their Putting Children First strategy published last week, refers to creating,
“a controlled environment in which we could enable local authorities to test deregulatory approaches that are not currently possible, before taking a decision to make substantial changes to existing legislation that would apply across the board.”.
However, the document does not set out the deregulatory approaches, which cannot be tested presently, and a box insert in the report quotes Professor Eileen Munro referring to “unnecessary legal rules”, although, again, they are not specified.
Is it the case that all legislative duties in respect of children’s social care are potentially problematic? I think not, because the Government’s Red Tape Challenge concluded in 2014 that only five regulations needed to be scrapped, three of which were already redundant, and 14 separate regulations were actually improved as a consequence of that consultation. Despite that, the breadth of legislation that can be exempted by Clause 15 is extraordinarily wide. I need do no more than refer noble Lords to Clause 19.
Are the problems in children’s social care so serious that the Secretary of State and her officials require a fast-track process to repeal or change legislation? That is what appears to be the case from the way in which the Bill is framed, because Clause 15 marks a major break with the ordinary legislative process where Ministers publish Green Papers, identify policy problems and potential solutions, expert organisations and individuals respond, White Papers are issued and legislation is then introduced to Parliament. In the Bill, only Ofsted’s chief inspector and the Children’s Commissioner need to be consulted. When legislative changes are proposed by the Minister or by an individual sent into a local authority as part of a ministerial intervention, there is no duty to consult the local authority.
That is relevant because the Government’s ambition was stated in Putting Children First as being that,
“over a third of … local authorities will either be delivering their children’s services through a new model or be actively working towards a different model”,
by 2020. We see the shape that the Government want to achieve in four years’ time, but the route to get there is what concerns many people, not least noble Lords on this side of the Committee.
At Second Reading, the Minister referred to the need for innovation. As I said, we on these Benches are certainly not opposed to that concept. We support innovation if it improves outcomes for children and standards in local authorities, but innovation can and does take place effectively within local authorities. Indeed, several have already developed and successfully piloted innovative approaches within children’s services while meeting their statutory responsibilities.
The Minister will no doubt be aware of this but, while Leeds is probably the most frequently mentioned, I can also cite Cambridgeshire, Durham, Hampshire, Lincolnshire and the London boroughs of Hammersmith and Fulham, Islington, Kensington and Chelsea, Kingston, Richmond, and Westminster. Each of those local authorities already has the necessary freedom to innovate to improve front-line children’s social services by developing new systems of delivering social care and piloting new ways of working with families. They have all been able to do so without the need for new legislation, so again I invite the Minister to demonstrate why, when all the innovation that I have just listed is already possible, the provision is necessary. Indeed, Ofsted’s latest annual report on social care includes several positive case studies and comments. In the best local authorities, leaders have developed ambitious and innovative approaches to practice that are firmly grounded in sound research, confirming again that innovation is possible. I am sure that the Minister will say, “Yes, well, that’s just some local authorities. Some are performing poorly or could even be described as failing”. That could well be the case, but it does not mean that we need a sledgehammer to crack a nut when many local authorities are able to do what the authorities I have mentioned are already doing. There are real concerns about where this could lead.
I shall go into this in a little more detail. At Second Reading the Minister outlined three areas where he foresaw different ways of working. These were: relaxing the assessment process for children’s placements with family and friends; the removal of independent review officers from low-risk children in care; and disbanding adoption and fostering panels. The third of these is by far the most controversial, with noble Lords receiving many emails outlining why it is a foolhardy and potentially even dangerous step. Indeed, statutory guidance on adoption states that adoption and fostering panels,
“play an important quality assurance role, providing objectivity and having the ability to challenge practice which is felt not to be in the interests of children”.
In 2012 the Government consulted on reducing the membership of adoption and fostering panels, claiming that too many members cause delay. However, the proposal was overwhelmingly rejected and in May 2013 the Government concluded:
“We will not introduce a maximum number of adoption or fostering panel members or restrict the number of non-panel members attending an adoption or fostering panel meeting”.
So why the change now? The Minister’s announcement of the removal of the panels altogether goes well beyond even the September 2012 proposals, which, as I said, were strongly rejected. The majority of respondents to that consultation were involved directly in adoption and fostering service, and knew from personal experience the important role that the adoption and fostering panels play. Indeed CoramBAAF, an organisation at the forefront of adoption and fostering, and indeed in training people in those sectors, has said that this is the worst possible move that it could have imagined the Government to have made.
I will not comment at this stage on the other potential areas for exemption, but it is strange that others seem now to be emerging. I quote removing looked-after status from children remanded in custody; removing the duty to review a child’s care when he or she is in a stable placement; and the relaxation of children’s homes’ planning rules. When I say that they have emerged, that is not to say that they were announced by the Government or by anyone on their behalf; they emerged at the recent conference of the Association of Directors of Children’s Services. Those are the sorts of areas where these senior people in the field anticipate that some of those services may be exempted. That is a serious matter. If the Minister is able to respond to that, it would be helpful, although I understand that he has not had much notice.
As was discussed in Committee last week when considering Clause 9, removing the burden of requirements to meet statutory obligations enshrined in children’s social care legislation enables local authorities to incentivise private and not-for-profit providers to bid for parts of the children’s social care pathways. The danger outlined by a number of people, and one that we echo, is that this further threatens the extent to which children’s social care can be fragmented into multiple pathways and perhaps diverse provision, threatening the provision of those services that really are best delivered in a joined-up manner to make them as effective as they can be.
Both at Second Reading and last week in Committee I asked the Minister whether he had made an assessment of the risk to children in allowing local authorities exemptions from some key duties in keeping children safe. I did not get a response. I hope it will be third time lucky and that he will be able to give me an answer to that important question, because I am not the only one who is asking it. It has been widely asked by those who have contacted noble Lords.
As it stands, the Bill’s proposals in Clause 15 are too wide-ranging, without adequate safeguards to protect children and young people if plans to outsource services go wrong. For that reason, it is our intention to return to this issue on Report when the House will have the opportunity to express its opinion if it wishes to do so. It is not appropriate for Clauses 15 and 18 to stand part of the Bill unless and until the Government can offer persuasive evidence of their necessity and significantly improve on their transparency and safeguards. I beg to move.
Lord Warner
I will speak to Amendment 130 in my name and that of the noble Baroness, Lady Walmsley. I will also speak to the proposed deletion of Clause 15 from the Bill. Rather unusually, I would prefer that Clause 15 were removed from the Bill altogether than that the Government accept the amendment in my name and that of the noble Baroness.
Given the widespread concern outside this House that the noble Lord, Lord Watson, has already mentioned, we need to understand much better than we do at the moment why the Government are so keen to have this sweeping power in Clause 15. I find the underlying premises of Clause 15 extremely strange—even more so than when I spoke about the clause at Second Reading. First, the clause seems to presuppose that in some way legislation is blocking the delivery of good quality children’s services. There was an opportunity to explain these alleged blockages in the Minister’s latest document, Putting Children First but, on a quick read, I cannot see that that opportunity was taken except for some rather generalised remarks about testing “deregulatory approaches” and a quote from Professor Eileen Munro about “unnecessary legal rules”. But my understanding is that in her review of child protection, Professor Munro was not arguing for changes in primary or even secondary legislation, but for amendments to statutory guidance. Will the Minister clarify what the primary and secondary legislation blockages are, preferably in writing to all members of the Committee before Report?
To compound the confusion, I understand that the Government have already used existing statutory power to amend statutory guidance following the Munro review by issuing directions to particular local authorities. Ofsted’s annual report shows local authorities adopting innovative practice without the need for changes in legislation. Moreover, as the noble Lord, Lord Watson, mentioned, the Government’s very own Red Tape Challenge, as it was called in 2014, seems to have revealed very little to remove for children’s services. Again, will the Minister clarify that, preferably in writing? So far, the Government have produced no evidence that primary or secondary legislation is impeding innovation in children’s services. They already have plenty of scope for amending statutory guidance or issuing directions to particular local authorities without the wide-ranging power to repeal or modify children’s social care requirements in Clause 15 that would last, I understand, for at least six years.
One is entitled to be a little suspicious about what the Government are really up to with Clause 15. Of course, I am the sort of chap who takes for granted that Ministers are well intentioned when they bring measures before your Lordships’ House, but could it be that what lies behind this provision is a short-cut way of outsourcing whole chunks of services? Ofsted seems to be claiming that up to 25% of children’s services are inadequate. Rather than working with some external turnaround capacity to improve matters, is there a new-found enthusiasm within DfE for trying to get quicker results by removing legislative impediments to outsourcing?
Personally, I have no particular objections to outsourcing if that can be shown to have a beneficial effect for children after trialling. I have been trying to probe what the DfE is up to with the transfer of children’s services to trusts. On the answers that I have received, this is clearly an expensive process, it can be very time-consuming, accountability can become extremely blurred and at present there is no body of evidence to support it as a general remedy for failure. Moreover, the DfE has still to publish the report that it commissioned in 2014 from LaingBuisson into developing capacity and diversity in the provision of children’s services. I know from my involvement in that work that it did not suggest that creating a market in children’s services would be easy.
I turn briefly to Amendment 130, which would require the Secretary of State to set up an independent review panel to consider whether any exemptions or modifications under Clause 15(2) are likely adversely to affect the legislative safeguards or rights of children approved by Parliament and to consider the published advice of such a panel before acting. I consider this the least that we should do if the Government persist in proceeding with Clause 15. To sum up, we need much more transparency and clarification from the Minister on why the Government need Clause 15 and why they cannot use their existing powers of direction and statutory guidance to secure their espoused innovation objectives.
Baroness Walmsley
My Lords, I support the noble Lord, Lord Warner, in arguing for this amendment. If these clauses eventually remain in the Bill, which is in considerable doubt, although I will leave it to my colleagues to argue that case, it is vital that children’s rights and entitlements are not diminished in the process. These clauses, to my mind, fundamentally undermine rights that have been enshrined in children’s social care legislation following intensive debate in Parliament. They are to be removed at our peril. However, given that some local authorities have seen an 82% increase in the number of children in need between 2010 and 2015, at the same time as local authority budgets have continued to decrease, there is a danger that these new powers might be seen as a way to save money. However, undermining children’s basic rights should not be the penalty for innovation. Many local authorities have vastly improved the service that they give to vulnerable children by trying new things without seeking any exemptions from the children’s rights.
The noble Lord, Lord Warner, mentioned Professor Eileen Munro. He is quite right that she never suggested that we needed to repeal primary or secondary legislation; she just asked for less onerous guidance. Innovation has been done effectively through waiving statutory guidance in some authorities. Importantly, outcomes have been monitored and reported on and it is from such reports that lessons are learned. That is the way forward.
I question the necessity for this part of the Bill. In particular, I want to ensure that the Secretary of State can be assured by independent experts that the benefits to children’s rights will be greater than the risks. The key word here is independent because, according to the Bill, the only people who have to be consulted are the Chief Inspector of Schools and the Children’s Commissioner. I point out that both of them will already have been appointed by the Secretary of State. Although I have every respect for the current incumbents of those offices, we need more independence than that. That is why I support this amendment. Innovation should be encouraged within a framework of fundamental rights and entitlements within the law.
The Earl of Listowel
My Lords, before speaking to my amendment in this group I make clear that I support those noble Lords who call for the clause to be removed from the Bill. This is not the time to erode the rights of vulnerable children. As the noble Baroness, Lady Walmsley, said, we are facing a period of austerity. The Chancellor of the Exchequer has just removed his target to pay down the deficit by 2020 but we should certainly not think that that is the end of austerity; we can expect it to extend for many years to come. Unfortunately, that means that local authorities will continue to have severe downward pressure on their budgets, so I share the noble Baroness’s concern that whatever the good intentions of this clause, it might result in cutbacks on protections for children in order to save money.
The purpose of my Amendment 131A is, where a local authority has been exempted, to enable a child, his advocate or a professional to ask for the exemption to be released for that child. For instance, if the responsibility for putting in place an independent reviewing officer was removed, a child could, if he decided to do so, call for an IRO to be instated. The Minister referred to the role of IROs at Second Reading.
I draw your Lordships’ attention to research by the National Children’s Bureau. It has found that the area in which the IRO service has been seen to make the biggest difference is in ensuring timely reviews of the care plan. Nationally, the survey found that that was where IROs were perceived to have made the greatest difference, with 91% of IRO managers, 82% of IROs and 72% of directors of children’s services strongly agreeing that, since 2011, IROs have contributed to the timeliness of reviews. Another area in which IROs are seen to have had an impact is in ensuring that the care planning process remains firmly focused on the child and that the child’s wishes and feelings are taken into account. Nationally, the survey found that 90% of IRO managers, 72% of IROs and 73% of directors of children’s services strongly agreed that, since 2011, IROs had ensured that children’s wishes and feelings were recorded and taken into account.
Amendment 131B would ensure that there is excellent parliamentary scrutiny should Clause 15 continue to be in the Bill. Major voices from the children’s sector have been clear that innovation is necessary to ensure, in the face of increasing risks and challenges, that the sector can learn and improve. Like many, I share the concern of all the major children’s charities that the right safeguards should be in place to ensure that innovation is overseen properly and delivers for children and families without disruption to their lives. Such scrutiny is essential and should not be overridden. Local authorities should not be exempted from laws that have been developed and scrutinised with care and attention by both Houses without a comparable amount of parliamentary oversight of the potential impact of any exemptions. That is what the amendment seeks to achieve.
The amendment would ensure that only laws subject to the negative resolution procedure in their formation could be overridden by the same process. Whether in the process of seeking to innovate to improve services for children or otherwise, it is not appropriate or democratic that regulations introduced through a debate and vote in Parliament should be exempted without such a process. Our job is to hold the Government to account, and we should not be prevented doing so. It is imperative that our powers to scrutinise the safeguards needed to protect children from the impact of any exemptions are not disrupted by the desire to innovate to improve outcomes for children.
Lord Ramsbotham
My Lords, I return briefly to Clause 15, which is a classic example of regulation too far. I agree with everything that has been said so far. It is inappropriate and ought to be struck out of the Bill. Only two things are needed. One is the minimum list of tasks that must be done with children. If anything, the Secretary of State should seek to improve the list and to improve delivery if there is any failure to deliver what must be done, rather than remove any task. Secondly, as has come up over and over again, we are looking for consistency in delivery and to avoid the postcode lottery in the treatment of children all over the country. If there is a minimum list and machinery for looking at that, we will find, as many noble Lords have said, that individual local authorities will encourage improvement in the way those minimum requirements are operated. The way to improve things is by changing single practice somewhere to common practice everywhere, not by regulation. Therefore, I hope very much that, if not before then certainly on Report, this clause will be struck out.
Baroness Bakewell of Hardington Mandeville
My Lords, I shall speak against Clause 15 and support the arguments of the noble Lords, Lord Watson, Lord Warner and Lord Ramsbotham. Clause 15 allows local authorities to be exempted from certain legal requirements and regulations and to test different ways of working. It is important, however, that they do not dilute accountabilities, fragment responsibilities and create a two-tier system of quality and standards. All vulnerable children deserve the same level of care.
Clause 15(3) says:
“The Secretary of State may make regulations under this section relating to a local authority in England only if asked to do so by that authority”.
My view is that it should not simply be at the whim of a local authority and that certain tests should need to be fulfilled to justify it, not least that the exemption should promote better outcomes and more efficient working. It should be clear that inadequate local authorities cannot be exempted from regulations that are crucial for upholding quality standards across the country. Clause 15(4) says:
“Regulations under this section may be made in relation to one or more local authorities in England”.
I seek assurance that the Secretary of State will not use the power under this clause to apply a request from one local authority seeking freedom under subsection (3) to apply it to more than one local authority under subsection (4).
In addition, I believe that statutory social work is best placed within local government, where there are established frameworks for oversight and monitoring. These clauses should not challenge the ultimate legal responsibility of local authorities to safeguard children. We need to avoid greater fragmentation of provision, any blurring and dilution of accountabilities, and any increased risk arising from more multiple hand-offs between disparate organisations. The experience of the NHS is salutary in this context: it is now imposing middle-tier planning arrangements to secure more effective joint working in a fragmented sector.
I am concerned that this clause could create an inconsistent national arena for the delivery of statutory social work duties, which could lead to confusion and a greater divide of practice. For children’s social work to run well, it has to uphold partnerships with a broad range of agencies: schools, police, health services—commissioners and providers—and the local voluntary sector. Local councils are best placed to perform that function.
I note that Scotland has required independent fostering arrangements to be not for profit; that approach could be explored in England. Recent research from Corporate Watch shows that in 2014-15, eight commercial fostering agencies made around £41 million profit between them from providing fostering placements to local authorities, at a time when local authorities have had to make significant budget reductions. Surely that profit could have been used to protect looked-after children.
Lord Wills
My Lords, I will not delay the Minister’s response very long. I want to say a few words in support of Amendment 131, to which I have added my name.
I recognise that there is widespread unease about Clause 15. All the noble Lords who have spoken so far have reflected that. The Minister will be aware that there is unease outside your Lordships’ House as well. I recognise that innovation can be crucial to the improvement of public services and I suspect, although I hope to be proved wrong, that the Government will not be unduly swayed by all the compelling arguments that we have heard against the clause. That is why Amendment 131 is important. Innovation, as other noble Lords have said, should not be at the expense of appropriate safeguards for those whom it is designed to help. Although I understand the Government’s intention—to promote new ways of working—as we have heard over and over again, as currently drafted the Bill does not offer adequate protections for those young people against failures in innovation. Amendment 131 aims to help to do so by placing a duty on the Secretary of State to,
“consult children in care, those representing children in care, and care leavers in their area before making a decision to grant an exemption or make modifications under subsection (2)”.
Innovation may be positive from the perspective of the local authority but it will not necessarily be positive from that of the young people affected by it. Children in care and care leavers have been let down by the system for so long that they have earned the right to have their views heard about changes to it. If any changes are to be successful, it is crucial that they are heard. These young people know better than anyone how the system works for them. That is one good reason why Article 12 of the UN Convention on the Rights of the Child stipulates that, when adults make decisions affecting children, children have the right for their opinions to be taken into account.
The amendment also provides for new, independent scrutiny arrangements and a duty on both the local authority and the Secretary of State to consult children in care and care leavers when a local authority applies for an exemption from the requirements of social care legislation. At Second Reading, the Minister was reassuring about scrutiny arrangements, but I ask him to consider carefully the merits of a new, independent body. Existing organisations all come with their existing viewpoints, cultures and histories—in other words, they come with baggage. The proposed change in Clause 15 is potentially so radical and could have such a dramatic effect on the lives of young people, who already face such huge challenges, that I believe it is important that any organisation scrutinising such arrangements should be dedicated to doing so. It should be able to adopt fresh perspectives and develop specific expertise, which a new scrutiny organisation will be able to do in a way that existing organisations may well not. From his response at Second Reading, I suspect that the Minister is not minded to do this but I hope that he is open to persuasion on that point.
Lord Mackay of Clashfern
My Lords, I want to ask a very specific question. Could an exemption of the kind envisaged in the amendment of the noble Earl, Lord Listowel, occur under Clause 15?
Baroness Pinnock
My Lords, I concur with all the concerns that have been expressed so far about Clause 15. It is not that any of us are against innovation per se, but we are concerned about the proposed non-limits to the innovation.
At the heart of this clause is a dichotomy. On the one hand, children’s social work is probably the most regulated of all public services and has the most legislation surrounding its practice. On the other hand, if we take the clause at face value, it appears to allow any innovation within those regulations to be set aside. I asked civil servants what the criteria are for innovative practice, what the boundaries for it are and whether anything is off the table. The answer was that there are to be no limits. I found that quite disturbing. It is not as though we are dealing with anything mechanical here; we are dealing with the most troubled and vulnerable children in our society, who deserve our protection. What we need to try to achieve is set out in the Putting Children First report, which offers a blend of innovation and protection that works.
I have not yet understood how, on the one hand, Leeds City Council, which has been referred to in earlier debate on the Bill, has been enabled to innovate without difficulty—I know that it has been allowed to set aside some regulations, without the need for this clause, and has been successful in doing so—yet on the other, Doncaster Council, which sadly have a long history of inadequate children’s services, has not achieved much improvement despite all the efforts that have been put into it. The answer is that it is not so much legislation and regulation that is the problem, but having the support of key professionals—making sure that we have highly trained, effective and good leaders in social care, who can make a difference. That is what the report, on which I guess that many of the clauses in the Bill are based, says. Can the Minister tell us: is anything off the table as regards innovation, or is protection of children coming first?
Lord Nash
My Lords, I will speak to Amendments 129, 130, 131, 131A, 131B and 132, in this group regarding the power to test new ways of working. I thank noble Lords for tabling these amendments to the clause, providing me with an opportunity to explain its purpose and operation in more detail. In short, this is purely to improve the provision of services to children.
Before I go into detail, I would like to return quickly to our discussion about profit of last week. I could not help reflecting that I might be the only noble Lord present who has spent most of his life, until recently, proudly in pursuit of profit. That fact may itself raise wider issues, but I say again that we have no intention of revisiting the settled position on profit-making in children’s social care or of using Clause 15 to circumvent that position. I gave that assurance at Second Reading and do so again now. The policy paper Putting Children First, published last week, makes the same commitment and the Minister for Children and Families reiterated the point in his speech to the Association of Directors of Children’s Services last week. I hope that that makes things absolutely clear.
At the heart of this power to test new ways of working is the intention to achieve better outcomes for children and young people. This unwavering focus is at the very core of the department’s agenda to drive innovation and improvement. More significantly, the push to remove procedural barriers to better ways of working is in direct response to what local authorities are telling us young people are saying to them. They want things done differently.
The Government’s £200 million children’s social care innovation programme has enabled local authorities to develop and test new ways of working, but in some aspects of provision this has reached the limits of what is possible under current children’s social care legislation. This power responds to the sector’s appetite to go further by allowing it greater flexibility to support young people in the most effective way. A number of noble Lords referred to examples of good innovation, some of which have been pointed out by Ofsted. They referred particularly to Leeds, one of our partner in practice local authorities, which has told us that it is proud of the innovation it has achieved so far within the current framework—but it is also keen to go further for children and families in its area. It cannot do that without this provision.
This power is about creating a safe mechanism to test new ways of working to improve outcomes for children.
Lord Hunt of Kings Heath
My Lords, I am no expert in this area, but I still have not got hold of an example of what the provision is that stops innovation taking place. Is it about reporting and bureaucracy, or is it to do with an actual statutory responsibility? I am unclear about that. The Minister must be aware that, at this rate, he has no chance of getting this through the House of Lords as it stands. It is a question of what he wants to convince the Committee and then the House at some point. Is it about allowing local authorities to do the right thing with fewer bureaucratic controls, or is it saying that one can actually stand down part of the core legislation? That is what I am unclear about.
Baroness Walmsley
Before the Minister replies, would he reflect on the fact that those of us who came to the meeting last Thursday were given what the noble Lord, Lord Hunt, is asking for—three examples of where local authorities would have liked exemptions—and that we were not convinced by any of them? In every case, we could think of another way in which that difficulty could have been got around by a creative local authority in order to produce better outcomes for children, and of course there is no other excuse for doing it. We really were not convinced.
Lord Warner
I really must help to reinforce this message to the Minister, because from what he has said so far he does not seem to get it. What we need, in writing, are the primary and secondary legislation blockages that are stopping innovation and why in those cases you cannot use the Secretary of State’s power of direction or an amendment to the statutory guidance. That is the issue, and he has not come anywhere near tackling that proposition.
Lord Nash
I heard the noble Lord the first time. I have not got very far but if I am allowed to continue I shall get to it. This power is about creating a safe mechanism to test new ways of working to improve outcomes for children. It creates a controlled, time-limited space to test new ideas. It is not about eroding children’s rights or removing the basic duties of local authorities to safeguard children. The power is not about questioning the fundamentals of what local authorities need to do, but about exploring how things could be done better.
I will try some more illustrations. I do not suppose they will get me very far but since I have more to say, perhaps people could bear with me. I shall illustrate this point with two examples. First, it is felt that on some occasions applying the full gamut of care-leaver regulations associated with children on remand, who automatically become looked-after when in custody, is not always the best option for those children. Local authorities are interested in developing a service that better responds to their needs, informed by the young person, which, where a local authority can make a professional decision, would ensure better and informed choices without an unwanted service automatically being triggered by legislation. A real-life example of that was given to us by one of our partner in practice local authorities. In this instance, the young person was returning to live with their grandmother. Applying the burdens and processes associated with looked-after children placements unnecessarily overcomplicated matters for both the authority and, most importantly, the young person and their family.
Secondly, as I highlighted at Second Reading, there is a widespread view that adoption and fostering panels do not always add value, and can often delay the process of approving prospective carers. These panels are only advisory, with the ultimate decision resting with the local authority. Local authorities explain that they think they could get to the same decision quicker without the panel in some circumstances. The freedom likely to be requested would be to remove the requirement always to have the panel in place for all cases, and for the agency decision-maker, who currently makes the decision, to continue to exercise their professional judgment. In straightforward cases, the decision would be made quicker to allow the best solution to be progressed faster so that children get the support they need. I heard what the noble Lord, Lord Watson, said about the concerns that Coram has in this respect, and we will be very happy to talk to Coram about its concerns in some detail.
I will speak to other examples as I go through my response to the amendments. In turn, the department will look to evaluate the use of the power so that we understand the impact, where there is a case for permanent changes to the legislative framework—changes that would of course come back for further scrutiny to this House.
I turn to Amendment 129, clarifying the purpose of this power to innovate. I agree that a focus on improved outcomes for children and young people is key. However, the drafting of the clauses already makes clear that the power is focused on outcomes for children and young people. Clause 15(1) refers to children’s social care legislation. The Children Act 1989 and its associated legislation is designed with the outcomes for children and young people at its core. By referencing children’s social care legislation explicitly, it is clear that the clause is directed at outcomes for children and young people.
On Amendments 130 and 131, I agree that the Bill should not lead to any changes that adversely affect the rights of children or lead to the withdrawal of support or services that they depend on. The whole point of these clauses is to allow local authorities to do things better. We do not propose to put an independent review panel in place. However, there will be a variety of safeguards in place to ensure that the power is not misused and that all applications are subject to very robust consideration before they are approved.
In particular, I draw noble Lords’ attention to the requirements both on the local authority to consult its safeguarding partners and relevant agencies and on the Secretary of State to consult Her Majesty’s Chief Inspector of Education, Children’s Services and Skills and the Children’s Commissioner. Of course, representing the views of children and young people is a key part of the Children’s Commissioner’s role, and Ofsted will also need to consider its functions of promoting the best interests of children when consulted on the use of the power. It is also important to note that any changes to primary legislation will be debated in both Houses, which in many ways constitutes the independent reviewing process that these amendments seek. In answer to the point on consultation with children in care and their representatives made by the noble Lord, Lord Wills, I agree that the voice of the child should be recognised when requested freedoms are being considered.
While I am not proposing to accept the amendment, I would like to provide reassurance that children are at the core of this provision. In most cases, we would expect local authorities to have consulted children affected by any change and in fact many of the possible changes that local authorities have discussed with us originate from requests from children, as I have already said. For example, in the case of independent reviewing officers, children have fed back to our partner in practice authorities that they do not like additional people who they do not know to be present at their case reviews discussing intimate information. More specifically, in the case of North Yorkshire, just over 400 children and young people are looked after. The vast majority are very settled and achieving well. Older young people in this position tell the authority that they find regular formal reviews unsettling and that they would like to be treated like their non-looked-after peers. There is then a much smaller number, on average 20, who are not currently settled and require regular in-depth reviews. This is one area in which a request for use of the power to innovate may well be made to make more effective use of the experienced cohort of independent officers.
The noble Lord, Lord Watson, talked about the risk assessment of exemptions. I agree that it is vital that we consider this carefully before any exemptions are agreed. We will need to do that, looking at the merits of each application from the local authority, when bringing forward regulations under Clause 15. Noble Lords may know that in responding to the DPRRC report I committed to bring forward an amendment to ensure that all regulations will be accompanied by a report setting out anticipated benefits and the protections to be put in place by local authorities to mitigate risks. That, combined with the other safeguards that we have in place, means that risk will be assessed and managed.
The noble Baroness, Lady Bakewell, raised a point about how local authorities would be chosen. I would expect any local authority that wants to apply for an exemption to demonstrate strong leadership and either strong performance or a clear trajectory of improvement consistent with the approach that it wants to test. Ultimately, the Secretary of State will not take forward any requests if she has concerns about the local authority’s ability to implement the change safely or to learn from the testing and share its insights with the wider sector. That is why I anticipate that the first application will be from our partner in practice authorities—a group of 11 of the best-performing children’s services in the country.
The noble Lord, Lord Warner, and the noble Baroness, Lady Walmsley, raised points about Professor Eileen Munro and what she wanted. She said:
“I welcome the introduction of the power to innovate set out in the Children and Social Work Bill. This is a critical part of the journey set out in my independent review of child protection towards a child welfare system that reflects the complexity and diversity of children’s needs”.
I am delighted that so many noble Lords have referred to excellent examples of innovation by various local authorities, but of course just because some innovation is taking place without changes to legislation does not mean that others will be able to innovate without making such changes. Of the examples that we have been discussing with local authorities, all need exemptions from secondary and in some cases primary legislation. I will write to the noble Lord, Lord Warner, setting out what primary and secondary legislation blockages are in place before Report.
To answer the noble Baroness, Lady Pinnock, there are no limits to what can be requested; the Secretary of State is concerned about the impact on children, and if she thinks it is appropriate, it will proceed.
However, in view of noble Lords’ concerns and suspicions about our motivation, the best way forward—in addition to writing to the noble Lord, Lord Warner, and sharing that letter with all Peers—is to have what I suggested. I hope that all noble Lords who are interested will come to a meeting with a number of local authorities and individuals where they can explain in detail why they need this power, and noble Lords who feel that they can achieve the same objective without using it can talk about that. We can have a detailed, granular discussion about specific examples, rather than a high-level discussion, which is always, in my view, rather dangerous. I commit to organising that, and I hope that all noble Lords will attend.
Lord Hunt of Kings Heath
My Lords, before the noble Lord sits down— I thank him for his response—is not the requirement really to have a meeting with parliamentary counsel to see how Clause 15(2) can be redrafted in such a way that it is clear that the kind of change that the noble Lord wishes to make is essentially small-scale and minor? The problem is that, although he has made that commitment from the Dispatch Box, none the less, this is such a huge power. It is not the issues, it is the way it is drafted. Surely there must be a different way to draft a power that allows for certain discretion in the circumstances he describes without seeming to exempt the whole of social care legislation. I suggest that parliamentary counsel might have a role to play.
Lord Nash
I think it would be much better to make that analysis when we have had the sort of meeting I am talking about and we have more visibility on particular examples.
Amendment 121A, tabled by the noble Earl, deals with support and safeguards where the power is used. I briefly return to my previous point that the power is about creating a controlled mechanism for testing, strengthening and improving the current system. It is not about removing basic rights that are essential to improving outcomes.
I give another example to illustrate the use of the power. Local authorities tell us that a carer who is either a family member or friend is often thought to be the best placement option for a child in care, but the requirement that they become an approved foster carer after a 16-week grace period can be difficult to achieve, especially where family and friends have no real desire to be local authority-approved foster carers generally. We discussed in Committee last week the important role that grandparents can play. This is exactly the sort of area where use of the power could make better use of the strengths they bring.
Exemption from this requirement could mean local authorities being able to place a child with the person to whom they have the greatest attachment. There could still be an option for the carer to become an approved foster carer if they wish, but the exemption would give flexibility for the carer and a better chance of achieving the most suitable option for the child being selected.
Returning to the amendment, requiring a local authority to reinstate existing processes and procedures upon individual request would considerably weaken a local authority’s ability to assess the effect of the power. As outlined in my example above, however, there is nothing to stop a local authority offering this level of service if it was in the best interest of the child. Let me reassure noble Lords that exemptions will be granted only for a time-limited period because the local authority and the Secretary of State are persuaded the new approach holds out the likelihood that the child or children can be better served in a different way.
In order to test and evaluate exemptions properly, I feel it is right that local authorities should not be subject to an infinite range of requirements in respect of different children, but can use their professional judgment in response to the child’s request. I remind noble Lords that if regulations made under the power are not found to have had the desired effect, they can be revoked swiftly using the negative resolution procedure. In addition, authorities are and will be subject to the usual Ofsted inspections and will be monitored via the department to evaluate and create an evidence base of what works.
I recognise that Amendment 131B reflects the recommendations of the DPRRC. I am happy to say that in my response to the Committee last week I signalled my intention to make amendments to achieve the same effect. In view of that, I hope that the noble Lord will feel reassured enough not to press his amendment at this time and will support our amendment at Report.
Finally, I turn to Amendment 132 and the interaction between this power and the corporate parenting principles. There are numerous broad, overarching duties on local authorities in children’s social care legislation in different Acts of Parliament. The corporate parenting principles are an example of such an overarching duty. Our conversations with local authorities have not been focused on these overarching duties. They want to focus on how they could change the way of working to allow their children’s social care staff to focus more on children and families themselves, not on changing their overall objectives. Specifically to exclude an overarching duty such as corporate parenting would beg the question as to why it had been singled out. Excluding some but not others could give rise to the same question. Equally, excluding all overarching duties from the many pieces of primary legislation in the area of children’s social care would make the clause unnecessarily complex.
Lord Ramsbotham
My Lords, I welcome the thought of a meeting but I would be grateful if the Minister could ensure that somebody from the youth custody arena attends it. I was extremely alarmed when he rather dismissed the example of the legal safeguard that could be lifted, of removing the looked-after status from children remanded in custody. That is very often the first time that they have had any stability in their lives and it would be tragic if it was removed.
The Earl of Listowel
My Lords, I am grateful to the Minister for his reply and for the offer of a meeting, which I am sure will be very helpful for me. I should have said in my earlier contribution that I am the patron of the National Association of Independent Reviewing Officers, so I have an interest and some experience there. I hear what he says about independent reviewing officers; in my mind, there is certainly a question about tying up so many experienced social workers in one capacity. But one of the concerns is that when a child is in a long-term placement, it may go very well but things can suddenly go wrong. One of the chief concerns that often come up when children need advocates is that while they are in a long-term stable placement, a local authority may suddenly have decided that it is too expensive so they are moved on. There is particular concern that a child may be in a stable placement for a long time and he or she may suddenly need the expertise and professional capacity of an independent reviewing officer. However, I see that there is another side to that.
Lord Watson of Invergowrie
My Lords, I thank the Minister for his response but after almost an hour of debate, we have made little progress. I think it was my noble friend Lord Hunt who said that the Minister does not seem to get the opposition to Clause 15. It is not just from these noble Lords but across different parties and the Cross-Benchers as well, who have expressed very strong views as they did in respect of Clause 9 last week. Many of the same sentiments have been repeated here today. There is deep-seated resentment and opposition to this and it will not go away through the amendments in this group just being withdrawn or not moved today.
A lot of noble Lords asked the Minister to give us some rationale as to what is driving this and the purpose behind it. The only specific thing I was able to note down in what he said was that it was to improve the provision of services to children. I think that everyone in the Room—noble Lords, the officials of the House or the department, and even the visitors in the public seats—would throw their hands up at that suggestion. The noble Lord, Lord Ramsbotham, encapsulated it when he said that introducing best practice is the way to improve things, not regulation. I urge the Minister to bear that fundamental point in mind.
I welcome the fact that we are to have a meeting and that the Minister will also speak to CoramBAAF. That is important but there are a number of organisations, and if he has not already done so, I think that some of the adoption and fostering agencies would like to meet him because, as I said, there is deep-seated opposition to this.
I do not want to rehearse the arguments and will not do so but I need to say to the Minister that, unless something in Clause 15 changes, he will be riding for a fall on Report. I hope that he will bring forward some sort of meaningful amendment that takes the sting out of some of the arguments that have been advanced over the last hour. They are very strongly felt and there is no political point-scoring here at all. If the Minister wants to make progress with this aspect of the Bill, we need to see something different when we discuss these issues in the Chamber in some weeks’ time.
The response to the amendments is nothing other than disappointing but, for now, I beg leave to withdraw the amendment. I mean it when I say that I look forward to returning to this subject on Report.
Lord Warner
“( ) Before making any exemptions or modifications under subsection (2), the Secretary of State must consider the published advice of an independent review panel established to consider whether any such exemptions or modifications are likely adversely to affect legislative safeguards or rights of children approved by Parliament.”
Lord Warner
I do not intend to move this amendment but I want to reinforce a point that has been made already. I look forward to seeing the Minister’s letter but it is not just a question of satisfying me and Members of this Committee. The letter had better be pretty convincing to many people outside, including the Association of Directors of Children’s Services, because the issue is not whether you can make some changes; as the noble Lord, Lord Hunt, said, it is the proportionality of the scope of the amendment that is called into question.
The Earl of Listowel
“Annual report on the impact of exemption on children and families
(1) In relation to each local authority exempted from a requirement imposed by children’s social care legislation by regulations made under section 15(2), the Secretary of State must report annually on the impact of the exemption on children in that area.(2) In considering the impact on children for the purposes of subsection (1), the Secretary of State must take into account the effect of the exemption on—(a) safeguarding of the children;(b) the health and well-being of the children; and(c) the children’s access to support and services.”
The Earl of Listowel
My Lords, I shall speak also to Amendments 133A and 133B. The first of these would ensure transparency and adequate information about any innovation. The second is about open and transparent consultation. I hope that they both meet the requirement of the noble Lord, Lord Watson, for much more reassurance before we move forward with this clause.
The heading of the new clause proposed in Amendment 132A is: “Annual report on the impact of exemption on children and families”. Therefore, the amendment seeks to ensure that there is an annual report and that we know the impact of the exemptions.
Earlier in Grand Committee there was a short discussion about social work practices. We heard evidence of how they are working, which was helpful for us in thinking about these matters. Several years ago, Hackney had a programme called Reclaiming Social Work. It reduced the number of children coming into care by more than a third in three years and was a model for setting up social work teams with a consultant social worker. Isabelle Trowler, the current chief social worker, and Steve Goodman, a senior social worker in Hackney, led in this model. It was well evidenced and there was plenty of information about how it worked. Professor Eileen Munro highlighted this experience in her report, many local authorities have copied the model and it is becoming more widespread.
If we really want to make a difference for children, when we innovate we need to be sure that we have evidence and measure what is happening so that we can be confident of what works and what does not. We can then expand that to other areas. Amendment 132A would ensure that there was a gathering of evidence, and it is a probing amendment to achieve that.
Through Amendments 133A and 133B in my name, I seek to ensure open and transparent consultation in this process. I welcome the Government’s proposal in the Bill to commit to consult the Children’s Commissioner, Her Majesty’s Chief Inspector of Education, Children’s Services and Skills and any other person who the Secretary of State considers appropriate.
I am worried, however, that such an important decision to exempt a local authority from children’s social care legislation should be left to a consultation process defined by the Secretary of State. Instead, I share the view of the Children’s Society and other major children’s charities that the consultation process should be open to all, with a particular focus on residents of the local area, and that it should run for the same length of time as a standard government consultation. I agree with Members who have tabled amendments explicitly to include the voices of children and their families in the consultation, and I believe that the wording of an open consultation would include young people. The consultation should be open to all.
We want, as I am sure the Government do, to encourage the many interest groups such as children’s charities that, although perhaps not directly affected by innovation, have valuable expertise on safeguarding children to voice their support or concerns through a formal process. I support the importance of making sure, as part of the consultation, that children’s and families’ voices are taken into account, and that the consultation process is carried out in an active and accessible way so that they can respond on these important issues.
Equally, it is important that the consultation process does not take place behind closed doors, and that the Secretary of State should place her response to the consultation on the record. This important accountability measure will allow interested Members of Parliament to see what evidence swayed the Secretary of State’s decision and to hold her to account on it. That is vital following the initial three-year period, when the impact of the changes on children will be assessed and the expertise in the initial consultation responses will be drawn on to assess the longer-lasting impact of statutory exemptions.
I believe that the safeguards in my three amendments will make sure that innovation can happen in a controlled way to protect children while recognising the desire to test different approaches. At the heart of the amendments is the desire to support innovation, while also showing an important level of parliamentary scrutiny and public consultation before making decisions to exempt any local authority from its statutory responsibility to children in their local area. I beg to move.
Baroness Howe of Idlicote (CB)
My Lords, I support my noble friend Lord Listowel’s Amendment 132A and his other amendments in this group. One does not need to look very far to understand why the Government are so keen to promote innovation, about which we have already heard a lot this afternoon. At present, 43 of the 87 local authority children’s services have been judged by Ofsted to be failing or inadequate. Clearly, this is highly undesirable, and we can and must do much more to ensure that the services we offer for vulnerable children are the best they can possibly be. I none the less support my noble friend’s Amendment 132A and his other amendments because I am concerned that the Bill fails to put in place rigorous and robust mechanisms to ensure that the well-being of children is not inadvertently affected by the exemption of local authorities from crucial clauses in children’s social care legislation.
In recent years, local authorities have developed some highly innovative approaches to children’s social services in areas such as Trafford. Trafford has maintained a good and an outstanding rating for the past five years, and its approach, particularly towards care leavers, has been commended by the Government. This in many ways represents the best practice that could be encouraged by the comprehensive and strengthened set of corporate parenting principles we have the opportunity to create in this very Bill. Trafford is widely considered a success story for innovation in local authorities, but this has all been achieved without the need to repeal the safeguards afforded to children through the Children Acts 1989 and 2004. I am still struggling to see where these key pieces of legislation are hampering innovation, and I would welcome it if the Minister gave examples of the benefit that the Government believe will derive from such a provision.
Lord Watson of Invergowrie
My Lords, I will speak to Amendment 133ZA in this group, in my name and that of my noble friend Lord Hunt of Kings Heath. Clause 17 outlines the consultation process that local authorities and the Secretary of State must undertake before an authority makes an application to exempt or modify legislation in order to test a different way of working. This is a probing amendment to explore how a requirement could be placed on a local authority to consider how such an application could affect the needs of children with special educational needs and disabilities, in addition to consulting local safeguarding boards.
There are concerns that legislation meeting the definition of children’s social care legislation in Clause 19 which can be subject to exemption or modification includes any legislation specified in Schedule 1 to the Local Authority Social Services Act 1970 that relates to those under 18. As drafted, this covers more than 40 pieces of legislation mentioned in that schedule. The Bill could therefore allow exemption or modification of a wide range of social care support that children with SEND currently rely on. Indeed, those with SEND constitute the vast majority of children in need as defined under Section 17 of the Children Act. This group is disproportionately likely to be impacted by exemptions or modifications to children’s social care legislation. However, there is no mechanism explicitly to consider the impact on this group of changes to legislation.
Section 3 of the Children and Families Act 2014 will also be impacted by the Bill, with implications for those receiving social care and health provision as part of an education, health and care plan. Much of this impact could be unintended or unforeseen without specific measures being taken to identify them proactively. There is also the issue of a postcode lottery and creating parallel systems by granting some areas exemptions from the general law. So there is a real need for local authorities to conduct a review of the potential effect of different ways of working on the authority’s ability to meet the needs of children with SEND. It would be helpful if the Minister could give an assurance that some groups will not be prioritised over others if a local authority were to be exempted from some elements of the current provision.
Baroness Evans of Bowes Park
My Lords, Amendments 132A, 133A, 133B and 133ZA would amend the consultation, application and reporting requirements that already support the proposed power to test new ways of working. I should say from the outset that our response to the Delegated Powers and Regulatory Reform Committee, which was mentioned earlier and which evidently noble Lords have not seen, proposed putting forward a government amendment which provides for the laying of a statement every time the power is used in Parliament, with any regulations made, explaining how any change is expected to meet the purpose of the power—better outcomes for children and young people—and the protection that a local authority making an application to use the power intends to put in place. I hope that this move will address many of the concerns raised by noble Lords. We certainly believe that such statements will help the House if and when it comes to scrutinise any orders under Clause 15. None the less, I will say a few further words on consultation and reporting.
Clause 17 sets out proportionate expectations of consultation for both the local authority and the Secretary of State. For the local authority, this would mean consultation with health agencies, the police and others; for the Secretary of State, it would mean the Children’s Commissioner and Ofsted. The Secretary of State may also consult such others as she considers appropriate in each individual case. I am confident that, according to the freedom requested, the appropriate persons or bodies will be consulted to ensure that the right decision is made and that, where appropriate, the needs of children with special educational needs will of course be taken into account. But each decision needs to be made on a case-by-case basis; we are not persuaded that standardised, formal consultation would be appropriate. However, we would expect the statements that I have already described to deal with the outcomes of consultation. Of course, the reports would be made available to the public, as would the orders made—which I feel addresses the question of making public any changes made under Clause 15.
Finally I will say something about the annual report that is proposed. We entirely agree that tracking and capturing the progress of exemptions should take place. This will be crucial in coming to a view on whether lasting changes should be made to children’s social care legislation. We will be evaluating the use of the power, and noble Lords will note the requirement to report on how far changes have achieved their purpose if the initial testing period is to be extended. If it is not extended then of course things will revert to the previous position. This seems to be a way to achieve the same objectives in a more proportionate way than an annual review.
I also make the point, as highlighted by the noble Baroness, Lady Howe, that Ofsted will inspect and report in the normal way, providing another valuable source of public information. I hope that on the basis of our proposal to bring forward amendments, noble Lords will not press theirs.
The Earl of Listowel
My Lords, I thank the Minister for her reply and my noble friends for their support for my amendments in this group and in the debate that we have just had. I am particularly pleased to hear of the Statement that is coming forward from the Government; that sounds like a helpful proposal. I am somewhat reassured to be reminded that the Children’s Commissioner will be consulted; she does extraordinarily good work in listening to the voice of young people in care, and I am sure her contribution will be very important. I will look at what the Minister has said. In the meantime, I beg leave to withdraw the amendment.
““relevant agency”, in relation to a local authority area, has the meaning given by section 16E(3) of the Children Act 2004;“safeguarding partner”, in relation to a local authority area, has the meaning given by section 16E(3) of the Children Act 2004;”
“National action plan for the welfare of unaccompanied children
(1) The Secretary of State must, in consultation with the Local Government Association, the Association of Directors of Children’s Services and the Children’s Commissioner for England, publish a national action plan for the welfare of unaccompanied children.(2) The national action plan for the welfare of unaccompanied children must set out the steps the Secretary of State will take to ensure that local authorities are able to safeguard and promote the welfare of relevant children within their area and in particular to ensure that relevant children have adequate access to—(a) legal advice;(b) mental health and other healthcare provision; (c) appropriate accommodation, including foster care provision and semi-independent accommodation;(d) social work support;(e) the education system;(f) English language education;(g) any other services necessary to meet the needs of relevant children.(3) The national action plan for the welfare of unaccompanied children must set out the process by which information about children to be included in the scheme provided for under section 67 of the Immigration Act 2016 (unaccompanied refugee children: relocation and support), is to be communicated to local authorities, including details about—(a) age;(b) any known medical needs;(c) any accommodation preferences expressed by children;(d) linguistic competencies and requirements;(e) any known special educational needs;(f) any other available information necessary to allow local authorities to meet the needs of relevant children.(4) The national action plan for the welfare of unaccompanied children must describe the additional infrastructure that will be put in place to ensure that the welfare of relevant children is protected during and after transfers under section 69 of the Immigration Act 2016 (transfer of responsibility for relevant children), including details about—(a) funding to be provided to Regional Strategic Migration Partnerships;(b) plans to draw on the expertise of service providers; and(c) any other plans to ensure that appropriate expertise and training is available to relevant authorities.(5) In this section—“local authority” means a local authority within the meaning of the Children Act 1989 (see section 105(1) of that Act);“relevant child” means—(a) a person under the age of 18 who is unaccompanied and has made a protection claim which has not been determined,(b) a person under the age of 18 who is unaccompanied and who requires leave to enter or remain in the United Kingdom but does not have it, or(c) a person under the age of 18 who is unaccompanied and who has been granted humanitarian protection, refugee status, discretionary leave or limited leave to remain in the UK as an unaccompanied asylum seeking child.“service provider” means an organisation providing basic services to relevant children including legal advice.”
Lord Dubs (Lab)
My Lords, this amendment is concerned with the well-being of unaccompanied children whether they have come as refugees straight from Syria and other parts of the region or from parts of Europe, as was determined by an amendment that passed this House and the House of Commons under the Immigration Act.
These are clearly sensitive children who have been through trauma. We know they may have been subject to trafficking; they may have been victims of crime: they may have suffered sexual violence; they may have been lured into debt slavery—all sorts of things may have happened to them. Some may still be in danger, which is why there is an urgency to bringing them over to this country. Clearly, though, everyone is agreed that they are vulnerable and that they need help and support.
I have had discussions with the Local Government Association about this, and quite understandably the LGA would like to have some assurances about longer-term funding arrangements for councils that are looking after unaccompanied children. Subsection (1) would require the Secretary of State to consult organisations representing local authorities and providers of children’s services, as well as the Children’s Commissioner, before publishing a national action plan for the welfare of unaccompanied children. That is a rather grand title but I think we know what it means.
Subsection (2) includes a non-exhaustive list of the kind of vital services that children must be able to access wherever they are placed in the country. For example, they will need specialist immigration legal advice to help them know where they stand. They may need special educational needs support. They may have been particularly traumatised by the experiences through which they have gone and those that I described. It is important that they have active health service support. They may have suffered the trauma of war, separation from family members for months or even years, they may have had long journeys in perilous and unsanitary conditions. All of those are important, as is education. Many of these children will not have had an education for some time and it is important that we try to get as many of them as possible to this country by September in order that they can benefit from the beginning of the school year.
I should say that not all of them are traumatised. I was talking to a young man from Syria who had spent a year travelling from the region before he got to Britain. I met him on the green outside. In a chat with him he said his main ambition was to go into politics, so all is not yet lost. Perhaps he did not know enough about our politics; perhaps when he learns a bit more he may think a different career is more important. Those services are crucial and it is important that the national action plan for unaccompanied children takes them into account.
In certain local authorities, Kent in particular, a large number of unaccompanied children are getting help and Kent County Council is clearly having difficulties. I think there is a scheme already but it could be improved to help children who are transferred between local authority areas, mainly to ensure that there is an evenness of pressure and demand on local authorities. The Government have recently announced an enhancement in the funding to be made available, but local authorities are understandably concerned about longer-term provision. If they have money for only one year, they need to know what will happen afterwards.
There is great willingness on the part of local authorities—I have met some. They are willing and anxious to help; they want to be able to get on with it on the basis that they know where they are and can manage to deal with it. For example, there are greater difficulties in London, where housing costs are higher than in other parts of the country, but even in London, the local authorities I have met are willing to step up to the mark and provide accommodation for people, whether under the vulnerable persons scheme or to look for foster parents who are appropriate for their needs. Of course, foster parents will have to be monitored carefully, as are all foster parents. That is all part of the extra responsibility that falls on local authorities.
The amendment is clear: it is intended to provide the right level of support and ensure that everything is handled as well as it can be for the sake of very vulnerable children. I know that the expression “national action plan” sounds a bit pompous—I could not think of a better one—but I think we understand what it means and I hope that the Government will accept it.
I should add that I am due to meet the Immigration Minister tomorrow. I had hoped that that would have happened before now, because then I might have been able to modify what I have said; but I am doing so prior to the meeting with him. I had discussions with the Home Secretary and the Immigration Minister some time ago, and he assured me that the Government would enter into the letter and spirit of the amendment. That is positive, so I look forward to a good outcome from my meeting with him tomorrow. I beg to move.
Lord Ramsbotham
My Lords, I support the noble Lord, Lord Dubs, in his amendment and confirm that the issue of sharing children around the United Kingdom has been raised many times because social services near the ports of entry were becoming swamped and these children were being deployed right across the country, which led to inconsistency in their treatment—some people putting them in bed and breakfasts, some looking after them properly.
I raised the issue of unaccompanied asylum-seeking children at Second Reading. I am glad that the Minister has arranged for the meeting with Mr Brokenshire because, among other things, there is a tension between the Immigration Act and the Bill over when such children cease to qualify for support. The Immigration Act makes it clear that that is at age 18, whereas the Bill seeks to extend the support until 21 or 25.
Another clause in the Immigration Act, which I mentioned at Second Reading, states that if an unaccompanied asylum-seeking child wishes to appeal against deportation following the failure of his appeal, he now has to go back to the country of origin even though he may have been born in this country before he can make the appeal. That is denying him all the rights that he has earned during his time in this country. We must remember that two-thirds of these children are actually in foster care now, quite apart from the numbers in care. I am glad that the noble Lord has raised this amendment and I hope that, whether revised or not, it will appear in the final Bill. I am sure that the noble Lord will wish to attend the meeting with Mr Brokenshire and the Minister on this very issue.
Baroness Pinnock
I am very pleased that the noble Lord, Lord Dubs, has tabled the amendment and again raised the issue that the noble Lord, Lord Ramsbotham, and I referred to at Second Reading. At that time I referred to the investigation by the EU Sub-Committee on Home Affairs into unaccompanied migrant children. It raises some important issues that reflect on what the noble Lord, Lord Dubs, has tabled in his amendment. One or two examples from the report expand on the issues raised. Evidence from Kent social services states:
“There have been issues in respect of the apparently competing demands of the immigration legislation and the childcare legislation in respect of over-18’s”.
That was the fundamental issue that I raised at Second Reading. We are in danger of creating a two-tier approach to care leavers. We quite rightly say that care leavers who are born in this country will receive support until the age of 21 or 25, but unaccompanied minors who have been through the most awful and traumatic experiences are suddenly deemed at 18 to be able to act as adults. Further evidence summarises the problem facing unaccompanied migrant children approaching 18. The report states:
“Those children who are given temporary leave on the basis that they are children are suffering terribly in their protection needs and, as has been identified for many years, their leaving care provisions. We recognise how much children need help in that transition to adulthood. For most of us in this country, we do not suddenly feel and behave like adults when we turn 18”.
We had evidence of the potential consequences of unaccompanied minors, as they approach 18, not given leave to remain but not wishing to return to the troubled area of the world from which they came. One of the consequences is:
“The severe delays experienced by some unaccompanied migrant children in their asylum claims and in accessing services may compound their lack of trust of state authorities. In such circumstances, smugglers and traffickers may come to be regarded by children in some cases as a preferable source of support—‘by choice, through desperation, or through exploitation and abuse’”.
That is the evidence that I have referred to. I do not think anyone in the Committee, which has now spent 20 hours or more considering how we can improve care for the most vulnerable children in our society, would want this particular group of young people to be affected in this way. As we approach Report, I hope that the Government can bring forward their own amendments to help to address the issues of unaccompanied minors as they approach care-leaving at 18, to provide them with the support they desperately need and confidence that they are not going to continue to be returned to the war-troubled areas of the world whence they came.
Baroness Howarth of Breckland (CB)
My Lords, I apologise for not being here sooner, but I was the last person standing to chair the All-Party Parliamentary Group for Children this afternoon. That is where I have been, and it is always revealing. I support the amendment because I have raised this issue on a number of occasions. I hope the Minister will look at this, though he knows well that I do not like long amendments; lists in Bills are not helpful.
I cannot understand why, from the moment when the child is identified as an unaccompanied minor in a school, we do not start not only to stabilise the child’s status but to look at their mental health issues. We know of the trauma they have been through. I know that mental health services are poor across the country—we have heard that repeatedly—but these children have very particular needs. I am appalled when I learn that often schools do not even know the status of these children. I have met a number of youngsters who realise their immigration status only when they are about to go to university and discover that they cannot. Instead, they spend a year on appeal, appealing being deported to countries about which they know nothing. One young man I met had been here from the age of six. He had been in a foster home and suddenly discovered that this was his status.
I am sure that that is not the way this Government wish to treat children. These children happen to be in this situation only by chance. There might be another child next door who happened to have come in to the country, or be part of a family, on a very different basis. We must treat these children equally.
I am not against returning children home when that is the appropriate answer. We know that there have been very successful programmes of returning children to their country of origin with the right support and understanding; but we have to start sooner than we are starting now, get the position of the child right, make continuous assessment and not leave it until their 18th birthday, when it becomes a crisis.
Lord Judd
My Lords, I strongly support my noble friend. His experience and commitment in this sphere are well known in this House. I wish his talks with the Minister more success tomorrow. It seems essential that the Government take what my noble friend proposes very seriously. Others have stressed, and I underline it, that the trauma through which these youngsters have been is almost indescribable. It is more than distressing; it is deplorable. They need to be helped to build future lives. An action plan of this kind will help, and it is very important. Yet no action plan will be better than the culture of those who are operating it. From that standpoint, all of us in politics have a responsibility to set the tone for what is expected. We have a duty of care and responsibility to these children. We say that in our post-EU future we want to be prominent members of the international community. There is no better way that we could establish a reputation to help us in that future than by becoming leaders in answering this challenge, and the commitment with which it is answered.
In our vocabulary, in the speeches of Ministers and opposition spokesmen and all the rest, it is therefore terribly important to bring home that if we mean anything at all when we talk about our civilisation, our values and so on, this responsibility to children must be there. For those who are to operate any scheme, it is terribly important that what the children need is stability of relationships and a feeling that there are genuine, reliable friends looking after them—not just a system but real friends on whose shoulders they can lean and cry from time to time, and from whom they can get reliable counselling and advice on the way forward. What they need is human relationships in their future. This framework will therefore have to be filled by the culture which we and all others are generating about responsibility.
The Earl of Listowel
My Lords, I, too, thank the noble Lord, Lord Dubs, for tabling this amendment. I join in supporting, as have all noble Lords, what he proposes: a national action plan for the welfare of unaccompanied children. I have to reflect for one moment that the current changes, with the separation of the UK from the European Union, must limit to some extent the important international activity that can reach out to countries such as Ethiopia in the Horn of Africa, and support them to promote stability. The EU is less able to do that without us and we are less able to do it without the EU, so more of these children may come to this country in future because of the decision that was recently taken. I regret that.
I was grateful to the Minister for what he said in his letter on the Committee stage, which I received this morning. In it, he talked about Section 10 of the Children Act 2004. At that time, we very much regretted that that Act did not include a duty on the Immigration Service to promote outcomes for vulnerable children. It does for various other services, as the letter lays out, but I hope we can look at including in the Bill a duty on the Immigration Service to work with local authorities to promote outcomes for these children. Perhaps they should train social workers, for instance, to understand immigration issues and ensure that children get the right advice early on. In the past, there was a champion for children within the Immigration Service. In anticipation of our meeting tomorrow, can the Minister tell us who that champion is currently and what he is doing to promote children’s welfare? I support this amendment and I look forward to the Minister’s response to it.
Lord Storey (LD)
My Lords, I have taught three unaccompanied children at my school—obviously this was before the conflict in Syria—and we were making it up as we went along. There was no clear plan of what to do or what support there was. The three boys, as they were, were literally processed in Liverpool and arrived at our school. There was then a time lag while we and the foster parents to whom they eventually went tried to find someone to help with the language and with any other issues that they had. That is why the amendment in the name of the noble Lord, Lord Dubs, is so important. I could not dissent from a single word of it and, had this provision been available when those three boys came to my school, it would have helped tremendously.
Since then, of course, the unaccompanied children coming to this country have been traumatised by conflict and war. The noble Lord, Lord Judd, is absolutely right that what they need above anything else is stability in their lives. I agree with my noble friend Lady Pinnock: if the Government are not happy with the wording of the amendment, can they for goodness’ sake please come forward with amendments that will deal with this matter? There is the issue of when these young people reach the age of 18. We have grappled with that in a number of debates on various occasions. I found it heartbreaking when one of the unaccompanied children was nearing his 18th birthday and was going to be returned—to Mongolia, as it happened. Given that we as a country have now agreed to accept an additional 20,000 children, I hope that a national plan is in place for them.
Lord Watson of Invergowrie
My Lords, I, too, thank my noble friend Lord Dubs for bringing forward this amendment. The standard of debate has been high and I do not want to add too much more to it. The experience of my noble friend Lord Dubs in this matter—most recently on the Immigration Bill—is well documented and hugely appreciated. When unaccompanied children come to this country, however they arrive here, and try to fend for themselves, it is fraught with all sorts of dangers. The noble Lord, Lord Storey, has just talked about children at school but many of these children never reach school because they are kept in an environment where they are exploited; they are not educated or made into good citizens. The noble Baroness, Lady Pinnock, made a point about a two-tier society, and that should resonate with us.
My noble friend Lord Judd, in talking about the action plan, spoke of setting the tone, but I would put that tone into a wider setting. One or two noble Lords referred to the events of a couple of weeks ago which were described as—it is a description that I would subscribe to—pulling up the drawbridge on the world to some extent, and that is the way it is viewed. Britain’s reputation has plummeted and has been matched only, it would seem, by the value of the pound in the last two or three weeks. We need to look at positive ways of showing that that is not all we are about.
I was profoundly depressed to read a report at lunchtime by a man called Mark Hamilton, who leads for the National Police Chiefs’ Council. He was reporting on an unprecedented spike in hate crime in the country within the last three weeks, directly related to the vote on 23 June. If we have an opportunity to show that we can do different and more positive things and that, despite the impression we have given, we are outward looking and welcoming as a country, then small measures can build into larger things. I think that this amendment is one of those acorns that may grow into something much more substantial.
I wish my noble friend Lord Dubs well in his meeting with Mr Brokenshire. I hope that the Minister will go to that meeting as well so that a way can be found of accommodating this amendment. It is important not just for the framework of this Bill and not just for the individuals concerned but potentially for the way that we are perceived as we approach difficult situations and respond to tragedies in other parts of the world. For that reason, I very much hope that a positive outcome for the amendment will be found, because it certainly deserves it.
Lord Nash
My Lords, I am grateful to the noble Lord, Lord Dubs, for his amendment. I recognise that it seeks to safeguard and promote the welfare of this vulnerable group, and I assure him that I appreciate the sentiment and good will behind it. I also appreciate the strength of feeling in this Committee about the plight of unaccompanied minors who seek refuge in the UK, as illustrated by the contributions to the debate by other noble Lords, and I share those feelings.
The amendment seeks to ensure clarity on the action that will be taken and the support that will be offered to local authorities looking after unaccompanied children. Under the Children Act 1989, unaccompanied children become looked-after children once they have been accommodated for 24 hours. They will then have their welfare promoted in the same way as any other looked-after child. I emphasise that their country of origin and the circumstances under which they arrived in the UK will have no bearing on the support that these children are entitled to.
The number of unaccompanied asylum-seeking children has risen significantly in recent years. In 2015 we saw a 56% increase in the number of unaccompanied children claiming asylum in the UK. However, as noble Lords have pointed out, until now the majority of unaccompanied asylum-seeking children have been cared for by a handful of local authorities. This has placed a considerable strain on their children’s social care services, which sometimes has been to the detriment of local children for whom the local authority has corporate parental responsibility. That is why the Government on 1 July launched a new voluntary transfer scheme that encourages all local authorities to participate in the care and support of unaccompanied asylum-seeking children who arrive in the UK.
The National Transfer Scheme was created after extensive consultation with the Local Government Association, the Association of Directors of Children’s Services and individual local authorities. The scheme is based on the principle that no local authority should be expected to care for more unaccompanied children than its services are able to provide for—whether asylum-seeking children, as the majority will be, or unaccompanied refugee children brought to the UK through our resettlement scheme.
The noble Lord, Lord Dubs, raised the point about funding. To support the National Transfer Scheme the Government have increased the amount of funding that they will provide to local authorities caring for unaccompanied asylum-seeking children. Annual support for each child aged under 16 has risen from £35,000 to £42,000, and each unaccompanied asylum-seeking child aged 16 or 17 will attract £33,000 per annum. This represents a 20% and 28% increase in funding respectively.
Because we are increasing the number of local authorities that look after unaccompanied children, these children will be better able to access services such as mental health and other healthcare services, and local authorities will have more capacity to deliver excellent social work support and care. Local authorities will also be able to prepare themselves and commission the new services that are required, such as appropriate accommodation.
The National Transfer Scheme includes a rigorous administrative process by which the Home Office and the local authority in which the child first presents are able to collect information about each child and then ensure that the local authority receiving the child receives all that information. The scheme seeks to build on existing regional structures and use the regional strategic migration partnerships to co-ordinate regional hubs and enable the regional pooling of knowledge and resource.
A central administrative hub based in the Home Office will work with the regional hubs to ensure a nationally co-ordinated but regionally implemented scheme. Funding that might be provided to the regional hubs via the regional strategic migration partnerships is currently under review, while each region is considering its own data, process and resource requirements. The Home Office will consider any proposals for regional structures to underpin the scheme. Service providers are being encouraged to contact the regional hubs to share their expertise. We know that some regions are already discussing how to pool resources and share expertise.
In addition, two training initiatives are under way. I can announce today that the Department for Education will commission an organisation to deliver training for the foster carers and support workers of unaccompanied asylum-seeking children who are at risk of going missing from care due to being onward-trafficked. That is a new provision. In collaboration with the Department for Education, the Home Office has already said that it will commission a training programme for the existing independent advocates, who are provided for in statute. This will improve their awareness and understanding of the specific needs of trafficked children and how to support them.
Noble Lords will appreciate that a great deal is happening in this area to promote better support, and the details are laid out in the scheme. While the support and care of unaccompanied asylum-seeking children is undoubtedly an important issue, I do not believe that a published national action plan for their welfare is required, given all that is happening under the National Transfer Scheme.
The noble Earl, Lord Listowel, asked about the Children’s Champion. The Office of the Children’s Champion will remain in the Home Office to ensure that all children’s safeguarding issues are addressed and attended to. In addition, the Children’s Commissioner in the Department for Education speaks on behalf of this group of children.
The noble Lord, Lord Judd, asked about asylum applications. It is always open to a person to make an application for asylum. There is no age barrier and as soon as an asylum application is lodged, it will always be considered.
The Government remain committed to ensuring that Parliament is kept informed about these issues. No one should be in any doubt of our commitment to bring vulnerable refugee children from Europe to the UK, as underpinned by the Immigration Act 2016. Unaccompanied refugee children with family connections to the UK continue to arrive from France and other European countries. We are also in active discussions with the UNHCR, UNICEF, NGOs and the Italian, Greek and French Governments to strengthen and speed up the mechanisms to identify, assess and transfer to the UK children who meet the criteria where it is in their best interests. This is in addition to the support for unaccompanied asylum-seeking children who arrive from Europe without any assistance. Last year, there were over 3,000 claims for asylum in the UK from unaccompanied children.
I will reflect on the points that noble Lords have made and that will no doubt be discussed in the meetings with Mr Brokenshire. I hope that the noble Lord, Lord Dubs, will feel reassured enough to withdraw the amendment.
Lord Dubs
I am grateful to the Minister. I want to read what he has said, because he has given us quite a lot of information. I hope I am right in thinking that, although he does not like the idea of a national action plan, the Government are by and large giving effect to the elements within it. We may not call it a national action plan but, if the work is being done, then so much the better. I repeat that I want to read his speech because he has said quite a lot and I want to think about it. I am very grateful to all noble Lords who have contributed to this debate and given unanimous support for such action. I am also grateful to Liberty and other organisations, which were very helpful to me as I prepared for this debate by providing background information and so on.
I want to say two things. First, I went to Calais some time ago and saw for myself what at least some unaccompanied child refugees are going through and have gone through. I saw that from meeting some of them. In fact, I sent the Home Office their details in case they met the criteria for the scheme under the amendment to the Immigration Bill. I have seen that for myself.
Secondly, I believe there is a lot of public support for a positive approach to unaccompanied child refugees. That is evidenced by the mass of emails I have had, almost all of which are in favour of it. My general feeling from going to local areas and speaking at meetings is that there seems to be a lot of support for it. It is quite a popular issue. If handled properly and well, we will find that these young people go on to make a positive contribution to the future of this country.
Lord Dubs
I agree entirely with my noble friend. That is why I have said that if as many children as possible could come to Britain in time for the beginning of the school term, they would not lose another school year—many of them have lost one or two school years in the course of their journeys, being in refugee camps and so on. So I am not saying all in the garden is lovely; I was trying to be nice to the Minister.
I will make one last comment. I mentioned that I am having a meeting with the Immigration Minister tomorrow. I am not sure whether I should have said that, but I cannot see any reason why I should not have done so. I thought it was only fair to say that that was under way. Had this debate taken place after my meeting with him, I might have fed into it some of what I had learned. I beg leave to withdraw the amendment.
House of Lords
Civil Service Fast Stream
(7 years, 9 months ago)
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Lord Naseby
To ask Her Majesty’s Government whether they plan to make socioeconomic diversity reflecting the nation the primary criterion for future recruitment into the Civil Service Fast Stream.
The Parliamentary Secretary, Cabinet Office (Lord Bridges of Headley) (Con)
My Lords, we have no plans to make socioeconomic diversity part of the Civil Service Fast Stream selection criteria. Selection must always be based strictly on merit, which is why we anonymise applications. Any data collected will be done on a voluntary basis and used anonymously to help improve overall recruitment efforts. Diversity data would not form the basis of any individual recruitment decision.
Lord Naseby (Con)
Is my noble friend aware that his Answer is enormously welcome? Is it not true that, as far as gender equality is concerned, 54% of the fast stream are now female and therefore that dimension has been addressed? Is there not still an overriding need for the fast stream for our country to recruit young men and women, without discrimination, who have leadership qualities to take our great Civil Service forward?
Lord Bridges of Headley
I entirely agree with my noble friend. It is obviously a good day to be discussing how we appoint leaders. There is more to be done, as my noble friend rightly says, on various aspects of improving diversity, but it is crucial that we abide by the principles of Civil Service recruitment as set out in the Constitutional Reform and Governance Act 2010, namely that selection must be on merit on the basis of fair and open competition.
Lord Wright of Richmond (CB)
My Lords, in a debate on recruitment and assessment services in March 1996, I detailed the needs of the Diplomatic Service for public servants with,
“a high degree of loyalty, integrity, impartiality, stability of character, intelligence and linguistic aptitude”.—[Official Report, 8/3/1996; col. 558.]
Does the Minister agree that all these qualities are still of primary importance?
Lord Bridges of Headley
I entirely agree with the noble Lord. He obviously speaks with a great deal of experience. As the nephew of a diplomat, I am somewhat biased but I completely agree. On his final point about language skills, more needs to be done, as always. We need to make sure that we are getting the best diplomats who are not just aware of the culture of the countries to which they are posted, but are also able to speak the language. I am delighted that the Foreign Office language centre reopened in 2013 and is doing much to address this.
Lord Watts (Lab)
My Lords, will the Minister explain the purpose of collecting these data if we do not do anything with them?
Lord Bridges of Headley
First, let us see what the data say; then, if they say that there are talents in pockets of society who are not applying and we think should be applying, we will redouble our efforts to ensure we get more applications from those groups.
Lord Razzall (LD)
My Lords, I am fascinated by the noble Lord’s reply regarding the language school. Many of your Lordships will know young people who would be perfectly competent civil servants but who have failed to be admitted to the fast stream because of their inability to pass a maths exam. Is it not time that the Government looked at that?
Lord Bridges of Headley
I am sure that is the case and that we need to redouble our efforts to improve standards in maths right across the board.
Baroness Berridge (Con)
My Lords, the Select Committee on Social Mobility found that many companies, particularly accountancy firms, have reverted to the model of recruiting at graduate level but also recruiting at 18 and sending everybody through to the same professional outcome. Will the Minister confirm that the apprenticeships available in the Civil Service also enable people to be in the fast stream from 18 and to go right to the top of the Civil Service from that basis, so that we do not miss the best talent that has not gone to university?
Lord Bridges of Headley
My noble friend makes an extremely good point. Apprenticeships will be key. The high-level apprenticeship talent programme aims to bring in 750 people this year, and around 18% of highers come from lower socioeconomic backgrounds. I will write to her specifically on the point about the fast stream.
Baroness Hayter of Kentish Town (Lab)
Will the Minister ensure that the Cabinet Office team being put together under Oliver Robbins in the new European Union unit will be gender-balanced and representative of all our nations and regions, as well as of the population, to ensure that the interests of the whole country are central to the preparation for the Brexit negotiations?
Lord Bridges of Headley
The noble Baroness makes a good point. As the head of the Civil Service has pointed out, we are determined to make sure that we get the brightest and best to negotiate and advise on an outcome that represents the views of our entire society. I am unable to go beyond that at this precise juncture.
Lord Forsyth of Drumlean (Con)
My Lords, will my noble friend confirm that the Government’s policy is to maintain a United Kingdom Civil Service and ensure that civil servants from the devolved Administrations are exposed to Whitehall and vice versa?
Lord Bridges of Headley
Indeed, I can confirm that, and my noble friend makes a good point about ensuring that civil servants from Scotland are exposed to Whitehall.
Lord Anderson of Swansea (Lab)
My Lords, I joined the foreign service in 1960 as a working-class boy from the University of Wales. There were only two women and no one from the ethnic minorities at that time. Does the noble Lord agree that our schools, because of the collapse of language teaching, are often unable to provide sufficient language competence and we need to look carefully at language potential? Such matters should never trump merit and competence.
Lord Bridges of Headley
I entirely agree with the noble Lord. We have come a long way but there is always more to be done. I concur with him about language skills.
Lord Singh of Wimbledon (CB)
My Lords, does the Minister agree that, as well as having competence in language skills, it is important to know about religious literacy because of the different places to which people are posted?
Lord Bridges of Headley
That is absolutely right and is key. As noble Lords said earlier, we need to ensure that diplomats have a grasp of culture, not just language.
The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
My Lords, several Members from the Labour Benches have asked questions and we have not had anyone from the Lib Dems for a while.
Baroness Hussein-Ece
My Lords, is the noble Lord aware that last week evidence emerged that staff employed in the Civil Service from black and minority ethnic communities are sometimes paid significantly less than their white counterparts? Will he assure the House that this is not the case? If he does not have the reply now, will he undertake to look into the matter and write to me?
Lord Bridges of Headley
I absolutely undertake to look into it. I do not have a reply on that specific case at the moment.
Lord Foulkes of Cumnock
My Lords, as a member of the Official Opposition party, I ask the Minister whether he is receiving the same reports as me that morale in the Civil Service is plummeting because of the suggestion that all the best and the brightest should have the futile task over the next few years of extricating us from the European Union instead of improving our education, housing and transport and all the other important things that need doing. How will this affect recruitment to the fast stream?
Lord Bridges of Headley
I am sorry; I do not agree with what the noble Lord has said. I am interested that he is part of the Official Opposition; I wonder which is the unofficial opposition. All I would say to him is that we need to ensure we get the very best to undertake this task. However, at the same time, as he rightly says, we need to ensure that we continue to attract, and retain, the best right across the board.
Record Copies of Acts of Parliament
(7 years, 9 months ago)
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Lord Lexden
To ask Her Majesty’s Government what discussions have taken place to implement the undertaking given by the Paymaster General to provide funding for public Acts of Parliament to continue to be printed on vellum, following the House of Commons resolution on 20 April.
The Parliamentary Secretary, Cabinet Office (Lord Bridges of Headley) (Con)
My Lords, this is a matter for Parliament. Following the debate in the other place, the Commons Administration Committee is discussing the issue this very afternoon. We will consider the next steps when it has concluded its deliberations.
Lord Lexden (Con)
I congratulate the Government on offering assistance to help preserve this very long and deeply cherished tradition, which has great practical importance since vellum lasts so much longer than paper. Should we not be particularly conscious of the strength of feeling that has been exhibited in the other place in favour of retaining vellum, especially in view of the resolution passed by both Houses of Parliament in 1849 that there should be no change without the express consent of both of them?
Lord Bridges of Headley
I am very delighted to be discussing this pressing issue today because there is not much else going on. I respect what my noble friend has to say but I gently repeat that the recording of Acts of Parliament is a matter for the two Houses. We very much hope that a way forward can be found to continue the use of vellum. If that is not the wish of this House, a way will have to be found, but, as I say, we await the outcome of the committee’s meeting this afternoon.
Lord Hunt of Kings Heath (Lab)
My Lords, I cannot really believe that that is the Government’s position. This House, through our committees, has decided to phase out the use of vellum. To reintroduce it would be hugely expensive and a complete waste of time. I hope the Government are not reversing their position on this.
Lord Bridges of Headley
I gently say again that this is a matter for both Houses. It is a matter for the committee of this House and the committee of the other House to come to some agreement on. I am delighted, though, that the Labour Party is now looking to save money; this is a great turn up for the books. As I say, this is not a matter for government. We have made an offer but it is up to the Houses to decide.
Lord Cormack (Con)
My Lords, may I, for once, cross swords with the noble Lord, Lord Hunt? Will my noble friend take very carefully into account what the other place has so very sensibly decided? Should this not have a united parliamentary response, whereby we acknowledge the supremacy of the elected House?
Lord Bridges of Headley
As I say, that is very much the position. The position is as I have just said, and we have to await the outcome of the committee this afternoon.
Lord Faulkner of Worcester (Lab)
Does the Minister think that the letter from the noble Lord, Lord Cormack, in the Times deserves to be printed on vellum and preserved for posterity?
Lord Kinnock (Lab)
My Lords, as regards vellum being returned by the will of the elected House, regardless of how appropriate that would be in the 21st century, could not the Government possibly save money, and ensure the security of the supply of vellum, by turning over the green opposite to goats?
Lord Bridges of Headley
That is an interesting suggestion. We shall have to wait and see what the outcome of the committee is this afternoon.
Rail Franchises
(7 years, 9 months ago)
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Baroness Randerson
To ask Her Majesty’s Government what is their policy for determining when a rail franchise has failed to provide the service required and should therefore be terminated.
The Parliamentary Under-Secretary of State, Department for Transport and Home Office (Lord Ahmad of Wimbledon) (Con)
My Lords, the Secretary of State for Transport has statutory powers under the Railways Act 1993 and contractual powers under the franchise agreement to penalise train operators for contravention of obligations. These powers are more fully set out in the Department for Transport’s published enforcement policy.
Baroness Randerson (LD)
I am sure the Minister will not be surprised to hear that I wish to ask about Southern trains, which has failed to provide anything approaching the service stipulated in its franchise. Now it has cut services by 15%, and quite understandably the passengers are on strike today, yet the best the Government can muster is today’s long overdue but very limp statement by Claire Perry. Enough is enough. When will the Government finally step up to their responsibilities and take over this franchise? Will the Government consider devolving power over commuter services such as this one, in a structure similar to the successful London Overground?
Lord Ahmad of Wimbledon
My Lords, it does not surprise me that the noble Baroness has raised this issue, which has come up in this House recently and I have responded from the Dispatch Box. I agree with the sentiments expressed by the noble Baroness and other noble Lords: the current operation is unsatisfactory. As many noble Lords will know, the new timetable started operating this morning, reflecting a target of getting 85% of services running. As I said only last week, part of the issue is that the force majeure clause has been invoked, which does not mean that the franchise can be put on the premise that the noble Baroness suggests.
Lord Rosser (Lab)
My Lords, last Wednesday, the Minister said that where Southern Rail,
“can provide evidence that cancellations are due to official or unofficial industrial action, it can claim force majeure”.
This is what it has done in respect of the current level of performance and the reduction in the number of services it operates. Does this definition of force majeure mean than long-suffering commuters can expect no compensation and the company can expect no penalties? The Minister also said last Wednesday that the Government were,
“in regular contact with the company”.—[Official Report, 6/7/16; col. 2011.]
How many times have the Government also met the organisations representing the employees, to find out what they have to say about the cause of the present poor service and cancellations, in order that the Government hear both sides of the story, at first hand, before coming to a conclusion on whether official or unofficial industrial action is the sole cause of the problem and whether responsibility for any such action rests solely at the door of one party?
Lord Ahmad of Wimbledon
As I said previously, the Government’s position is very clear. We want both parties to come to the negotiating table and find a resolution for long-suffering commuters. It is very clear what has happened. I do not accept the noble Lord’s point about not meeting. We meet regularly with all people concerned, and we have implored them to take action to ensure that we get a more effective service. As to the way forward, I think it right that we allow the two parties to come together at the negotiating table. The Government will play their part in ensuring an effective service for Southern commuters who, as I have said, have suffered for far too long.
Lord Lucas (Con)
My Lords, does my noble friend agree that it ought, at least, to be the object of a rail franchise that the day-to-day experience of the travelling public should get better over the long term? What would he say about a franchisee which, from its first moment in possession of a railway, has set out to do the exact opposite? Is there no way to set it on a right course?
Lord Ahmad of Wimbledon
There are various procedures open to the Government if the contract fails in its objectives. As I have already indicated, I take on board what my noble friend has said on the issue in respect of which the franchisee is claiming force majeure, which is part of the franchise. I assure him that the Government are looking at this very closely. There are various enforcement policy options available to the Secretary of State and we continue to monitor the position very carefully to ensure that we see an improvement in service. Prior to the early part of this year, we saw service levels rise to 83%. The noble Lord picked out the issue of industrial action and I talked about high levels of sickness leave. These have seen performance go from 83% to about 63% since May.
Lord Christopher (Lab)
My Lords, as a passenger on this railway line, I believe that the Government are dissembling. The contract which has been drawn up is quite unique and provides an incentive to the railway company not to run trains if it can avoid it. Under the contract, you collect the money from the tickets and pay a substantial fee to Southern to provide the trains. I suspect that you are seeking to buy time in order that Transport for London can take this over in a year or two’s time.
Lord Ahmad of Wimbledon
My Lords, I do not agree with the noble Lord. He may well be aware that DfT has effective enforcement procedures; indeed, an enforcement advisory panel was set up specifically to review possible contraventions of franchise agreements. Perhaps we have hope, in the sense that the official who leads that panel is a gentleman called Andy Murray.
Baroness McIntosh of Pickering (Con)
My Lords, can my noble friend explain to the House what emphasis is placed on price in awarding the franchise, as opposed to the quality of the service and the ability to deliver on that service?
Lord Ahmad of Wimbledon
With any contract awarded there is a specific procedure, and the issue of price is looked at along with the other factors that my noble friend has raised. Any franchise that is awarded has that central point—the ability to deliver. I have made it clear that the Government feel very strongly that the current unsatisfactory levels of service on that line have to be improved. There are other investments and some improvements such as new rolling stock, but that is not good enough: we need to see more improvements.
Lord Stoneham of Droxford (LD)
My Lords, is not one of the major problems of franchising that it is difficult to get long-term commitment to investment and training, particularly at the end of a franchise agreement? Do not the problems of the current Southern franchise derive from the exit from the previous franchise, when investment and training were lacking?
Lord Ahmad of Wimbledon
On the current franchise, the noble Lord is aware that there have been issues of training and staff turnover, and Southern and its parent company has recruited new drivers, for example. On the current dispute over the new, driver-operated trains, I assure all noble Lords that at no time has it been said that there will be any redundancies. At no time has any person been told that their job is under threat. The issue of training is part and parcel of the new offer with regard to the new driver-operated trains that are being introduced.
Baroness Farrington of Ribbleton (Lab)
My Lords, the Minister did not answer the question of my noble friend Lord Rosser, which was how many meetings have there been between the Government and the trade unions, and when.
Lord Ahmad of Wimbledon
If the noble Baroness reflects on Hansard, I made it clear that the Government’s job is as a facilitator. We made it clear to both parties that they should have arbitration between them and find a resolution. The franchise is awarded to them. It is for them to come together around the table and find a resolution to this long-standing dispute.
Lord Lexden (Con)
With commuters losing their jobs as a result of this appalling dispute, has any assessment been made of the number of lost jobs?
Lord Ahmad of Wimbledon
I cannot answer my noble friend’s specific question but I am sure that he is aware of the issue of compensation, raised by the noble Lord, Lord Rosser. I believe that my right honourable friend the Prime Minister made it clear last week that there will be additional compensation, which the Government are looking at, made available to those long-suffering commuters.
Lord Snape (Lab)
Is the Minister not aware that the problem behind the situation with this franchise and others is the Government’s determination to bring about driver-only operation of trains? That, combined with the de-staffing of stations and of the railway industry in general, is not the proper way forward as far as passengers are concerned. If they were consulted, like the trade unions, that is exactly what they would tell him.
Lord Ahmad of Wimbledon
The issue of driver-operated trains has not meant, as I have said, any reduction in staff. The role of what were conductors in training supervisors means greater focus on delivering customer service. There is an issue with sickness that is contributing to the challenge and to the problems we have. The current sickness rates operating on that franchise are not just higher; they are much higher than average.
Baroness Symons of Vernham Dean (Lab)
On the question raised by the noble Lord, Lord Lexden, is the Minister saying that there is the possibility of compensation for those who have lost their jobs because of frequently arriving late at work or not arriving at all as a result of this dispute? Can he be specific on that point?
Lord Ahmad of Wimbledon
I can be specific. As I said, I do not know the number of people who have fallen victim in the way that the noble Baroness and indeed my noble friend have suggested. I did make the point that additional compensation is being looked at for those commuters who have suffered. Individual cases have been put forward and they will continue to be monitored, but my right honourable friend the Prime Minister has highlighted in his statements that we are looking at additional compensation. But to be clear, on the issue of loss of jobs et cetera vis-à-vis compensation, I do not know what the situation is. Obviously, every case will be looked at on its merits.
Lord Shutt of Greetland (LD)
My Lords, if ultimately there is a requirement for the Government to directly operate this franchise, is there a shadow body within government ready and available to take that up?
Lord Ahmad of Wimbledon
The policy that I referred to in my original Answer includes details of how the department can take a step-by-step approach to ensure that any enforcement action is, in the first instance, proportionate to the contravention, and explains the enforcement tools and options available to the Secretary of State in any circumstances that may subsequently arise.
Volunteering: Young People
Lord O’Shaughnessy
To ask Her Majesty’s Government what steps they are taking to promote long-term, full-time volunteering among young people.
Baroness Evans of Bowes Park (Con)
The Government are committed to ensuring that young people from all backgrounds have the opportunity to engage in meaningful social action, creating a lifelong habit and developing skills for work. We support Step Up To Serve’s #iwill campaign, which is backed by a wide coalition of organisations offering a range of opportunities, including full-time volunteering. The Cabinet Office’s pledge to the #iwill campaign is to continue to invest in social action and to share evidence and best practice.
Lord O'Shaughnessy (Con)
I thank my noble friend the Minister for her reply. The National Citizen Service has been one of the Government’s most notable successes, offering tens of thousands of young people the opportunity to take part in meaningful social action projects around the UK. With a new Prime Minister possibly only days away, can my noble friend reassure the House that the Government’s commitment to the NCS programme remains undimmed and that the Bill we were promised in the Queen’s Speech will come before Parliament soon?
Baroness Evans of Bowes Park
I can certainly say that the Government remain committed to the National Citizen Service and to introducing a Bill which will give the NCS permanence, ensure the independence of the trust and improve its accountability to Parliament, and, importantly, create a duty on schools and local authorities to promote the National Citizen Service so that more young people can have access to it.
Lord Patel of Bradford (Lab)
My Lords, until very recently, I was the chairman of Bradford Teaching Hospitals NHS Foundation Trust. We had more than 5,000 staff delivering a high-quality service in these challenging times but we could not have delivered those services without the 500-plus volunteers who came in day in, day out. Many of those volunteers have been there for 20, 30 or even 40 years. But what we were increasingly missing were young people coming into the system to help—and possibly develop careers in the NHS. Could the Government could come together with NHS England and Public Health England to provide some resources to encourage young people to take up some of these volunteering posts, which are very much needed in the NHS today?
Baroness Evans of Bowes Park
We certainly want to encourage volunteering across a whole range of sectors. The Step Up To Serve #iwill campaign, which I mentioned earlier, aims to increase by 50% the number of 10 to 20 year-olds taking part in youth social action by 2020. I also assure the noble Lord that through the National Citizen Service a lot of groups are indeed working with the health service. For instance, a group built a sensory awareness garden in a Weymouth care home; in Merseyside a group raised funds for awareness of the Huntington’s Disease Association; and in Reading a group devised and ran a disability awareness campaign. There is a link-up with the health service through a number of campaigns that are going on, and we would like to see that continue.
The Lord Bishop of London
My Lords, bearing in mind the more than 1 million young people—ethnically very diverse and from every part of the country—in Church of England schools, will the Minister authorise a direct conversation with the national society about the virtues of volunteering, with a view to joint action, a joint strategy and disseminating good practice?
Baroness Evans of Bowes Park
First, I wish the right reverend Prelate a happy birthday. Certainly, the Government are very keen to work with as many partners as possible. We are doing this through the Step Up To Serve #iwill campaign. We are working with organisations such as City Year UK, vInspired and Volunteering Matters, and we would be happy to work with any organisation that would like to help us deliver this really important social agenda.
Baroness Garden of Frognal (LD)
In order to get the most from volunteering, it is essential that employers and educational institutions recognise the skills and experience that young people acquire through high-quality social action. I wonder what consideration the Government have given to creating a legal status for voluntary service years similar to that in the United States, in order to support volunteering schemes such as those run by City Year UK, which the Minister has just mentioned.
Baroness Evans of Bowes Park
We are very committed to ensuring that young people in particular undertake social action because we know the impact it can have. For instance, 90% of National Citizen Service participants felt more positive about people from different backgrounds; seven in 10 felt more confident about getting a job; 80% have learned something new about themselves; and 90% felt the NCS had helped them develop key skills for the future. It is obviously extremely important both personally but also to the local communities that these young people live in. Of course, a number of organisations that I have mentioned already offer a year in volunteering, so that option is available to young people if they wish to take it up.
Lord Vinson (Con)
Will the Minister look into the effect of CRB checks on volunteering? She will be aware that CRB checks are largely illusory and very often ineffective, because they check people with records but not with tendencies. The complexity of the CRB system is preventing a great many people volunteering. Queues of people want to join the Boy Scouts and Girl Guides and the lack of volunteers through the hold-up of CRB checks is having a very deleterious effect, quite unnecessarily, on the whole volunteering area. Will the Minister look into this with a view to speeding up the process?
Baroness Evans of Bowes Park
We are very keen to try to address any barriers that we find in relation to volunteering. That and many other issues raised by organisations are on our radar so that we can make sure that organisations that want to take on volunteers, those who rely on volunteers and young people themselves can access this important area.
Baroness Wheeler (Lab)
My Lords, we would welcome a Bill placing the National Citizen Service on a voluntary footing, but does the Minister acknowledge that the NCS needs to be properly funded and that the Bill should also include support for the work of both local authority services and key charities such as vInspired, which recruit and work with young people to help them translate their volunteering hours into job skills, employment and training?
Baroness Evans of Bowes Park
I agree that this is an area that needs funding, which is why we have committed over £1 billion to expand the National Citizen Service programme to cover 60% of all 16 and 17 year-olds by 2021. What is most important is that all young people can access it, which is why, as a result of Government backing, it costs £50 or less to participate in NCS, but support and bursaries are available to those who cannot afford to pay, so that we can ensure that all young people are able to access the National Citizen Service.
Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2016
Baroness Evans of Bowes Park
That the draft Order laid before the House on 26 May be approved.
Electoral Registration Pilot Scheme (England) Order 2016
Baroness Chisholm of Owlpen
That the draft Order laid before the House on 6 June be approved.
Investigatory Powers Bill
(7 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Paddick
“Tests for the intrusion of privacy
In making decisions and taking actions under this Act a public authority must have regard to the following—(a) the rule of law,(b) necessity,(c) proportionality,(d) the need for restraint,(e) the need for effective oversight,(f) recognition of necessary secrecy,(g) the principle of minimal secrecy,(h) the need for transparency,(i) legislative clarity, and(j) multilateral collaboration.”
Lord Paddick (LD)
My Lords, my noble friend Lady Hamwee and I have put our names to Amendments 1 and 2. Parliament’s Intelligence and Security Committee have said that privacy should be at the heart of the Bill. Although the Government have made some attempt to put an overriding privacy clause at the beginning of the Bill, we feel that that does not go far enough. The noble and learned Lord, Lord Keen of Elie—in a letter to the noble Lord, Lord Rooker, dated 8 July—spells out the importance of the 10 tests for the intrusion of privacy which the RUSI panel that looked into investigatory powers came up with. Amendment 1 attempts to put those 10 tests for the intrusion of privacy in the Bill.
Although one might consider some of the principles to be obvious, such as “rule of law”, “necessity” and “proportionality”, there are other important elements of the 10 tests—in particular, “restraint”, as it should never become routine for the state to intrude on the lives of its citizens; “transparency”, as it must be evident how the law applies to the citizen if the rule of law is to be upheld; and “multilateral collaboration”, as government policy on intrusion should be capable of being harmonised with that of like-minded open and democratic Governments.
In the letter to which I have referred from the noble and learned Lord, the Government set out what I consider to be a rather optimistic view of how the Bill complies with the 10 tests. We will see, over the course of Committee, how we on these Benches do not share the noble and learned Lord’s optimism about how the Bill actually complies with them. As I said just now, we believe that the privacy aspects of the Bill need to be enhanced, in particular to increase the regard that people have to the Human Rights Act in implementing the Bill.
Section 46 of the Counter-Terrorism and Security Act 2015 provides for a Privacy and Civil Liberties Board. This is already in legislation—it just has not been enacted by the Government—and we believe that it could also strengthen the privacy elements. We support the additional safeguards for confidential journalistic sources and material. We are concerned about how wide so-called targeted interception warrants can be, going beyond simply named individuals to organisations and even groups of organisations.
We are also concerned about the whole issue of the so-called double lock. Why, in non-contentious law enforcement cases, does there need to be any involvement by the Secretary of State at all? Why is there inconsistency between intelligence services’ equipment interference warrants, where there is a double lock, and law enforcement equipment interference warrants, where the Secretary of State is not involved at all, despite equipment interference being more intrusive than interception? We are concerned about how judicial review principles, which judicial commissioners are supposed to apply to decisions of the Secretary of State, can apply if only one side of the argument is present, because the applicant for the warrant puts forward the case for the issuing of the warrant and there is nobody arguing against it.
There is judicial authorisation of interception warrants in all “Five Eyes” countries and international co-operation—as I have just indicated from the 10 principles —is extremely and increasingly important. To ensure that there is co-operation between the UK and other countries, particularly the United States, proper judicial authorisation, not simply judicial review, should be an important part of the Bill.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I am grateful to the noble Lord for giving way. I ask whether I have completely lost the plot here. I thought this was the first group of amendments, Amendments 1, 2 and 3. I do not understand why we are ranging over the entire Bill.
Lord Paddick
My Lords, what I am trying to demonstrate here is to counter what the noble and learned Lord, Lord Keen, said in his letter, that the Bill complied with the 10 tests put forward by RUSI. I am simply indicating where we feel that the Bill is deficient.
Moving on, we share others’ concerns that the technical capability notices and national security notices, only enforceable against UK companies, could make British products and systems more vulnerable to illegal hacking. There could be a considerable competitive disadvantage to UK companies as a result.
We are concerned about the operation of the filter. As I said at Second Reading, it creates a virtual database, and the noble and learned Lord in his summing up—
Lord West of Spithead (Lab)
My Lords, I share the view of the noble and learned Lord. I am a simple sailor, and I am totally confused now as to exactly what the noble Lord is trying to do. Are we trying to insert an amendment, or are we having another Second Reading? The noble Lord is continually saying, “As I said at Second Reading”, but we do not do Second Reading a second time.
Lord Paddick
My Lords, I am trying to demonstrate—and in many cases, obviously, not succeeding—why the 10 tests as set out in the report are necessary, and how the Bill fails to meet those 10 tests.
As I was saying, on the filter, the noble and learned Lord, Lord Keen, in his summing up said that it did not create a database. I said in my Second Reading speech that it creates a virtual database. No doubt, we can discuss that issue when we come to it.
Overall, we feel that having the 10 tests as part of the Bill is an important safeguard for the privacy of individuals, and would place limitations on what the Government can do. I beg to move.
Lord Janvrin (CB)
I speak to Amendment 3, in my name, and note my interest as a member of the Intelligence and Security Committee. A lot of the points made by the committee have already been taken on board by the Government following discussions and scrutiny in another place.
In the committee’s report on the draft Bill, we recommended that privacy protections should form the backbone of the legislation around which the exceptional powers are then built. This is absolutely crucial to the whole purpose of the Bill. Following scrutiny in another place, the Bill introduced in this House now has in Clause 2 provisions on “General duties in relation to privacy”. I hope that your Lordships welcome the inclusion of the new clause, which crucially includes the requirement that intrusive powers should be used only when the information being sought cannot be obtained by other less intrusive means.
However, the Bill still lacks a clear statement at the beginning about the right to privacy. This is the purpose of the amendment in this group in my name. We propose inserting a new subsection at the very start of the Bill, which places an individual’s right to privacy at the forefront of the legislation. I note that this amendment is similar to Amendment 2 in the name of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, which attempts to achieve something similar, although I suggest that the amendment in my name is the more straightforward of the two options before us.
Finally, I think that this short but necessary amendment is compatible with the more detailed provisions already existing in Clauses 1 and 2.
Lord Strasburger (LD)
My Lords, it is a good idea to remind ourselves at times like these that we live in a democracy, and part of what defines a democracy is that our Government do not rule us and we are not their subjects; they govern on our behalf, and with our consent. So when our Government ask us to hand over prodigious quantities of our information that reveal in detail how we live our private lives, we must take great care.
We all have something to fear from these surveillance powers, for none of us can guarantee the benevolence of future Governments. The surveillance programmes run by our Government now go far beyond anything George Orwell imagined. The more personal data are dredged up and stored, the more the risk of misuse. Now that most of us carry smartphones, government agencies and the police have unprecedented access to location information about where we are 24 hours a day, seven days a week. They can also get their hands on all the information on our phones and computers: our contacts, our diaries, our emails, our web browsing, our social networking and everything we do on the internet. Their access to our lives has expanded massively in the past 10 years. In addition, there are myriad new databases that create digital dossiers about our lives which are held by private companies and public bodies, including our banks and our doctors, and the Government have access to all of them.
In short, far from going dark, as is often claimed, the police and security services are enjoying a golden age of surveillance. If government agencies were offered the choice of current capabilities or pre-internet capabilities, they would overwhelmingly prefer their surveillance abilities today. Listen to the words of Wolfgang Schmidt, who was a lieutenant-colonel in the Stasi in Berlin. When he first learned of the extent of surveillance currently carried out on their populations by the British and American Governments, Schmidt thought carefully and then said:
“You know, for us, this would have been a dream come true”.
Some proponents of bulk surveillance tell us, “You have nothing to fear, if you have nothing to hide”. It has been said that the original maker of that claim was Joseph Goebbels. Many people’s response is simply, “I don’t have anything to hide, but I don’t have anything I feel like showing you either, and the way I live my life is none of the state’s business”.
I fully support the amendments in this group. They seek to give effect to the Intelligence and Security Committee’s—
Lord Ashton of Hyde (Con)
My Lords, I am grateful to the noble Lord for giving way. We have a great number of amendments to deal with today. I respectfully ask the noble Lord to address the amendments.
Lord Strasburger
That is exactly what I was just doing.
I fully support the amendments in this group. They seek to give effect to the Intelligence and Security Committee’s demand that privacy protections should form the backbone of the legislation around which these surveillance powers are built as exceptions to the privacy norm.
Clause 2 was the Government’s answer to the ISC’s demand, but it is incomplete and insufficient and needs to be seriously beefed up. The amendments in this group give full effect to the ISC’s reasonable requirement that privacy should be the backbone of the Bill by, among other things, incorporating the 10 tests devised by the Royal United Services Institute review. I commend these amendments to the House.
Lord Brown of Eaton-under-Heywood
I, for my part, am entirely content with Amendment 3 in the name of the noble Lord, Lord Janvrin. I marginally prefer it to Amendment 2. It may be doubted whether either is strictly necessary, but let us have the simpler one. With the greatest respect, I regard Amendment 1 as entirely superfluous. It unnecessarily overcomplicates things and in large part it overlaps with other provisions in the legislation. It just is not a good idea. It is all very well to treat this legislation with some element of scepticism, but, please, not cynicism. That is the way this is approached in that context.
Baroness Buscombe (Con)
My Lords, following on from what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, I think that, in respect of Amendment 1, it is necessary to stand back and remember and recognise that this has got to be practical. If a public authority were presented with a list including, “the rule of law”, “necessity”, “proportionality”, “the need for restraint”, “the need for effective oversight” and statements such as “multilateral collaboration”, it would probably end up being terrified and do nothing. As the noble and learned Lord, Lord Brown, said, this is all dealt with in the Bill. It is entirely otiose.
Lord Rooker (Lab)
My Lords, I thank the Minister for the response to my request at Second Reading for a view about each of the 10 tests. I am quite happy to accept these. What I resent is the fact that someone can stand up in our free Parliament and equate the present status of this country with the Stasi, where there was no rule of law, no independent judges, no independent commissioners and no free parliament. Let us have a reasonably decent debate about this.
Lord Carlile of Berriew (LD)
My Lords, if I may just follow on from what the noble Lord, Lord Rooker, has said, my view, having studied these issues for a very large number of years now, is that the Bill as drafted provides ample protections against invasions of privacy. Indeed, they have that kind of specificity that the courts readily understand. I am not opposed to the amendment proposed by the noble Lord, Lord Janvrin, but I respectfully say to my noble friends that the other amendments in this group, Amendments 1 and 2, add absolutely nothing of substance. I join with the noble Lord, Lord Rooker, in saying that I regard it as outrageous to equate our situation today with Nineteen Eighty-Four. The idea that we have a “Room 101” in this country and cameras in every bedroom—which is what it says in Nineteen Eighty-Four—is completely misleading. My charitable view is that it demonstrates that my noble friend has never read Nineteen Eighty-Four.
I say to all Members of this House, including my noble friends—forgive me for taking up time, but maybe the beginning is the time to say it—let us get this Committee stage done as quickly as we possibly can and not spend our time on large numbers of otiose amendments.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, the Committee will recall that privacy protections were quite rightly a significant topic of debate as the Investigatory Powers Bill passed through the other place. To make clear the duties in relation to privacy and the associated protections and safeguards, the Government introduced a new overarching privacy clause, Clause 2, and made amendments to Clause 1. Those clauses impose statutory duties on public authorities in relation to privacy and, as drafted, already clearly underscore the right to privacy and provide the necessary balance between that right and the powers necessary to keep us safe.
Amendment 1, moved by the noble Lord, Lord Paddick, seeks to add a new clause which would list the 10 tests proposed by the Independent Surveillance Review panel, convened by the Royal United Services Institute, or RUSI. At Second Reading in your Lordships’ House, the noble Lord, Lord Rooker, asked whether the Bill complies with those tests. My noble and learned friend Lord Keen confirmed that it does and undertook to set out precisely how it satisfies the RUSI tests. He then duly wrote to the noble Lord and has placed copies of the correspondence in the Library. Accordingly, and in particular in the light of the noble Lord’s helpful comments a minute ago, I hope noble Lords will accept that the Bill does indeed satisfy those tests. I recognise the desire of the noble Lord, Lord Paddick, to set the scene, as it were, for our forthcoming Committee debates, and while I agree with the principle and spirit of the proposed new clause, I do not consider that it adds anything to what the Bill already contains. I am confident that the Bill as it stands meets each test.
On the amendments proposed to Clause 1, it is worth re-emphasising that Clause 1 provides an overview of the Bill and sets out the duties relating to privacy and the robust protections applied to the use of investigatory powers. This provides the context for the revised Bill and the accompanying codes of practice, which make clear the strong privacy safeguards that apply to the use of the powers contained in the Bill. The Bill ensures that the security and intelligence agencies and law enforcement continue to have the powers they need to keep us safe—and no more. Amendment 2 is therefore not required; Clause 1 provides a suitable and sufficient overview of the Bill and the privacy protections, so the proposed new text is not merited.
I listened with care to the noble Lord, Lord Strasburger. The Government and law enforcement are clear about the value and importance of accessing internet connection records, in particular, to prevent and detect crime and keep the public safe. I did not hear the noble Lord refer to that imperative, although it has been recognised during the passage of the Bill, including by noble Lords at Second Reading. The Joint Committee that scrutinised the Bill considered this issue in detail and concluded that,
“on balance, there is a case for Internet Connection Records as an important tool for law enforcement”.
On Amendment 3, I begin by thanking again the Intelligence and Security Committee for its diligent and valuable contributions to the Bill. We very much welcome its ongoing input to this debate. As I am sure the Committee will be aware, in its report on the draft Bill published last year, the Intelligence and Security Committee of Parliament called for the inclusion in the Bill of an overarching clause dealing with privacy protections. That call was echoed by the Opposition and the Scottish National Party in Public Bill Committee. Following those discussions, the Government introduced the new comprehensive overarching privacy clause in the Bill, which was widely welcomed on Report in the other place.
I agree fully with the spirit of the ISC’s amendment but do not consider that it is needed. The new overarching privacy clause and amendments made to Clause 1 not only achieve what the ISC’s amendment seeks to achieve but go much further; rather than signalling the importance of privacy, the amended Part 1 now creates a statutory obligation to have regard to the public interest in privacy. The privacy clause serves to make clear what was always the case: privacy is at the heart of this vital piece of legislation. Therefore, with great respect to the noble Lord, Lord Janvrin, I cannot see that his amendment, well-intentioned as it is, adds value to what is already in the text.
I hope these remarks are helpful and that, while doubtless the noble Lord, Lord Paddick, will reserve the right to return to individual issues, he will nevertheless be content to withdraw his amendments at this stage.
Lord Campbell of Pittenweem (LD)
My Lords, before my noble friend responds, having heard the discussion across the Chamber, I am satisfied by the explanation offered by the noble Earl. For this reason, respectfully, to be overspecific about principles that support the whole concept of privacy runs the risk of inclusio unius est exclusio alterius: that is, by being too specific, you prevent the opportunity to look at wider considerations. That may be rather a technical view to take at this stage but it also underlines the points that have been made already about the general thrust of this legislation, which has innovated to an extent that would not have been thought possible even five years ago.
Lord Paddick
My Lords, I am very grateful for the comments from noble Lords from around the Chamber, and particularly to the Minister. As we go through the Bill, we will, at each power, indicate how we believe the provisions do not match the 10 tests in the way the noble and learned Lord set out in his letter. However, we can leave that until we reach those sections of the Bill. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, indicated that, of the three amendments, Amendment 3 in the name of the noble Lord, Lord Janvrin, would be the best to include. If it was necessary, we would be very happy to support Amendment 3.
If I may, I will speak––with some trepidation––in defence of my noble friend Lord Strasburger. There are people in the UK who have the sorts of concerns that he has articulated and it is very important that, during our discussions in the House, we seek every opportunity to reassure people who hold those views, however outlandish some Members of the Committee might consider them. At this stage, however, I beg leave to withdraw the amendment.
Lord Keen of Elie
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I shall speak first to the government amendment. Clause 1 refers to those offences found elsewhere in the law that provide protections for privacy or safeguards against the misuse of these powers. This amendment simply corrects a minor error in the drafting; the Bill currently refers to the,
“common law offence of misfeasance in public office”.
That offence is more correctly referred to as misconduct in public office. This amendment simply reflects the usual name for the offence in common law, and will prevent confusion with the distinct civil cause of action, which is usually referred to as misfeasance in public office.
Lord Janvrin
I rise to speak to Amendment 15 in this group, again on behalf of the Intelligence and Security Committee. It is crucial when this House is being asked to approve intrusive powers for the state that we all have a clear understanding as to how any misuse of those powers will be dealt with. These are exceptional powers, capable of revealing the most sensitive and detailed information about private lives. The Bill already includes offences related to the unauthorised interception and misuse of communications data, and there are other relevant offences mentioned in other legislation relating to data protection or computer misuse, for example. However, the Intelligence and Security Committee has concluded that these offences, scattered across numerous Acts of Parliament as they are, are insufficient and lack clarity. There would, therefore, be considerable benefit in setting out a single offence in one single place in this Bill alongside the intrusive powers we wish to regulate.
Your Lordships will note that we have sought to include wording in this amendment relating to wilful and reckless misuse of intrusive powers. We are not seeking to make minor, accidental mistakes criminal offences; we are focusing on the most egregious abuses of investigatory powers. There have been arguments that the creation of a new overarching offence for misuse of powers would add confusion in the law, duplicate existing offences and create a “chilling effect” for those using these powers in the agencies. Neither of these arguments is particularly compelling.
First, far from adding to confusion in legislation, it is self-evident that putting a single offence for misuse in one place should simplify legislation in this area, as it avoids the need to look for offences scattered throughout the legislative corpus and the common law. Potential duplicate offences can be dealt with easily, as has already been done in Clause 231, which amends the Wireless Telegraphy Act. The clause effectively says that an offence under the Wireless Telegraphy Act which is also an offence under the Investigatory Powers Bill should be dealt with preferentially under the Investigatory Powers Bill.
Secondly, the argument that an overarching offence would have a “chilling effect” on agency staff seems exaggerated. If a certain action constitutes a criminal offence anyway, it seems highly unlikely that an agency staff member would act differently depending on where and when the legislation appeared. If agency staff are engaging in activities that are on the edge of lawfulness, it is quite right that they should be given grounds to pause for thought, at least to the extent that they take internal legal advice if they wish to continue their work. The amendment would therefore be a simplification of the law and provide suitable penalties for serious transgressions.
Lord Strasburger
My Lords, Amendment 17 in my name would provide for a statutory public interest defence for the offence set out in Clause 3. Clause 3 effectively reproduces the RIPA Section 1 criminal offence of phone hacking, of which the Prime Minister’s director of communications, Andy Coulson—among others—was convicted when he was editor of the News of the World.
I invite the House to support the amendment in this group proposed by the noble Baroness, Lady Hollins, which provides access to justice for victims of phone hacking and incentivises the adoption of the Leveson reforms which the Government have stalled on. But there is another matter which must be considered and which my amendment addresses—the absence of a statutory public interest defence for voicemail interception or any other type of breach of Clause 3.
Let us consider a situation where suspected serious wrongdoing is being investigated by a journalist or NGO and that journalist or NGO has no faith that the police will adequately investigate the matter; for example, a case of police corruption or, more practically, a case where the police have failed to investigate a case such as that of Jimmy Savile. In such circumstances, if the journalist or NGO intercepted voicemail messages which showed the corruption or illegality, and then exposed it, that person should have a defence that he or she can rely on.
Amendment 17 provides for this. The CPS can of course choose not to prosecute under the public interest arm of the “threshold test for prosecutors”, but that is not good enough. Prosecutors make their decisions on the public interest element after reviewing a file of evidence produced for them by the police and after an investigation which addresses the separate question of whether there is enough evidence to pass the first, evidential arm of the threshold test. Such a police investigation could last for months, if not years, and will involve interviews under caution, search warrants and perhaps arrest. That is a real disincentive to investigative journalism.
If there is a statutory public interest defence, the police will be able to see at an early stage that however much evidence they gather to prove that the act took place, or indeed even in the case of an admission, they will not be able to defeat the defence if the facts are clearly made out and their investigations will be curtailed. The benefit of a public interest defence therefore is not so much that it will allow investigators in the public interest to be acquitted at trial, or even that the CPS will choose not to prosecute on the evidential arm before even having to consider the public interest, but that the police will abandon investigations where the public defence is clearly made out in the facts. That will have the benefit of removing the chilling effect of potential police investigations and possible prosecution from investigative journalists who we rely on on these occasions to root out wrongdoing. Perhaps I may invite the Minister to engage in a constructive discussion about whether a narrow but valuable defence can be crafted. After all, noble Lords will be aware that there is a statutory public interest defence in Section 55 of the Data Protection Act, a provision that in Clause 1 of this Bill the Government are relying on as adequately protecting our privacy.
The investigative journalist Nick Davies of the Guardian exposed the hacking scandal. Had he had to intercept voicemail messages between Andy Coulson and one of the several convicted news editors who served under him in order to bring the story to our attention, that would have been in the public interest. It would not have been right that in the absence of a public interest defence which the police knew was valid, he had been arrested and questioned by the very police force whose failures he uncovered. That is why this amendment is so important and I commend it to your Lordships.
Lord Paddick
My Lords, my noble friend Lady Hamwee and I have Amendments 16, 20, 21, 22 and 84 in this group.
Amendment 16 concerns the offence of unlawful interception, but in the Bill as drafted that applies only to public telecommunications systems, private telecommunications systems and public postal services. It does not apply to private postal services. Examples of those could be the postal services used by the legal profession such as Legal Post and DX. Can the Minister inform the Committee why private postal services are not included in that provision?
Amendment 20 relates to the provision that,
“Conduct which has lawful authority for the purposes of this Act … is to be treated as lawful for all other purposes”.
Presumably, this provision is to avoid the problem we have had in the past where, while interception or equipment interference was allowed under one piece of legislation, it was an offence under the Computer Misuse Act 1990. Presumably, that is why this provision has been included, but surely it should apply to existing legislation—and it should state that it should apply to existing legislation—not to legislation in the future.
Amendment 21 is again about any other conduct under the Bill being treated,
“as lawful for all purposes”.
Surely this should not be as broad as that. It should be restricted to what is lawful only for the purposes of this Bill.
Amendment 22 concerns the service of monetary penalty notices. Paragraph 4(4)(g) of Schedule 1 allows for an oral hearing before the commissioner, but the amendment would add that the person who applies for and is granted an oral hearing before the commissioner can be legally represented.
Returning to something that I referred to in my opening remarks, Amendment 84 is about restrictions on unauthorised disclosures which as written would prevent the Secretary of State from disclosing the existence and contents of a warrant. The amendment would allow the Secretary of State to disclose the existence and details of a warrant if she felt it was necessary in order for Parliament to carry out its functions. As I mentioned before, I do not see how the argument can be made that the Secretary of State should be involved in the authorising of warrants because she can be held to account, when she is not able, under the terms of the Bill as drafted, even to admit that such a warrant exists.
Baroness Hollins (CB)
My Lords, I gave evidence to the Leveson inquiry about the press intrusion suffered by my family and I am going to speak to Amendments 18 and 246 in my name.
In Section 1(3) of the Regulation of Investigatory Powers Act 2000, there was a statutory tort for interception of communications. This has not been recodified in the Bill, presumably because the common law has proven to be a sufficient basis for legal actions against those who hack communications. The effect of subsection (1) in my Amendment 18 is to reinstate that tort. The effect of subsections (2) to (5) in my amendment are then to provide access to justice for victims of phone hacking—the criminal offence recodified in subsection (1). It will enable them to sue, without cost risk to themselves, those newspapers which have invaded their privacy but are refusing to guarantee low-cost arbitration.
I hope that this amendment will encourage the Government to bring into effect law already passed by this House and the House of Commons in Section 40 of the Crime and Courts Act 2013. Amendment 18 replicates Section 40 of that Act in a limited way for claims made by victims of the interception of private communications—phone hacking—because only these claims are in the scope of this Bill. The consequential amendment to Clause 243 would have the effect of automatically commencing the provision immediately after Royal Assent to prevent government non-commencement, as has happened with Section 40. Of course, if the Government commence Section 40 forthwith, this amendment will be withdrawn. If the Government do not, this amendment would have the same effect as that law, at least for victims of phone hacking.
I am very grateful to noble Lords from across the House who are supporting these amendments, and for briefings and drafting assistance from Hacked Off, through which I have been introduced to many other victims of press abuse. I remind noble Lords that Lord Justice Leveson’s inquiry found that voluntary newspaper self-regulation by the Press Complaints Commission had failed appallingly and urged Parliament and the Government to ensure that any new regulator set up by the press would be accredited by an independent recognition panel to assure its independence and effectiveness. The idea was, and Parliament agreed, that the newspapers would have to join such a regulator and not be allowed to set up another version of the PCC. The terms of Section 40 of the Crime and Courts Act were agreed, somewhat reluctantly, by the Government to avoid defeat in both Houses in March 2013.
Section 40 was part of the cross-party agreement which included the royal charter, and was signed by the Prime Minister and the leaders of the Labour and Liberal Democrat parties. As a result of this agreement, the noble Lord, Lord Skidelsky, withdrew his amendment to the Enterprise Bill in March 2013 which would have implemented the Leveson-recommended recognition panel by statute. Ben Bradshaw MP and Simon Hughes MP similarly withdrew their amendments to the Crime and Courts Bill, which would have brought in a stronger and faster version of Section 40.
Section 40 provides protection from court costs in libel, harassment and privacy cases involving newspapers and has three policy aims. The first is to guarantee access to justice for claimants in libel and privacy cases against non-Leveson-regulated newspapers. The second is to protect investigative and public interest journalism at newspapers from court costs and thus from so-called “libel chill”. The third incentivises non-Leveson-regulated newspapers to join a Leveson-style self-regulator which has been accredited as independent and effective.
Section 40 would have to be commenced in the usual way provided in all Bills,
“on a day appointed by the Secretary of State”.
It was agreed, cross-party, that commencement of Section 40 would be well before the exemplary damages provision in Sections 34 to 39. Those sections, on exemplary damages, were to come into effect one year after the royal charter Press Recognition Panel had been set up, which should have been in November last year. This makes Section 40 well overdue. Ministers made multiple explicit commitments on the Floor of both Houses to bring in Section 40—I have a list of 25 such commitments. However, last October the Secretary of State announced at a meeting of newspaper editors, that he was “not minded” to commence the statute. Since then, despite being asked on a number of occasions, the Secretary of State has apparently failed to point to any precedent for such non-commencement of part of an Act of Parliament.
Baroness O'Neill of Bengarve (CB)
My Lords, I support my noble friend’s amendment. She set out extremely clearly what is at stake and we should remember that at the other end of violations of privacy there are people who have their privacy severely intruded upon. The intruders are not the security services or a public authority but privately owned newspapers.
There is a rumour abroad that in some way Sir Brian Leveson’s recommendations were a challenge, an affront and an abridgment to freedom of the press. That is a mistaken view of the matter. Freedom of the press is not freedom to intrude in other people’s privacy. On the contrary, it is freedom not just within the law—we are talking about changing the law—but where victims have reasonable redress. At present, that is not the case because the heavy costs and risks fall on victims—even a worthy case may fail in the courts—and because, on the other hand, perpetrators have no incentive to apologise or be accurate. There has been a great deal of concern about the extreme inadequacy of the complaints procedures that IPSO has devised. I say that with hesitation because I suspect that they cannot really count as complaints procedures, given that violations are rarely reported adequately and lead to no consequences.
We need this protection for individuals and private lives, and it fits naturally into this Bill.
Lord Lipsey (Lab)
My Lords, I support the amendments in the name of the noble Baroness, Lady Hollins. We should remember the agreement signed in 2015 with the full support of Parliament, and its three pillars: there should be a body to regulate complaints against the press that is based on Lord Leveson’s recommendations; it should not be compulsory for the press to sign up to those recommendations, but there should be certain disincentives to not signing up, such as in the treatment of case costs by the courts; and there should be a back-stop in the form of a royal charter for such a body in order to make sure that there was no backsliding.
If we are honest and look at those agreed aims of Parliament, how are we doing? We are doing badly. We have one regulator, Impress, which, as the noble Baroness said, is compliant and marching towards a seal of approval, but has no serious clients. We have another in IPSO, which falls far short—I emphasise “far short”—of the requirements of Leveson. It is dependent on those who regulate it, with its structure, rules, code, membership and funding all controlled by those it seeks to regulate. It does not provide assured redress for members of the public who have been mistreated, because its arbitration scheme is voluntary. It is confined, like its predecessors, to mediation, not regulation, and its procedures make it hard, if not impossible, to envisage that it would ever impose a big fine on a member. I do not want to impose on the patience of the Committee by going into great detail on any of these. However, I do not blame the chair of IPSO, Alan Moses, who has fought vigorously for a compliant IPSO; I blame the clients.
Having said that, there is still hope. The Government’s own Press Recognition Panel has to report to Parliament, perhaps in September, about how things are going, and it is bound to say that they are going nowhere. I invest more hope still in the fact that Sir Joe Pilling, a former head of the Northern Ireland department, has been commissioned by IPSO to look into its workings. We had a good example of the work of former heads of the Northern Ireland department in the report of John Chilcot last week, and I believe that Sir Joe Pilling is another good man who can do a good job.
However, just at this moment when things hang in the balance, the Government have chosen to take their foot off the pedal. It never occurred to Parliament for a single second—I was present during the debates, as were many noble Lords—that the damages sanctions would not be brought into force. To be fair, John Whittingdale has not said that he will not bring them into force, but that he is not currently minded to bring them into force. While that is his position—while it is thought that the organisation will get away without these incentives coming into force—the chances of fundamental change to IPSO that is greatly required are such as to compete adversely with those of a snowball in hell.
The IPSO non-compliant press is basing itself on the argument it has run throughout—that the suggested royal charter is a tool which could lead to parliamentary and political interference with the press. I happen to think that claim is far-fetched, but believes it. However, that is very much a side issue. The central issue is not the royal charter but whether we are to have a Leveson-compliant regulatory body or are we to have IPSO slipping back over time, as its various predecessors did, into complete impotence and ineffectiveness? In the absence of the sanctions envisaged by both Houses and all parties in Parliament, the whole dreadful saga that led to Leveson is destined, in time, to repeat itself, leaving ruined lives in its wake.
Lord Grabiner (Non-Afl)
My Lords, I should disclose an interest as having been appointed some years ago now as chairman of the management and standards committee established by News Corp, following the revelation of the phone hacking scandal.
I want to say a few words about Amendment 17 in the name of the noble Lord, Lord Strasburger. I respectfully suggest caution as regards whether such an amendment should be approved by the Committee. In my experience—and I have had quite a lot of it—looking at many of the cases arising out of that scandal, journalists tend to be not very good at distinguishing between the public interest and matters which they believe will be of interest to the public. There is quite a fundamental distinction, but one which, regrettably, in my experience is not really appreciated by journalists, even the best of them. It may not be a very wise manoeuvre to introduce this defence into the Bill, as it would encourage journalists to hope that they might secure the benefit of that defence and would thereby be justified in conducting essentially voicemail hacking activity. In my view—and experience confirms this—these cases are mostly about trying to get hold of a story, often a sleazy one, which is wholly intrusive into private lives and little or nothing to do with the public interest. I would be inclined to oppose that amendment if it is pursued.
Lord Oates (LD)
My Lords, I will not detain the Committee long. I support the amendments in the names of my noble friends Lord Paddick and Lady Hamwee and I will speak briefly to the amendment in the name of the noble Baroness, Lady Hollins.
During the coalition, I was involved in the discussions which led to the royal charter and the other commitments made by all the party leaders and the coalition Government. It is important either that the Government commence the relevant parts of the Act or, as the noble Baroness has indicated, that this amendment should proceed to a Division when the Bill comes back on Report. The Secretary of State’s failure to commence the relevant sections of the Act is an utter betrayal of the commitments which were made at the time by all parties, including the Prime Minister. Most importantly, it is an utter betrayal of the many victims of phone hacking and other invasions of privacy who were to be protected by the royal charter and the Act. I hope that the Government will think very carefully about this. Perhaps the Prime Minister, before he leaves office, will stand up and ensure that the commitments which he made personally are implemented.
Baroness Hayter of Kentish Town (Lab)
My Lords, I will speak very briefly on Amendment 16, to which I added my name, which has already been dealt with by the noble Lord, Lord Paddick. Should the Government accept the logic of that amendment, they might also want to look at Clause 4(8)(b)(i), which ought also to be amended to include “a private postal service”. Like the noble Lord, Lord Grabiner, I think the amendment in the name of the noble Lord, Lord Strasburger, sounds like a carte blanche for allowing private phone hacking. The noble Lord came up with better words than I could when he spoke about thinking that “public interest” and of “interest to the public” were the same. I would be very alarmed at the idea of allowing phone hacking by private bodies, simply because they thought it might be in the public interest.
The more substantial issue in this group is dealt with in Amendments 18 and 246—I refer to them as the Leveson amendments. The Labour Party has an interest in Amendment 18. Our names are not on it but our former leader, my right honourable friend Ed Miliband, was, along with the current Prime Minister, one of the signatories to the deal which has already been described and which led to amendments being withdrawn in this House and in the Commons. Failing to implement Parliament’s decision on this matter is a shameful disregard for the law on the part of the Government. The Act was passed in good faith and the Government should have implemented it, in accordance with the wishes of this House and the other place. Non-commencement is an unacceptable device to undermine legislation which has been passed.
Amendment 18 seeks gently to encourage the Government to bring into effect the law already passed, and we hope they will agree to do that. I will not rehearse the case that has been made so well already. However, it is remarkable that, as we consider a Bill on investigatory powers that sets out clearly and openly what the state and its agencies can do regarding hacking—the limits, the safeguards and the penalties for exceeding the law—private and unaccountable profit-making bodies such as the press continue to get away with things our spooks rightly would not be able to. The Government should not undermine Parliament by failing to commence Section 40 and we hope that, today, they will show their willingness to act now.
Lord Strasburger
Before the noble Baroness sits down, can I point out that I share entirely her concerns and those of her noble friend about journalists confusing the public interest with the interest of the public? If there were any such amendment along the lines that I suggested, it would have to be drafted so narrowly that that confusion could not exist.
Lord Keen of Elie
My Lords, I begin with Amendment 15, which raises the issue of creating a new criminal offence. This was initially discussed in the other place at earlier stages of the Bill’s passage.
In the other place the Government made it clear that each of the powers in the Bill is already subject to one or more civil penalties or criminal offences for misuse. Part 1 has always contained a number of privacy protections that are central to the Bill, and it now makes clear the existing offences and sanctions that apply in respect of the different powers, such as the offences that relate to the unlawful interception or unlawful obtaining of communications data. In addition to the strict safeguards that are explicit in Part 1 of the Bill, there are a number of other additional offences that exist elsewhere in statute but apply equally to any misuse of the powers.
In response to the concerns raised in the other place and with sympathy for the Intelligence and Security Committee’s desire for clarity, the Government listened carefully and tabled amendments that now more explicitly refer to the relevant offences set out in other statutes, such as the Computer Misuse Act 1990, which applies to equipment interference, and the Data Protection Act 1998. These put beyond doubt the penalties that would apply in the event of deliberate wrongdoing by a member of a public authority.
On the basis that there are existing offences that apply to every power in the Bill, the Government are reluctant to introduce a new criminal offence that would lead to confusion, as it would overlap or duplicate those set out elsewhere. Perhaps more simply, it would be unnecessary. The powers in the Bill are varied, each with their own distinct regimes. If we sought, as was suggested by the noble Lord, Lord Janvrin, to create one offence to fit them all, it would either be too broad and catch too much, or by being too narrow actually miss something and result in a less effective sanction. It could also lead to a lack of legal clarity and potentially hamper the effective enforcement of existing offences. The point is that one size does not always fit all.
There is a further concern. The heads of the three intelligence agencies have written to the Home Secretary and to the ISC outlining their very real concerns about the inadvertent operational impact this proposal may have. The officers working within our intelligence agencies are entirely committed to the mission of keeping the country safe. They are professional and ethical in the way in which they conduct their work. We recognise the concerns raised about potential misuse of investigatory powers, but the creation of a new offence may unnecessarily inhibit agency staff and limit their ability to operate with confidence and at pace against the numerous threats we face.
We do not disagree that intelligence officers who are exercising these most sensitive and intrusive powers should consider their actions carefully before using them, but I have seen no evidence that the dedicated men and women of our security and intelligence agencies give such matters anything less than the most careful consideration. I can quite easily see that Parliament’s creating a new offence that appears to be targeted solely and squarely at our intelligence agencies could have a detrimental impact on the confidence, morale and willingness of those persons to carry out the often dangerous yet vital work we ask them to do on our behalf. Moreover, the Government are clear that if anyone in a public authority were to act contrary to their obligations under the Bill, the matter would be taken extremely seriously. The current commissioners already ensure that they investigate and report publicly on the very infrequent cases of errors which involve serious misuse. In appropriate cases disciplinary action may be taken, up to and including dismissal, or civil or criminal liability incurred.
When these points are considered collectively, I hope noble Lords will agree that this puts beyond doubt the severe penalties that would apply in the event of deliberate wrongdoing by a member of a public authority. A new criminal offence is therefore wholly unnecessary and potentially confusing, and would adversely affect the operation of the agencies.
Amendment 16 seeks to extend the criminal offence of unlawful interception to “private” postal services. This is aimed at capturing those services which cater to more specialist clients; for example, companies that provide services to banks or lawyers. The noble Lord, Lord Paddick, referred to DX as an example of such a company. I understand the reason for the amendment and support the principle that the offence should apply to this type of company. However, these companies are already caught by the existing provision. The Bill describes a “public postal service” as one that,
“is offered or provided to the public, or a substantial section of the public”.
This includes companies that specialise in providing services to bespoke sectors, such as the legal profession or banks.
Moving on to Amendment 17, in the name of the noble Lord, Lord Strasburger, Clause 3 sets out the offence of unlawful interception. This is a vital safeguard that relates to one of the most sensitive powers provided for in the Bill. It underpins the protections for privacy that are fundamental to the Bill. I am afraid I cannot accept an amendment which would limit or even undermine that safeguard. The amendment would limit the offence by setting out circumstances in which it would not apply; for example, it provides a public interest defence to the offence. It would not be appropriate to allow someone to intercept the communications of another—without lawful authority—because that person takes the subjective view that it would be in the public interest. I note and agree with the observations of the noble Lord, Lord Grabiner, and the noble Baroness, Lady Hayter, in this regard. It would not be right to reduce this strong safeguard, which exists to protect individuals.
Baroness Hayter of Kentish Town
I should have come in on Amendment 16, but before the Minister moves on, the issue of the private postal service was raised by the Minister’s Scottish legal colleagues, who wrote to us. They felt that the definition of “public postal service” did not include DX. I wonder if he will agree to write to me so that the legal position is clarified, since it was good Scottish lawyers who raised the issue.
Lord Keen of Elie
I am obliged to the noble Baroness. It was raised by Scottish colleagues—Scottish colleagues with whom I do not agree—but I am quite happy to undertake to write to her. I should say it was raised by the Scottish Law Society, not the Scottish Bar.
Amendments 18 and 246 were spoken to very clearly by the noble Baronesses, Lady Hollins and Lady O’Neill, and the noble Lords, Lord Lipsey and Lord Oates. While I am quite happy to write on the matter of press regulation and the commencement of Section 40, press regulation is not the purpose of the Bill. I have to make that clear in this context because while I understand the points that are being made, they do not arise directly in the context of these amendments.
Moreover, the relevant amendments are not considered necessary. There is already a criminal offence where unlawful interception takes place on a public or private telecommunications system or a public postal service. There is also a cause of action which applies in a limited set of circumstances, where the criminal offence does not apply. Where there is an allegation that unlawful interception has taken place on behalf of a public authority, a person may seek recourse through the Investigatory Powers Tribunal, which has the power to provide redress, including awarding damages.
Where the conduct relates to an individual who does not belong to a public authority, there are other causes of action which may be applicable. I may have misunderstood the noble Baroness that the tort which currently exists in the Regulation of Investigatory Powers Act 2000—allowing an individual to take action against a person who has the right to control the use or operation of a private telecommunications system and who intercepts a communication on that system—has been added to the Bill by way of Clause 8, and that happened after the debate on the Bill in the other place. In these circumstances, we are not prepared to accept the amendments.
Turning to Amendments 20 and 21, Clauses 6(2) and 6(3) are important because they provide that where a public authority, or a telecommunications operator, is acting in accordance with a warrant properly obtained under the Bill, or the provisions of Clauses 42 to 50, they can be sure that they are not breaking any other law or required to obtain additional authorisations. This legal certainty is vital for those engaged in the essential work of keeping us safe.
The first amendment seeks to provide that future legislation could make that conduct unlawful for certain purposes. I understand the principle the noble Lords seek to achieve but I do not believe it is necessary. Nothing in the Bill prevents Parliament amending the legislation at a future date to make any of the activity unlawful or provide that some additional authorisation is required.
The second amendment seeks to amend subsection (3). The purpose of this subsection is to make clear that conduct undertaken in accordance with a warrant or which is authorised by any of Clauses 42 to 50 is to be treated as lawful. This is vital in providing companies with reassurance that by complying with a warrant they will not be acting unlawfully in relation to their regulatory obligations or other legislation. The effect of this amendment would be to provide that the conduct is lawful only for the purposes of the Bill. My concern, were we to accept this amendment, would be that we would remove the legal certainty that the companies and agencies rely on to do their job and to keep us safe. We therefore do not accept the amendment.
Amendment 84 relates to exceptions from the duty not to make unauthorised disclosures about warrants. It is absolutely right that the Secretary of State should be accountable to Parliament, even for the most sensitive decisions concerning the most sensitive powers. But when it comes to such matters, which necessarily must remain secret, it is absolutely right that Parliament provides a mechanism for the Secretary of State to be held to account, while at the same time doing nothing to jeopardise national security. That is the very reason for the existence of the Intelligence and Security Committee of Parliament.
To put beyond doubt that the Secretary of State is, and will continue to be, accountable to Parliament through the ISC for decisions relating to warrants, the Government amended Clause 54 and Clause 123 to make clear that the Secretary of State may disclose matters relating to warrants to the ISC. This will allow the ISC to carry out its statutory functions in holding the Government to account, while maintaining our security. It is right for the ISC to carry out this function and it would not be appropriate for disclosure to be made to Parliament as a whole. To do so would breach the long-standing principle of successive Governments to neither confirm nor deny matters relating to intelligence and security and could risk jeopardising our national security. Accordingly, I invite the noble Lords not to press their amendments.
Lord Paddick
Can the Minister clarify whether it is not then an offence for the Secretary of State to disclose the existence or content of a warrant to the ISC? That is not our understanding of the Bill.
Lord Keen of Elie
It may be then that we have to agree to disagree. It is my understanding of the Bill and it is our position that the Secretary of State is entitled to make disclosure to the ISC for the purposes of answering to the ISC in this context.
Article 50
(7 years, 9 months ago)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I will now repeat a Statement.
“Mr Speaker, the question of how to involve parliamentary discussion around triggering Article 50 has two distinct facets, one legal and the other democratic.
To take the legal considerations first, I am sure everyone will be aware of the debate around whether invoking Article 50 can be done through the royal prerogative, which would not legally require parliamentary approval, or would require an Act of Parliament because it leads, ultimately, to repeal of the European Communities Act 1972.
I will leave the lawyers to their—doubtless—very enjoyable and highly paid disputes, and apart from observing that there are court cases already planned or under way on this issue, so the judge may reach a different view, would simply remark that government lawyers believe it is a royal prerogative issue.
But I hope everyone here will agree that democratic principles should rightly trump legal formalities. The Prime Minister has already said that Parliament will have a role, and it is clearly right that a decision as momentous as this one must be fully debated and discussed in Parliament.
Clearly, the precise format and timing of those debates and discussions will need to be agreed through the normal parliamentary channels. As everyone will understand, I cannot offer any more details today because those discussions have not happened yet. But I will venture a modest prediction in that I strongly doubt they will be confined to a single debate or a single occasion.
There will be many important issues about the timing and the substance of different facets of the negotiations which the Government, the Opposition, the Backbench Business Committee and, I dare say, even you Mr Speaker will feel are important to discussions. But for the details of which topics, on what dates, and the specific wording of the Motions, we shall have to wait and see”.
Lord Collins of Highbury (Lab)
My Lords, I thank the Minister for repeating that Answer to an Urgent Question. Last week, we had two days of debate and a QSD on the referendum outcome in which we sought to better understand what will happen next. The result of the referendum is of course clear and must be respected, but as we heard in the other place, it is about not if but how the will of the people is delivered. Whatever version of Brexit we eventually end up with, surely Parliament must be totally engaged in the determination.
Last week, the Minister said that it is for the next Prime Minister to decide when to trigger Article 50 and start the formal and legal process of leaving the EU. We now know who, but when will we know how? The question for all noble Lords in this House is about the process of parliamentary engagement before the triggering of Article 50. What is the Minister’s estimate for meeting the commitment to consult the devolved powers? It will be a lengthy consultation process, bearing in mind the risks, but will it also involve the wider community, including employers and trade unions? If the principle is that Parliament will be engaged, will the Minister please give us more details about what that precisely means?
Lord Faulks
The noble Lord asks a number of questions, including some that were posed, as he quite rightly said, to my noble friend Lady Anelay last week during the debate. I can of course advance the position somewhat from the answer that she gave last week, in that we know, as the noble Lord said, who the next Prime Minister is—and I understand that she will become the Prime Minister on Wednesday evening. There is at least some progress there, which I am sure will provide some confidence that the process will be decided rather sooner than might have been the position had there been a contested election for the Conservative leadership.
As to his question in respect of the devolved nations, I know that there have already been preliminary discussions with the various parts of the United Kingdom and their representative Assemblies and Parliament. That will continue, and he is quite right that Brexit, however it finally comes into being, should involve all of the United Kingdom and as many parts—and representative parts of the United Kingdom—as possible.
As to the question of Parliament’s involvement, I fear I can go no further than my noble friend did. It is the Government’s view—as I indicated in the Statement—that the prerogative power does not require parliamentary involvement, but the current Prime Minister made it clear that Parliament will be involved. How and when Parliament will be involved will be a question for the new Prime Minister when she has considered the best way forward.
Baroness Ludford (LD)
My Lords, I thank the Minister for his responses. He seemed to make rather a joke of “enjoyable and highly paid” disputes among the lawyers, but surely it is much bigger than that. For a referendum which was fought largely on the issue of parliamentary sovereignty, and on such a major issue as the terms on which this country is supposed to leave the EU, surely it is inconceivable that a decision to trigger Article 50 should not be taken on the basis of a parliamentary decision. After all, Article 50 says that it is up to British constitutional requirements. So this is not about legal formalities; this is fundamentally about democratic principles. We need clarity in a time of huge turbulence. We need to know the evidential basis on which the negotiations will be conducted. We need to know the timing, before and after negotiations, for triggering Article 50. This is about the national interest, not about the convenience of the Conservative Party. I think that we deserve greater respect for Parliament on this decision.
Lord Faulks
There is no lack of respect for Parliament; quite the contrary. As to the comment that I appeared to make a joke, the noble Baroness will appreciate that I was simply reading out the Statement that was in the House of Commons. If noble Lords found it amusing, that was a matter for them, not any intention on my part. As to the question of sovereignty, there is a distinction drawn by the noble Lord, Lord Norton, as the noble Baroness may remember, between parliamentary sovereignty and political sovereignty in the Diceyean sense. The Government took the view that it is plainly desirable that Parliament should be involved. Whether there is a strict requirement in law may be a matter that courts will decide in due course.
Lord Lawson of Blaby (Con)
My Lords, I am sure we all wish the present Prime Minister well in the next phase of his interesting career, whatever he may choose that to be. Does my noble friend recall that the present Prime Minister made it absolutely clear that, in his view, Article 50 should be triggered without delay following the referendum result? Surely that is sensible given that delay, and the consequent uncertainty, can only be bad for British business and the British economy. Does he not agree that the same applies to the negotiations themselves? They should not take too long, and they can be speeded up by avoiding the nonsense of seeking some special trade agreement with the European Union, which it is clearly not prepared to give—for reasons I fully understand—although it might string us along. Finally, will he not also agree that the same thing applies to the rest of the paraphernalia of the negotiations, which I have not got time to go into now? We need to concentrate on how we are going to conduct ourselves after the Brexit. That is what is most important.
Lord Faulks
As for the question of speed, of course, once we trigger the Article 50 process, there is a period of two years which follows—
Lord Faulks
Up to two years is the maximum, as my noble friend quite rightly says. It will be a matter for those conducting the negotiation as to the appropriate speed, although speed should not be the dominant factor. What should be the dominant factor is the best deal that we can obtain for this country. Simply trying to accelerate the process might, depending on how the negotiations continue, be the enemy of that result. We should leave it to the new Prime Minister and those negotiating with her to obtain the best deal for the United Kingdom.
Lord Morris of Aberavon (Lab)
My Lords, in principle, I welcome very much the Minister’s statement that political realities trump whatever other legalities. There is an argument here, and I advanced a certain view on the prerogative in last week’s debate on the subject, but I am glad that political realities are now paramount, as they are in the convention of going to war, which was advanced by the late Lord Mayhew and myself as former Attorney-Generals. Indeed, the convention has now been established, in respect of Iraq and Syria, so that matters of such importance can no longer be invoked for the royal prerogative and that the consent of Parliament is required.
Lord Faulks
I noted that the noble and learned Lord made that point during the debate on the EU referendum last week, and of course he is right. I hope that I have reflected what this House and indeed the House of Commons would expect by way of parliamentary involvement. Clearly this House, as well as the House of Commons, has much to offer.
Lord Elystan-Morgan (CB)
My Lords, will the Minister be so kind as to confirm that, until such time as Article 50 is triggered, nothing of any legal consequence occurs at all, and it does not lie in the gift of the other 27 members of the European Union to take any action at all to seek to force the British Government into that position?
Lord Faulks
The noble Lord is perfectly correct, as a matter of law. Of course, there will be a question of what is expedient, in terms of the timetable, and whether pressure would be put on the Government. But he is absolutely right on the legal position.
Lord Carlile of Berriew (LD)
I thank the noble Lord for being the third Minister now to say very clearly that Parliament will have a role to play in the Article 50 process. Can he confirm that the role that Parliament plays will be a matter for discussion between the usual channels and that we will be able to have a debate on the real merits of what is proposed so that a proper democratic judgment can be made by Parliament on these matters?
Lord Faulks
I cannot, of course, anticipate precisely what the new Prime Minister will decide; if and when she decides on a particular course, I am sure that the way in which parliamentary involvement takes place will include the usual channels.
Prisons: Staff Safety
(7 years, 9 months ago)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I now wish to repeat a Statement on prison safety. The Statement is as follows.
“A central duty of the Ministry of Justice is security in our prisons. It is imperative that the dedicated professionals who work in our prisons are kept safe. It is also critical that we safeguard the welfare of those in custody who are in the state’s care. It is of profound concern to me that serious assaults against staff in prison have been on the rise recently, particularly in the last 12 months, when there have been 625 incidents.
Those who work in our prisons are idealistic public servants who run the risk of assault and abuse every day but continue in their jobs because they are driven by a noble cause: they want to reform and rehabilitate offenders. Our prisons depend on a network of professionals, including teachers, chaplains, volunteer members of independent monitoring boards and probation officers. But above all our prisons rely on the selfless and courageous work of our prison staff.
I know that members of the Prison Officers’ Association want action to be taken to make their work safer. I understand their frustrations and I am determined to help. Violence in prisons has increased over recent years for a number of reasons. The nature of the offenders currently in custody is one factor; younger offenders who have been involved in gang-related activities pose a particular concern. Another factor is the widespread availability of new psychoactive substances, or NPS, synthetically manufactured drugs, which are more difficult to detect than traditional cannabis and opiates. The former Chief Inspector of Prisons has said that new psychoactive substances are now the most serious threat to the safety and security of our jails. NPS consumption and, indeed, violence in prison are also often a consequence of prisoners’ boredom, frustration and a lack of faith in the future. All of these factors must be, and are being, faced honestly.
There is no single solution to the problem we face, but we are taking significant steps to reform our prisons. To take account of our changing prison population, more than 2,800 new prison officers have been recruited since January 2015, a net increase of 530. To keep them safer, we are deploying body-worn cameras as additional protection for staff. In May, we outlawed new psychoactive substances and dramatically reduced the opportunities for easy profits to be made from their trade. In June, I allocated an extra £10 million in new funding for prison safety, and the money has gone to the governors of those prisons with the biggest safety challenges.
All these steps will, I believe, help improve safety but there are two more critical points to make. First, I stress that my department’s door will be open to staff and their representatives to ensure we work collaboratively together to improve conditions for all in our prisons. Secondly, it is because I have seen for myself how important it is to change our prisons for the better that I have initiated a major reform programme. We will be replacing ageing and ineffective prisons with new establishments designed to foster rehabilitation. We will give governors greater scope to design regimes that encourage purposeful activity and make prisons calmer and more orderly places, and we will ensure that prisoners are more effectively incentivised to turn their lives around. As we press ahead with this reform programme, I am confident we can ensure that our prisons can become what they should always be: safe and secure places of redemption and rehabilitation”.
My Lords, that concludes the Statement.
Lord Beecham (Lab)
The Question asked in the House of Commons related to the safety of staff in prisons following walk-outs and protests last week by between 5,000 and 6,000 officers protesting about the rising tide of violence threatening both staff and prisoners. Assaults on prison officers reached 5,500 last year, an increase of 36%, while last year there were 32,000 incidents of self-harm, up by 74% since 2010, a shockingly high number given that the prison population is around 85,000. There were 100 suicides in 2015-16.
Is it not clear that our prisons are both chronically overcrowded and dangerously understaffed? The Howard League for Penal Reform has chronicled the deteriorating position in a worrying number of prisons. In Lewes, for example, 50% of its 640 inmates were being locked in their cells during the working day, some of them for as much as 23 hours a day. In February, staff at Wetherby young offender institution refused to let 300 prisoners out of their cells for a day because of rising violence. We recently had a Statement on the dreadful conditions in Wandsworth prison in which assurances, albeit of a rather vague character, were given about rectifying the situation revealed in a television programme. The Lord Chancellor talks a good game about improving conditions and replacing old and unsuitable prisons, but then he is the Lord Chancellor who set out on the road to his political Damascus in support of Boris Johnson, only to recant and discover at the very last minute that if Boris was the answer he had been asking the wrong question for weeks.
When will the Lord Chancellor, or whoever succeeds him—I rather hope it might be the noble Lord, Lord Faulks—recognise that the crisis in our prisons cannot sensibly be tackled without a significant reduction in the number of prisoners and a significant increase in the number of properly trained staff with adequate support in relation to issues of mental health? Will he now revisit his decision to spend just £10 million to increase safety, approximating to around all of £125 per head of the prison population, which is not of course, a static number?
Is it not time for another high-powered review of the state of the service, along the lines of the inquiry into Strangeways conducted by the noble and learned Lord, Lord Woolf, 26 years ago, but extended to the entire custodial system?
Lord Faulks
I am grateful to the noble Lord for his thorough criticism and the questions that he raises about the state of our prisons and the safety of staff and indeed of other prisoners. We freely acknowledge that there is a problem and that we have to do something about it. It is not a problem that is easily solved and, as the Statement indicated, there are a number of factors. There is an increase in the number of violent offenders in our prisons. Substantial problems have been caused as a result of the use of psychoactive substances. It is clearly far less than desirable that prisoners should be locked in their cells for long periods and not engaged in purposeful activity. The Secretary of State clearly wants to involve as many people as possible and as many organisations as possible in trying to improve the situation. That was why he invited the BBC into Wormwood Scrubs to see the conditions there.
There has been new funding of £10 million for prison safety, allocated as appropriate, and that will be supplemented by £2.9 million from existing budgets so that a significant number of governors—those facing the greatest challenges—will have an opportunity to improve safety levels. There is also £1.3 billion, which the Secretary of State secured from the Chancellor of the Exchequer, to modernise the prison estate. That will be a long-term project, but one which the Secretary of State is most anxious to help with.
Lord Dholakia (LD)
My Lords, our prisons are overcrowded and understaffed, with the result that prisons are now less safe and less secure than ever before. Does the Minister accept that the root cause of the problem, as has just been mentioned, is the unacceptably high level of the prison population? This makes some of our prisons almost unmanageable. Now that Mr Gove has fewer things on his mind, could we have clarity about how he intends to reduce the numbers so that the prisons’ objective of rehabilitation is met?
Lord Faulks
The noble Lord, whose interest in these matters is well understood and appreciated by the House, points to the prison population. Of course, the number of people in prison is a result of decisions by judges, passing sentences that they consider appropriate for those particular offences. In my experience, judges do not send an offender to prison unless no other appropriate means of dealing with the offender can be found.
The number of people in prison clearly presents challenges to the staff. But there are other factors, as I have already indicated, which can cause this escalation of violence. We have a widespread strategy under the violence reduction project to deal with this, including the use of body-worn cameras, a violence diagnostic tool and a number of other different efforts to try to identify where pressure points are in terms of violence and how best to combat them.
Viscount Hailsham (Con)
My Lords, I again emphasise the importance of meaningful out-of-cell activity and the provision of appropriate courses so that prisoners who are there for indeterminate sentences can satisfy the criteria for their release.
Lord Faulks
My noble friend makes a good point. Indeed, the Secretary of State has placed and will place increasing emphasis on education, as well as courses that enable prisoners to acquire practical skills which will be of particular help outside. We very much welcome the involvement of a number of employers employing prisoners while they are still in prison, which then leads to their employment afterwards. But my noble friend is quite right.
Lord Ramsbotham (CB)
My Lords, I refer to one sentence in the Statement on the number of staff being recruited. It says that 2,800 new officers have been recruited and mentions a net increase of 530. I ask the Minister, 530 from what? If it is an increase of only 530, this shows that the number of staff must have been run down disastrously before 2015, because this is a negligible increase.
Lord Faulks
I cannot, from the Dispatch Box, give the noble Lord a detailed account of why people left the Prison Service. Of course, he is right that that indicates that quite a number of them did leave, perhaps for reasons of retirement or simply a change in their job satisfaction. But I will endeavour to give him a more detailed analysis of those numbers.
Lord Beith (LD)
The Minister has recognised that the present numbers are a barrier to the Government achieving the rehabilitation objectives. However, will they not remain high if we continue to regard the length of a prison sentence as the only measure of the seriousness of an offence and until we put sufficient resources into alternative punishments?
Lord Faulks
With great respect to the noble Lord, that is a little unfair. The judges will of course determine the length of the sentence by reference to a whole host of factors: the seriousness of the offence, the history of the offender, and the best way both to protect society but also to rehabilitate. I know that judges always consider alternatives and that sentencing prisoners to prison will only be the last resort; very often judges will say, “I will sentence you to the least possible sentence that I am permitted”. Therefore the judges do not, as it were, oversentence.
Baroness Butler-Sloss (CB)
My Lords, I happen to know someone who is in prison at the moment, so I will pick up on, as the Minister put it, the frustration of being locked in a cell for 23 hours a day. What will be done about that?
Lord Faulks
Clearly, the prison governor at each prison will have to focus his or her attention on that. As the noble and learned Baroness will know, more autonomy will be given to prison governors, and one of the main objectives of that is to ensure that, so far as possible, prisoners have a greater time out of their cell engaged in purposeful activity or on courses or otherwise, not simply locked up in their cell.
Lord Triesman (Lab)
My Lords, some years ago I had the opportunity to serve on the Home Office prison education committee, and I was always impressed by the content and variety of the courses on offer. However, it was said at the time that it was very difficult to get people to the courses because there were too few prison staff to get them there, and because they could not guarantee the security of the teachers, who largely came in from the further education sector, given that the nature of the crimes for which people were imprisoned included more violent crimes. I hope the Minister will forgive me if I say that, although that was many years ago, essentially we are being provided with the same account now. It does not seem that we have moved on enormously. Can he describe some of the initiatives that will reflect the intention to increase the amount of prison education and the rehabilitation that goes with it?
Lord Faulks
The noble Lord is of course right that the challenges are not entirely new and that the logistics of ensuring that prisoners are taken to courses and to facilities where they can obtain education will always be a challenge, particularly with a large prison population. There was a report by Dame Sally Coates into the education of prisoners. That they should be given education is clearly very much at the heart of the advantage we believe can be obtained by rehabilitation, and it will be up to prison governors in a particular prison to ensure that this happens. They will be judged by the delivery of this education. By giving greater autonomy to prison governors it will be much less easy for them simply to say, “This is all too difficult”.
Lord Taylor of Holbeach (Con)
My Lords, we should move on to the next Statement.
NATO Warsaw Summit
(7 years, 9 months ago)
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The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, with the leave of the House, I shall now repeat a Statement made earlier today by my right honourable friend the Secretary of State for Defence on the NATO Warsaw summit. The Statement is as follows.
“With permission, Mr Speaker, I would like to make a statement on the NATO summit held in Warsaw last Friday and Saturday. The 2015 strategic defence and security review reaffirmed NATO’s position at the heart of UK defence and security. The UK remains a leader within the alliance, with the second largest defence budget after the US and the largest in Europe. The range of challenges the alliance faces, including Daesh, migration and Russian belligerence, meant that this summit was of huge importance for Euro-Atlantic security. The overwhelming message from Warsaw was one of strength and unity. We believe the summit has delivered an alliance that is more capable and projects stability beyond our borders based on institutional adaptation and stronger partnerships, which collectively protect our citizens and defend Europe.
I will address each of these issues briefly. At the Wales summit in 2014, NATO agreed its Readiness Action Plan to ensure that the alliance can respond swiftly and strongly to new challenges. The UK is at the forefront of these efforts: our Typhoons are currently conducting Baltic air policing missions from Estonia; our ships are making a significant contribution to NATO’s naval forces; and we will lead NATO’s quick-reaction “spearhead force”, the Very High Readiness Joint Task Force in 2017, with 3,000 UK ground troops ready to deploy within days.
To demonstrate allies’ solidarity, determination, and the ability to act in response to any aggression, Warsaw builds on the Wales commitments by delivering enhanced forward presence in Estonia, Latvia, Lithuania, and Poland, and I am proud that the UK is taking a leading role in this. Canada. Germany, the United States and the UK will each deliver a framework battalion. These will be defensive in nature but combat capable. The UK force will be located in Estonia with two UK companies, a headquarters element and equipment, including armoured vehicles, Javelin anti-tank guided missiles and mortars. Denmark and France have said they will provide troops to the UK battalion. In addition, we will also deploy a company group to Poland. These actions are in response to actions by Russia; NATO’s approach is based on balancing dialogue and strong defence. Dialogue is right where it is in our interests to deliver hard messages, promote transparency, and build understanding to reduce risks of miscalculation.
Credible alliance defence and deterrence depends on NATO’s ability to adapt to 21st-century threats through nuclear and conventional forces. The summit recognised the important contribution the UK’s independent nuclear deterrent makes to the overall security of the alliance, so I am pleased that the House will have the opportunity to vote to endorse its renewal next Monday. Initiatives on cyber and hybrid warfare, among others, will give the alliance the capabilities it needs to respond quickly and effectively. However, modern capabilities require appropriate funding, and here good progress has been made against the defence investment pledge—a key commitment from Wales. Following this Government’s decision to spend 2% of GDP on defence and increase the defence budget in each year of this Parliament, cuts to defence spending across the alliance have halted, with 20 allies now increasing defence spending, and eight committing in national plans to reaching the 2%.
Delivering the best for our country means maximising the talent in our Armed Forces. The Prime Minister has accepted the recommendation of the Chief of the General Staff to open up ground close combat roles to women. NATO’s role in preventing conflict and tackling problems at source has become ever more important, as threats to alliance security grow out of instability in fragile or weak states. NATO’s Defence Capacity Building Initiative, first announced in Wales, is a powerful tool in projecting stability and the UK continues to provide significant support to Georgia, Iraq, and Jordan. Building on this, allies agreed that NATO will conduct training and capacity-building inside Iraq. In Afghanistan, local forces are taking responsibility for providing security across their country. Our long-term commitment, as part of NATO’s Resolute Support Mission, is crucial; in 2017 we will increase our current troop contribution of 450 by 10%, to help build the capacity of the Afghan security institutions.
The summit also reiterated its support for our European partners, including Ukraine and Georgia. I was delighted that Montenegro attended the summit as an observer—a clear sign that NATO’s “open door policy” is helping to spread stability. However, the scale of Europe’s security challenges means NATO must work with a range of partners to counter them. This summit sent a strong message of NATO’s willingness to build strong relationships with other international institutions. I welcome the joint declaration by the NATO Secretary-General and the Presidents of the European Council and the European Commission on NATO-EU co-operation. We continue to support a closer relationship between NATO and the EU to avoid unnecessary duplication.
Our strong message to our allies and partners was that the result of the referendum on EU membership will have no impact on any of the UK’s NATO commitments and it remains the cornerstone of our defence policy. The UK will be leaving the EU, but we are not reducing our commitment to European security; we are not turning our back on Europe or the rest of the world.
HMS “Mersey” will deploy to the Aegean from late July to continue our support to NATO’s efforts to counter illegal migration in the Aegean. We will also provide a second ship, RFA “Mounts Bay” to the EU’s Operation Sophia in the central Mediterranean. NATO has agreed in principle to provide surveillance and reconnaissance support to this operation. It is a UK priority for NATO to do more against Daesh. NATO AWACS will now support the counter-Daesh coalition. In addition to our own assistance to the GNA, we will consider what NATO can do in Libya; for example, through capacity-building of the Libyan coastguard.
It is our firm view that the Warsaw summit successfully demonstrated that the alliance has the capability, will and intent to respond to the range of threats and issues that it may face. It also showed that Britain is stepping up its leading role in the alliance by deploying more forces to NATO’s eastern borders, to NATO’s support to Afghanistan and in countering illegal migration. With that strong UK leadership, Warsaw will be remembered for the concrete steps that were taken to deliver a strong and unified alliance that remains the cornerstone of European defence and security. I commend this Statement to the House”.
My Lords, that concludes the Statement, but, as it made clear, Motions will be put to the House of Commons on Monday next week. I hope that it is helpful at this point for me to inform your Lordships that the usual channels have agreed to set aside time on Wednesday this week for a debate on a Take Note Motion so that the views of this House can inform the debate in another place on the nuclear deterrent. The speakers list for the debate has already been opened by the Government Whips’ Office.
Lord Touhig (Lab)
I thank the Minister for repeating the Statement on a summit that was of considerable significance. Paragraph 40 of the summit communiqué makes it clear that NATO is determined to show its commitment to our partners in the Baltic states and Poland by establishing an enhanced forward presence to demonstrate unambiguously as part of our overall posture,
“allies’ solidarity, determination, and the ability to act”,
by triggering an immediate allied response to aggression.
I was at NATO headquarters at the end of May and found that our partner representatives from the Baltic states and Poland who met me and my colleagues wanted to be reassured of our support. Every desire was expressed by the people whom I met to maintain and encourage the friendliest relations with their neighbour Russia, but there was an underlying nervous tension following the annexation of Crimea and the incursions in Ukraine. They also expressed worries about the potential Russian build-up in and around the enclave of Kaliningrad.
The Warsaw summit agreed that British forces will from next year be part of an enhanced forward presence with 500 troops in Estonia and 150 in Poland. We are also committed to training 4,000 Ukrainian troops by March next year. There will be consequences as a result of NATO taking this decision and we must be prepared for that.
The summit took place in Warsaw where 25 years ago almost to the day the Warsaw Pact was officially dissolved. The Russians of course will clearly be sensitive, very sensitive indeed, about NATO’s decision. What assessment have the Government made of the expected Russian response? My NATO briefings highlighted the importance of the NATO-Russia Council which was established in 2002 in Rome. Following Russian military intervention in Ukraine, NATO suspended all practical co-operation with Russia and the council ceased to meet, although channels of communication were still maintained. It was agreed only in early April this year to convene a formal meeting of the council and that meeting, the first in two years, took place on 20 April. I understand that the council will meet again in two days’ time, on Wednesday. Can the Minister confirm that NATO’s decision will be discussed at that meeting?
As last weekend’s summit took place, we in Britain were digesting the Chilcot report on the Iraq war, which we will be debating tomorrow. Sir John Chilcot’s report makes much about the process of taking the decision to commit to war in Iraq; paragraph 410 of the Executive Summary states that,
“a cabinet committee or a more structured process might have identified some of the wider implications and risks associated with the deployment of military forces to Iraq”.
Can the noble Earl say whether that did in fact happen before Britain decided to commit troops to this NATO deployment? My noble friend Lady Smith of Basildon, in response to the Chilcot Statement last week, suggested the creation of an ad hoc Cabinet committee to consider matters in such circumstances in the future. Will the Government consider this idea?
Now that we are heading for exit from the European Union, will Britain continue to oppose an idea favoured by some in France and Germany of the creation of a European army? Will we use our leading role in NATO to resist this notion? There is concern in Germany, which I certainly found in my meetings with representatives of other NATO partners, about our decision to withdraw our troops from Germany. Do we still intend to press ahead with this? Can the Minister also say something about the programme of training activity planned for our forces deployed in Estonia and Poland? I am aware of concern at all levels that our deployed forces could be cooped up in a barracks deep in a forest with nothing much to do.
The Statement reaffirms that the Government are accepting advice from the Chief of the General Staff that women are capable of engaging in close combat roles, and we welcome that. NATO’s defence capacity-building role, first enunciated at the Wales summit, continues to provide significant support to Georgia, Iraq and Jordan. The deployment of HMS “Mersey” in July to the Aegean will underpin our support for NATO’s efforts to counter illegal migration. All these decisions are welcome and underline Britain’s continued commitment to NATO as the lasting bulwark of our defence. As the party which helped to create NATO when in government in 1949, we on these Benches are proud of an organisation which is a defender of our freedoms and way of life, and in an uncertain world a source of security for many around the globe.
Baroness Smith of Newnham (LD)
My Lords, noble Lords on these Benches welcome the Statement and I echo some of the words of the noble Lord, Lord Touhig. We welcome the commitments made to the Baltic states and to Poland, but would ask the Government what thought has been given to the situation with Russia and its possible reactions. Clearly the commitment to NATO is welcome, especially at a time of such global and regional geopolitical uncertainties, and therefore the commitment to our colleagues in the Baltic states and Poland, as well as an increased role in countering illegal migration, are both important.
The Statement by the Prime Minister and the communiqué refer to the UK’s nuclear deterrent and the fact that the UK’s and France’s nuclear deterrents have a deterrent role of their own. I do not wish to pre-empt the debate we will have on Wednesday prior to the Motion to be debated next Monday in the other place, but can the noble Earl give us some reassurance regarding defence expenditure? Assuming a decision is taken to approve a successor on Monday, that will be a considerable defence commitment. Both the NATO summit and the Prime Minister’s Statement recommit us to spending 2% of GDP on defence, a commitment made at the Wales summit in 2014 and affirmed by the Government after the general election last year. However, if there is a recession, either as a result of the decision taken on 23 June to leave the European Union or the actual fact of Brexit, 2% of a smaller GDP would presumably mean less money going to defence. Has money been set aside and are there contingencies to ensure that, if there were a recession, we would still be able to meet our commitments on F35, the aircraft carriers and a successor, if that decision is taken?
Further to that, while it is clearly welcome that the Government do not envisage any reduction in the UK’s commitment to European security in the light of the decision to leave the European Union, how will that commitment be played out? Will it be solely through the multilateral framework of NATO or might the Government consider—I realise that the Minister may not be able to give us an answer pending Wednesday evening—continuing links with the common security and defence policy of the European Union? How far does the UK envisage ongoing links with the EU and how far does it envisage bilateral links, particularly with France but also with the Netherlands? Clearly, the ongoing British commitment to European security is important, but an indication of how we envisage that going forward would be welcome.
Earl Howe
I am grateful to the noble Lord, Lord Touhig, and to the noble Baroness, Lady Smith, for their comments and questions. They both asked about our approach towards Russia and the likely Russian reaction to the communiqué. Our objectives in respect of Russia are clearly to protect UK interests and those of our allies and partners; to uphold the rules-based international order in the face of Russian challenges; to engage with Russia on global security issues and key areas of shared interests; to promote our values, including the rule of law and human rights; and to build stronger links between the British and Russian people more widely. I commend the communiqué to noble Lords. It sets out very clearly why NATO has felt it necessary to commit to an enhanced forward presence. This is in the face of Russian actions over the past two or three years that fly in the face of the agreements and understandings that we have had with them and that obtain internationally. NATO collectively and the allies individually are clear that the alliance does not seek confrontation and poses no threat to Russia—those are its words—but will not compromise on the principles on which NATO and security in Europe and north America rest.
The NATO-Russia council meeting this Wednesday will discuss a range of issues. Its timing was deliberately set post the summit to continue the dialogue from a position of strength, given the decisions taken at Warsaw.
The noble Lord, Lord Touhig, asked a number of questions in the wake of the Chilcot report, in particular, whether a Cabinet Committee had considered current and proposed NATO deployments. The National Security Council considered the UK’s approach to Warsaw and our ongoing commitment to NATO activities. Because the National Security Council is a sub-committee of the Cabinet, it is rather better than an ad hoc committee, because it is a permanent standing committee that, as I explained last week, meets every week and constantly reviews those issues which bear upon the UK’s security.
The noble Lord asked about the long-running issue of an EU army. I take this opportunity to emphasise that, while the UK remains a full member of the EU until such time as we leave it, UK forces will not be part of an EU army. In no circumstances could Brussels, in any case, direct deployment of UK forces without the specific agreement of the UK Government. That agreement will not be forthcoming. Defence is entirely a national competence and if an EU army were to be proposed, it would be subject to national veto.
The noble Lord also asked about draw-down of UK forces from Germany. I can confirm that it continues and will continue as planned.
The noble Baroness, Lady Smith, asked about defence expenditure. She is right to say that the 2% commitment relates to the size of our GDP. Were that to diminish, it would have a bearing on our budget but I remind her that aligned with and joined to that 2% commitment was another commitment that the defence budget would increase year by year in real terms by 0.5%. We have committed to spend £178 billion on equipment over the next 10 years, and that commitment stands.
The noble Baroness also asked about the relationship between NATO and the EU in the defence arena. As she would expect, in the medium term we will maintain our existing commitments to common security and defence operations and missions, and consider further requests from the EU. We will continue to lead the EU battlegroup from July to December this year. Whatever happens, the Government remain firmly committed to leading the way in working with the international community to tackle the migration crisis. In fact, the Prime Minister recently announced the deployment of RFA “Mounts Bay” to the central Mediterranean to help stem the flow of weapons to terrorists, particularly Daesh, in Libya. This is in addition to HMS “Enterprise”, which is already on task. No one can be in any doubt that we are committed to EU operations or about the strength of that commitment.
I did not answer the noble Lord, Lord Touhig, on what exactly our troops will be doing. First, as regards the proposals for Estonia, our forces are expected to participate in a demanding training and exercise programme alongside Estonian regular reservists and other allied forces based in the region. The deployment will also provide new training opportunities in heavily wooded areas and colder climates. The battalion will be maintained at a high state of readiness so that it is able to react immediately to a crisis or incident. Far from our Armed Forces personnel being confined to barracks, I hope that gives a flavour of the action-oriented agenda facing them.
In Poland, where, as the noble Lord is well aware, building a strong relationship is very much a priority for us, the deployment of the company group will enable UK and Polish forces to train, fight alongside each other, foster a greater understanding of their respective capabilities of the UK and Poland’s and increase interoperability, which the noble Lord will recognise is important. We will also work alongside the forces of other NATO allies in Poland, including the United States, which will provide a NATO-enhanced forward presence framework battalion in Poland. This deployment will also provide capability enhancement opportunities under the UK-US German-led TACET initiative. Many advantages therefore flow from this announcement.
Lord Howell of Guildford (Con)
Does my noble friend accept that this evidence of renewed NATO determination is welcome indeed and has little or nothing to do with our relations under various EU treaties, and whether we are in or out of them? However, does he also accept that in the 21st century, in addition to armaments and deployment build-up, one needs to win not merely the battles but the narrative? In this case the narrative is very much to get home to the Russian people that they would do far better in co-operation with the democracies and global networks which are now shaping our future all over the world than in a constant state of hostility and pointless belligerence. Surely that is the message to get home. I very much welcome the additional comments that these positive points will be put strongly to the Russians in the NATO-Russia Council, and hope they will realise that they could have better leadership and a better life if they follow that latter course.
Earl Howe
My noble friend is absolutely right. The meeting on 13 July this week is the continuation of political dialogue as agreed by NATO Heads of State and Government. At the same time, we are clear that there will be no return to business as usual until Russia again respects international law. Engagement through dialogue is important. It is right that we have that dialogue. It is in our interests to engage on subjects in a hard-headed, clear-sighted way, but that does not mean a return to the kind of co-operation that existed before Russia’s illegal annexation of the Crimea and the destabilising activity in which it has been engaged in Ukraine.
Lord Kerr of Kinlochard (CB)
Given our responsibilities under the Budapest Memorandum, what advice did our representative at the summit give to President Poroshenko of Ukraine? Were there contacts with the Turkish Government in which it became possible to make clear that, despite the insults to Turkey which emerged in the referendum campaign, including from a Ministry of Defence Minister, we still regard it as an extremely valuable ally?
Earl Howe
My Lords, on the latter point, we have most certainly taken every opportunity to reassure Turkey that it is a very valued member of the NATO alliance, and it is important that we continue to do that. NATO has been united in support for Ukraine throughout the crisis period. Meetings of the NATO-Ukraine Commission, most recently at Warsaw, provide political support. Capability and capacity support is delivered through Ukraine’s participation in NATO exercises and through dedicated NATO trust funds, and the UK is co-leading one of these trust funds. We like to think—and I believe it is right to claim—that we have a leading role. We have consistently argued for a strong response to Russia’s actions and continue to be fully supportive of the Normandy format process.
Lord West of Spithead (Lab)
My Lords, this conference has been very good news, particularly the nuclear aspects, not least because of Putin’s doctrine of de-escalation—which, extraordinarily, in fact means using nuclear weapons. The Government are to be congratulated on, at long last, agreeing to have a vote in the other place on replacing the four Vanguard class submarines. My question is not to do with money, but I have to say that, although one talks the talk, there is insufficient money in defence. The House of Commons Defence Committee has spotted that. The desperate shortage of money is shown not least in the lack in the number of ships. Should there be an escalation for another reason, none of the ships we are deploying to the Med are capable of looking after themselves, because they are not those types of ships. However, that is not my question. My question relates to Ukraine. It is absolutely right that we are reinforcing the Baltics and Poland—they are part of NATO; that is the right sort of message—but we must not delude ourselves: the Russians are terrified of NATO. We know that they are wrong to be terrified, but that does not mean that that is not their perception. We have sent people into Ukraine. Was there discussion about NATO being involved in Ukraine? If there was, I believe that it would be very destabilising.
Earl Howe
My Lords, there is no question of NATO ground troops being sent to Ukraine. On the other hand, the NATO Council was very clear that there is a role for NATO alliance members to support Ukraine in training in particular, and that is a major commitment of ours. Clearly, we would not wish to do anything that would serve to escalate the tensions that exist in Ukraine. We are encouraging both Ukraine and Russia to support the Minsk process and adhere to the commitments given at Minsk. Nothing that would escalate the violence that we have seen in eastern Ukraine should be contemplated.
Lord Dannatt (CB)
My Lords, may I take the Minister back to the issue of withdrawal from Germany, raised earlier by the noble Lord, Lord Touhig? The principle of forward deployment for practical and demonstrative purposes has been well illustrated by what is going to happen in Estonia and other areas of the Baltic. However, although I have been supportive for many years of withdrawing the Army from Germany, is there not a case for looking again at leaving one of our armoured infantry brigades in the well-found garrison of Paderborn and Sennelager, and saving ourselves the capital expenditure of building a third armoured infantry garrison around Salisbury Plain? This would also demonstrate, in the post-Brexit environment we find ourselves in, that we are willing to remain physically present in Germany with about 2,500 of our troops. I think it is worth looking at again, and I urge the Minister to take that thought back to the Ministry of Defence and think about it again.
Earl Howe
My Lords, I am grateful to the noble Lord. I will gladly do that. In fact, I can tell him that these matters are under continual review, as he would expect. There is undoubtedly a value to the idea of British troops remaining in Germany to a certain level, able to train alongside our German partners. However, I am not in a position at the moment to give him definite news on that front. What I can say, though, is that the bulk of UK forces will be withdrawn as planned. We believe that that is the right thing to do at this juncture, but we do not rule out keeping a contingent in Germany for the kinds of purposes that the noble Lord suggests.
Lord Vinson (Con)
My Lords, the noble Lord, Lord West, remarked that our defence expenditure is extremely strapped for cash. In view of this, and the fact that the efforts we are putting into both Finland and Poland are a substantial aid to the economies and welfare of those countries, would it not be sensible that at least part of that expenditure should be debited against our overseas aid bill, which is now running at the enormous sum of 0.7% of GNP?
Lord Robathan (Con)
My Lords, given the situation with Russia, is my noble friend aware whether relations between Greece and Russia were discussed, particularly given the reports—which I understand to be true—that Greece has recently signed an armaments deal with Russia whereby it will be making Kalashnikovs in one place or another?
Lord Tugendhat (Con)
My Lords, the Minister has announced a very important commitment to the Baltic states. Can he assure the House that the Governments of all three of these states are behaving entirely as we would wish in respect of their Russian-speaking citizens and people of Russian nationality living within those states? Can he be sure that they are not giving any justifiable cause or excuse to Mr Putin to act, and that they are behaving in a way that is completely consistent with the principles of the European Union?
Earl Howe
My Lords, there is a delicate balance to be struck here. We do not wish to provoke Russia into responding inappropriately to these deployments. On the other hand, we do ourselves need to react to the actions of Russia, as was laid out at the 2014 Wales summit, which delivered an effective and united response to Russia’s illegal annexation of the Crimea and its actions in eastern Ukraine. The measures taken at the summit will, we believe, provide further reassurance and deter Russian aggression. They are proportionate and defensive in nature. In saying those things, I recognise my noble friend’s appropriate concern that we ensure that the Baltic states in particular are being measured and reasonable towards the Russian-speaking element of their populations. This move is not designed to provoke those people any more than it is to provoke Russia itself.
Investigatory Powers Bill
(7 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Hamwee
Baroness Hamwee (LD)
My Lords, we come now to the general duties in relation to privacy, which at least two noble Lords have referred to as the backbone of the Bill. I acknowledge, from these Benches, how much progress has been made with this issue and how welcome Clause 2 is. However, that does not deter us from being ambitious to pursue it to what we might see as perfection.
Amendment 5 would provide that any decision or action undertaken under the Act by a public authority should be subject to Clause 2. If it is not to apply, the Government should explain and justify that non-application to the Committee. I appreciate that this clause has a rather different genesis from most of the Bill. I hope it does not sound arrogant—it is certainly not meant to—if I say that it is an exceptionally well and helpfully drafted Bill. It has more definitions in it, more easily found, than any other Bill that I can recall. Most of it is extremely clear, but I have a problem with some of the content and drafting of this clause. This may be because it has come together through a different route, because of the input from debate in the Commons and outside.
If amended by Amendment 5, Clause 2(1) would not be specific about where the duty applies. I ought to give an example, although this might not be a very good one because a telecoms operator is not a public authority. It occurred to me that although an operator would have a duty to comply with a notice, under Clause 62, they should not have to make the assessment in the way the clause requires. Even if that is a bad example, we could be told that Clause 2(3) would apply to that and that it is not relevant. I will come back to that, but one should say so. Clause 63, the next one on from the one that I picked as an example, is about the filter. I struggle to see whether that comes within Clause 2(1)(d). It should. My overall question is whether Clause 2 is as stiff a backbone as it can be.
Amendments 6 and 8 deal with a provision to which the noble Lord, Lord Janvrin, has referred, which is whether what is sought to be achieved could reasonably be done by “other less intrusive means”. My amendments would make that provision stand alone, not subject to the discretionary “have regard to” which introduces Clause 2(2). This is particularly important in connection to privileged communications, and indeed it came up in a meeting with the noble and learned Lord, Lord Keen, on Thursday, which, when we were assured in the context of legally privileged material that if a less intrusive means could be used it would be, was very helpful. This was what made me think about “have regard to”. My noble friend Lord Lester used the term “rubbery” of “have regard to”. In previous incarnations of this reference to “less intrusive means” there has been an absolute rather than a discretionary requirement, so I would be grateful for help on this, about which I feel particularly strongly.
Amendments 7, 10 and 11 are about the hierarchy, if one can say that there is a hierarchy within Clause 2, of which considerations are subject to what. Those taking decisions might welcome having some scope for consideration, but if the clause is circular—there have been times when I have thought that it is—it is our job to straighten it out. Clause 2(2) is subject to Clause 2(3). Clause 2(3)(a) says that the duties apply in so far as,
“they are relevant in the particular context”.
I cannot quite decide if those words are necessary. If a duty is not relevant, does one have to say so? Also, in particular, does “relevant” introduce an element of judgment, which would weaken the application of this?
Clause 2(3)(b) says that the duties “are subject to” particular considerations listed in Clause 2(4). Clause 2(4) takes precedence over Clause 2(2)—or does it? In addition Clause 2(4) suggests that there are considerations that are not listed. Given the importance of this clause I think that this should be addressed. To the extent that noble Lords have managed to follow that—I am not entirely sure that I did throughout—I hope that I have at least demonstrated that we think that there are potential problems in the construction of the clause.
Amendments 9 and 13 would make the Human Rights Act overarching. I might be told that because it falls within Clause 2(3)(b), to which Clause 2(2) is subject, it is not necessary to separate it out. If that is so, it reinforces the arguments that I have just made on the previous clutch of amendments. We might be told that not everything in the legislation is absolute and that certain rights are qualified, but my amendment would not affect that. I am really after clarity and certainty. The Human Rights Act is so important in this context that it should be expressed as applying in its own terms and not be demoted to being a particular consideration.
Viscount Hailsham (Con)
I reinforce what the noble Baroness has said with regard to Clause 2(4). The first line—
“The other considerations, may, in particular, include”—
means in effect that the criteria and considerations set out are open-ended. While the public authority may have regard to any of the considerations set out in Clause 2(4), it can also have regard to any other considerations that it deems fit. That seems a very unsatisfactory state of affairs.
Lord Lester of Herne Hill (LD)
My Lords, I put my name to a couple of these amendments and I would like to speak to them. Under our constitutional arrangements, the Human Rights Act is the next best thing that we have to a constitutional guarantee of fundamental rights and freedoms. The Minister has rightly put his name on the front of the Bill, stating that in his opinion it is compatible with the convention rights. I have put my name to these amendments to seek to make sure that what the Minister has put on the face of the Bill becomes transparently clear in the statute when it is enacted.
Article 8 of the convention, which guarantees the right to personal privacy, indicates that any exception must be provided by law—that is to say, satisfy legal certainty—and by the principle of proportionality, and that any interference must be necessary and no more than necessary to safeguard other compelling public interests. The problem with the Bill as drafted is that it does not go quite far enough to ensure full compliance with the Human Rights Act and with Article 8 of the convention. That is why the amendments in the name of my noble friend Lady Hamwee are needed, in my view. First, it is important not merely to have regard to but to make sure that there is full compliance with the principle of proportionality. That is what these amendments seek. Secondly, without repeating what has already been said, it is very important that the obligations on public authorities—for example, not to use the powers listed in Clause (2)(1)—are no more than what,
“could reasonably be achieved by other less intrusive means”.
That is classic principle-of-proportionality language.
I very much hope that in one way or another the Government will come to accept these amendments or something very similar to them so that we can make sure that lawyers like me are not able to go to court to challenge all of this under the Human Rights Act, but that Parliament gets the statute clear to put beyond doubt the application of the principles of legal certainty and proportionality, which is what these amendments are designed to do.
I will say just a word about Amendment 14, not because I want to make an elaborate statement about it but because, as I said at Second Reading, it is very important that we have a board or commission with the requisite powers. I will come to that in later debates on the Bill.
Lord Strasburger (LD)
My Lords, I will speak briefly to Amendment 14. We have already heard at length that, in its report on the Bill, the ISC called for a “backbone” of privacy to be inserted into it. The Home Office’s initial response was to add one word to the next version of the Bill: it inserted “privacy” into the title of Part 1 so that “General protections” became “General privacy protections”—nothing else changed. Later, under some pressure in the Commons, Clause 2 came into being, which goes some way, but not all the way, to inserting the privacy protections that we on this side of the Committee feel are needed.
This episode suggests to me that no one in the Government has a brief to speak up for privacy and civil liberties when legislation is being formulated. Presumably, that is why the Home Secretary included Section 46 in the Counter-Terrorism and Security Act 2015, giving her the power to establish the Privacy and Civil Liberties Board. The only problem is that she has not commenced this power and the vacuum in privacy protection advocacy in government is still there.
Amendment 14 would force the Home Secretary’s hand so that she must get on with it—actually, to be more precise, her successor must get on with it because she probably has bigger fish to fry as of Wednesday. For now, this is simply a probing amendment. If it were brought back on Report, it would probably need some improvement in terms of the board’s scope and powers. The American version of this, the Privacy and Civil Liberties Oversight Board, has been very successful with a much wider brief. For now, I will be content to hear the Government’s response to the amendment as it stands.
Before I sit down, I will say a couple of words regarding the friendly fire that has been coming from behind me during this debate—rather ungraciously, I might say—from the noble Lord, Lord Carlile. He queried whether I had read Nineteen Eighty-Four and knew about its description of CCTV in every bedroom. I have, actually, but I suspect that he has not been doing his reading on security matters because, if he had, he would know about Project Optic Nerve, in which GCHQ intercepted 1 million Yahoo! users’ webcams, which effectively put state cameras into 1 million bedrooms.
Lord Carlile of Berriew (LD)
My Lords, I am not going to enter into an argument with my noble friend about the activities of GCHQ, particularly when they have been misdescribed so fully, but I will say one or two things about the merits of the amendments before us, particularly Amendment 6.
I agree with what my noble friend Lord Lester of Herne Hill said about this group of amendments, including Amendment 6, for the reasons he gave. It would be helpful if the noble and learned Lord, Lord Keen, could explain to the Committee the difference between Amendment 6 and the intention of the Government as set out in Clause 2(2)(a). If the intention of the Government is to do what my noble friend Lord Lester described, I respectfully suggest that the adoption of the wording in Amendment 6 would be more useful and more certain and, above all, as my noble friend said, would avoid unnecessary disputes about the meaning of and compliance with Article 8 in the courts.
Unfortunately, I disagree again with my noble friends about Amendment 14. I am not against a Privacy and Civil Liberties Board if the Government wish to create one. Indeed, I would rather support the creation of a board which had an overarching view of privacy and civil liberties. The board that was created in the 2015 Act is most certainly not a Privacy and Civil Liberties Board. It is a board that was intended to have some kind of oversight of interception, surveillance and other matters, and was a construct agreed as a compromise because of the nature of government at that time. I am afraid it is a glass half-full. Therefore, I urge the Government not to adopt that Privacy and Civil Liberties Board.
It is also worth saying that we have come an awfully long way in the protection of the public against unlawful intrusion by the state into their private affairs since the enactment of the Privacy and Civil Liberties Board provision, which has not been brought into force. The safeguards included in this Bill as a result of the work of my successor as independent reviewer, David Anderson, and of the Intelligence and Security Committee and the RUSI panel mean that we have a much fuller raft of protections in the Bill. In my view, they are far more beneficial and provide a great deal more than was ever going to be provided by this form of the Privacy and Civil Liberties Board. I respectfully suggest to Ministers that this amendment is entirely unnecessary.
However, I emphasise that there are genuine concerns about potential breaches of privacy and civil liberties. They are concerns about what the public sector can do and they should also be concerns about what the private sector already does. Any of us who subscribe to online groceries, books, music or other similar consumer opportunities on the internet, as I confess I do—I frequently stream music in my car from my mobile phone—probably do not realise how much we have allowed our privacy to be trespassed upon by the so-called privacy policies of large internet service providers. If we are to have a Privacy and Civil Liberties Board, let us do the whole job, not just a bit of it.
Lord Rooker (Lab)
My Lords, I will follow up the noble Lord’s point about what the public sign up to in the private sector—of course, the private sector has lobbied against part of the Bill because it has a vested commercial interest. If you sign up to PayPal, you have signed up to 36,275 words of terms and conditions. Who reads them? “Hamlet” is 30,066 words. If you sign up to Apple iTunes, you are signing up to 19,972 words of conditions; longer than “Macbeth” at 18,110 words. It goes on: Facebook’s has 11,195 words. You tick the box—that is all you do—and give these companies access to your information. These companies would never have been able to start in other societies without the rule of law—we all know that. They can only operate in open, democratic societies. You sign away all kinds of things. We know there was a test at one time when someone changed the terms and conditions to an agreement to give away their firstborn and people ticked the boxes, because they did not read them.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I am grateful to the noble Baroness, Lady Hamwee, for explaining the purpose of this group of amendments. I am particularly glad that Amendment 5 gives us the opportunity to look carefully at the intention of subsection (1) in the privacy clause. Perhaps I could just clarify.
Clause 2(1) lists in some detail the functions that a public authority may discharge under the Bill that may result in an interference with an individual’s privacy or impose an obligation on a telecommunications operator. The clause as drafted makes clear that, when taking such a decision, a public authority—including the Secretary of State and the judicial commissioner—must have regard to the principles set out at Clause 2(2).
The effect of the clause is perhaps not far removed from the intention of the amendment, but I would argue that the current drafting has the benefit of providing clarity. I was grateful for the complimentary remarks about the clarity of the drafting of the Bill overall that the noble Baroness was kind enough to make. The drafting of this part of the clause makes clear that the privacy clause bites in every situation in which a public authority takes a decision or action to which privacy considerations are relevant. I hope that those comments will encourage the noble Baroness to withdraw the amendment.
I am sympathetic to the spirit behind Amendments 6 and 8, which seek to prohibit the authorisation of powers in the Bill if less intrusive means are available. I hope I can provide some comfort to the noble Baroness and the noble Lord, Lord Carlile, by directing them towards the statutory codes of practice which we have published in draft alongside the Bill for the Committee to consider. For example, paragraph 4.7 of the draft interception code of practice states:
“No interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means”.
The codes will be submitted to Parliament for approval, and a failure to abide by them will be considered a breach by the Investigatory Powers Commissioner. I hope that that reassurance provides enough ammunition for the noble Baroness to withdraw her amendment.
Lord Carlile of Berriew
I do not want to prolong the debate, but does the Minister not think that it might be preferable to put these words in the Bill rather than face the inevitable consequences of legal discussions in the courts as to the role of codes of practice and their enforceability? Putting the words in the Bill at least provides certainty.
Earl Howe
I am grateful to the noble Lord for seeding that thought in my mind and I am glad to take it away and consider it between now and Report.
Amendment 7 also relates to Clause 2, which provides a statutory requirement that public authorities must consider all three of the privacy duties listed in subsection (2). It is not an exclusive list—there are other important principles that public authorities will have regard to—but it does make clear the principles that sit at the heart of this Bill and that underpin the exercise of functions under the Bill. And it is of course the case that the judicial commissioner will look to see whether these principles have been satisfied—when, for example, he or she reviews a Secretary of State’s decision to issue a warrant.
The noble Baroness expressed some concern about the phrase “have regard to”. In bringing forward the privacy clause, the Government responded to concerns raised by the Intelligence and Security Committee of Parliament as well as by the Opposition and the Scottish National Party in the other place. The language of “have regard to” is drawn from amendments tabled by the Opposition and the SNP in Committee. It reflects the language of Clause 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003, which was held up by those parties in Committee as an exemplar of how such a clause might operate. That is the basis on which we have included that particular form of words. In short, while I am sympathetic to the concern raised in this area—
Lord Lester of Herne Hill
I am grateful to the noble Earl. Those precedents do not amount to what is really needed, which is full compliance with Article 8 of the convention and the Human Rights Act. In my opinion—it is no more than my opinion—the words do not satisfy that, whatever the precedents relied on may be in amendments tabled in other Bills. It is no use saying “have regard to”; it is necessary to ensure that what is in A, B and C happens in practice. “Have regard to” is rubbery and illusive and will not pass muster under the Human Rights Act or the convention, in my opinion.
Viscount Hailsham (Con)
May I press my noble friend more on this point? With regard to subsection (3), there is a test of relevance. Subject to the test of relevance, it seems to me that, under subsection (4), the public authority can in effect have regard to any consideration it deems fit. Is that correct?
Earl Howe
As I have said, it is not intended to be an exclusive list. There are, of course, factors that may well be relevant and a public authority will wish to have regard to that are not included in the list. We did not intend the list to be exclusive. However, I am grateful to my noble friend and, once again, I will take advice on whether the wording quite fits the intent.
The House has a proud tradition of respect for human rights. The Human Rights Act is referred to in Clauses 1 and 2. It is the Government’s view that those references make it absolutely explicit that the obligations and protections in that Act apply to the exercise of functions under the Bill. While I am sympathetic to the intention behind Amendments 9 and 13 and I listened with care to the noble Lord, Lord Lester, as I always do, I do not think the amendments are necessary. Public bodies are already required to act in accordance with the Human Rights Act 1998. Our position is aligned. The Human Rights Act is not an optional consideration when exercising the investigatory powers in the Bill. The Government consider it unnecessary to restate the position for that reason. Furthermore, we do not want to cast doubt in other places in statute where it is not restated, as that may serve actually to undermine the strong standing of the Act and the rights contained within it.
Turning to Amendment 10, I do not believe there is a divergence in principle here; this is merely a matter of drafting. The clause sets out that a public authority must have regard to certain considerations, and that duty is subject to the need to have regard to other considerations that exist elsewhere in the law. It would be superfluous to state that public authorities must have regard to things that they already must have regard to. For example, a warrant can be issued only where it is necessary and proportionate, and this is explicit in the relevant parts of the Bill. Equally, the need to comply with the Human Rights Act is encompassed within that Act: it does not need to be restated here. I hope that provides some reassurance and that the noble Baroness will, on that basis, choose not to press this amendment.
On Amendment 11, Clause 2(2) sets out the principles that public authorities must have regard to when exercising certain functions under the Bill. It is not an exhaustive list, and subsection (4) sets out some of the other factors that may be taken into consideration. Again, I emphasise that subsection (4) does not contain an exhaustive list. There will be other principles outside this list that public authorities will need to have regard to, and we should not cast doubt over that, as the amendment would.
My noble friend Lord Hailsham questioned the use of the word “may” as opposed to “must”. The use of “may” in subsection (4) should not be taken to imply that it is optional for public authorities to have regard to the principles listed in that subsection. The law requires, for example, that public authorities must always comply with their obligations under the Human Rights Act.
There are of course some factors listed at subsection (4) that will not be relevant in all circumstances: for example, it may not be meaningful, when modifying a national security warrant, to have regard to the public interest in the prevention of serious crime. But, to be clear, the use of the word “may” does not absolve public authorities from their wider obligations under this Bill or any other legislation.
I turn now to Amendment 12. Economic well-being is of course one of the statutory purposes of the security and intelligence agencies, and the reference to it in Clause 2 is intended to reflect that—nothing more. When powers under the Bill are authorised in the interests of the economic well-being of the United Kingdom, there must be a link to national security. The language at Clause 2 does not alter or undermine that; it simply reflects the statutory purposes of the agencies. As drafted, Clause 2 provides clarity and consistency with existing legislation. Given the specific limitations elsewhere in the Bill, any amendment to Clause 2 along the proposed lines is unnecessary.
Amendment 14 is the final one in this group. Your Lordships’ Committee is in no doubt of the importance of the office of the Independent Reviewer of Terrorism Legislation. David Anderson QC, who has occupied the role since February 2011 and whom both my right honourable friend the Home Secretary and I hold in the highest regard, does an excellent job of reviewing key counterterrorism statutes. His independent oversight and recommendations help us to ensure that our counterterrorism legislation is fair, effective and proportionate, and that it strikes an appropriate balance in the face of the very real and serious threat we face from terrorism.
Following the passage of the Counter-Terrorism and Security Act 2015, the Government undertook a consultation on whether David Anderson would benefit in his role from the support of a privacy and civil liberties oversight board. Having been informed by a public consultation on the board’s establishment, by David Anderson’s own recommendations on this matter and by the need to ensure the best value for public money, the Government decided that they could most effectively support the reviewer in discharging his statutory functions by instead providing him with specialist legal assistance in the form that he recommended in his July 2014 annual report.
Lord Lester of Herne Hill
I promise not to speak again on any amendments until we reach those covering legal professional privilege, as I do not intend to be even more of a human rights bore than I am at the moment. However, before the Minister sits down, since he has the great advantage of not being a lawyer, may I explain why the Government need to think again about the language that is being used currently?
The problem is that any mismatch between the wording of the Bill and the convention or the Human Rights Act would lead, necessarily, to a legal challenge, which would go probably all the way to the Supreme Court. At the end of the day, the court will say that it cannot do much about it, because the Act is clear, but that it will give a declaration of incompatibility. That will then cause the Government of the day to have to decide what to do about the language—whether they amend it or let it go to Strasbourg.
I want to avoid all that. Every time I see something in the Bill that seems to me to be a mismatch—for example the part which suggests that there are other unspecified relevant circumstances, which seems to violate the principle of legal certainty—I think, “Oh dear, this is going to lead to litigation and to a challenge”. I am begging the Government to make absolutely sure that the language of the Bill as it leaves this House cannot be challenged as being a mismatch with the European convention and the Human Rights Act.
The problem with the Human Rights Act is that it allows those challenges, quite rightly, to be made, along with declarations of incompatibility. That is why I really hope, when the Bill comes to Report, we can have language which, if not identical to these amendments, will achieve that objective.
Earl Howe
My Lords, I am grateful to the noble Lord for expressing his expert opinion so clearly. I can undertake only to study carefully what he has said between now and Report. Clearly, the Bill has been drafted by expert hands, but I am the first to say that there is no monopoly of wisdom on the Government’s side, and I am sure we need to taker full account of what he said.
Baroness Hamwee
My Lords, one of the things that we are saying is that because the Bill has a mixed heritage, it is perhaps not as clear as it could be and does not have the benefit of the expert work to which my noble friend referred. I am clearly going to have to read very carefully what has been said, but I want to make a few comments now.
First, I am grateful to the noble Viscount, but I do not think what he was saying was quite as the noble Earl put it with regard to the word “may”. We need to come back both to the “may” and the “other considerations” in particular and to the relationship between the subsections. That fact that the list in subsection (4) is not exclusive makes the matter even more difficult.
I obviously do not want to go over all the ground again. With regard to the privacy and civil liberties board, it was of course a construct—a compromise—but my noble friend Lord Strasburger’s point about somebody having the responsibility to make sure that privacy and civil liberties are right at the top, immovably in the agendas that the Government may have, is an important one. I, for one, would welcome something more than was in the Act.
I agree that listing where the duty bites does help clarity and transparency, but I had a difficulty in being completely certain that it bites on everything that I think it should; the filter in Clause 63 was my example. If the filter is part of granting, approving—obviously not—or cancelling an authorisation, that is fine, but it should be clear. I am afraid I am not hugely persuaded by a code of practice, since it is not primary legislation. In fact, I think the Minister said that we should have regard to it. If it provides that these matters are absolute, rather than discretionary, then the codes of practice will not be consistent with the primary legislation, and that will be a bad thing.
I come back to whether this clause has been invented here, or wherever it has been invented. I will offer to supply the hot towels for everybody—I might even provide cake—but this is a provision that would benefit from further discussion. I certainly do not offer not to bring it back on Report—I might if we can get to somewhere that satisfies all of those who are clearly concerned before then—but for the moment, I beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick (LD)
My Lords, my noble friend Lady Hamwee and I have Amendments 19 and 66 in this group. The relevant part of Clause 4 that we are talking about here deals with the definition of “interception”. Clause 4(1)(b) talks about interception being,
“to make any content of the communication available, at a relevant time”.
It is the expression “at a relevant time” that we wish to probe. Clause 4(4) describes “relevant time” as being during transmission, or before or after transmission. For us, that begs the question: what does “relevant time” therefore mean? Why does it have to be stated that “relevant time” is necessary, bearing in mind that it seems to cover every time before, during and after transmission?
I turn to Amendment 66. Clause 42(1) talks about interception being effectively lawful if both,
“the sender and the intended recipient … have each consented”.
This amendment simply suggests that that consent should perhaps be in writing. I beg to move.
Viscount Hailsham
My Lords, I would like to raise two points, if I may, about Amendment 66. I entirely agree with the suggestion that the consent should be in writing, and I would rather hope that the Minister will give us some reasons why it should not be, because on the face of it, it is an extremely sensible suggestion. As we all know, there is sometimes a certain degree of opaqueness regarding what people have or have not done. Looking at Clause 42, to which Amendment 66 applies, I have some difficulty in understanding the relationship between subsections (1) and (2). I am not sure why subsection (2) is there, given the language contained within subsection (1). Perhaps my noble friend can help us on that.
Baroness Hayter of Kentish Town (Lab)
My Lords, I wish to speak briefly to Amendment 68, which is in my name and that of my noble friend Lord Rosser. Clause 45(1)(a) permits interception by a Revenue & Customs officer under Section 105 of the Postal Services Act 2000. That is the provision that contains the power to open postal items, so that is clear enough. However, Clause 45(1)(b) permits interceptions by, again, a Revenue & Customs officer under the same Section 105 “and another enactment”. It is the phrase “and another enactment” that I am not quite clear about. If Section 105 is sufficient, why add the words “and another enactment”? If it calls on some other law in order to legitimise this activity, should that not be detailed in the clause? Amendment 68 therefore proposes deleting the second arm—the “and another enactment” bit—unless the Minister can make some sense of it for me.
Earl Howe
My Lords, let me turn first to Amendment 19. Clause 4 defines interception. It provides greater clarity in relation to the activity that constitutes interception than is currently the case under the Regulation of Investigatory Powers Act 2000—RIPA—and responds to calls from a number of quarters that such clarity is necessary. “Relevant time” is defined in Clause 4(4) to make clear that the interception offence can be committed at any time while the communication is being transmitted, or while the communication is being stored. Under RIPA, it is an offence to intercept a communication in the course of its transmission by means of a public telecommunications system. There had in the past been some uncertainty as to the scope of the offence; for example, whether a voicemail message stored by a telecommunications system was still in the course of its transmission, and therefore whether to access it without lawful authority would engage the offence of unlawful interception. The revised definition of interception in Clause 4 is intended to make clear that messages stored in or by the telecommunications system are caught within the definition of interception, and therefore cannot be accessed without lawful authority. This puts beyond doubt, for example, that so-called phone hacking constitutes unlawful interception.
If the Bill were amended in the manner suggested, it would, I believe, undermine the strong safeguards that the Bill provides for the protection of private communications. It would cast doubt over whether access to stored communications without lawful authority would engage the criminal offence, and it would be less clear when a public authority required a warrant to intercept communications.
Amendment 66 is not necessary and would be very difficult to implement in practice. Clause 42 simply makes clear that where both parties to a communication have consented to the communication being made available to a third party, this does not constitute unlawful interception. The Bill already requires that consent must be given in such instances for it to be lawful. On the example of a telephone call, plainly it would not be practical to write to an individual seeking their consent before continuing with that call. I hope that the noble Lord will not press that amendment.
I turn to Amendment 68. Clause 45 relates to the power of HM Revenue & Customs to inspect postal items to ensure that contraband or illegal items are not being imported or exported from the country. This clause is vital in countering terrorism and preventing and detecting serious and organised crime. RIPA was amended by the Policing and Crime Act 2009 to put beyond doubt that the protections from interception afforded to postal communications in RIPA did not restrict this vital Revenue & Customs power to check international postal traffic. This clause simply maintains this position. I hope that I have been able to provide some reassurance as to why this provision is necessary.
Viscount Hailsham
Could I press my noble friend a little more on Amendment 66? Of course I understand that there will be circumstances when written consent cannot be made, but there will be many other circumstances when it can be obtained. I note, for example, that it involves the consent of both parties. That suggests that it happens some time before the interception takes place. I should have thought it perfectly possible to have a proviso that the consent should in general be forthcoming and evidenced in writing, but that there should be a disapplication in urgent situations. In dealing with that matter, can my noble friend help me as to why we have subsection (2) as well as subsection (1) of Clause 42?
Earl Howe
My Lords, I am very sorry to have to disagree with my noble friend about the consent in writing, which would be likely to result in completely impractical situations. It is not clear what real advantage would be gained. In any case, most of the time, prior consent in writing would simply not be an option. Taking the example again of a telephone call, it is difficult to see how the normal transaction of business would not be completely impeded if we insisted on this provision.
I shall endeavour to respond to my noble friend about his question on subsections (1) and (2). I do not have a ready interpretation to give him now but, if I can during the proceedings, I shall do so.
Lord Grabiner (Non-Afl)
The language is pretty clear. Subsection (1) of Clause 42 suggests that consent of both is required, while subsection (2) refers to the consent of the recipient alone.
Baroness Hayter of Kentish Town
Could the Minister write on the amendment to Clause 45(1)? I was absolutely not suggesting by the amendment that the right would be lost for Customs & Revenue to intervene—it was about whether it needed to be under both Section 105 and, as it says,
“that section and another enactment”.
It was the clarity of the words “and another enactment” that I was asking about. I would be quite content to have a letter to clarify that point.
Lord Paddick
My Lords, I am very grateful to those who have contributed to this short debate, and very grateful to the Minister. On Amendment 19, I think that I am right in saying that the issue around phone hacking was on whether a voicemail that had not yet been listened to was still in the course of transmission, whereas a voicemail that had already been listened to was not in the course of transmission. That was a reason that the police gave at one stage for not investigating some of the phone hacking. I find the wording rather curious. I should have thought that it would be sufficient to say that communication included communication stored prior to or following transmission. But I am not a lawyer—I accept that.
I accept what the Minister says on written consent, on Amendment 66, but surely there are other ways in which consent can be explicitly given. For example, if a telephone conversation was being recorded, both parties to that conversation could say on tape, as it were, that they consented to the interception of that conversation. Perhaps we could give that some further consideration. I beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick
My Lords, the amendment is in relation to the mandatory use of equipment interference warrants. The wording of the relevant section says that security services must secure an equipment interference warrant if the “intelligence service considers that” the conduct would constitute an offence under the Computer Misuse Act. Surely, it must be something more than just whether the particular intelligence officer considers that the conduct would constitute an offence under that Act. Surely, an equipment interference warrant must be obtained because, otherwise, it would constitute an offence, rather than simply if the intelligence service considers that it is.
Amendment 24 makes a similar point about restrictions on the use of Section 93 of the Police Act 1997. In this case it states that a “targeted equipment interference warrant” is required,
“if the applicant considers that the conduct would … constitute”,
an offence under the “Computer Misuse Act 1990”. I would argue that exactly the same considerations apply as with Amendment 23. I beg to move.
Earl Howe
My Lords, the amendments in this group seek to change the language used in relation to the equipment interference regime and Computer Misuse Act offences. Clause 13 provides that an equipment interference warrant under the Bill is mandatory if the intelligence service considers that the conduct would constitute a Computer Misuse Act offence and there is a British Islands connection. Similarly, Clause 14 provides that law enforcement agencies will be unable to authorise this type of equipment interference under the Police Act 1997 where the applicant considers that the conduct would constitute an offence under the Computer Misuse Act. This is an important safeguard.
The language in Clauses 13 and 14 reflects the fact that at the point of application the equipment interference agency may not be able to say with complete certainty whether the proposed interference will constitute an offence under the Computer Misuse Act. For example, when an MI5 officer is handed a compact disc by a source, it may not be clear whether the disc belongs to the source who intends the officer to use the disc, in which case the Computer Misuse Act would not be engaged, or whether it is owned by another person who does not intend the officer to access the disc, in which case the Computer Misuse Act would be engaged. In these circumstances, the applicant will need to consider the possibility of an offence occurring, consult legal advisers, where unclear, and seek the appropriate authorisation, if required. The language of the Bill reflects that it may not be certain whether the Computer Misuse Act is engaged. The language in the Bill and the code of practice anticipate that applicants will err on the side of caution.
Finally, and crucially, all equipment interference will be overseen by the new Investigatory Powers Commissioner, ensuring that there is independent and objective analysis of any decision regarding the possibility of conduct constituting an offence under the Computer Misuse Act. I hope that explanation will be helpful to the noble Lord and explains why this language is in the Bill. I therefore invite him to withdraw the amendment.
Lord Paddick
I am very grateful for that explanation. I understand that it may not be certain that something constitutes an offence under the Computer Misuse Act. Where it is an offence under the Computer Misuse Act, does the Bill allow a Security Service agent or law enforcement officer to ignore that provision?
Earl Howe
That cannot happen. Without a valid lawful authority, interference with equipment that is prohibited by the Computer Misuse Act will remain illegal. If a member of an equipment interference agency considered that no Computer Misuse Act offence would be committed before beginning an operation but later determined that an offence was likely to be committed, they would be required to seek appropriate authorisation.
Lord Paddick
I am very grateful to the Minister. I beg leave to withdraw the amendment.
“Protection for journalistic sources, materials and activities
(1) Save in the exceptional circumstances identified in subsection (2), the regimes provided for by Parts 2 to 7 may not be used to access, obtain, record, hold, consider, analyse, disclose or otherwise deal with information, material or data—(a) of, or concerning, the activities relating to journalistic information, or(b) if the purpose of so doing is to obtain information identifying a journalistic source.(2) The exceptional circumstances referred to in subsection (1) are—(a) the case is one of great emergency,(b) immediate action is necessary, and(c) the relevant investigatory powers under the regimes provided by Parts 2 to 7 can be used lawfully having regard to those provisions.(3) In any case where the regimes provided for by Parts 2 to 7 are disapplied by subsection (1), any person who could otherwise have sought to use one of the investigatory powers specified therein may apply to a judge for an order allowing that person to access, obtain, record, hold, consider, analyse, disclose or otherwise deal with such information, material or data in a way provided for by Parts 2 to 7.(4) An application for an order under subsection (3) shall be made on notice to the media organisation affected unless the judge determines that an application without such notice is required in order to avoid prejudice to the investigation.(5) Paragraphs 7 to 9 of Schedule 1 to the Police and Criminal Evidence Act 1984 shall apply in relation to the service of a notice of application for an order under subsection (1) as if the application were for an order under Schedule 1 to the Police and Criminal Evidence Act 1984.(6) Criminal Procedure Rules may make provision about proceedings under this section where the judge determines that an application without such notice is required.(7) A judge may only make an order under subsection (3) if the person making the application has convincingly established that— (a) the order is directed towards one or more of the legitimate aims specified in Article 10.2 of the European Convention on Human Rights,(b) there is an overriding public interest necessitating the order,(c) reasonable alternative measures to the order do not exist or have been exhausted, and(d) the order is proportionate to the legitimate aim or aims being pursued.(8) The costs of any application under subsection (3) and of anything done or to be done in pursuance of an order as a result of the application is to be at the discretion of the judge.”
Viscount Colville of Culross (CB)
My Lords, I declare an interest as a producer and director at the BBC.
The protection of sources of journalistic material has been talked about in the other place and in your Lordships’ House. Maintaining the trust of these sources is crucial to enabling the important role that is played by the free press in exposing wrongdoing in private and public institutions. That must be in the public interest. There is a difference between the public interest and what the public is interested in.
This Bill curbs the collection of journalistic material in violent and difficult situations, such as riots or demonstrations that turn violent. I very much welcome Clause 2, which covers privacy. That concerns all citizens. This amendment asks for an extra protection for sources of journalistic material and information across the powers of the Bill. It responds to noble Lords’ concerns about the difficulty of defining a journalist. In Clause 73, the words “journalistic material” are used. The amendment uses the same concept and refers to:
“Protection for journalistic sources, materials and activities”,
using the definition of journalistic material set out in PACE. This definition can be used as a basis for decision-making by the carefully trained and very experienced judicial commissioner who is charge of this process. The commissioner will decide what is journalistic material and what is not. I am sure that the public interest—again, rather than what the public are interested in—will be the most important criterion. This would mean that PR communications, which are for commercial benefit rather than public interest, will be excluded. Likewise, it would exclude fundamentalist bloggers who are clearly sending out propaganda whose material could never pass the test of public interest.
I know the Minister is concerned that free speech should flourish and that sources who provide this journalistic material do not feel that they are unnecessarily being surveilled by the authorities using the extraordinary powers available in our digital age. I am grateful to the Government for listening to these concerns, and I welcome the safeguards provided in Clause 73 for the protection of sources of journalistic information in the power of communications data.
Amendment 25, however, aims to extend those protections for sources to the other powers set out in the Bill. I am particularly keen for the power for targeted equipment interference to be covered by a safeguard for sources. This could be material owned by the journalist or the source who is giving the information. Targeted equipment interference includes the ability to use a mobile phone’s microphone as a bug. It could also include looking at a journalist’s electronic notebook and at footage shot in the course of a story, which, as a broadcast journalist, worries me a lot.
I note that there are thresholds in the Bill for issuing this kind of warrant, which include national security and serious crime. The definition of serious crime is explained in Clause 235. Paragraph (a) states that it has to be an offence for which someone,
“could reasonably be expected to be sentenced to imprisonment for a term of 3 years or more”,
but paragraph (b) states that it is where,
“the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose”,
I am worried that the definition in paragraph (b) is very wide and represents too low a threshold. It includes any conduct that,
“involves the use of violence”,
and,
“conduct by a large number of persons”,
and therefore includes the classic case in which the police try to get hold of footage filmed at public demonstrations. Violence is a very wide concept. If serious crime was limited to paragraph (a) or to indictable offences only, there might be a point, but allowing the definition of serious crime to cover any violence by a large number of persons is too low a threshold and would get round the tried and tested means of accessing information through PACE.
I know from experience that journalists are often seen by demonstrators and rioters as extensions of the authorities. This process started abroad, but it is now often seen in this country. As a result, we are seeing journalists targeted for taking footage of riots or violent behaviour. This is a dangerous trend, which we should all try to prevent. In the Dale Farm case, when the police wanted to see footage from Sky News, the judge ruled that the request posed a danger to broadcast journalists. He said:
“If the perception takes hold that such people are working on behalf of the police, or are likely to co-operate with them by supplying such material routinely, life could become very difficult. They might find it more difficult to obtain access to areas where demonstrations are taking place or to work in the vicinity of those who are prone to violence. Moreover, at its most acute, the perception could increase the risk of violence towards cameramen or their equipment”.
I ask the Minister to look again at the Bill and to extend the protection for journalistic material across the powers. This provision would ensure that the judicial commissioner would be asked to look at warrants and would have to bear in mind the safeguards needed to protect journalistic sources.
Proposed new subsection (4) asks for notice of a warrant request to be given to the media organisation, unless there are exceptional circumstances, such as a great emergency or when immediate action has to be taken. This is important so that it can explain the dangers involved in exposing the source. I understand that, as the Bill stands, the judicial commissioner, if concerned about the dangers of a warrant being granted to the journalist and the dangers this might pose to the journalistic source, will have the right to ask for more information. My fear is that they might not have been given all the facts by the people requesting information. It might just be that the person making the request is not even aware of the danger to the journalistic source from exposure to surveillance.
I quite understand the fears of the Government that notification to a media organisation might defeat the whole purpose of the exercise, but PACE covers the physical property of journalistic information and gives a right of notification so that the application can be challenged. PACE, however, dates back to 1984, when the internet was still a glimmer in the eyes of Sir Tim Berners-Lee. We never imagined the presence of digital information in worldwide communications at the press of a button. Mobile phones, computers and the internet are the notepads of the 21st century. The Bill is a wonderful recognition of the changing way in which we communicate, and it covers this. Surely this amendment is an opportunity to update the notification section of PACE to cover the equipment of our age that is used to gather journalistic information.
The amendment suggests that notification should be given through the media organisation. In the vast majority of cases, the application will relate to a newspaper or broadcaster, and a lawyer will be available for the news outlet in either broadcast or print. In-house lawyers regularly receive sensitive information, such as orders from family courts, privacy injunctions and super-injunctions, and are well able to handle sensitive information such as police requests for footage under PACE or the Terrorism Act, or indeed any police request. So I do not think handling such a request will be an issue. If there is a concern about the media organisation or the journalist involved, we should talk about the judicial commissioner being involved and helping make that decision.
I understand that noble Lords are concerned that there could be false claims of journalistic sources, which could be used to prevent a warrant. I suggest that the journalist would have to sign a witness statement that the claim is true; if found not to be, they would have perjured themselves and be subject to the might of the law. Once again, in this issue the judicial commissioner would have an important role to play. They would use their experience and training to decide whether the recipient is noteworthy or not.
The amendment represents very important safeguards for free speech in our country. I know that the Government greatly support this principle. I urge the Minister to consider carefully the changes to the Bill set out in the amendment and I beg to move.
Lord Black of Brentwood (Con)
My Lords, I support Amendment 25, moved by the noble Viscount, Lord Colville. I declare my interest as executive director of the Telegraph Media Group and draw attention to my other media interests in the register.
As the noble Viscount has said, the issue of the confidentiality of journalists’ sources has been a leitmotiv during the obsequies of the unloved Regulation of Investigatory Powers Act and throughout the passage of this Bill, during extensive pre-legislative scrutiny, in all its stages in the other place and now here in Committee in your Lordships’ House. But we are now nearing the end of it all and so this is probably our last opportunity to get it right. It therefore deserves the closest and most thorough attention.
I doubt that there are many here who need persuading about the importance, in a free society, of the protection of sources. The arguments were most formidably summed up in the case of Goodwin v United Kingdom in a famous ruling in the European Court of Human Rights some 20 years ago, which stated:
“Without … protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected”.
The protection of sources is crucial for investigative reporting, whistleblowing and indeed free and unfettered political debate. Without adequate protection, investigative journalism becomes almost impossible, whistleblowers do not come forward to the press and wider media to alert them to issues of public interest, and political debate becomes sterile and bland.
Your Lordships should not underestimate the difficulty already faced by journalists in getting confidential sources to speak on matters of often profound public interest. There has been so much attention given in recent years to the way in which sources have been exposed through surveillance and the misuse of anti-terrorist legislation that it is becoming harder and harder to get sources to come forward. Some even fear for their lives because they could easily become targets themselves if it became known that they had co-operated with a reporter. It is not an overstatement to say that, on occasion, the protection of sources can be a matter of life and death. That is why we must take with the utmost seriousness the passage of any legislation in this House which damages free expression and undermines the protection afforded to confidential sources by opening up the possibility of the state being able to shadow the work of journalists, track what they are up to, identify their sources and see what information they have made available.
I know that the Government are acutely aware of the importance of this issue and have listened with great diligence to the concerns of the media and others. I am very grateful to them for the action that they have already taken to strengthen the Bill in this regard, and the amendments in the other place are a very welcome step in the right direction. Unfortunately, I do not believe that they have yet gone far enough. Yes, there are safeguards, and they are very welcome. But they are not strong enough, and above all they will not work properly, and that is what this amendment is all about.
As I have said, this is a matter of real and urgent concern to the whole of the media—publishers, editors, trade unions, the national and regional press, magazines, broadcast and digital—and there has been unprecedented co-operation among interests which are often competing. The reason for this level of unity is, I am afraid, a profound sense of déjà vu. During the passage of RIPA back in 2000, a similar coalition of interests, led by the Newspaper Society, warned that its wide terms and lack of adequate safeguards would inevitably lead to the undermining of confidentiality of sources. The industry warned that the number of organisations which could use RIPA powers should be limited and that the grounds for the use of those powers should be more strictly limited. The industry was repeatedly told that it was crying wolf and that there was no way the Bill could be so abused. On 6 March 2000, Jack Straw, then Home Secretary in the other place, gave a specific guarantee on that subject.
But, of course, we know exactly what happened. We have heard of, and seen, numerous examples where local authorities and the police then subsequently used RIPA powers of surveillance to access phone records to crack down on whistleblowers talking confidentially to the press; and it has often been the local press, who are the guardians of local democracy and accountability, who have been in the firing line. In one case, involving the Derby Telegraph, a local authority used RIPA powers to spy on a reporter who had been talking to council employees. In another, deeply disturbing incident, Thames Valley Police used RIPA powers to place a probe inside the car of a source who had been talking to a reporter from the Milton Keynes Citizen, Sally Murrer, and, on the back of recordings obtained, arrested the journalist and strip-searched her. In 2012, Cleveland police used RIPA powers to access the phone records of three Northern Echo journalists to try to find out the source of its coverage of a Cleveland Police internal report that revealed elements of institutional racism within the police force.
All this—and much more that we may never know about—happened despite protestations from the then Government that this could not possibly happen. The reason for that, as we have seen in countless other cases of legislation involving press freedom and confidentiality of sources, is that the legislation has not been watertight, proper and comprehensive safeguards were not written into the Bill, and it has been too easy for those wanting to access sources to find loopholes through which to crawl. This mistake cannot be allowed to happen again.
It is easy to see where the problem with this Bill arises. As the noble Viscount said, yes, there are safeguards in Clause 73 relating to prior judicial authorisation, and that is welcome, but it is inadequate in a number of respects. For one thing, it governs acquisition of communications data only for the purpose of identifying or confirming the identity of a journalistic source. Crucially, it does not apply to acquisition of data for other purposes. But most importantly, it does not allow for prior notification to the media of an application to use the Bill’s powers, and the opportunity for the media to make submissions on whether this will impact on the confidentiality of a source.
It is all very well having judicial safeguards in place, but they will not work unless the judicial commissioner assessing the application has all the relevant information before applying his or her judgment and making an informed decision. After all, how can a judicial commissioner possibly know what they do not know? That is almost Kafkaesque. Without input from the media—and I recognise that there must be exceptions to this where a journalist or media organisation is under suspicion—they could not possibly, for instance, know how the use of surveillance could actually place the life of a source, or indeed of a journalist, in danger and other such considerations. In those circumstances, the important tests outlined in the Bill cannot be properly applied, and as a result the safeguards simply will not work.
Lord Stoneham of Droxford (LD)
My Lords, I support the noble Viscount, Lord Colville, and the noble Lord, Lord Black, on this amendment. I was unable to speak at Second Reading but I have spent a lifetime in the print media, so I have particular concerns on this matter.
To enable the state to access and shadow every aspect of the work of journalists and media organisations and their sources undermines press freedom, the role of the media in a free society and their ability to hold the powerful to account. I think all noble Lords would accept that that is a major concern. Such powers chill freedom of expression, inhibit sources coming forward in future for fear of potential exposure to the state, and effectively curb the press. As the noble Lord, Lord Black, said, the key issue here is the protection of sources; that is critical to the work of a free press. There is also the aspect that by not providing protection you expose journalists to danger; both reporters and photographers will become targets if it is feared that the police or other state organisations have wide access to their material.
The noble Lord, Lord Black, said in particular that there is strong evidence that the RIPA powers, which we had concerns about when that legislation went through, show the need for extra vigilance. I hope that the Government will address that in their response to this amendment. I was quite surprised to see the statistics on the number of journalists who have been subject to this legislation’s powers. We are asking for one particular power, that there should be a right not only for the judicial commissioner to authorise these inquiries but that the media organisation should be informed that those powers are being sought; otherwise, those sources have no idea what the state is up to and no concept of having the power to challenge its interpretation of the public interest. There is clearly a public interest, as regards the media organisation as well, to ensure freedom of the press.
We therefore believe that these well-established legal procedures should be provided in the Bill as safeguards for the protection of journalistic activity, while we recognise that both the courts and the UK Parliament have long recognised the necessity for proper protection of non-confidential and confidential journalistic material and sources. That is why we asked the Government to look very carefully at this stage at the legislation. We welcome the efforts that they have made so far, but in view of what has happened with the use of the RIPA powers and the need for these additional safeguards, we hope that the Minister will respond favourably to the amendment.
Lord Murphy of Torfaen (Lab)
My Lords, the Joint Committee on the Bill—four Members other than myself, who chaired the committee, are present this evening—met journalists in evidence sessions. The Society of Editors and the National Union of Journalists met with the committee on 14 December last year, and of course many strong representations were made in writing to the Joint Committee on this very subject. The committee eventually recommended that,
“the Home Office should reconsider the level of protection which the Bill affords to journalistic material and sources”.
We recommended that it should be at least equivalent to that afforded by the Terrorism Act 2000 and by PACE, and that the Home Office should take into account the various aspects of the European Convention on Human Rights which affect this aspect of the Bill. I know that the Joint Committee on Human Rights has also made representations to the Government on this matter.
I support the amendment in the name of the noble Viscount, Lord Colville. His proposed new clause deals with wider protection from state surveillance, not just sources—for example, a politically sensitive investigation—in that it covers areas other than simply communications data; for example, equipment interference, and that orders should be sought from a judge, as with PACE. I congratulate the Government, as in Committee in the other place, Clause 73 was introduced, which made welcome changes to the Bill as it then stood. However, I agree with noble Lords who have already spoken that that is not quite sufficient and more needs to be done.
The issue the Joint Committee had to deal with was how precisely you define a journalist these days. It is very different from when I was a young man. With the advanced technology, what or who is a journalist? PACE defines it in some senses in that it at least refers to “journalistic material”. A journalist is,
“any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication”.
Therefore we can overcome these issues.
All the speakers so far have indicated that we are grateful to the Government for what they have done, but more could be done. I do not say that the precise wording of the proposed new clause in the amendment is the precise answer to where we are going, but Ministers—both here and in the other place—have indicated to me over the last couple of months that the Government are willing to look very carefully at how to ensure that journalists are properly protected under this legislation. It is certain that there should be no lessening of protection from what already exists under PACE. I fear that it is possible that that might be the case, unless we go a little further in protecting both the sources of journalists and their investigations.
I therefore hope that, when the Minister winds up, he will give us some joy and will indicate that, by the time we reach Report, the Government will have reconsidered some of these aspects and we will be able to ensure that this particularly important part of the Bill is dealt with properly.
Lord Paddick
My Lords, my name is to this amendment and I very much support it. As a former police officer, I feel I have to speak on both aspects of this. The noble Lord, Lord Black, spoke clearly and in detail about the need for very specific safeguards because of the experience that we have had with the Regulation of Investigatory Powers Act. Police have clearly not used legislation in the way that Parliament intended it to be used—that is, to establish who confidential journalistic sources are. I also support what the noble Viscount, Lord Colville of Culross, said about the danger to journalists, particularly camera operators in serious, spontaneous public order situations. This is an area where I have some expertise. At the moment there is a balance as experience has shown that media footage has, in certain circumstances, been useful to demonstrators in terms of misuse or excess use of force by police officers. If this were to change, and the demonstrators felt that material gathered by media operators was under the control only of the police, because of inadequate provisions in the Bill, it could tip the balance and journalists would become a target for violence in such situations.
Baroness Jones of Moulsecoomb (GP)
My Lords, I support Amendment 25 and declare an interest as the mother of a journalist. I also apologise for not having spoken at Second Reading; I was not able to be here. My only concern with Amendment 25 is that it does not go far enough and there is no “reasonable suspicion” test. We must remember that journalists often uncover some pretty heinous crimes and pretty awful stories. While we often talk about the damage they do and the crimes they commit, they also do some incredibly valuable work for our society, so I think this an extremely important amendment.
Lord Strasburger
My Lords, my name is also to this amendment. I shall not detain the House for very long. There is one aspect of this that I do not think has been mentioned: without protection for the anonymity of whistleblowers, far fewer will come forward and expose themselves to the revenge of their employers or others in powerful positions. There is ample evidence of whistleblowers being severely victimised, so anonymity is essential. Without whistleblowers, wrongdoing and cover-ups in the private and public sectors will go unreported and uncorrected, and that outcome is to the detriment to all of society, particularly those who lack a loud enough voice to be heard when things go wrong.
In recent years we have seen many cases of legislative arbitrage by the police in order to use powers that were never intended for the purpose of discovering journalists’ sources, finding ways to do so with the fewest protections. The “plebgate” scandal was a particularly graphic example, where RIPA was misused to find the source of a story in the Sun. Journalist’s phones on the Sun’s newsdesk were investigated by the police and their communications data were obtained. Under RIPA this was, of course, completely self-authorised; there were no external checks on what they were doing.
I believe that the Bill actually reduces the protection for journalists’ sources in the case of interception of communications and communications data. It provides no protection at all against the use of other surveillance powers, especially equipment interference. Amendment 25 seeks to rectify these shortfalls; I do not believe it is perfect yet, but it is a good start.
Baroness Hayter of Kentish Town
My Lords, I shall speak briefly about Amendment 148 in this group, which stands in my name and that of my noble friend Lord Rosser. It deals with what protections there should be for any journalist’s material collected as a result of any of these powers. In the case of material obtained that falls under normal rules of legal privilege, the Bill lays down the care with which such material should be treated under professional privilege. It is particularly important that the material is secured very safely, should anything from a journalist be held. Similarly for lawyers, material should secured very safely, and be seen by the fewest number of people possible. Anything that is not subsequently used in the investigation should be destroyed or returned and certainly not kept. That sort of safeguard should cover any journalist’s material, either under the Bill as it stands or as amended under Amendment 25.
The case has been made as to why it is so important to protect journalists’ sources. It encourages people to come forward to give what might be really important information to an independent source, who can then verify and publish it without the source’s identity being known. Sometimes, however, I have sympathy with people’s identity being known, when they are, for example, selling secrets they should not be to newspapers for large amounts of money. I am sorry that the noble Lord, Lord Black, was not here when we dealt with Amendment 18, as a number of newspapers have failed to work to implement Leveson. In discussion of what might constitute a journalist, perhaps anyone who works for a Leveson-compliant organisation, would be a good way of defining them. This might be the encouragement needed to bring that into being.
Guaranteeing anonymity has and always will be vital to the journalists’ profession, for the sake of those who go to them but also, as has just been mentioned, for the safety of journalists, literally hundreds of whom are killed around the world in the course of their duty. There can be little doubt that should some undesirable person or organisation think that a journalist who they have briefed or who has photographed or filmed them might hand that material over to the state, then that journalist becomes at risk. It is also essential that the use of powers that may affect journalists’ sources of information should be thought of being used only when there are exceptional and compelling reasons.
There will be times when journalists’ material gets scooped up, which is when it needs to be protected. More seriously, where journalists are being asked to hand over film or photographs, we share the desire that they should be fully protected, as outlined by the noble Viscount, Lord Colville. We hope that the Government have continued their discussion with the parties involved and we look forward to hearing an update.
Earl Howe
My Lords, this Government have been clear on their continuing commitment to protecting the free press and freedom of expression in this country. In the Commons and at Second Reading, we committed to looking at this issue further and ensuring that the balance of such protections was exactly right. I thank noble Lords for tabling this amendment and giving us the opportunity to continue this important debate. The Government have listened carefully to the debate on these issues so far, and have continued to discuss them with media organisations. I have met journalists and their representatives for a very informative discussion. This engagement has proved extremely useful all round, not least in resolving misunderstandings about the relevant safeguards provided in existing legislation.
In response, the Government tabled amendments in the House of Commons strengthening the protections in the Bill for journalists’ sources. The amendment passed on Report places an extremely strong test in the Bill where a public authority seeks to use communications data to identify or confirm a journalist’s source. This means that a judicial commissioner—that is, a serving or former high court judge—must first consider the public interest in protecting a source of journalistic information and then be satisfied that there is another, overriding public interest before approving an application.
In addition, the Government introduced a new overarching privacy clause which makes it explicit that public authorities exercising functions under the Bill must have regard, for instance, to whether what is sought to be achieved by any authorisation may reasonably be achieved by other less intrusive means. It also requires persons exercising functions under the Bill, including authorising police officers and judicial commissioners, to have regard to the public interest in the protection of privacy as well as numerous other principles that underpin the legislation. These amendments clearly spell out in the Bill some of the protections that journalists seek.
Of course, the Bill proceeds from the widely accepted position, endorsed by the Joint Committee on Human Rights, that,
“review by a judge or other independent and impartial decision-making body”,
is the most significant safeguard required to protect the confidentiality of a journalist’s source. The Bill introduces that safeguard across all warrants. It specifically provides for judicial approval of any authorisation to acquire communications data for the purpose of identifying or confirming a journalist’s source.
Amendment 25 would apply a standard set of protections across the different powers provided for in the Bill. While I commend the intention to strengthen protections, the Government do not consider this blanket approach to be the right one. The powers in the Bill are not the same; they vary both in the material that can be acquired and the level of intrusion that such an acquisition represents. That is why the Bill ensures that additional protections are applied where they are most appropriate, providing for judicial authorisation of the most intrusive powers and mandating the use of less intrusive powers where that is possible. Indeed, journalists have it made clear to me that, uniquely, they consider communications data to be at least as intrusive as content, since they allow a source to be identified. That is exactly why the Government have, also uniquely, provided for judicial authorisation of communications data requests to identify a journalist’s source.
This Government agree—indeed they forcefully advocate—that confidential journalistic material and journalists’ interaction with their sources must be protected, but that does not mean that a journalist should receive blanket protection from legitimate investigation simply because of their chosen profession. The Bill ensures that protections are applied where they are required, that those who commit a crime or pose a threat to national security can be investigated, regardless of their chosen profession, and it does so in a way which is compatible with all our ECHR obligations. I should be clear that the Bill already requires any authorisation to relate to a legitimate ECHR Article 10 aim, as part of the amendment demands.
Extending protections to all,
“activities relating to journalistic information”,
as the amendment seeks to do, brings real practical implications which the Government do not consider appropriate. For example, it is clear that the content of an interview conducted in public should not be subject to the same stringent protections as a dossier of private, undisclosed material passed by a source and held in confidence. That would render meaningless those protections which are appropriately applied to confidential journalistic material.
In addition, the amendment would mean that a journalist suspected of committing a crime could be investigated only in an emergency situation where immediate action was necessary and an order to use the powers in the Bill was obtained from a judge—that is, if the crime had already taken place and there was no immediate danger, the powers could not be used to bring that individual to justice, nor could they be used to prove that individual’s innocence. I suggest that that is the wrong approach, and that is without considering the question, which even the National Union of Journalists has admitted is extremely difficult, of defining who is and who is not a journalist in the digital age.
Finally, on the question of the key decision-maker in this process, the Bill upholds the important principle of judicial involvement. A number of bodies representing the journalist profession have argued that the only way to prevent the powers in the Bill being misused is to allow a journalist to be involved in the judicial commissioner’s decision. The Government do not agree.
Of course, our security and intelligence and law enforcement agencies will in very limited circumstances have a legitimate need to investigate a journalist or their source. Where a journalist is suspected of a crime, it is clearly not appropriate that they should be alerted to the investigation, but there is a fundamental consideration here: these powers are by their very nature covert. Requiring prior notification would undoubtedly undermine the key purpose of the powers, whose use in relation to journalists, we should be clear, is already extremely limited.
Instead, the Bill provides for a robust regime to govern the use of the powers, with a clear role for judicial commissioners in authorising and overseeing their use by public authorities. It also sets out the offences that apply in the event that any of the powers are misused and provides for a world-leading oversight regime, led again by senior and independent judicial figures. The Bill takes a reasoned, balanced approach—the right approach—to protecting the important role of the media in a democratic society. It applies protection where it is needed without unduly hampering our law enforcement and security and intelligence agencies when they truly require the use of the powers. It is on that basis that I invite the noble Viscount to withdraw his amendment.
The noble Lord, Lord Strasburger, asked about protection for whistleblowers. The Joint Committee that was convened to scrutinise the draft Bill recommended that it make it clear that members of the intelligence services can raise concerns about the misuse of investigatory powers with the Investigatory Powers Commissioner without being at risk of prosecution for breaching the Official Secrets Act—that was recommendation 61. The Government included Clause 203—now Clause 212—on the Bill’s introduction to the House of Commons to give effect to the committee’s recommendation. The Bill will allow an individual to provide information on a voluntary basis to the Investigatory Powers Commissioner without that individual committing a criminal offence or incurring civil liability. Of course, any use of these investigatory powers must be for one of the purposes specified in the Bill, such as the prevention or detection of a crime or in the interests of national security. They cannot be used simply to protect any organisation’s reputation.
Amendment 148 would apply protections designed to provide the appropriate safeguards for a specific power to entirely different circumstances. “Exceptional and compelling” is a phrase which relates to a very specific set of circumstances: those in which the Secretary of State is satisfied, and the judicial commissioner agrees, that it is necessary to issue a warrant where the intention is to acquire legally privileged communications. Such circumstances will arise only in a very restricted range of cases, such as where there is a threat to life or limb or in the interests of national security and the interception is reasonably regarded as likely to yield intelligence necessary to counter the threat.
The test which the Government introduced into Clause 73 in the other place relates to the acquiring of communications data to identify or confirm a journalist’s source. It requires the judicial commissioner to have regard to the public interest in protecting journalists’ sources and then to consider, as I explained earlier, that there is another overriding public interest before granting the request. I suggest that that is the appropriate test because it reflects the requirements of freedom of expression under Article 10 of the European Convention on Human Rights.
This amendment also seeks to apply the arrangements provided for in relation to material acquired under an interception warrant to the handling, retention, use and destruction of communications data. While I commend the intention of this element of the amendment, it is unnecessary as equivalent safeguards are already to be found in chapter 11 of the Draft Communications Data Code of Practice. This chapter provides significant detail on the handling arrangements for communications data, placing stringent safeguards around how it is held: for instance, restrictions on who may access the data and for what purposes; when the data may be disclosed; and that when it is no longer necessary or proportionate to hold the data, it must be destroyed. These are strong safeguards which provide the appropriate protections for data.
As I noted earlier, the Bill takes what I would contend to be a reasoned and balanced approach—the right approach—to protecting the important role of the media in our society. I hope that, on that basis, the noble Baroness will not press her amendment.
Lord Strasburger
Perhaps I may ask the Minister three questions. Do the Government have any problems with the way that PACE currently protects journalists’ sources? I ask this because many of the criticisms he made of this amendment with respect to potential tipping off would surely also apply to PACE. The second question is this: do the Government feel that this Bill protects the communications data of journalists as well as PACE currently does? Thirdly, what special protections do the Government say the Bill gives journalists with respect to equipment interference?
Earl Howe
My Lords, the Government are clear that the regime provided for in the Bill is not inferior to the provisions of PACE. It requires that applications be made to a court for a production order on notice to the holder of the material. In the case of communications data the whole of the material is a telecommunications provider, not a journalist. We are therefore clear that nothing in the Bill enables the investigatory authorities to circumvent the protections for journalists’ sources contained in PACE. Indeed, in 2015 the Interception of Communications Commissioner conducted a detailed investigation into the allegations that public authorities had utilised RIPA to avoid the use of PACE and clearly rejected the claim. The amendments that we have made to the Bill combined with the other safeguards for acquiring communications data mean that the relevant considerations laid out in Schedule 1 to PACE are addressed on the face of the Bill.
Viscount Colville of Culross
My Lords, I thank noble Lords across the Committee for their support for this amendment. I am particularly grateful to the noble Baroness, Lady Hayter, for pointing out the dangers to journalists that are possibly posed by this Bill and how the amendment might be able to ameliorate that situation. I am also grateful to the noble Lord, Lord Murphy, for reminding us of the recommendations of his committee. There was a worry that there was less protection for journalists under the Bill than had existed under PACE. I know that the Minister has answered the point, but obviously there is widespread concern that that is the case.
I ask the Minister to listen to the noble Lord, Lord Paddick, who after all was a senior policeman. He himself pointed out that when it comes to looking at serious crime, particularly the worries over violence in demonstrations, it is all about keeping the balance and making sure that journalists do not become a target for violence and that we protect them. I thank the noble Lord, Lord Strasburger, for pointing out the importance of keeping the anonymity of whistleblowers. Of course the whistleblower Act protects whistleblowers, but only once they have been named. What we are trying to do is to maintain their anonymity.
I thank the Minister for the discussions that we have had in the run-up to the Bill, but I ask him to look once again at the protections in place for journalists under different powers. I do not think, as he said, that we are asking for blank protections for journalists. We are asking for them to be carefully controlled with different thresholds and controls to exist in different powers. I am also sorry that the Government do not feel the need to notify journalists that a warrant is going to be issued. It would be extremely helpful and it is important in making sure that the process works better.
I hope that the Minister will at least continue discussions with us between now and Report stage about how we can extend the protections for the sources of journalistic material. For the moment, however, I beg leave to withdraw the amendment.
Caste-based Discrimination
Lord Harries of Pentregarth
To ask Her Majesty’s Government what steps they are taking to combat caste-based discrimination in the United Kingdom.
Lord Harries of Pentregarth (CB)
My Lords, I begin by paying two short tributes. The first is to the late Lord Avebury, who died in February. Eric fought persistently for human rights in all forms, not least against caste-based discrimination. We miss his tenacious refusal to be deflected from this goal. The other person is Dr Ambedkar, the 125th anniversary of whose birth has been celebrated this year. Dr Ambedkar was the architect of the Indian constitution with its fundamental principles of equality and justice and which outlawed caste-related untouchability.
Perhaps I may make two clarifying points. First, what we are concerned about is discrimination in the public sphere. If people have deeply ingrained beliefs about who their children should or should not marry, we may have views about it but the law has no locus. The law is concerned with what happens in public. It exists to ensure that there is no discrimination in the areas of employment, education and the provision of public goods and services. Secondly, we are concerned with caste as a social phenomenon, which has affected all religions from the Indian subcontinent, including Christianity and Islam. Sadly, the noble Lord, Lord Ahmed, has had to withdraw his name from this debate. He was going to speak forcefully about his experience of caste-based discrimination among Muslims of Pakistani origin in Bradford.
The Enterprise and Regulatory Reform Act 2013 amended Section 9(5) of the Equality Act 2010 to provide that the Government,
“must by order ... provide for caste to be an aspect of race”.
The word used is “must”, with no equivocation or qualification, and what we are talking about is an Act of Parliament passed by both Houses.
In July 2013 the Government introduced a timetable which set out a series of steps, including a public consultation, which was to lead to the implementation of this Act in the summer of 2015. As part of the process Ministers approved a feasibility study to be conducted into if and how it might be possible to estimate the extent of caste-based discrimination in Britain. A consortium conducted the research in the autumn of 2014. The consortium’s report was due in November 2014, but it is yet to be published. My first question to the Minister therefore is: why has this research not been published? The question posed by the Government was clear enough. Is it or is it not possible to estimate the extent of caste-based discrimination in the UK? If it is possible, why has this not been carried out? If it is not possible, or if there is a downside to doing so, we need to hear the reason for that. In either case, there is no good reason to stop the process there or to refuse to go into a public consultation. It is not necessary to know the extent of caste-based discrimination in the UK to put into effect the clear decision of both Houses of Parliament. Even if caste-based discrimination in the public sphere were not extensive, it exists and Parliament has made it clear that it should be made illegal.
I took steps myself to interview someone who had experienced discrimination in employment and I found his case entirely convincing. When we have raised these issues in the past, the Government have repeatedly cited the Tirkey v Chandhok employment tribunal case as a reason for non-implementation of the legislation so far. In that case the tribunal noted that caste-based discrimination can constitute unlawful race discrimination in certain contexts and that caste should be an aspect of race as defined by Section 9(1) of the Equality Act 2010. However, the judge made it clear that he was dealing only with the facts of that case and was not making any more general point about caste and the law.
As the Equality and Human Rights Commission commented, the tribunal judgment,
“means that not all victims of caste discrimination will find remedy under the existing law. While it is helpful to have an EAT decision that the Act is capable of providing protection against caste discrimination, the judgment results in the position that each case in which caste discrimination is alleged will have to be considered on its own facts. While caste discrimination can be found to constitute unlawful race discrimination under the Act, this will not necessarily be so in all cases. Thus, the legal position remains unclear”.
It goes on to urge:
“In our view it is both necessary and desirable for the Government to implement Section 9(5) of the Equality Act 2010, in order to clarify that the Act’s prohibition of race discrimination and harassment includes protection against discrimination and harassment based on caste”.
I think the Minister, as well as the whole country, would find it quite intolerable if issues of discrimination on the basis of gender, race or religion were left simply to employment tribunals with no statute law to back them up. Why should discrimination on the grounds of caste be regarded as different? It is expensive and difficult for an individual to pursue a case via a tribunal in this way. Why should they be asked to do this when the law is quite clear on race, gender, religion and sexuality? Furthermore, as we know with all the other protected characteristics—gender, race, religion and sexuality—the law has had a hugely powerful educative effect. It cannot completely change what goes on in people’s minds and we still get instances of sexist, racist or homophobic abuse, but no one would deny that the law has brought about a fundamental change for the good in this area.
I have in my possession a letter from a women who wrote to me to say:
“My first experiences have been from an early age about being constantly asked what caste I am. I can only explain that it makes me feel like an outcast if you don’t conform to society’s ways of thinking. If you stand up against caste and explain there is no caste you are frowned upon and regarded as you have something to hide and that you’re probably from a so-called lower caste. I have been asked this question about my caste constantly at school, social events, Sikh temple and amongst friends. It’s an evil that is embedded in most Sikhs and no matter what an individual’s understanding of human rights and discrimination, they will still have the burning desire to ask the question and instantly form a negative or positive opinion of that person dependent on one’s caste. My daughter has been asked the same question in a religious education class at her secondary school … I hope this has given you a little insight as to how caste is a menace in society and people of all walks of life find it acceptable in their minds to enforce this form of discrimination”.
This is despite Sikhism being, in principle, totally opposed to the caste system, as the noble Lord, Lord Singh, has consistently stressed. We are dealing with a social phenomenon which has, sadly, permeated whole religious communities.
If the taunting of that woman’s children had been anti-Semitic or racist, the law would have stood behind attempts by the teachers or the community to outlaw that abuse. At the moment it does not, and it should. This is a matter of deep seriousness to the hundreds of thousands of Dalits in this country, who see their fellow citizens protected from discrimination on other grounds in a way they are not. It is for them and for organisations such as CasteWatch that I urge the Government to do their constitutional duty, as they are being urged to by the Equality and Human Rights Commission. Those who are discriminated against find it totally intolerable that the clear will of both Houses of Parliament is being frustrated in this way and that, as will be stressed by the noble Lord, Lord Cashman, we remain in clear breach of our international obligations on this issue. I beg to move.
Lord Popat (Con)
My Lords, I thank the noble and right reverend Lord, Lord Harries, for introducing this debate. I confess my admiration for his persistence on this matter, however much I disagree with him. I hope it goes without saying that I stand opposed to all forms of discrimination. Having been a victim of violence and prejudice and having been forced out of the country of my birth because of my skin colour, I can sadly say that too much of my life has been shaped by discrimination. Yet I am strongly opposed to the amendment to the Equalities Act 2010 that was brought in during the last Parliament.
At the time it was passed, I was a Government Whip alongside my noble friend the Minister. With that role comes many great privileges, but it also means that there are occasions when you are unable to speak out on some matters that you care about. Unfortunately, this was one such occasion—I am sorry that I was unable to express a much clearer view on behalf of the vast majority of the British Hindu community. The Government were, at the time, opposed to the amendment to the Equalities Act for wholly sensible reasons. There are a number of difficulties with the amendment: reaching a consensus on the definition of caste; questions over the actual level of caste discrimination in the UK; the question of whether amending the list of criteria to include caste would actually be a help or a hindrance, given recent advances in case law through the Employment Appeal Tribunal. The Government’s position was supported by the elected House of Commons, but a coalition of Liberals, Cross-Benchers and Labour Peers failed to heed the wishes of our elected representatives, with 181 Peers voting for the amendment, and 168 Conservative Peers voting against.
I feel that the amendment to the Equalities Act should be withdrawn for a different reason. I have spoken before in your Lordships’ House about the successes of the British Indian community and my pride at how well integrated the community is: it is a vital part of the nation’s social fabric. In fact, more than half the 1.5 million British Indians were born in the UK. They do not know what caste is or what caste they belong to. One of the advances the British Indian community has made is to embrace the values of this great nation and to leave behind the rigid, outdated and divisive notions of caste. This has been a great advance and differentiates us from almost every state in India. My concern is that, however well intentioned the noble and right reverend Lord, Lord Harries, is in pushing this cause, he is actually bringing to the surface social forces that are almost entirely irrelevant to this country.
I do not believe that those communities who come to the UK should be able to bring their own values and rules. They should make every effort to fit into the society around them. By making caste such a prominent part of our discrimination laws, I fear that we are undermining community cohesion rather than strengthening it. All noble Lords will agree that this matter is hugely divisive. The British Hindu community has felt somewhat persecuted by this caste discrimination campaign. They cannot understand why, when there is so little evidence of caste discrimination, we are pressing ahead with legislation that our elected representatives did not support. It points to a worrying trend; we are so often looking for ways to differentiate ourselves from each other, to find subcategories that we belong to. I fear that this is yet another way of trying to make people different, rather than looking to unite people.
I urge the Government to bring forward legislation to repeal the amendment to the Equality Act 2010. It is extremely difficult, if not impossible, to implement. It is unnecessary, given that there is little hard evidence of caste discrimination. The amendment supports out-of-date notions of caste that belong in a different continent, it was not supported by our elected representatives, and it is divisive and hugely offensive to most British Hindus. I hope that the Minister will set out a clear path for repeal of the amendment as soon as possible.
Lord Cashman (Lab)
My Lords, I congratulate the noble and right reverend Lord, Lord Harries, on securing this debate, and I pay tribute to the late Lord Avebury.
The aspect of the Government’s failure to make caste discrimination unlawful under statute that I find the most worrying is their casual disregard of the United Nations and our international treaty obligations. The 2012 UN Human Rights Council’s recommendation could not be clearer. It states:
“Put in practice a national strategy to eliminate discrimination against caste, through the immediate adoption of the Equality Law of 2010 that prohibits such discrimination, in conformity with its international human rights obligations, including”,
the Committee on the Elimination of Racial Discrimination’s,
“General Recommendation 29 and recommendations of the Special Rapporteur on Contemporary Forms of Racism”.
The sorely missed late Lord Avebury, who cared so much about protecting the Dalits, and the National Secular Society commissioned an expert legal opinion that confirmed that the UN was correct in asserting that our international human rights obligations require us to legislate on caste. The influential Equal Opportunities Review responded to the opinion by stating that,
“there seems no convincing justification for the Government not to agree to bring the prohibition on caste discrimination into force”.
The key points from the detailed and carefully referenced opinion include, first, that where discrimination has been identified, states are under,
“a positive obligation to take effective action”.
Further, it is stated that,
“criminal laws and other legal provisions prohibiting racial discrimination must also be effectively implemented”,
and that,
“where a State Party fails ... that State Party violates article 2.1(d) of the Convention”.
Further, the violation cannot be justified, either in principle or on the facts, by the necessity of either further evidence-gathering or consultation. Secondly, the obligation in Article 2.1 of the convention is described as being one which applies “without delay”. Thirdly, where the adopted laws,
“do not seem to respond fully to the requirements of the Convention”,
a state party will fail to uphold its obligations.
Therefore, the UK is obliged in international human rights law to legislate for caste discrimination. Its failure to do so since 2002, and certainly since 2010, is a violation of Article 2.1 and Article 6 of the convention. This could hardly be clearer. Your Lordships may be surprised to discover that in 2014 Her Majesty’s Government told the UN in the mid-term government report that they intend “to introduce legislation” under the Equality Act and that:
“A public consultation process on the detail of the prospective legislation is expected later in 2014”.
Yet by 2015, Caroline Dinenage MP, replying on behalf of the Government Equalities Office to a letter to the Prime Minister, told the National Secular Society that Her Majesty’s Government were of the view that,
“we are fully compliant with our international obligations in this area”.
She added that she had asked for the legal opinion that I have cited, which the Government have had for three years,
“to be given further consideration”.
What is the result of that consideration?
Case law falls far short of the obligations I have cited, even if it were unambiguous. Yet Ms Dinenage and the Minister, the noble Baroness, Lady Williams of Trafford, acknowledge that the Tirkey case on which they rely provides only “potential” protection—hence the former’s unconvincing reference to seeing,
“the development of case-law that provides protection against it as helpful”.
In summary, we are obligated to legislate and have told the UN that we will; yet instead of doing so, Her Majesty’s Government are asking us to believe that they hope someone will come forward to clarify the case law. That is entirely unacceptable. In conclusion, it is indefensible that the Government have shown so little concern to protect the victimised, and I ask on their behalf that the Government now comply with our international obligations. I also ask for an undertaking for the immediate insertion of caste into the Equality Act, which could be achieved by secondary legislation. I urge the Government to endorse the UN principles and guidelines on combating discrimination based on work and descent, and pay tribute to the outstanding work of the International Dalit Solidarity Network and the strides that it has made, particularly across other parts of the European Union.
Lord Lester of Herne Hill (LD)
My Lords, when I listened to the noble Lord, Lord Popat, it took me back to 1974, when I heard similar arguments against having legislation on sex or race equality.
Over the past year I repeatedly asked Questions for Written Answer by Ministers. I have asked why the 2014 feasibility study on caste discrimination has not yet been published, when the Government plan to consider the case for further consultation on caste discrimination, and for clarification on how Tirkey v Chandhok has in the Government’s view changed the law on caste discrimination. The answer is always the same and I paraphrase: “We are currently considering what steps to take”.
It is more than three years since Parliament placed a duty on the Government to activate Section 9(5) of the Equality Act 2010. It is more than 18 months since the caste feasibility study was completed and it has still not been published. It is also more than 18 months since the Tirkey verdict, and 12 months since the finding on the facts in the full liability hearing. Ministers have said that they understand the Employment Appeal Tribunal in Tirkey as,
“providing an existing legal remedy for claims of caste-based discrimination”.
That view is not sustainable. In Tirkey, Mr Justice Langstaff, giving the Employment Appeal Tribunal’s judgment, found that “ethnic origins” was a wide and flexible phrase covering questions of descent, and that some of those situations would fall within an acceptable definition of caste. He decided that no separate claim for caste discrimination was possible. At paragraph 55, he expressly recognised the limited impact of his judgment. His focus, he explained, was on,
“this particular case, in its particular circumstances”,
and his role was not to “establish more general propositions”. It is clear that the Employment Appeal Tribunal was not setting out a definitive decision in principle on whether discrimination on the ground of caste was within the scope of the Equality Act. At the full hearing in July 2015, Ms Tirkey succeeded in her claims for unfair dismissal, racial harassment and indirect religious discrimination. She was awarded a substantial sum at a subsequent remedy hearing. However, the decision did not indicate, still less establish, that there is an existing legal remedy of caste-based discrimination.
The current state of the law lacks legal certainty. There is no binding and authoritative legal precedent. That legal uncertainty violates the rule of law and the Government’s continuing inaction violates parliamentary sovereignty. The uncertainty could be removed either by expensive and protracted litigation up to the Supreme Court or by the Government performing their statutory duty without further procrastination, thereby respecting parliamentary supremacy and the rule of law. The EHRC supports the need for the Government to do so. The noble Lord, Lord Popat, disagrees with Parliament’s clear command. He is entitled to that view but Parliament is sovereign. I call on the Minister to inform the House unequivocally in her reply whether the Government will now perform the duty cast upon them by Parliament. If not, what is their justification for refusing to do so? It is time to end the continuing failure to give effect to the will of Parliament.
Baroness Flather (CB)
My Lords, I, too, thank, the noble and right reverend Lord, Lord Harries of Pentregarth, for bringing up this issue again. I hope that very soon we will not just thank each other but that things will actually start to happen. There has been talking for a long time but nothing has been done. I am very pleased to see the noble Baroness, Lady Thornton, on the Labour Front Bench, because she was very important in including this measure in the Act. I thank her for her wonderful contribution.
The noble Lord, Lord Popat, says that the vast majority of Hindus do not want caste discrimination to be included in the Act. What else are they going to say? Of course they do not. Why would they want caste discrimination to be part of the Equality Act? They cannot possibly want that. I had a long discussion with one of the policy advisers to the noble Baroness, Lady Williams of Trafford. He said, “We get a lot of evidence from the Hindus but we have not had much from the Dalits”. I do not know about that. However, if you talk to the Hindus in general but not to the Dalits, you will get the evidence vis-a-vis no caste discrimination because you are talking to the people who will be stigmatised by caste discrimination being included in the Act. Naturally, they are not going to say, “Oh, there is caste discrimination”. They are a powerful group of people. There are a lot of Hindu organisations and they have a lot of connections in Parliament, possibly in the House of Lords as well. We have to be aware that they have quite a lot of pull in this matter.
I was very interested to hear the noble Lord, Lord Popat, say that the young do not know about caste. Well, they know about it when it comes to marriage. We do not care whether they marry this person or that person, and perhaps they do not care, but they know about caste because their parents tell them. They say, “We’d like you to marry someone in your own caste”. Also, at gatherings where a person of a certain caste comes to meet girls or boys, all the girls and the boys in that meeting will be from a certain caste, so that they do not have to worry about which caste they are going to meet as the girls will meet boys from their caste and the boys will meet girls from their caste. Therefore, I think that the young do know about caste. I think that everybody knows about caste.
I grew up with caste in India, not in the UK. I have not experienced any caste-based discrimination, although I have had plenty of gender-based and race-based discrimination. Sometimes it is confusing to know whether the discrimination is due to gender or race or both. In India, when I was a child, we had a Brahmin cook because we are of the merchant caste, and many people would not have eaten in our house if we had not had a Brahmin cook. Therefore, most of us are aware of caste, whether we are living here, or in Africa. Wherever we have gone, we have taken this with us. It is truly a stigma on Hinduism as far as I am concerned.
There are two things which Hinduism needs to look at and get rid of—caste is one and the other is dowry. Girls have a terrible time because of the dowry system. They are killed and aborted because of it. In Punjab now there is an 11% difference as between the numbers of girls and boys. I am not saying that is happening here but we had one case of the abortion of a girl foetus, although that was not proved to be gender-based. We need to be very aware that people who live with certain types of practices do not just give them up because they move from one country to another. It is so much a part of their psyche and so ingrained in their thinking that it is not easy for them to get rid of it, even if logically they think it should be got rid of.
Many reports have been produced on this issue, including two from the Equality and Human Rights Commission. The Labour Government also commissioned a report before they left office. All those reports came out in favour of including caste discrimination in the Equality Act. The time has come for us to face this fact. What is the point of constantly talking about the Tirkey v Chandhok case? The judge in that case said quite clearly that it involved specific circumstances, not general circumstances that affected everybody in discrimination cases. There may be discrimination in housing, employment and education, but not all those cases will be affected by the circumstances that applied in Tirkey v Chandhok. It is pointless to think like that.
Lord Deben (Con)
My Lords, I, too, congratulate the noble and right reverend Lord, Lord Harries, on initiating this debate. I apologise to the Minister as what I have to say will be fairly tough and is not aimed at her. This issue is personal for me because when we last debated it I was given undertakings by the Government, as a result of which I urged the House not to pass the amendment. The Government told me that if the amendment was not passed they would take measures, do the research and then introduce the changes. I spoke up for the Government on that occasion. The Government lost the debate and have been told by Parliament that they must, by order, introduce this measure by means of secondary legislation. However, the Government are refusing to do that, having promised me that even if we did not pass the measure they would take action.
I have to say that every part of this debate has been a shame on our democratic system. The Government have to accept that Parliament has spoken. My noble friend Lord Popat proved that because he wants the legislation to be reversed. He knows that the only way in which he can win on his point of view, which I disagree with very deeply, is by having the legislation reversed. The Government cannot argue that because of a partial decision by a tribunal they are excluded from the need to legislate. They have to legislate—that is what the law says. That leads me to believe that the only reason the Government have not legislated is a pretty unacceptable one. It is interesting that people are more enthusiastic about dealing with this when in opposition than was noticeable when they were in government. Both parties must accept that they failed to do in government what in opposition both parties have recognised that they ought to do. Therefore, it seems to me that powerful forces have been employed to inhibit Governments of both parties from taking measures which any ordinary, sensible person should insist they take.
If the Government rely on the tribunal decision, there can be no reason why they should not confirm it by taking the action on which Parliament has insisted. If this tribunal decision is in their minds good enough, why cannot they do what Parliament said? There is nothing wrong in reinforcing that, particularly as its reinforcement would mean that the Government would not be in breach of the United Nations, which they clearly are. However the Minister explains it, there is no doubt that we are not in conformity with that body. Indeed, the Government have admitted that—in replying to the United Nations they said that they were in the course of arranging to be in conformity. Well, they have been in the course of doing so for some time and it still has not resulted in the answers which this House wants.
I say to my noble friend Lord Popat that this House changed the law and it was accepted by the other House. It is no good saying that somehow this issue is different because we agreed it. The fact is that in the end the House of Commons saw that we were right. That is why we are here. If that is not why we are here, why the blazes do we turn up and have these arguments anyway? My noble friend has got to accept that this is what Parliament has decided.
I am happy to see that Mrs May is now leader of the Conservative Party—thank God. In her first statement, she reminded the Conservative Party that her first principle was to ensure that all people had a fair do in life. Can one possibly say that and yet exclude from the fair do in life those who happen to be Dalits? This is the first chance that a new Government have got to stand up and tell this House that they intend to obey the law. The only alternative is to tell this House that they intend to disobey the law. I do not believe that is a proper position for any Government.
Lord Desai (Lab)
My Lords, I thank the noble and right reverend Lord, Lord Harries, for persisting with this amendment. It has been explained what the law is and what the Government ought to do. So why do they not do it? Obviously, there is a very strong lobby—let us call it the caste Hindu lobby—which is very powerful, prosperous and persistent. They have abandoned me but I know they would love to get me on their side. A lot of false arguments are made. I was asked by somebody: “Why do the Government want to abolish caste?”. Nobody is abolishing caste; caste is a part of the identity of everybody who comes from the Indian subcontinent, which includes Pakistan, Bangladesh, India and Nepal. One does not mind something that is part of people’s identity and the culture that they have grown up with. As the noble Baroness, Lady Flather, explained, there are issues with ritual purity, eating and so on. That is fine: we are not objecting to caste; we are objecting to discrimination based on it. It is not a caste’s internal behaviour, among themselves, that we are interfering with. We are asking questions about the interaction between two people of different castes. When there is evidence that there is discrimination and we cannot find any other reason, like gender, to establish why the discrimination is there, then it has to be because of caste.
The Conservative Party obviously wants to win votes and seats. I do not blame them for that; who does not? However, they have to explain to the people who are objecting that the Government’s programme is a minimal programme of preventing discrimination and bringing our law into line with our UN obligations. They should also say that that is the law in India. They are not passing a law which is un-Indian. They are passing a law which is entirely in coherence with India’s constitution and law. To the extent that the Government are being reluctant to challenge the lobby, they are playing a vote-bank game. They ought to ask themselves whether it is worth however many seats there are to persist with an injustice for which there is evidence and which will give us a bad name in international law. The law having been passed by Parliament, the Government are definitely in breach of their obligations under the law.
Another argument which is made is that there is no discrimination; it is entirely the perception of non-Indian people who see discrimination everywhere. If there is no discrimination, what is the problem with passing the law? If there is no discrimination that is good, but they should pass the law just in case. Then they should try to find evidence and see a report from the appointed research bodies that they tried hard, dug everywhere but found no discrimination. The Government should then say: “Even so, we will go on monitoring this issue because we have an obligation under the law”. We have to say to the lobby: “We love you, but we cannot allow you to do things which are in violation of the law of the land”. It is not only the law of the land; it is internationally accepted standards of justice. There is no election until 2020—one hopes—so I advise the Government and people who are worried about elections that they have enough time to convince these lobbies that they are wrong and that they should help the Government comply with the law and fulfil their obligations.
Baroness Thornton (Lab)
My Lords, I congratulate the noble and right reverend Lord, Lord Harries, on bringing this debate to the Floor of the House. There are very few issues which would get me back to the Dispatch Box but this is definitely one of them. This debate feels like déjà vu all over again, with many of the same actors: the noble Baroness, Lady Flather, the noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Deben, with whom I completely agree. In fact, I felt that I should stand up and just say: “I agree with Lord Deben”, and sit down again. I will not quite do that. There are also some new and distinguished additions, such as my noble friend Lord Cashman. There is, of course, a different Minister, so maybe there will be a different result to this particular debate.
My noble friend Lady Royall and I were the people who placed this power in the Act in 2010. I feel that we owe an apology. I think that the Government do too, and I would like to apologise to the Dalit community in the UK for having lived with inaction on this issue for so long. We gave the power in 2010 to put forward caste discrimination as a protected characteristic. It is shocking that we have not done so. I commend the Anti Caste Discrimination Alliance for its persistent and excellent briefing—unfortunately, all over again.
Over the past 60 years, there has been, as we know, a gradual and welcome increase in the number of people in the UK from the Indian subcontinent. These communities have of course brought with them their own social habits, norms and religious customs, as outlined by my noble friend Lord Desai. I say to the noble Lord, Lord Popat, that it is never comfortable to have issues of discrimination pointed out. It is always the case, as the noble Lord, Lord Lester, said, that arguments are used about communities and families every time we discuss discrimination by those people who do not want to put anti-discrimination legislation on to the statute book. That happens every time. As a woman, I can tell your Lordships all the arguments that have been used over the years, even in this House, about why women should not be here, why we should not vote, why we should not be able to do this or that or the other. This is not a new argument, but that does not mean that discrimination does not exist.
In 2013, what is now Section 97 of the Enterprise and Regulatory Reform Act was amended so that the Act would provide that the Government must make such an amendment. Yet three years later the Government have still not clarified the Act to provide that caste discrimination is an aspect of race discrimination. In 2013, the United Nations High Commissioner for Human Rights, Navi Pillay, said in a powerful speech in the House of Lords that we needed to act on the “insidious stain” of caste discrimination and urged the UK not to tarnish its excellent record on human rights by delaying implementation of UK anti-caste-discrimination legislation. She added that there was a need for “strong, swift implementation” of the amended Equality Act 2010 to protect people in the UK from low-caste backgrounds.
We have seen the opposite of strong and swift. “Flabby and slow motion” would better describe the lack of activity since 2013. This lack of activity, as the noble Lord, Lord Deben, and others have said, shows a contempt for Parliament that is really unacceptable. Perhaps I may invite the Minister to speculate on how the Dalit community in the UK and the United Nations might view this lack of action by the UK Government. Since we discussed this matter in 2013 and passed the amendment, from which organisations and stakeholders have the UK Government had subsequent representations to discuss caste-based discrimination in the UK? With which organisations and stakeholders have they had meetings? How do the Government intend to ensure a regular and meaningful dialogue with the stakeholders in the future? Finally, what steps do the Government plan to take to implement this legislation at last?
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Williams of Trafford) (Con)
My Lords, I am pleased to answer this Question for Short Debate. I thank the noble and right reverend Lord, Lord Harries, for securing a discussion on what is a very sensitive issue, which is very important to several communities within society. I thank all those who have spoken today for their contributions.
I would like to make it perfectly clear from the outset that this Government, like their Labour and coalition predecessors, completely oppose any discrimination that people may suffer because of caste or for any other reason. We are committed to ensuring that the appropriate level of protection against caste discrimination exists.
However, before I proceed, I, like other noble Lords, pay tribute to the unstinting work of the late Lord Avebury, who did so much to bring the matter of caste discrimination before us here in this place. Among the many causes that he pursued with passion, he had an unswerving conviction to ensure that people in our society were properly protected against caste discrimination. It is therefore with some poignancy that we feel his absence from the debate today, to which he would definitely have contributed.
Listening to noble Lords who have spoken, it is clear that we all want the same thing. We want people to have a decent level of protection against any discrimination that is suffered because of caste. Discrimination on racial grounds is abhorrent and—this applies to caste above all—has no place in modern society. Most of us here today will be well aware of the history of this issue. It is right that where people see injustice they express their concerns and work diligently to ensure that the more vulnerable among us are given due protection. Those concerns have been expressed thoroughly, passionately and cogently, here and in another place.
During discussion on what subsequently became the Equality Act 2010, a debate as to whether the race provisions in that Bill already provided a level of protection against discrimination because of caste first took place. At that time, any such consideration was essentially a matter of conjecture. There was legal doubt about the level of protection that may exist, which is why the power, later converted to a duty, was included in the Act to enable caste to be added as an aspect of race for the purposes of the Act. Since then the legal position has developed. Thanks to the case mentioned by noble Lords, Tirkey v Chandhok, anyone who feels that they have been discriminated against because of caste can potentially bring a case of discrimination under the existing protections contained in the Equality Act 2010—namely, the ethnic-origins limb of the race provisions. Justice Langstaff said:
“There may be factual circumstances in which the application of the label ‘caste’ is appropriate, many of which are capable—depending on their facts—of falling within the scope of s 9(1) [of the Equality Act], particularly coming within ‘ethnic origins’, as portraying a group with characteristics determined in part by descent, and of a sufficient quality to be described as ‘ethnic’”.
It is clear from the high level of damages awarded to Ms Tirkey how seriously the court took her case. She was awarded nearly £184,000 in respect of unpaid wages and a further £35,000 for damages to feelings, which we believe to be one of the biggest ever awards for non-pecuniary losses. That award reflected the seriousness of the case.
However, there is no clear and unambiguous definition of caste. There is no unanimous collective agreement as to what it constitutes. That much is clear from listening to academics and stakeholders and from reading the research in this area. It is therefore unclear what relevant factors of caste, if any, would not potentially be captured by the Justice Langstaff ruling. As the Government, we need to consider carefully whether simply putting the word “caste” into the Act would actually change or clarify the legal position. It may well be that the ruling in Tirkey v Chandhok already provides the appropriate level of legal protection that is needed against caste discrimination.
At the time of the Langstaff judgment, concerns were expressed by some noble Lords that the judgment could be appealed to, and overturned by, a higher court. That has not happened. However, the Government would certainly be prepared to consider intervening in any case that appeared to pose a legal risk to the precedent that Tirkey v Chandhok has established. We are monitoring litigation in the courts and tribunals for any case that would appear to test—or, for that matter, support—the Tirkey judgment. However, we are currently unaware of any cases of race discrimination with an alleged caste element coming before the courts since the Langstaff judgment was delivered.
The noble and right reverend Lord, Lord Harries, asked why the research has not been published. The research that the Government commissioned jointly from TNS BRMB and the NIESR was not about determining the extent of any caste discrimination that may be occurring in Great Britain; rather, it was a feasibility study into whether or not such research could be undertaken. The study has not been suppressed in any way. It also looked at the feasibility of the legislative provision to review the caste duty from 2018, and we are considering the study’s conclusions and recommendations as part of our broader consideration of the caste duty.
My noble friend Lord Popat said that the issue of caste is outdated and talked about reversing the amendment to the Equality Act 2010.
Baroness Flather
It is not outdated. He is not the only Hindu here. I am a Hindu. It is not outdated; it is there all around us.
Baroness Flather
I am speaking from mine. I am speaking from my own point of view.
Baroness Williams of Trafford
I am aware that the noble Baroness speaks from her own point of view. In fact, she made the point that she had not been subject to any caste discrimination in this country.
Baroness Williams of Trafford
We probably should not hold up the discussion. The noble and right reverend Lord, Lord Harries, asked why caste is different and said it was more expensive for claimants to pursue a case in this way. I cannot see how the inclusion of the single word “caste” in the Act would reduce the cost of bringing a discrimination case or make any difference to the tribunal fees or other costs, given the precedent set by the judgment in Tirkey v Chandhok.
The noble Lord, Lord Cashman, said that the EAT judgment makes it clear that domestic law on race must reflect international law and the International Convention on the Elimination of All Forms of Racial Discrimination. He asked why the Government did not accept this and bring the Equality Act into line with our international obligations by putting caste into it. The Government’s view is that the UK is already fully compliant with our international obligations in this area. That is borne out by the decision reached in the EAT case.
The noble Lords, Lord Cashman and Lord Lester of Herne Hill, said it was unacceptable for the Government to wait for clarification of the case law. We accept that in Tirkey v Chandhok, Justice Langstaff was clear that his judgment was fact-specific and not a definite statement that all potential caste cases could be covered by the ethnic origins provision. However, he did not identify any aspects of caste that could not be so covered, and so far neither have we.
Lord Lester of Herne Hill
My Lords, I took only three minutes for my speech and therefore I feel entitled to ask the Minister unequivocally to reply to my question, which she has not done. Am I right in interpreting what she said as being, “No, we do not intend to legislate”?
Baroness Williams of Trafford
I will try to be clear by the time I get to the end what my answer ultimately is. As the noble Lord, Lord Deben, said, we have a new Prime Minister today. He also made the point that the judgment is not binding and could be overturned at the next caste-related case.
Judgments set at the Employment Appeal Tribunal level are binding. The judgment could potentially be overturned by a higher court, but that is the same for all case law decisions, short of the Supreme Court. The precedent set by Tirkey v Chandhok has stood since 2014 and we are not aware of any potential challenge to it. If there were such a challenge, as I have said before, the Government would certainly be prepared to consider intervening to ensure that the judgment was upheld.
I finish with the noble Lord, Lord Deben, in saying that the new Government must stand up and obey the law. I agree that this is an issue which the new Administration, led by the new Prime Minister, who herself was Minister for Women and Equalities from 2010 to 2012, will need to consider afresh, and I am sure that they will. I knew this debate would raise feelings on both sides, and it has. It is a complex issue, which is why the Government have been diligently considering the implications of the judgment.
I thank the noble and right reverend Lord for raising this important issue in the Chamber, and all noble Lords for their valuable contributions. I close by repeating what I said earlier. I believe that we all want the same thing, which is to ensure that there is an appropriate level of protection for everyone against the harm of caste discrimination. I know the whole House supports this aim. The real question is how best to achieve that for the benefit of everyone, which is exactly what this Government are currently considering.
Investigatory Powers Bill
(7 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Rosser
“General public reporting
(1) A person subject to a warrant or notice under Part 2, 3, 4, 5, 6, or 7 of this Act may publish and make publicly available a report including—(a) the number of warrants or notices to which they have been subject;(b) the number of accounts affected; and(c) the number of warrants or notices they have complied with.(2) A person may make the disclosure under subsection (1) in relation to any warrants or notices received in the previous 180 days.”
Lord Rosser (Lab)
The amendments in this group relate to issues which have been raised by service providers, and are all largely probing amendments to ascertain the Government’s response for the record. As has already been said, Clause 2 addresses “General duties in relation to privacy” for a public authority—including the relevant judicial authority—in connection with the issuing of warrants and notices, and sets out the considerations to which the public authority must have regard.
Amendment 25A, the first in the group, provides for a new clause after Clause 2, which would allow companies served with a warrant or notice, whether complied with or not, to publish figures in aggregate for warrants and notices received in the previous 180 days. The point of the amendment is to pursue the issue of transparency where there has been engagement between companies and law enforcement and government agencies under the provisions of the Bill. Such transparency would also appear to be a prerequisite for redress, should the way in which the powers in the Bill are being used be called into question.
In America, the USA Freedom Act significantly reforms the transparency of US surveillance laws, and this amendment is based on part of the provisions of that Act. There seems no reason why there should not be the facility for the level of transparency called for in this amendment, which would enable providers to publish statistical data about the number of warrants received and those given effect to. Not only does this amendment give the Government the opportunity to respond to the specific terms of the amendment but it will enable the Government to say what their intentions are for providing a clear framework for transparency under the Bill in the light of the USA Freedom Act.
The Minister made reference in an earlier debate to the letter that had been sent to my noble friend Lord Rooker in relation to the privacy clause. Towards the end of that letter, dealing with the last of the 10 tests to which reference was made in an earlier amendment, the letter said:
“The Bill also provides for the Secretary of State to designate international agreements under which cross-border requests for information can be made. This will ensure in the future that our protections and safeguards for requests for data under the legislation are capable of being harmonised with like-minded open and democratic Governments”.
The letter went on:
“As the Home Secretary made clear during the Bill’s passage in the House of Commons, we are seeking to negotiate a bilateral agreement with the US to this end”.
It would be quite helpful if the Minister was able to say in response what is the likelihood of the bilateral agreement with the United States of America being achieved, and within what kind of timespan.
I shall move on to the other amendments in the group. Amendments 63, 64 and 65 relate to Clauses 39 and 41. Clause 39, on “Implementation of warrants”, provides that the person who has obtained the warrant—that is, the head of the intercepting agency—may require other persons to assist in giving effect to a targeted interception warrant or mutual assistance warrant. Clause 39(4) provides:
“A copy of a warrant may be served under subsection (3) on a person outside the United Kingdom for the purpose of requiring the person to provide such assistance in the form of conduct outside the United Kingdom.”
Amendment 63 amends Clause 39 to exclude the extraterritorial provision in cases where any mutual assistance arrangement exists between the United Kingdom and the provider’s jurisdiction. It also serves to establish international mutual assistance agreements, of the kind recommended by Sir Nigel Sheinwald, the fast-departing Prime Minister’s special envoy on intelligence and law enforcement data sharing. It seeks to establish international mutual assistance agreements of the kind that he recommended—as currently under negotiation with the US Government—as the primary route by which UK agencies obtain data from overseas communication service providers. The amendment would continue to enable the imposition of warrants on communication service providers in non-mutual legal assistance countries.
Clause 41, on the “Duty of operators to assist with implementation”, provides that a telecommunications or postal service provider served with a target interception warrant or mutual assistance warrant is required to take steps to give effect to it. This obligation applies whether or not the operator is in the United Kingdom. Subsection (4) ensures that the steps a service provider is required to make must be “reasonably practicable”, and subsection (5) provides that, in considering what is reasonable,
“any requirements or restrictions under the laws of the country”,
in which an operator is based must be taken into account.
Amendments 64 and 65 would amend Clause 41 by seeking to establish a reasonableness test for overseas communication service providers. They would also establish international mutual assistance agreements, where they exist, as the primary route to obtain data from these communication service providers. The amendments would also give effect to the Government’s commitment that enforcement powers should not be applicable where an overseas communication service provider is acting under the auspices of an international agreement. The amendments to Clause 41 state that a relevant operator is not required to take any steps which it is not reasonably practicable for the relevant operator to take which, for a relevant operator outside the United Kingdom shall include,
“any steps which would cause the operator to act contrary to any laws or restrictions under the law of the country or territory where it has its principal office for the provision of telecommunication services”.
There is a fairly widely held view that the current international legal framework by which UK agencies obtain data from overseas providers needs updating. Sir Nigel Sheinwald recommended that the UK Government engage like-minded Governments to conclude new mutual assistance agreements, which address conflicts of law and provide a sustainable and workable approach for UK agencies to obtain content data from overseas providers. It appears some progress is being made with the US Government towards such an agreement. The Bill currently provides UK agencies with several options to seek data from overseas providers, including mutual legal assistance treaties, the mutual legal assistance convention, international agreements of the kind recommended by Sir Nigel Sheinwald, and service of a UK warrant extraterritorially.
The unilateral assertion of UK jurisdiction overseas risks creating a conflicting world of laws and a difficult and uncertain environment for local staff of overseas companies in the UK and UK companies abroad. The Bill does not direct agencies as to which power to use under what circumstances, and that is an issue that these amendments seek to address. The new international assistance agreements are additional and complementary to mutual legal assistance treaties but, unlike such treaties, international assistance agreements would permit UK agencies to request data directly from overseas providers, in their home jurisdiction, without application to a local court. These amendments do not seek to push all requests through the existing mutual assistance treaties process.
Lord Paddick (LD)
I shall speak briefly to the amendments set out by the noble Lord, Lord Rosser, about co-operation with companies based oversees. A real concern to multinational companies is a conflict of law between the country in which they are based and the UK. That concern has been expressed to us as well. As we go through the Bill, we will see that co-operation between countries is increasingly important. As communication moves from cellular communication to communication using the internet, many of the companies that people use to communicate with each other—Facebook, WhatsApp and other platforms of that sort—are based in the United States. The more warrant authorisation processes are harmonised, the more there can be international agreements between countries and the more success we will have in securing communications data and intercept evidence as a result of people moving from cellular to the online environment. I generally support what the noble Lord, Lord Rosser, said about the importance of resolving these issues and forging as many agreements as possible with countries, particularly those where these widely used communications platforms are based.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I shall begin by addressing the amendments which relate to the serving of warrants and the giving of notices to overseas telecommunications operators. The first, Amendment 63, appears to remove the ability to serve a warrant outside the United Kingdom when the United Kingdom has entered into an international agreement with the country where that person or company is established. Perhaps that was not the intention. It seems counterintuitive to prohibit the service of a warrant on a person outside the United Kingdom when they are based in a territory with which the United Kingdom has an agreement which expressly provides for the service of warrants overseas. I wonder whether it was intended to do the opposite and provide that a warrant might be served on a person outside the UK only pursuant to a relevant international agreement.
In any event, it is important to remember that, although discussions are ongoing, there is currently no international agreement between the United Kingdom and the United States. As the Home Secretary has previously stated, the UK and United States Governments have begun considering a framework under which US-based communications service providers could disclose data directly to the United Kingdom for serious criminal and counterterrorism investigations in response to a UK order requesting the content of the communications—that is, a warrant. We are eager to press forward with developing an agreement. In response to the observations of the noble Lord, Lord Rosser, I can say that timetabling will depend on changes to the relevant US domestic legislation, a matter to which the United States Attorney-General recently referred. But it is not possible to give a more exact timetable so far as that is concerned.
Taking up the point of the noble Lord, Lord Paddick, of course it would be beneficial to all concerned that we should achieve some form of international agreement with regard to these matters, and it is hoped that the agreement with the United States might provide a template to take this forward. But let us accept that we are at a very early stage.
It is important to be clear that any company complying with warrants under an international agreement will not face enforcement action. I am perfectly content to put that important point on record for the noble Lord, Lord Rosser, who opened by explaining that these were essentially probing amendments, and I appreciate that. However, it is also important to explain that such agreements will not by themselves require a company to comply with a United Kingdom warrant. Even when an international agreement is in place, it remains vital that the Bill continues to exert extraterritoriality in relation to interception warrants. This also provides the legal certainty that some companies have been asking for.
Amendments 64 and 65, made to Clause 41, would set out that it would not be reasonably practicable for an operator outside the United Kingdom to comply with a warrant if that involved acting contrary to any laws or restrictions in the jurisdiction in which its principal office is located. These amendments are unnecessary because subsection (5) already makes it clear that, in determining whether it is reasonably practicable for a company to comply with a warrant, any requirements or restrictions under the law of the territory in which it is based must be taken into account. I do not want to quote the matter at length, but I will just refer to the relevant provision. In Clause 41(5), the matters to be taken into account include,
“any requirements or restrictions under the law of that country or territory that are relevant to the taking of those steps, and … the extent to which it is reasonably practicable to give effect to the warrant in a way that does not breach any of those requirements or restrictions”.
Therefore, it appears that this issue is already addressed. Indeed, what is said in the Bill replicates the existing position under the Regulation of Investigatory Powers Act 2000, as amended by the Data Retention and Investigatory Powers Act 2014.
I believe that the intention of Amendment 65A is to provide additional protections for staff employed in the United Kingdom by telecommunications companies whose principal offices are established overseas. Again, this additional language is unnecessary, and I will seek to explain why. In respect of interception warrants, the Government have already amended the Bill in response to concerns from overseas companies to make it clear that a warrant must be served in such a way as to bring the contents of the warrant to the attention of a person who is capable of providing assistance in relation to it. Clearly, an employee based in the United Kingdom who has no access to relevant information would not be such a person, as they would not be capable of providing the assistance required. The concern that enforcement action will be taken against junior local employees is also misplaced, since it is the telecommunications operator, rather than any individual, who is subject to the duty to provide assistance. I also make the point that it would not be in the interests of the relevant agency to serve a warrant or a notice in such a way that meant it could not be complied with quickly and efficiently. But the broader point is that if there is a conflict between United Kingdom law and the internal authorisation processes of an individual company, then of course United Kingdom law must always take primacy.
Amendments 104 and 105 would permit a person not to comply with a technical capability notice if the notice would require the person to act in a way contrary to any law or restriction in their country or territory. This amendment reads across provisions from other parts of the Bill—those relating to interception warrants and targeted communications data requests, as the noble Lord, Lord Rosser, noticed—but it does so inappropriately.
Lord Rosser
I thank the Minister for that comprehensive reply. I will read it carefully in Hansard and reflect on what he had to say. I beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick
My Lords, my noble friend Lady Hamwee and I have Amendments 26 to 31 in this group. Under Amendment 31, we have concerns about the breadth of warrants. These warrants are described as targeted interception warrants or targeted examination warrants. Noble Lords will no doubt recall that targeted examination warrants relate to where a bulk interception has resulted in coming across content that belongs to a UK citizen and, therefore a targeted examination warrant is required in those circumstances. Clause 17(1)(a) provides that a targeted interception warrant or a targeted examination warrant may relate to,
“a particular person or organisation”.
An organisation could cover hundreds, if not thousands, of people. I am indebted to my noble friend Lady Hamwee, who tells me that it could, in fact, relate to the National Trust—I am not sure about horticultural terrorism, but they have more than 1 million members. We are probing whether it is appropriate to have a targeted interception warrant that is targeted at an organisation, particularly when in Clause 17(1)(b), it says that such warrants can only apply to,
“a single set of premises”.
The potential contrast between the number of people who might be affected in terms of an organisation being targeted by a targeted interception warrant but only a single set of premises seems stark.
Similarly, Clause 17(2)(b) says that such a warrant may relate to,
“more than one person or organisation”,
so again it is very broad. The number of people––potentially innocent people––caught up in such a targeted interception could be extremely large.
Amendment 27 relates to Clause 17(2)(a), whereby,
“a group of persons who share a common purpose or who carry on, or may carry on, a particular activity”,
can be targeted by an interception warrant. To narrow the potential for this to affect a large number of individuals, the amendment would require each person to be named or identified using a unique identifier. While we accept that with, for example, members of a gang involved in drug dealing, one may not know the names of the individuals concerned, one might from surveillance footage be able to accurately describe the individual whom one wants to target by means of that warrant. A similar argument is suggested by Amendment 29 in relation to Clause 17(2)(b).
Amendment 30 relates to Clause 17(2)(c) and queries the issuing of warrants for “testing or training activities”. While Clause 17(3) defines what such activities are, it does not seem clear to us why it would be necessary to issue a targeted interception warrant to test equipment or train individuals in its use. One would have thought that, if it was a training or testing exercise, it could be done with the consent of whoever is being targeted by the training or testing activities. Amendment 31 therefore suggests that Clause 17(3), in relation to “testing or training activities” be deleted. I beg to move.
Lord Keen of Elie
My Lords, some of these amendments were discussed in the other place. They would remove the ability of the warrant-requesting agencies to apply for a warrant against an organisation; they would require a warrant to name or identify each individual involved in an operation, and they would remove warrants for testing and training activity.
As was set out in the other place, it is important that those responsible for keeping us safe have the powers they need. We consider that the amendments would undermine those necessary powers, but I appreciate that the noble Lord is advancing essentially probing amendments and I respond in that spirit.
Let me start with the amendment regarding unique identifiers. As was explained in the other place, it is not always possible at the outset of an investigation to know or have identified all the individuals who may be subject to a warrant during that investigation. When a warrant is granted against a kidnap gang, for example, the Secretary of State may not know that there are four members of the gang rather than three. The ability to grant a warrant against the gang to establish its size and to identify co-conspirators is precisely why RIPA provided for so-called “thematic” targeted warrants. They are an invaluable tool in allowing the agencies to investigate complex or fast-moving threats, and it is important that we do not undermine their ability to use that tool.
I reassure the noble Lord, Lord Paddick, that the Bill already provides at Clause 29(8) that the warrant has to specify, for example, the phone numbers to be intercepted. Furthermore, Clause 29(4) provides a safeguard for warrants that relate to a group of persons who share a common purpose or who carry on a particular activity—for example a paedophile network—by requiring that the warrant must name or describe as many of those persons so far as is reasonably practicable. I am afraid that I do not accept the analogy with the National Trust—I do not consider it apposite at all.
It is already the case that the warrant will name or describe particular people whose communications are to be intercepted as they become known over the course of the investigation. This is an important safeguard that will assist the oversight of thematic targeted warrants. It is therefore in these circumstances that I suggest that the amendment is not necessary.
Perhaps I may move on to the amendments that seek to remove the ability to grant a warrant against an organisation. Such a change would be operationally damaging and is, moreover, unnecessary. The Bill and the statutory code of practice impose strict limits on the issue of warrants, including in relation to organisations. Such warrants are not open-ended. Their scope must be sufficiently limited that the Secretary of State can properly assess the necessity and proportionality of the interference. Further, under the Bill a judicial commissioner will need to approve the Secretary of State’s decision. In those circumstances the Bill will not allow for overly broad warrants to be issued.
I turn finally to testing and training warrants. The amendments would remove the ability to apply for a warrant for testing or training purposes. Again, I suggest that that would be damaging operationally and would result in a consequent reduction in safeguards. It is vital that those who are authorised to undertake interception are able to test new equipment and to make sure that those responsible for using that equipment are properly trained in its use. Of course there is an element of systems here in the context of the equipment. While it is possible for some testing of equipment to take place in a controlled environment, it is sometimes necessary to test equipment outside of controlled environments to ensure that it will work in real-life situations. There are therefore strict controls which govern the handling of material obtained in this way during such tests. However, we believe that it is right that it should be possible to test this equipment in scenarios where it can be checked that it is working effectively and to help ensure that the users are operating it correctly. Without the ability to test equipment, we will increase the risk of mistakes being made where individuals are not able to receive adequate training in the use of equipment.
The warrant application process in these circumstances allows the Secretary of State to understand the potential risk that communications will be intercepted incidentally to the purpose of the testing or training, and to agree the measures to be taken to reduce the chances of communications being accidently intercepted. There are clear safeguards in place to protect the privacy of citizens. Accordingly, I invite the noble Lord to withdraw his amendment.
Lord Strasburger (LD)
My Lords, I should mention that this subject was covered extensively in the Joint Committee on the Bill. It seems that the noble and learned Lord is suggesting that in order to be able to monitor a gang when we do not know if it is made up of three or four people, the language of the clause should be this open. Perhaps I may quote from some of the evidence that was given to the committee. The clause fails to,
“exclude the possibility that everyone who belongs to a certain trade union, political party or book club; visits a certain shop; attends (or has friends or family members who attend) a certain house of worship; subscribes to a certain publication; participates in a lawful and peaceful demonstration; celebrates or may celebrate a certain religious or national holiday”,
and so on and so forth. All those activities seem, perhaps as an unintended consequence, to be swept up by this provision. Recommendation 38 made by the committee states that,
“the language of the Bill be amended so that targeted interception and targeted equipment interference warrants cannot be used as a way to issue thematic warrants concerning a very large number of people”.
Lord Keen of Elie
A thematic targeted warrant will be granted only in circumstances where the Secretary of State is satisfied that it is necessary and proportionate. None of the examples cited by the noble Lord comes within a hundred miles of that.
Lord Paddick
I am grateful to the noble and learned Lord for his explanation and I am reassured to some extent by, for example, some of the provisions he highlighted in Clause 29(8) and (4). I understand that in fast-moving situations such as a kidnapping it may be necessary to add people to the warrant or to encompass additional individuals who are not specifically named on the warrant. However, I wonder whether some safeguards can still be provided in slower-moving situations, or whether, as in the case where there are provisions for the urgent issuing of warrants, those provisions could be used in these cases.
As for the strict limits on the targeting of organisations, I accept, as I notice the Labour Front Bench also accepts, that these warrants must be necessary and proportionate, and that they provide some safeguards against overreaching in the use of these warrants. I am still puzzled about training and testing warrants. I accept that new equipment and individuals need to be trained in real, live situations, but I am a little concerned about who the individuals and organisations are that might be targeted in these training exercises, bearing in mind that the whole suggestion is that the normal provisions of proportionality and necessity, in terms of suspicions that these individuals are up to no good, would not apply in these situations. Therefore, what is learned? What privacy is being intruded into in the course of these training and testing activities?
My concerns remain about some of those areas, but I am reassured by other things that the noble and learned Lord has said and I beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick
My Lords, my noble friend Lady Hamwee and I have Amendments 32 to 36 in this group. These amendments seek to probe the Government’s position and how far they might be prepared to go in adopting, for example, the recommendations that David Anderson made in his report about removing the Secretary of State from the issuing of targeted interception and examination warrants and replacing the Secretary of State, as the person who decides on these warrants, with a judicial commissioner. The volume of warrants that the Home Secretary, for example, has to sign amounts to as many as 10 a day. We are relieved that she does not now have the additional burden of having to run for leader of the Conservative Party, but one can imagine that to give proper consideration to 10 warrants a day is a significant undertaking, in addition to her other responsibilities.
In non-contentious cases, where there is no political aspect, such as law enforcement warrants, where one is dealing with serious crime—with drug dealers, for example—it is difficult to understand why one would need the Secretary of State to consider these issues. We obviously accept that there may be cases where there is political sensitivity, even in the case of serious crime, and it may be that the Bill can be amended to allow either for the judicial commissioner or even the applicant for the warrant to refer the matter to the Secretary of State in those cases. I also accept that in cases of national security—in cases where the security services, for example, are seeking a warrant, particularly where they may be looking at interception of foreign communications, even foreign diplomatic communications—there is a definite need for the Secretary of State’s involvement. However, as I say, the thrust of this group of amendments is to explore why the Government insist on the Secretary of State being involved in 75% of the warrants that, for example, the Home Secretary signs when those warrants appear to be non-contentious and not politically sensitive but simply to do with law enforcement and serious crime. I beg to move.
Lord Pannick (CB)
I support what the noble Lord, Lord Paddick, has said, and I too would be grateful for an explanation of why it is necessary or appropriate for the Secretary of State to be involved in the issuing of warrants in relation to non-contentious matters. My understanding—and I should be grateful if the Minister can deal with this—is that the Bill will impose those responsibilities on the Secretary of State in relation to basic policing functions, even though, under existing law, the Secretary of State has no role in the issuing of warrants in such circumstances.
Lord Strasburger
My Lords, I spent a lot of time sitting on the Joint Committee, and since then, searching in vain for a cogent reason why the Secretary of State needs to sign off warrants that have no national security or diplomatic import. Why should the Minister spend her valuable time examining and authorising warrants about everyday criminals? We are told that two-thirds or three-quarters—I do not know which; I have heard both figures—of warrants have nothing to do with national security or diplomacy.
The Secretary of State has no role in authorising property search warrants, which arguably are more intrusive, and involve invasion of a person’s home and discovery of information about a far wider range of subjects than a person’s communications. The only reason ever offered is that the Secretary of State is subject to scrutiny by Parliament, whereas a judicial commissioner is not.
When they gave evidence to the Joint Committee I asked two former Ministers who were responsible for authorising warrants how many times they had been held to account by Parliament. Both the noble Lord, Lord Blunkett, former Home Secretary, and Owen Paterson, former Northern Ireland Secretary, said that it had never happened. That was just as well because it is a criminal offence under RIPA for the existence or details of a warrant to be publicly disclosed. Clause 54 of the Bill continues that ban, with a penalty of up to five years in prison. Therefore, the whole notion of parliamentary accountability for Ministers who authorise warrants is a complete myth. It has never happened and the Bill prohibits it.
I expect that the Government will refer to the potential to be held to account by the ISC, but that does not fit the Bill and is not visible to the public. As far as I know—and as far as the noble Lord, Lord Blunkett, knew when he gave evidence—there are no examples of the ISC holding Ministers to account. I should be interested if the Minister can give some examples of when that has happened. I, too, wait with interest to hear the Government’s response to the amendment.
Lord Beith (LD)
My Lords, the Secretary of State’s involvement in law enforcement warrants is a historical hangover from when this was the only kind of control or restraint on police applications that existed prior to this legislation. Perhaps it shows a lack of rethinking the nature of judicial authorisation, such as this Bill provides for, that her involvement—it may well be “him” in the future—should have survived when it does not seem either to have practical purpose or to add significantly to the protections that the legislation will afford against misuse or excessive use of the power.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, as the noble Lord, Lord Paddick, explained, these amendments seek to place the sole decision on whether to authorise a warrant application with a judicial commissioner. In the Government’s firm view, this would be a mistake. The noble Lord asked why there is a need for the Secretary of State’s involvement at all. Having a judicial commissioner be solely responsible for authorising warrants would remove all democratic accountability for that decision and would effectively remove parliamentary scrutiny from the process. In the scenario that a warrant was incorrectly either refused or approved, then the ability of Parliament to hold an individual to account for that particular decision would be greatly diminished.
Lord Strasburger
I think the Minister will have to concede that the notion of democratic accountability is wafer thin because a Minister cannot come to Parliament to explain or defend what is being asked about—any warrant. I would like the Minister to explain to us why the four other partners in the “Five Eyes” network—that is, Australia, Canada, the US and New Zealand—find no need for this democratic accountability.
Lord Strasburger
The “Five Eyes” partnership of Australia, New Zealand, Canada, America and the UK has been in existence since the Second World War. The UK is the only one out of those five that feels the need for Secretaries of State or politicians in general to be involved in authorising warrants. I was wondering why the UK has to stand out alone in that way.
Earl Howe
It is really quite difficult for me to answer the noble Lord’s question on the “Five Eyes”: it has to be a question for the other members of that group. The approach we have taken is consonant with our general wish, as a country, to hold Ministers to account for important decisions taken about national security and privacy, rather than to consign those decisions to the court. Nevertheless, we believe there is a role for a judicial commissioner to approve what Ministers do. That double lock is the formula which most people in the other place were comfortable with. That is probably all I can say on that score. I hope that the noble Lord will reflect on the case of Lee Rigby, which is a good example of how a Minister was directly accountable to Parliament, albeit in secret session but nevertheless fully accountable to a committee of Parliament. I am sure there are other examples where that has occurred.
Lord Pannick
Before the Minister sits down, could I test his patience? Will he write to me on the question that I raised, which is whether or not the Bill will expand the scope of the authorisation powers of the Secretary of State to new areas or whether it simply continues the existing scope of those powers? If the Bill does confer an authorisation power on the Secretary of State in relation to a wider scope, could he please explain why?
Lord Paddick
I am grateful to the Minister for his explanation. I did say that the amendments were probing ones and suggested that national security and politically sensitive issues—as with the Lee Rigby case, to which he referred—would have to be outside this provision. The fact is that in 2014 the Home Secretary personally authorised 2,345 interception and property warrants and renewals, which is about 10 a day. Even David Anderson was shocked by the number of warrants that the Home Secretary had to personally sign, which was why he came up with his recommendation. As the noble Lord, Lord Pannick, said, our understanding is that the number of warrants which the Secretary of State will have to sign will increase as a consequence of this legislation. David Blunkett, who has written of his time as Home Secretary, said that:
“My whole world was collapsing around me. I was under the most horrendous pressure. I was barely sleeping, and yet I was being asked to sign government warrants in the middle of the night. My physical and emotional health had cracked”.
I am sure that the current Home Secretary is more resilient than the noble Lord, Lord Blunkett, was in those circumstances.
Another issue, which I spoke about in the previous set of amendments, is the importance of international collaboration, particularly with the United States. I reinforce what my noble friend Lord Strasburger said. In America, federal investigative and law enforcement officers are generally required to obtain judicial authorisation for intercepting wire, oral and electronic communications. A court order must be issued by a judge of a US district court, a US court of appeals or a FISA judge. If we are to have these international co-operation agreements, again, as David Anderson pointed out in his report, it is important as far as possible to harmonise between different countries the authorisation levels of the system of authorisation. I will read what the Minister has said in his response and I agree that the amendments as drafted go too far, but this is something that we can hopefully discuss between now and Report. If not, we may have to bring this matter back on Report. At this stage, I beg leave to withdraw my amendment.
Lord Paddick
“( ) A warrant may be considered necessary for the reasons given in subsection (2)(b) or (3) only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed.”
Lord Paddick
My Lords, my noble friend Lady Hamwee and I have Amendments 37, 121, 153 and 161 in this group. Basically, these amendments relate to Clause 20, “Grounds on which warrants may be issued by Secretary of State”. We suggest an additional paragraph, where a warrant is issued for the purposes of preventing or detecting a serious crime, or in the interests of the economic well-being of the UK,
“only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed”.
I refer to the briefing provided by Liberty, which points out that one of the greatest problems, recurrent in every power in the Bill, is the lack of a reasonable suspicion threshold for surveillance warrants to be authorised for the purposes of preventing and detecting crime. It states that:
“Intrusive powers can be authorised in order to ‘prevent and detect serious crime’, or even (in the case of communications data) to collect tax, prevent disorder, or in the interests of public safety. However, these general purposes are left wide open to broad interpretation and abuse without requiring a threshold of suspicion”.
The briefing says that a requirement of reasonable suspicion, when the purpose to prevent and detect serious crime is invoked, would prevent the potential abusive surveillance of law-abiding citizens that has regrettably been seen in the past.
The threshold of reasonable suspicion has long been an important safeguard for citizens and law enforcers against the risk of arbitrary use of police powers. The necessary and proportionate standard invokes an important assessment of the extent of the intrusion, but it does not, as we read it, require a burden of proof. Perhaps the Minister could explain how or why the “reasonable suspicion” test should not be applied to the various powers covered in our amendments. I beg to move.
Lord Keen of Elie
My Lords, as the noble Lord, Lord Paddick, explained, these amendments seek to provide that certain authorisations can be given only where there is a reasonable suspicion that a serious criminal offence has been, or is likely to be, committed. It is almost like trying to compare apples and oranges. The construct of the Bill is not around reasonable suspicion. It is around necessity and proportionality. They achieve the same goal, but in different ways. These amendments are not necessary and, in the case of communications data, would undermine the ability of law enforcement and other public authorities to catch criminals and to keep the public safe. First, let me assure the Committee that for a warrant to be issued for the prevention or detection of serious crime, a sufficiently compelling case will always be required; a speculative warrant could never be approved under Clause 20. The same is true for authorisations to obtain communications data for the purpose of preventing or detecting crime. So these amendments respond to a concern that, I suggest, is misplaced.
Lord Pannick
Can the Minister give the Committee a practical example of where it would be necessary and proportionate—the test that he emphasises—to exercise these powers where there is not, to quote the amendment,
“a reasonable suspicion that a serious criminal offence has been or is likely to be committed”?
Lord Keen of Elie
I think the noble Lord helpfully makes my point for me. As I said at the outset, we are dealing with apples and oranges. We achieve the same objective by different routes, but I am obliged.
Lord Pannick
I am sorry to prolong this but I am not agreeing with the noble and learned Lord, I am asking for a practical example of why the Government are not prepared to accept a “reasonable suspicion” test.
Lord Keen of Elie
For example, in the case of a missing person there may be no reasonable suspicion but it may still be necessary and proportionate to grant a warrant in those circumstances. I hope that that is concrete enough.
Lord Paddick
I am very grateful to the Minister. While I accept that there are some cases where the test of reasonable suspicion is not required—he gave the very good example of a missing person—I still wonder why the Government are averse in all circumstances to having a “reasonable suspicion” test. If I understand what he is saying, I accept that it is implicit in the necessity provision of issuing a warrant. At this stage I beg leave to withdraw the amendment.
“( ) The fact that the information which would be obtained under a warrant relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that the warrant is necessary on grounds falling within subsection (4).”
Earl Howe
My Lords, in moving Amendment 38, I will speak also to Amendments 117, 118, 120, 155, 157, 162, 163, 165, 166, 203, 220 and 223. I recognise that the Opposition and the Scottish National Party raised concerns about trade union protections in the Public Bill Committee in the other place. I know that it has been suggested that investigatory powers may have been used in the past to interfere with legitimate trade union activity.
Allow me to repeat what was said in the Commons. The agencies have never been interested in investigating legitimate trade union activity. The Security Service Act 1989 and the Intelligence Services Act 1994 limit the activities of the agencies. Both Acts make it explicit that the agencies cannot act to further the interests of any political party. It goes without saying that all the agencies take these duties very seriously.
The Government therefore agreed an opposition amendment on Report in the Commons to what is now Clause 20 of the Bill, making explicit that legitimate trade union activity would never be sufficient grounds of itself for an interception warrant application to be considered necessary.
These amendments read across protections from that amendment to all the relevant provisions in the Bill. It would still permit public authorities to apply for a warrant or authorisation, or issue new or varied data retention notices under Part 4, relating to members or officials of a trade union considered to be a legitimate intelligence target, but it makes explicit that legitimate trade union activity would never be sufficient grounds, of itself, for a warrant, authorisation or notice to be considered necessary. Accordingly, I beg to move.
Lord Pannick
The noble Earl recognises in his amendment that legitimate trade union activities would not of themselves be sufficient to establish the necessity of a warrant. I wonder whether the Government’s position is that they also recognise that legitimate trade union activities could not be relevant to the issue of a warrant, because the amendment does not go that far. If the Government do not recognise that, can they give a practical example of where legitimate trade union activities—I emphasise legitimate—could even be relevant to the issue of a warrant?
Lord Rosser
Unless the noble Lord, Lord Pannick, has driven a coach and horses through these amendments—I shall have to consider carefully what he said—I would like to thank the Government for bringing them forward. As has been said, they incorporate in all the relevant parts of the Bill the change that was made in relation to trade union activity in providing protection for it when the matter was debated in the Commons. We welcome the amendments and the Government honouring the commitment that they gave in the other place.